[2010] 9 S.C.R. 1
UNITED BANK OF INDIA
v.
SATYAWATI TONDON AND OTHERS
(Civil Appeal No. 5990 of 2010)
JULY 26, 2010
2
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B
[G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]
Securitization and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 – ss.13(2), 13(4)
and 14 – Entitlement of bank to recover outstanding dues from C
the guarantor without proceeding against the borrower –
Appellant-bank issued notices to the guarantor u/s.13(2) and
13(4) and filed application u/s.14 without first initiating action
against the borrower for recovery of the outstanding dues –
Held: The action taken by the appellant cannot be faulted on D
any legally permissible ground – The High Court completely
misdirected itself in assuming that the appellant could not
have initiated action against the guarantor without making
efforts for recovery of its dues from the borrower – Banks/
Banking.
E
A
[2010] 9 S.C.R.
institutions and secured creditors – Securitization and
Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002.
Article 226 – Cases relating to recovery of dues of banks,
financial institutions and secured creditors – Exercise of power
B
under Article 226 – Rules of self-imposed restraint to be kept
in mind by the High Courts – The High Courts should be
extremely careful and circumspect in exercising its discretion
to grant stay in such matters – The High Courts should not
ignore the availability of statutory remedies under the DRT
C
Act and SARFAESI Act and exercise jurisdiction under Article
226 for passing orders which have serious adverse impact on
the right of banks and other financial institutions to recover
their dues.
D
E
Constitution of India, 1950:
Article 136 – Interference with interim order passed by
High Court – Scope – Appellant-bank initiated action for
recovery of outstanding dues in terms of the provisions of the F
SARFAESI Act – Interim order by High Court restraining the
bank from proceeding under the Act – Challenge to – Held:
Normally the Supreme Court does not interfere with the
discretion exercised by High Court to pass an interim order
in a pending matter – However, on facts, an exception is G
required to be made out as the order under challenge had the
effect of defeating the very object of the said legislation to
ensure that there were no unwarranted impediments in the
recovery of the debts, etc. due to banks, other financial
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SUPREME COURT REPORTS
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Article 226 – Writ petition bypassing alternative statutory
remedy – Maintainability of – Appellant-bank initiated action
for recovery of outstanding dues in terms of the provisions of
the SARFAESI Act – Writ petition filed challenging the action
initiated by bank – Held: The writ petition was liable to be
dismissed because an effective alternative remedy was
available to the writ petitioner u/s.17 of the SARFAESI Act,
which contained a detailed mechanism for redressal of his
grievance – Securitization and Reconstruction of Financial
Assets and Enforcement of Security Interest Act, 2002 –
Remedy – Alternative remedy.
Words and Phrases – “any person” (used in s.17(1) of the
Securitization and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002) – Meaning of.
Respondent no.2 obtained a term loan from
appellant-bank for opening a colour lab. Respondent no.1
gave guarantee for repayment of the loan; she mortgaged
her property and executed an agreement of guarantee
making herself liable for repayment of the loan amount
H with interest.
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UNITED BANK OF INDIA v. SATYAWATI TONDON
AND ORS.
3
Respondent no.1, however, failed to repay the loan
amount, whereupon the appellant issued notice against
respondent nos.1 and 2 under s.13(2) of the Securitization
and Reconstruction of Financial Assets and Enforcement
of Security Interest Act, 2002 (SARFAESI Act) asking them
to pay the outstanding dues alongwith future interest and
incidental expenses. Upon receipt of the notice,
respondent no.1 offered to settle the loan account, but the
appellant did not accept the offer and filed an application
under Section 14 of the SARFAESI Act, which was
allowed by the District Magistrate/Collector. Thereafter the
appellant issued notice to respondent nos.1 and 2 under
Section 13(4) of the SARFAESI Act.
Respondent no.1 filed writ petition and prayed that
the appellant be restrained from taking coercive action in
pursuance of the notices issued under Sections 13(2)
and 13(4) and the order passed by the District Magistrate/
Collector. Respondent no.1 contended that the notices
issued by the appellant for recovery of the outstanding
due were ex facie illegal and liable to be quashed because
no action had been taken against the borrower i.e.
respondent no.2 for recovery of the outstanding dues.
The appellant, on the other hand, pleaded that the
action initiated against respondent no.1 was consistent
with the provisions of SARFAESI Act; that respondent
no.1 was bound to discharge her obligations to pay the
outstanding dues and that the writ petition was liable to
be dismissed because an alternative remedy was
available to respondent no.1 under Section 17 of the
SARFAESI Act.
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SUPREME COURT REPORTS
[2010] 9 S.C.R.
In the instant appeal, the question which arose for
consideration was whether the appellant could have
issued notices to respondent no.1 under Section 13(2)
and (4) of the SARFAESI Act and filed an application
under Section 14 without first initiating action against the
borrower i.e., respondent no.2, for recovery of the
outstanding dues.
Allowing the appeal, the Court
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HELD:1. Normally, this Court does not interfere with
C the discretion exercised by the High Court to pass an
interim order in a pending matter but, having carefully
examined the matter, this Court feels persuaded to make
an exception in this case because the order under
challenge has the effect of defeating the very object of
D the legislation enacted by Parliament for ensuring that
there are no unwarranted impediments in the recovery of
the debts, etc. due to banks, other financial institutions
and secured creditors. [Para 13] [21-D-E]
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The High Court passed an interim order restraining
the appellant from taking action in furtherance of the
notice issued under Section 13(4) of the SARFAESI Act.
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2.1. In the present case, the High Court completely
misdirected itself in assuming that the appellant could not
have initiated action against respondent no.1 without
making efforts for recovery of its dues from the borrower–
respondent no.2. The High Court was not at all justified
in injuncting the appellant from taking action in
furtherance of notice issued under Section 13(4) of the
Act. [Paras 15, 28] [22-G-H; 32-C]
2.2. Even after receipt of notices under Section 13(2)
and (4) and order passed under Section 14 of the
G SARFAESI Act, respondent Nos.1 and 2 did not bother to
pay the outstanding dues. Therefore, the action taken by
the appellant for recovery of its dues by issuing notices
under Section 13(2) and 13(4) and by filing an application
under Section 14 cannot be faulted on any legally
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UNITED BANK OF INDIA v. SATYAWATI TONDON
AND ORS.
5
permissible ground and, the High Court committed
serious error by entertaining the writ petition of
respondent No.1. [Para 16] [23-A-C]
Bank of Bihar Ltd. v. Damodar Prasad (1969) 1 SCR 620;
State Bank of India v. M/s. Indexport Registered and others
(1992) 3 SCC 159 and Industrial Investment Bank of India
Limited v. Biswanath Jhunjhunwala (2009) 9 SCC 478 – relied
on.
3.1. There is another reason why the impugned order
should be set aside. If respondent No.1 had any tangible
grievance against the notice issued under Section 13(4)
or action taken under Section 14, then she could have
availed remedy by filing an application under Section
17(1). The expression ‘any person’ used in Section 17(1)
is of wide import. It takes within its fold, not only the
borrower but also guarantor or any other person who
may be affected by the action taken under Section 13(4)
or Section 14. Both, the Tribunal and the Appellate
Tribunal, are empowered to pass interim orders under
Sections 17 and 18 and are required to decide the matters
within a fixed time schedule. It is thus evident that the
remedies available to an aggrieved person under the
SARFAESI Act are both expeditious and effective. The
High Court overlooked the settled law that ordinarily a
petition under Article 226 of the Constitution will not be
entertained if an effective remedy is available to the
aggrieved person and that this rule applies with greater
rigour in matters involving recovery of taxes, cess, fees,
other types of public money and the dues of banks and
other financial institutions. [Para 17] [23-D-H]
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3.2. While dealing with the petitions involving
challenge to the action taken for recovery of the public
dues, etc., the High Court must keep in mind that the
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SUPREME COURT REPORTS
[2010] 9 S.C.R.
legislations enacted by Parliament and State Legislatures
for recovery of such dues are code unto themselves
inasmuch as they not only contain comprehensive
procedure for recovery of the dues but also envisage
constitution of quasi judicial bodies for redressal of the
grievance of any aggrieved person. Therefore, in all such
cases, the High Court must insist that before availing
remedy under Article 226 of the Constitution, a person
must exhaust the remedies available under the relevant
statute. [Para 17] [23-H; 24-A-B]
3.3. The powers conferred upon the High Court
under Article 226 of the Constitution to issue to any
person or authority, including in appropriate cases, any
Government, directions, orders or writs including the five
prerogative writs for the enforcement of any of the rights
D conferred by Part III or for any other purpose are very
wide and there is no express limitation on exercise of that
power but, at the same time, one cannot be oblivious of
the rules of self-imposed restraint evolved by this Court,
which every High Court is bound to keep in view while
E exercising the powers under Article 226 of the
Constitution. It is true that the rule of exhaustion of
alternative remedy is a rule of discretion and not one of
compulsion, but it is difficult to fathom any reason why
the High Court should entertain a petition filed under
F Article 226 of the Constitution and pass interim order
ignoring the fact that the petitioner can avail effective
alternative remedy by filing application, appeal, revision,
etc. and the particular legislation contains a detailed
mechanism for redressal of his grievance. The stay of an
G action initiated by the State and/or its agencies/
instrumentalities for recovery of taxes, cess, fees, etc.
seriously impedes execution of projects of public
importance and disables them from discharging their
constitutional and legal obligations towards the citizens.
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UNITED BANK OF INDIA v. SATYAWATI TONDON
AND ORS.
7
In cases relating to recovery of the dues of banks,
financial institutions and secured creditors, stay granted
by the High Court would have serious adverse impact on
the financial health of such bodies/institutions, which
ultimately prove detrimental to the economy of the nation.
Therefore, the High Court should be extremely careful
and circumspect in exercising its discretion to grant stay
in such matters. Of course, if the petitioner is able to show
that its case falls within any exception, then the High
Court may, after considering all the relevant parameters
and public interest, pass appropriate interim order. [Para
18] [24-C-H; 25-A-B]
3.4. It is a matter of serious concern that despite
repeated pronouncements of this Court, the High Courts
continue to ignore the availability of statutory remedies
under the DRT Act and SARFAESI Act and exercise
jurisdiction under Article 226 for passing orders which
have serious adverse impact on the right of banks and
other financial institutions to recover their dues. It is
hoped that in future the High Courts will exercise their
discretion in such matters with greater caution, care and
circumspection. [Para 27] [31-H; 32-A-B]
Thansingh Nathmal v. Superintendent of Taxes (1964)
6 SCR 654; Titaghur Paper Mills Co. Ltd. v. State of Orissa
(1983) 2 SCC 433; Assistant Collector of Central Excise,
Chandan Nagar, West Bengal v. Dunlop India Ltd. and others
(1985) 1 SCC 260; Punjab National Bank v. O.C. Krishnan
and others (2001) 6 SCC 569; CCT, Orissa and others v.
Indian Explosives Ltd. (2008) 3 SCC 688; City and Industrial
Development Corporation v. Dosu Aardeshir Bhiwandiwala
and others (2009) 1 SCC 168; Raj Kumar Shivhare v.
Assistant Director, Directorate of Enforcement and another
(2010) 4 SCC 772 and Modern Industries v. Steel Authority
of India Limited (2010) 5 SCC 44 – relied on.
Baburam Prakash Chandra Maheshwari v. Antarim Zila
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SUPREME COURT REPORTS
[2010] 9 S.C.R.
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A Parishad AIR 1969 SC 556; Whirlpool Corporation v.
Registrar of Trade Marks, Mumbai (1998) 8 SCC 1;
Harbanslal Sahnia and another v. Indian Oil Corporation Ltd.
and others (2003) 2 SCC 107 – referred to.
B
B
C
D
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Case Law Reference:
(1969) 1 SCR 620
relied on
Para 14
(1992) 3 SCC 159
relied on
Para 14
(2009) 9 SCC 478
relied on
Para 14
AIR 1969 SC 556
referred to
Para 18
(1998) 8 SCC 1
referred to
Para 18
(2003) 2 SCC 107
referred to
Para 18
(1964) 6 SCR 654
relied on
Para 19
(1983) 2 SCC 433
relied on
Para 20
(1985) 1 SCC 260
relied on
Para 21
(2001) 6 SCC 569
relied on
Para 22
(2008) 3 SCC 688
relied on
Para 23
(2009) 1 SCC 168
relied on
Para 24
(2010) 4 SCC 772
relied on
Para 25
(2010) 5 SCC 44
relied on
Para 2
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5990 of 2010.
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From the Judgment & Order dated 28.10.2009 of the High
Court of Judicature at Allahabad in Civil Misc. Writ Petition No.
55375 of 2009.
Yashraj Singh Deora, Rajesh Gautam, Shiv Mitter (for
Mitter & Mitter Co.) for the Appellant.
UNITED BANK OF INDIA v. SATYAWATI TONDON
AND ORS.
9
The following Judgment of the Court was delivered
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1. Leave granted.
2. With a view to give impetus to the industrial
development of the country, the Central and State Governments
encouraged the banks and other financial institutions to
formulate liberal policies for grant of loans and other financial
facilities to those who wanted to set up new industrial units or
expand the existing units. Many hundred thousand took
advantage of easy financing by the banks and other financial
institutions but a large number of them did not repay the amount
of loan, etc. Not only this, they instituted frivolous cases and
succeeded in persuading the Civil Courts to pass orders of
injunction against the steps taken by banks and financial
institutions to recover their dues. Due to lack of adequate
infrastructure and non-availability of manpower, the regular
Courts could not accomplish the task of expeditiously
adjudicating the cases instituted by banks and other financial
institutions for recovery of their dues. As a result, several
hundred crores of public money got blocked in unproductive
ventures. In order to redeem the situation, the Government of
India constituted a committee under the chairmanship of Shri
T. Tiwari to examine the legal and other difficulties faced by
banks and financial institutions in the recovery of their dues and
suggest remedial measures. The Tiwari Committee noted that
the existing procedure for recovery was very cumbersome and
suggested that special tribunals be set up for recovery of the
dues of banks and financial institutions by following a summary
procedure. The Tiwari Committee also prepared a draft of the
proposed legislation which contained a provision for disposal
of cases in three months and conferment of power upon the
Recovery Officer for expeditious execution of orders made by
adjudicating bodies. The issue was further examined by the
Committee on the Financial System headed by Shri M.
Narasimham. In its First Report, the Narasimham Committee
also suggested setting up of special tribunals with special
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[2010] 9 S.C.R.
A powers for adjudication of cases involving the dues of banks
and financial institutions.
After considering the reports of the two Committees and
taking cognizance of the fact that as on 30-9-1990 more than
15 lakh cases filed by public sector banks and 304 cases filed
B
by financial institutions were pending in various Courts for
recovery of debts, etc. amounting to Rs.6000 crores, the
Parliament enacted the Recovery of Debts Due to Banks and
Financial Institutions Act, 1993 (for short, ‘the DRT Act’). The
new legislation facilitated creation of specialised forums i.e., the
C Debts Recovery Tribunals and the Debts Recovery Appellate
Tribunals for expeditious adjudication of disputes relating to
recovery of the debts due to banks and financial institutions.
Simultaneously, the jurisdiction of the Civil Courts was barred
and all pending matters were transferred to the Tribunals from
D the date of their establishment.
An analysis of the provisions of the DRT Act shows that
primary object of that Act was to facilitate creation of special
machinery for speedy recovery of the dues of banks and
E financial institutions. This is the reason why the DRT Act not only
provides for establishment of the Tribunals and the Appellate
Tribunals with the jurisdiction, powers and authority to make
summary adjudication of applications made by banks or
financial institutions and specifies the modes of recovery of the
amount determined by the Tribunal or the Appellate Tribunal but
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also bars the jurisdiction of all courts except the Supreme Court
and the High Courts in relation to the matters specified in
Section 17. The Tribunals and the Appellate Tribunals have also
been freed from the shackles of procedure contained in the
Code of Civil Procedure. To put it differently, the DRT Act has
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not only brought into existence special procedural mechanism
for speedy recovery of the dues of banks and financial
institutions, but also made provision for ensuring that defaulting
borrowers are not able to invoke the jurisdiction of Civil Courts
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UNITED BANK OF INDIA v. SATYAWATI TONDON
AND ORS.
11
for frustrating the proceedings initiated by the banks and other
financial institutions.
For few years, the new dispensation worked well and the
officers appointed to man the Tribunals worked with great zeal
for ensuring that cases involving recovery of the dues of banks
and financial institutions are decided expeditiously. However,
with the passage of time, the proceedings before the Tribunals
became synonymous with those of the regular Courts and the
lawyers representing the borrowers and defaulters used every
possible mechanism and dilatory tactics to impede the
expeditious adjudication of such cases. The flawed
appointment procedure adopted by the Government greatly
contributed to the malaise of delay in disposal of the cases
instituted before the Tribunals.
The survey conducted by the Ministry of Finance,
Government of India revealed that as in 2001, a sum of more
than Rs.1,20,000/- crores was due to the banks and financial
institutions and this was adversely affecting the economy of the
country. Therefore, the Government of India asked the
Narasimham Committee to suggest measures for expediting
the recovery of debts due to banks and financial institutions. In
its Second Report, the Narasimham Committee noted that the
non-performing assets of most of the public sector banks were
abnormally high and the existing mechanism for recovery of the
same was wholly insufficient. In Chapter VIII of the Report, the
Committee noted that the evaluation of legal framework has not
kept pace with the changing commercial practice and financial
sector reforms and as a result of that the economy could not
reap full benefits of the reform process. The Committee made
various suggestions for bringing about radical changes in the
existing adjudicatory mechanism. By way of illustration, the
Committee referred to the scheme of mortgage under the
Transfer of Property Act and suggested that the existing laws
should be changed not only for facilitating speedy recovery of
the dues of banks, etc. but also for quick resolution of disputes
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[2010] 9 S.C.R.
A arising out of the action taken for recovery of such dues. The
Andhyarujina Committee constituted by the Central
Government for examining banking sector reforms also
considered the need for changes in the legal system. Both, the
Narasimham and Andhyarujina Committees suggested
B enactment of new legislation for securitisation and empowering
the banks and financial institutions to take possession of the
securities and sell them without intervention of the court. The
Government of India accepted the recommendations of the two
committees and that led to enactment of the Securitization and
C Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002 (for short ‘the SARFAESI Act’), which can
be termed as one of the most radical legislative measures
taken by the Parliament for ensuring that dues of secured
creditors including banks, financial institutions are recovered
from the defaulting borrowers without any obstruction. For the
D
first time, the secured creditors have been empowered to take
steps for recovery of their dues without intervention of the Courts
or Tribunals.
3. Section 13 of the SARFAESI Act contains detailed
E mechanism for enforcement of security interest. Sub-section (1)
thereof lays down that notwithstanding anything contained in
Sections 69 or 69-A of the Transfer of Property Act, any security
interest created in favour of any secured creditor may be
enforced, without the intervention of the court or tribunal, by such
F creditor in accordance with the provisions of this Act. Subsection (2) of Section 13 enumerates first of many steps
needed to be taken by the secured creditor for enforcement of
security interest. This sub-section provides that if a borrower,
who is under a liability to a secured creditor, makes any default
G in repayment of secured debt and his account in respect of such
debt is classified as non-performing asset, then the secured
creditor may require the borrower by notice in writing to
discharge his liabilities within sixty days from the date of the
notice with an indication that if he fails to do so, the secured
H creditor shall be entitled to exercise all or any of its rights in
UNITED BANK OF INDIA v. SATYAWATI TONDON
AND ORS.
13
terms of Section 13(4). Sub-section (3) of Section 13 lays down
that notice issued under Section 13(2) shall contain details of
the amount payable by the borrower as also the details of the
secured assets intended to be enforced by the bank or financial
institution. Sub-section (3-A) of Section 13 lays down that the
borrower may make a representation in response to the notice
issued under Section 13(2) and challenge the classification of
his account as non-performing asset as also the quantum of
amount specified in the notice. If the bank or financial institution
comes to the conclusion that the representation/objection of the
borrower is not acceptable, then reasons for non-acceptance
are required to be communicated within one week. Sub-section
(4) of Section 13 specifies various modes which can be
adopted by the secured creditor for recovery of secured debt.
The secured creditor can take possession of the secured
assets of the borrower and transfer the same by way of lease,
assignment or sale for realising the secured assets. This is
subject to the condition that the right to transfer by way of lease,
etc. shall be exercised only where substantial part of the
business of the borrower is held as secured debt. If the
management of whole or part of the business is severable, then
the secured creditor can take over management only of such
business of the borrower which is relatable to security. The
secured creditor can appoint any person to manage the
secured asset, the possession of which has been taken over.
The secured creditor can also, by notice in writing, call upon a
person who has acquired any of the secured assets from the
borrower to pay the money, which may be sufficient to discharge
the liability of the borrower. Sub-section (7) of Section 13 lays
down that where any action has been taken against a borrower
under sub-section (4), all costs, charges and expenses properly
incurred by the secured creditor or any expenses incidental
thereto can be recovered from the borrower. The money which
is received by the secured creditor is required to be held by
him in trust and applied, in the first instance, for such costs,
charges and expenses and then in discharge of dues of the
secured creditor. Residue of the money is payable to the
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[2010] 9 S.C.R.
person entitled thereto according to his rights and interest. Subsection (8) of Section 13 imposes a restriction on the sale or
transfer of the secured asset if the amount due to the secured
creditor together with costs, charges and expenses incurred by
him are tendered at any time before the time fixed for such sale
or transfer. Sub-section (9) of Section 13 deals with the
situation in which more than one secured creditor has stakes
in the secured assets and lays down that in the case of
financing a financial asset by more than one secured creditor
or joint financing of a financial asset by secured creditors, no
individual secured creditor shall be entitled to exercise any or
all of the rights under sub-section (4) unless all of them agree
for such a course. There are five unnumbered provisos to
Section 13(9) which deal with pari passu charge of the workers
of a company in liquidation. The first of these provisos lays
down 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 529-A of the
Companies Act, 1956. The second proviso deals with the case
of a company being wound up on or after the commencement
of this Act. If the secured creditor of such company opts to
realise its security instead of relinquishing the same and proving
its debt under Section 529(1) of the Companies Act, then it can
retain sale proceeds after depositing the workmen’s dues with
the liquidator in accordance with Section 529-A. The third
proviso requires the liquidator to inform the secured creditor
about the dues payable to the workmen in terms of Section
529-A. If the amount payable to the workmen is not certain, then
the liquidator has to intimate the estimated amount to the
secured creditor. The fourth proviso lays down that in case the
secured creditor deposits the estimated amount of the
workmen’s dues, then such creditor shall be liable to pay the
balance of the workmen’s dues or entitled to receive the
excess amount, if any, deposited with the liquidator. In terms
of the fifth proviso, the secured creditor is required to give an
undertaking to the liquidator to pay the balance of the
workmen’s dues, if any. Sub-section (10) of Section 13 lays
UNITED BANK OF INDIA v. SATYAWATI TONDON
AND ORS.
15
down that where dues of the secured creditor are not fully
satisfied by the sale proceeds of the secured assets, the
secured creditor may file an application before the Tribunal
under Section 17 for recovery of balance amount from the
borrower. Sub-section (11) states that without prejudice to the
rights conferred on the secured creditor under or by this section,
it shall be entitled to proceed against the guarantors or sell the
pledged assets without resorting to the measures specified in
clauses (a) to (d) of sub-section (4) in relation to the secured
assets. Sub-section (12) of Section 13 lays down that rights
available to the secured creditor under the Act may be
exercised by one or more of its officers authorised in this
behalf. Sub-section (13) lays down that after receipt of notice
under sub-section (2), the borrower shall not transfer by way of
sale, lease or otherwise (other than in the ordinary course of
his business) any of his secured assets referred to in the notice
without prior written consent of the secured creditor. In terms
of Section 14, the secured creditor can file an application
before the Chief Metropolitan Magistrate or the District
Magistrate, within whose jurisdiction the secured asset or other
documents relating thereto are found for taking possession
thereof. If any such request is made, the Chief Metropolitan
Magistrate or the District Magistrate, as the case may be, is
obliged to take possession of such asset or document and
forward the same to the secured creditor.
4. Section 17 speaks of the remedies available to any
person including borrower who may have grievance against the
action taken by the secured creditor under sub-section (4) of
Section 13. Such an aggrieved person can make an application
to the Tribunal within 45 days from the date on which action is
taken under that sub-section. By way of abundant caution, an
Explanation has been added to Section 17(1) and it has been
clarified that the communication of reasons to the borrower in
terms of Section 13(3-A) shall not constitute a ground for filing
application under Section 17(1). Sub-section (2) of Section 17
casts a duty on the Tribunal to consider whether the measures
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A taken by the secured creditor for enforcement of security interest
are in accordance with the provisions of the Act and the Rules
made thereunder. If the Tribunal, after examining the facts and
circumstances of the case and evidence produced by the
parties, comes to the conclusion that the measures taken by
B the secured creditor are not in consonance with sub-section (4)
of Section 13, then it can direct the secured creditor to restore
management of the business or possession of the secured
assets to the borrower. On the other hand, if the Tribunal finds
that the recourse taken by the secured creditor under subC section (4) of Section 13 is in accordance with the provisions
of the Act and the Rules made thereunder, then, notwithstanding
anything contained in any other law for the time being in force,
the secured creditor can take recourse to one or more of the
measures specified in Section 13(4) for recovery of its secured
debt. Sub-section (5) of Section 17 prescribes the time-limit
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of sixty days within which an application made under Section
17 is required to be disposed of. The proviso to this sub-section
envisages extension of time, but the outer limit for adjudication
of an application is four months. If the Tribunal fails to decide
the application within a maximum period of four months, then
E either party can move the Appellate Tribunal for issue of a
direction to the Tribunal to dispose of the application
expeditiously. Section 18 provides for an appeal to the
Appellate Tribunal.
5. Section 34 lays down that no Civil Court shall have
jurisdiction to entertain any suit or proceeding in respect of any
matter which a Tribunal or Appellate Tribunal is empowered to
determine. It further lays down that no injunction shall be granted
by any Court or other authority in respect of any action taken
G or to be taken under the SARFAESI Act or the DRT Act. Section
35 of the SARFAESI Act is substantially similar to Section 34(1)
of the DRT Act. It declares that 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
H instrument having effect by virtue of any such law.
F
UNITED BANK OF INDIA v. SATYAWATI TONDON
AND ORS.
17
6. However, effective implementation of the SARFAESI
Act was delayed by more than two years because several writ
petitions were filed in the High Courts and this Court
questioning its vires. The matter was finally decided by this
Court in Mardia Chemicals v. Union of India (2004) 4 SCC
311 and the validity of the SARFAESI Act was upheld except
the condition of deposit of 75% amount enshrined in Section
17(2). The Court referred to the recommendations of the
Narasimham and Andhyarujina Committees on the issue of
constitution of special tribunals to deal with cases relating to
recovery of the dues of banks etc. and observed:
“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
18
A
A
SUPREME COURT REPORTS
[2010] 9 S.C.R.
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.”
(emphasis supplied)
B
C
B
This Court then held that the borrower can challenge the
action taken under Section 13(4) by filing an application under
Section 17 of the SARFAESI Act and a civil suit can be filed
within the narrow scope and on the limited grounds on which
they are permissible in the matters relating to an English
C mortgage enforceable without intervention of the Court. In
paragraph 31 of the judgment, the Court observed as under:
D
D
E
E
F
F
“In view of the discussion held in the judgment and the
findings and directions contained in the preceding
paragraphs, we hold that the borrowers would get a
reasonably fair deal and opportunity to get the matter
adjudicated upon before the Debts Recovery Tribunal. The
effect of some of the provisions may be a bit harsh for
some of the borrowers but on that ground the impugned
provisions of the Act cannot be said to be unconstitutional
in view of the fact that the object of the Act is to achieve
speedier recovery of the dues declared as NPAs and
better availability of capital liquidity and resources to help
in growth of the economy of the country and welfare of
the people in general which would subserve the public
interest.”
(emphasis supplied)
G
H
7. In the light of the above, we shall now consider whether
the
Division
Bench of the High Court was justified in restraining
G
the appellant from proceeding under Section 13(4) of the
SARFAESI Act against the property of respondent No.1.
H
8. A perusal of the record shows that the appellant
sanctioned a term loan of Rs.22,50,000/- in favour of M/s.
UNITED BANK OF INDIA v. SATYAWATI TONDON
AND ORS.
19
Pawan Color Lab [through its proprietor Pawan Singh
(respondent No.2)] some time in November, 2004. Respondent
No.1 gave guarantee for repayment of the loan and mortgaged
her property bearing House No. 752/062, Bakshi Khurd,
Daraganj, Pargana and Tehsil Sadar, District Allahabad by
deposit of title deeds. She also submitted an affidavit dated
28.12.2004 and executed agreement of guarantee dated
29.12.2004 making herself liable for repayment of the loan
amount with interest.
9. After one year and six months, the appellant sent letter
dated 6.5.2006 to respondent Nos.1 and 2 pointing out that
repayment of loan was highly irregular. After another one year,
the account of respondent No.2 was classified as NonPerforming Asset. On 19.7.2007, the appellant sent separate
letters to respondent Nos. 1 and 2 requiring them to deposit
the outstanding dues amounting to Rs.23,78,478/-. Thereupon,
respondent No.1 deposited a sum of Rs.50,000/- and gave
written undertaking to pay the balance amount in instalments.
However, she did not fulfil her promise to repay the remaining
amount. This compelled the appellant to issue notice to
respondent Nos.1 and 2 under Section 13(2) requiring them to
pay Rs.23,22,972/- along with future interest and incidental
expenses within 60 days. Upon receipt of the notice,
respondent No.1 offered to pay a sum of Rs.18 lakhs for
settlement of the loan account, but the appellant did not accept
the offer and filed an application under Section 14 of the
SARFAESI Act, which was allowed by District Magistrate/
Collector, Allahabad vide his order dated 25.8.2008.
Thereafter, the appellant issued notice dated 21.1.2009 to
respondent Nos.1 and 2 under Section 13(4) of the SARFAESI
Act.
10. Faced with the imminent threat of losing the mortgaged
property, respondent No.1 filed C.M.W.P. No.55375 of 2009
and prayed that the appellant herein may be restrained from
taking coercive action in pursuance of the notices issued under
20
A
B
C
D
E
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SUPREME COURT REPORTS
[2010] 9 S.C.R.
A Section 13(2) and (4) and order dated 25.8.2008 passed by
District Magistrate/Collector, Allahabad. She pleaded that the
notices issued by the appellant for recovery of the outstanding
dues are ex facie illegal and liable to be quashed because no
action had been taken against the borrower i.e., respondent
B No.2 for recovery of the outstanding dues.
11. In the counter affidavit filed on behalf of the appellant,
it was pleaded that action initiated against respondent No.1
was consistent with the provisions of SARFAESI Act and writ
petitioner (respondent No.1 herein) was bound to discharge her
C obligations to pay the outstanding dues and there was no merit
in her challenge to the notices issued under Section 13(2) and
13(4) or the order passed under Section 14. It was further
pleaded that the writ petition is liable to be dismissed because
an alternative remedy is available to the petitioner under
D Section 17 of the SARFAESI Act.
12. The Division Bench of the High Court did not even
advert to the appellant’s plea that the writ petition should not
be entertained because an effective alternative remedy was
E available to the writ petitioner under Section 17 of the
SARFAESI Act and passed the impugned order restraining the
appellant from taking action in furtherance of notice issued
under Section 13(4) of the SARFAESI Act. The reason which
prompted the High Court to pass the impugned interim order
F and operative portion thereof are extracted below:
G
G
H
H
“Learned counsel for the petitioner has urged that the loan
was taken by respondent No.4 for opening a colour lab at
50/43, Raj Complex, K.P. Kakkar Road, Allahabad, but the
loan has not been repaid by respondent No.4 and the bank
is proceeding against the petitioner who is the guarantor
of the loan. It is not clear from the documents produced
by learned counsel for the bank as to what steps have
been taken by the bank against the borrower of the loan
and merely issuance of notice under section 13(2) of the
UNITED BANK OF INDIA v. SATYAWATI TONDON
AND ORS.
21
Securitization and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 against the
borrower is not sufficient. The bank should have proceeded
against the borrower and exhausted all the remedies
against him and thereafter the bank could have proceeded
against the guarantor.
Until further orders of this court, the respondents are
restrained from proceeding under section 13(4) of the Act
2002 with regard to petitioner’s property who was the
guarantor of the loan. However, if any possession has been
taken by the bank then the property shall not be sold to any
one else and the petitioner shall be continued in
possession of the property.”
13. We have heard learned counsel for the appellant and
perused the record. Normally, this Court does not interfere with
the discretion exercised by the High Court to pass an interim
order in a pending matter but, having carefully examined the
matter, we have felt persuaded to make an exception in this
case because the order under challenge has the effect of
defeating the very object of the legislation enacted by the
Parliament for ensuring that there are no unwarranted
impediments in the recovery of the debts, etc. due to banks,
other financial institutions and secured creditors.
14. The question whether the appellant could have issued
notices to respondent No.1 under Section 13(2) and (4) and
filed an application under Section 14 of the SARFAESI Act
without first initiating action against the borrower i.e.,
respondent No.2 for recovery of the outstanding dues is no
longer res integra. In Bank of Bihar Ltd. v. Damodar Prasad
(1969) 1 SCR 620, this Court considered and answered in
affirmative the question whether the bank is entitled to recover
its dues from the surety and observed:
“It is the duty of the surety to pay the decretal amount. On
such payment he will be subrogated to the rights of the
22
SUPREME COURT REPORTS
[2010] 9 S.C.R.
creditor under Section 140 of the Indian Contract Act, and
he may then recover the amount from the principal. The very
object of the guarantee is defeated if the creditor is asked
to postpone his remedies against the surety. In the present
case the creditor is banking company. A guarantee is a
collateral security usually taken by a banker. The security
will become useless if his rights against the surety can be
so easily cut down.”
A
A
B
B
C
In State Bank of India v. M/s. Indexport Registered and
others (1992) 3 SCC 159, this Court held that the decree-holder
C bank can execute the decree against the guarantor without
proceeding against the principal borrower and then proceeded
to observe:
“The execution of the money decree is not made
dependent on first applying for execution of the mortgage
decree. The choice is left entirely with the decree-holder.
The question arises whether a decree which is framed as
a composite decree, as a matter of law, must be executed
against the mortgage property first or can a money decree,
which covers whole or part of decretal amount covering
mortgage decree can be executed earlier. There is nothing
in law which provides such a composite decree to be first
executed only against the [principal debtor].”
D
D
E
E
F
F
G
G
H
15. In view of the law laid down in the aforementioned
cases, it must be held that the High Court completely
misdirected itself in assuming that the appellant could not have
initiated action against respondent No.1 without making efforts
H for recovery of its dues from the borrower – respondent No.2.
In Industrial Investment Bank of India Limited v. Biswanath
Jhunjhunwala (2009) 9 SCC 478, this Court again held that the
liability of the guarantor and principal debtor is co-extensive and
not in alternative and the creditor/decree-holder has the right
to proceed against either for recovery of dues or realization of
the decretal amount.
UNITED BANK OF INDIA v. SATYAWATI TONDON
AND ORS.
23
16. The facts of the present case show that even after
receipt of notices under Section 13(2) and (4) and order
passed under Section 14 of the SARFAESI Act, respondent
Nos.1 and 2 did not bother to pay the outstanding dues. Only
a paltry amount of Rs.50,000/- was paid by respondent No.1
on 29.10.2007. She did give an undertaking to pay the balance
amount in installments but did not honour her commitment.
Therefore, the action taken by the appellant for recovery of its
dues by issuing notices under Section 13(2) and 13(4) and by
filing an application under Section 14 cannot be faulted on any
legally permissible ground and, in our view, the Division Bench
of the High Court committed serious error by entertaining the
writ petition of respondent No.1.
17. There is another reason why the impugned order
should be set aside. If respondent No.1 had any tangible
grievance against the notice issued under Section 13(4) or
action taken under Section 14, then she could have availed
remedy by filing an application under Section 17(1). The
expression ‘any person’ used in Section 17(1) is of wide
import. It takes within its fold, not only the borrower but also
guarantor or any other person who may be affected by the
action taken under Section 13(4) or Section 14. Both, the
Tribunal and the Appellate Tribunal are empowered to pass
interim orders under Sections 17 and 18 and are required to
decide the matters within a fixed time schedule. It is thus evident
that the remedies available to an aggrieved person under the
SARFAESI Act are both expeditious and effective.
Unfortunately, the High Court overlooked the settled law that the
High Court will ordinarily not entertain a petition under Article
226 of the Constitution if an effective remedy is available to the
aggrieved person and that this rule applies with greater rigour
in matters involving recovery of taxes, cess, fees, other types
of public money and the dues of banks and other financial
institutions. In our view, while dealing with the petitions involving
challenge to the action taken for recovery of the public dues,
etc., the High Court must keep in mind that the legislations
24
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SUPREME COURT REPORTS
[2010] 9 S.C.R.
A enacted by Parliament and State Legislatures for recovery of
such dues are code unto themselves inasmuch as they not only
contain comprehensive procedure for recovery of the dues but
also envisage constitution of quasi judicial bodies for redressal
of the grievance of any aggrieved person. Therefore, in all such
B cases, High Court must insist that before availing remedy under
Article 226 of the Constitution, a person must exhaust the
remedies available under the relevant statute.
C
C
D
D
E
E
F
F
G
G
H
H
18. While expressing the aforesaid view, we are conscious
that the powers conferred upon the High Court under Article 226
of the Constitution to issue to any person or authority, including
in appropriate cases, any Government, directions, orders or
writs including the five prerogative writs for the enforcement of
any of the rights conferred by Part III or for any other purpose
are very wide and there is no express limitation on exercise of
that power but, at the same time, we cannot be oblivious of the
rules of self-imposed restraint evolved by this Court, which
every High Court is bound to keep in view while exercising
power under Article 226 of the Constitution. It is true that the
rule of exhaustion of alternative remedy is a rule of discretion
and not one of compulsion, but it is difficult to fathom any reason
why the High Court should entertain a petition filed under Article
226 of the Constitution and pass interim order ignoring the fact
that the petitioner can avail effective alternative remedy by filing
application, appeal, revision, etc. and the particular legislation
contains a detailed mechanism for redressal of his grievance.
It must be remembered that stay of an action initiated by the
State and/or its agencies/instrumentalities for recovery of taxes,
cess, fees, etc. seriously impedes execution of projects of
public importance and disables them from discharging their
constitutional and legal obligations towards the citizens. In cases
relating to recovery of the dues of banks, financial institutions
and secured creditors, stay granted by the High Court would
have serious adverse impact on the financial health of such
bodies/institutions, which ultimately prove detrimental to the
economy of the nation. Therefore, the High Court should be
UNITED BANK OF INDIA v. SATYAWATI TONDON
AND ORS.
25
26
extremely careful and circumspect in exercising its discretion A
to grant stay in such matters. Of course, if the petitioner is able
to show that its case falls within any of the exceptions carved
out in Baburam Prakash Chandra Maheshwari v. Antarim Zila
Parishad AIR 1969 SC 556, Whirlpool Corporation v. Registrar
of Trade Marks, Mumbai (1998) 8 SCC 1 and Harbanslal B
Sahnia and another v. Indian Oil Corporation Ltd. and others
(2003) 2 SCC 107 and some other judgments, then the High
Court may, after considering all the relevant parameters and
public interest, pass appropriate interim order.
A
19. In Thansingh Nathmal v. Superintendent of Taxes C
(1964) 6 SCR 654, the Constitution Bench considered the
question whether the High Court of Assam should have
entertained the writ petition filed by the appellant under Article
226 of the Constitution questioning the order passed by the
Commissioner of Taxes under the Assam Sales Tax Act, 1947. D
While dismissing the appeal, the Court observed as under:
C
“The jurisdiction of the High Court under Article 226 of the
Constitution is couched in wide terms and the exercise
thereof is not subject to any restrictions except the territorial E
restrictions which are expressly provided in the Articles. But
the exercise of the jurisdiction is discretionary: it is not
exercised merely because it is lawful to do so. The very
amplitude of the jurisdiction demands that it will ordinarily
be exercised subject to certain self-imposed limitations. F
Resort that jurisdiction is not intended as an alternative
remedy for relief which may be obtained in a suit or other
mode prescribed by statute. Ordinarily the Court will not
entertain a petition for a writ under Article 226, where the
petitioner has an alternative remedy, which without being
G
unduly onerous, provides an equally efficacious remedy.
Again the High Court does not generally enter upon a
determination of questions which demand an elaborate
examination of evidence to establish the right to enforce
which the writ is claimed. The High Court does not
H
B
D
E
F
G
H
SUPREME COURT REPORTS
[2010] 9 S.C.R.
therefore act as a court of appeal against the decision of
a court or tribunal, to correct errors of fact, and does not
by assuming jurisdiction under Article 226 trench upon an
alternative remedy provided by statute for obtaining relief.
Where it is open to the aggrieved petitioner to move
another tribunal, or even itself in another jurisdiction for
obtaining redress in the manner provided by a statute, the
High Court normally will not permit by entertaining a petition
under Article 226 of the Constitution the machinery created
under the statute to be bypassed, and will leave the party
applying to it to seek resort to the machinery so set up.”
20. In Titaghur Paper Mills Co. Ltd. v. State of Orissa
(1983) 2 SCC 433, a three-Judge Bench considered the
question whether a petition under Article 226 of the Constitution
should be entertained in a matter involving challenge to the order
of the assessment passed by the competent authority under the
Central Sales Tax Act, 1956 and corresponding law enacted by
the State legislature and answered the same in negative by
making the following observations:
“Under the scheme of the Act, there is a hierarchy of
authorities before which the petitioners can get adequate
redress against the wrongful acts complained of. The
petitioners have the right to prefer an appeal before the
Prescribed Authority under sub-section (1) of Section 23
of the Act. If the petitioners are dissatisfied with the
decision in the appeal, they can prefer a further appeal to
the Tribunal under sub-section (3) of Section 23 of the Act,
and then ask for a case to be stated upon a question of
law for the opinion of the High Court under Section 24 of
the Act. The Act provides for a complete machinery to
challenge an order of assessment, and the impugned
orders of assessment can only be challenged by the mode
prescribed by the Act and not by a petition under Article
226 of the Constitution. It is now well recognised that where
a right or liability is created by a statute which gives a
UNITED BANK OF INDIA v. SATYAWATI TONDON
AND ORS.
27
special remedy for enforcing it, the remedy provided by that
statute only must be availed of. This rule was stated with
great clarity by Willes, J. in Wolverhampton New
Waterworks Co. v. Hawkesford in the following passage:
28
A
“There are three classes of cases in which a liability
B
may be established founded upon statute. . . . But
there is a third class, viz. where a liability not existing
at common law is created by a statute which at the
same time gives a special and particular remedy
for enforcing it. . .the remedy provided by the statute
must be followed, and it is not competent to the C
party to pursue the course applicable to cases of
the second class. The form given by the statute
must be adopted and adhered to.”
The rule laid down in this passage was approved by the D
House of Lords in Neville v. London Express Newspapers
Ltd. and has been reaffirmed by the Privy Council in
Attorney-General of Trinidad and Tobago v. Gordon Grant
& Co. Ltd. and Secretary of State v. Mask & Co. It has also
been held to be equally applicable to enforcement of rights, E
and has been followed by this Court throughout. The High
Court was therefore justified in dismissing the writ petitions
in limine.”
21. The views expressed in Titaghur Paper Mills Co. Ltd.
v. State of Orissa (supra) were echoed in Assistant Collector
of Central Excise, Chandan Nagar, West Bengal v. Dunlop
India Ltd. and others (1985) 1 SCC 260 in the following words:
F
“Article 226 is not meant to short-circuit or circumvent
statutory procedures. It is only where statutory remedies G
are entirely ill-suited to meet the demands of extraordinary
situations, as for instance where the very vires of the statute
is in question or where private or public wrongs are so
inextricably mixed up and the prevention of public injury and
H
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SUPREME COURT REPORTS
[2010] 9 S.C.R.
C
the vindication of public justice require it that recourse may
be had to Article 226 of the Constitution. But then the Court
must have good and sufficient reason to bypass the
alternative remedy provided by statute. Surely matters
involving the revenue where statutory remedies are
available are not such matters. We can also take judicial
notice of the fact that the vast majority of the petitions under
Article 226 of the Constitution are filed solely for the
purpose of obtaining interim orders and thereafter prolong
the proceedings by one device or the other. The practice
certainly needs to be strongly discouraged.”
D
22. In Punjab National Bank v. O.C. Krishnan and others
(2001) 6 SCC 569, this Court considered the question whether
a petition under Article 227 of the Constitution was maintainable
against an order passed by the Tribunal under Section 19 of
the DRT Act and observed:
B
E
F
G
H
“5. In our opinion, the order which was passed by the
Tribunal directing sale of mortgaged property was
appealable under Section 20 of the Recovery of Debts
Due to Banks and Financial Institutions Act, 1993 (for short
“the Act”). The High Court ought not to have exercised its
jurisdiction under Article 227 in view of the provision for
alternative remedy contained in the Act. We do not
propose to go into the correctness of the decision of the
High Court and whether the order passed by the Tribunal
was correct or not has to be decided before an appropriate
forum.
6. The Act has been enacted with a view to provide a
special procedure for recovery of debts due to the banks
and the financial institutions. There is a hierarchy of
appeal provided in the Act, namely, filing of an appeal
under Section 20 and this fast-track procedure cannot be
allowed to be derailed either by taking recourse to
proceedings under Articles 226 and 227 of the
UNITED BANK OF INDIA v. SATYAWATI TONDON
AND ORS.
29
Constitution or by filing a civil suit, which is expressly A
barred. Even though a provision under an Act cannot
expressly oust the jurisdiction of the court under Articles
226 and 227 of the Constitution, nevertheless, when there
is an alternative remedy available, judicial prudence
demands that the Court refrains from exercising its B
jurisdiction under the said constitutional provisions. This
was a case where the High Court should not have
entertained the petition under Article 227 of the
Constitution and should have directed the respondent to
take recourse to the appeal mechanism provided by the C
Act.”
23. In CCT, Orissa and others v. Indian Explosives Ltd.
(2008) 3 SCC 688, the Court reversed an order passed by the
Division Bench of Orissa High Court quashing the show cause
notice issued to the respondent under the Orissa Sales Tax Act D
by observing that the High Court had completely ignored the
parameters laid down by this Court in a large number of cases
relating to exhaustion of alternative remedy.
24. In City and Industrial Development Corporation v.
Dosu Aardeshir Bhiwandiwala and others (2009) 1 SCC 168,
the Court highlighted the parameters which are required to be
kept in view by the High Court while exercising jurisdiction
under Article 226 of the Constitution. Paragraphs 29 and 30
of that judgment which contain the views of this Court read as
under:-
SUPREME COURT REPORTS
30
E
F
“29. In our opinion, the High Court while exercising its
extraordinary jurisdiction under Article 226 of the
Constitution is duty-bound to take all the relevant facts and
circumstances into consideration and decide for itself even G
in the absence of proper affidavits from the State and its
instrumentalities as to whether any case at all is made out
requiring its interference on the basis of the material made
available on record. There is nothing like issuing an
ex parte writ of mandamus, order or direction in a public H
A
B
[2010] 9 S.C.R.
law remedy. Further, while considering the validity of
impugned action or inaction the Court will not consider
itself restricted to the pleadings of the State but would be
free to satisfy itself whether any case as such is made out
by a person invoking its extraordinary jurisdiction under
Article 226 of the Constitution.
30. The Court while exercising its jurisdiction under
Article 226 is duty-bound to consider whether:
(a)
adjudication of writ petition involves any complex
and disputed questions of facts and whether they
can be satisfactorily resolved;
(b)
the petition reveals all material facts;
(c)
the petitioner has any alternative or effective
remedy for the resolution of the dispute;
(d)
person invoking the jurisdiction is guilty of
unexplained delay and laches;
(e)
ex facie barred by any laws of limitation;
(f)
grant of relief is against public policy or barred by
any valid law; and host of other factors.
C
D
E
F
G
H
The Court in appropriate cases in its discretion may direct
the State or its instrumentalities as the case may be to file
proper affidavits placing all the relevant facts truly and
accurately for the consideration of the Court and
particularly in cases where public revenue and public
interest are involved. Such directions are always required
to be complied with by the State. No relief could be
granted in a public law remedy as a matter of course only
on the ground that the State did not file its counter-affidavit
opposing the writ petition. Further, empty and selfdefeating affidavits or statements of Government
spokesmen by themselves do not form basis to grant any
UNITED BANK OF INDIA v. SATYAWATI TONDON
AND ORS.
31
relief to a person in a public law remedy to which he is not
otherwise entitled to in law.”
25. In Raj Kumar Shivhare v. Assistant Director,
Directorate of Enforcement and another (2010) 4 SCC 772,
the Court was dealing with the issue whether the alternative
statutory remedy available under the Foreign Exchange
Management Act, 1999 can be bypassed and jurisdiction under
Article 226 of the Constitution could be invoked. After
examining the scheme of the Act, the Court observed:
32
A
A
B
B
“31. When a statutory forum is created by law for redressal C
of grievance and that too in a fiscal statute, a writ petition
should not be entertained ignoring the statutory
dispensation. In this case the High Court is a statutory
forum of appeal on a question of law. That should not be
abdicated and given a go-by by a litigant for invoking the D
forum of judicial review of the High Court under writ
jurisdiction. The High Court, with great respect, fell into a
manifest error by not appreciating this aspect of the matter.
It has however dismissed the writ petition on the ground
of lack of territorial jurisdiction.
E
32. No reason could be assigned by the appellant’s
counsel to demonstrate why the appellate jurisdiction of the
High Court under Section 35 of FEMA does not provide
an efficacious remedy. In fact there could hardly be any
reason since the High Court itself is the appellate forum.”
F
26. In Modern Industries v. Steel Authority of India
Limited (2010) 5 SCC 44, the Court held that where the
remedy was available under the Interest on Delayed Payments
to Small Scale and Ancillary Industrial Undertakings Act, 1993, G
the High Court was not justified in entertaining a petition under
Article 226 of the Constitution.
27. It is a matter of serious concern that despite repeated
pronouncement of this Court, the High Courts continue to ignore
H
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SUPREME COURT REPORTS
[2010] 9 S.C.R.
the availability of statutory remedies under the DRT Act and
SARFAESI Act and exercise jurisdiction under Article 226 for
passing orders which have serious adverse impact on the right
of banks and other financial institutions to recover their dues.
We hope and trust that in future the High Courts will exercise
their discretion in such matters with greater caution, care and
circumspection.
28. Insofar as this case is concerned, we are convinced
that the High Court was not at all justified in injuncting the
appellant from taking action in furtherance of notice issued
under Section 13(4) of the Act.
29. In the result, the appeal is allowed and the impugned
order is set aside. Since the respondent has not appeared to
contest the appeal, the costs are made easy.
B.B.B.
Appeal allowed.
[2010] 9 S.C.R. 33
PRITHI
v.
STATE OF HARYANA
(Criminal Appeal No. 1835 of 2009)
JULY 27, 2010
34
A
B
[R.M. LODHA AND A. K. PATNAIK, JJ.]
Penal Code, 1860 – ss.302/149, 307/149,148 and 201
– Prosecution under – Of five accused – Two eye-witnesses
to the incident – One of the eye-witnesses related to the
deceased while the other was injured witness – Non-recovery
of dead body –Conviction by Courts below – On appeal by
appellant-accused, held: Conviction justified – It is not
essential to establish ‘corpus delicti’ – The prosecution
evidence has established the commission of crime – Both the
eye-witnesses are reliable witnesses.
Criminal Law – ‘Corpus delicti’ – Establishment of – Held:
It is not essential to establish corpus delicti – The fact of death
of deceased can be established like any other fact The
evidence of corpus delicti and the guilt of the person charged
are often so interconnected that the same evidence applies
to factum of crime as well as individuality of the accused
thereof – Evidence.
Evidence Act, 1872 – s. 154 – Questioning by party of
his own witness – Held: If the party questions his own witness,
it does not make the evidence of the witness inadmissible.
C
D
E
[2010] 9 S.C.R.
A in the incident. The accused party took away the dead
body of the deceased alongwith them. The police, after
recording the statement of PW.6, recorded FIR. The trial
court convicted all the accused persons u/ss. 302/149,
307/149,148 and 201 IPC. Their appeal against the
B conviction was dismissed by the High Court. The Special
Leave Petition filed by accused Nos.1, 2 and 4 was
dismissed by Supreme Court.
In the instant appeal, appellant-accused No. 3
C contended that the factum of the death of the deceased
is disputed as his dead body was not recovered nor any
post-mortem was conducted; that a person of the same
name as that of the deceased was arrested and produced
before a Magistrate in some other city; that the deposition
D of PW-6 ought to have been accepted either as it is or
should have been rejected in toto; that PW-9 was planted
as eye-witness and being brother of the deceased was a
highly interested witness.
E
Dismissing the appeal, the Court
G
HELD: 1. In an appeal under Article 136 of the
Constitution, this Court does not enter into detailed
examination and re-appraisal of the evidence, particularly
when there is concurrence of opinion between the two
F courts below. On a careful examination of the evidence
of PW-9 and the other evidence available on record, the
Court is satisfied that no error has been committed by the
High Court in affirming the conviction of the appellant for
the offences punishable u/ss. 302/149, 307/149, 148 and
G 201 IPC. [Para 22] [49-E-F]
H
2.1. The question regarding the death of the
deceased relates to the proof of ‘corpus delicti’. The term,
‘corpus delicti’ generally means, when applied to any
H particular offence, the actual commission by some one of
F
Words and Phrases: Corpus delicti – Meaning of.
Appellant-accused No.3, alongwith 4 other accused
persons was prosecuted for killing one person and
causing injuries to three persons including PWs 6 and 9
with fire arms. As per the prosecution, PW6 got injured
33
SUPREME COURT REPORTS
PRITHI v. STATE OF HARYANA
35
the particular offence charged. In a murder case, `corpus
delicti’ consists of proof of the death of a person alleged
to have been murdered and that such death has been
caused by commission of crime by some one. It is sound
principle in criminal jurisprudence that one does not
begin to inquire whether the prisoner is guilty of a crime
until one has established that a crime has been
committed. [Para 6] [42-D-F]
Rex v. Patrick McNicholl 1917(2) I.R.557; The King v.
Horry, 1952 NZLR 111, referred to.
36
A
B
C
Words and Phrases, Vol.9A, 2nd reprint, 1976,West
Publishing Co.; Sir Matthew Hale in ‘The History of the Pleas
of the Crown’, Vol. II 290 (1800 Edition); Halsbury’s Laws of
England, 2nd Edition 449, referred to.
D
2.2. It is not essential to establish corpus delicti. The
fact of the death of the deceased must be established like
any other fact. Sometimes, there may not be any
distinction between proof of the fact of the crime and the
proof of the actor of it. The evidence of the corpus delicti
and the guilt of the person charged of an offence, many
a time is so inter-connected that one cannot be separated
from the other. The same evidence often applies to both
the fact of the crime and the individuality of the person
who committed it. [Paras 11 and 12] [43-E-H; 44-A-D]
E
F
Sevaka Perumal and Anr. vs. State of Tamil Nadu (1991)
3 SCC 471; Pritam Singh vs. The State (1950) SCR 453;
Naresh Mohanlal Jaiswal vs. State of Maharashtra (1996) 11
SCC 547; Anwarul Haq vs. State of U.P. (2005) 10 SCC 581, G
relied on.
3.1. PW-9 has been accepted by the trial court as well
as the High Court as a reliable witness—His evidence
proves the fact of death of the deceased and also renders
SUPREME COURT REPORTS
[2010] 9 S.C.R.
the commission of crime by the accused (including the
appellant) certain. It is true that he is related witness
inasmuch as he happens to be the brother of the
deceased but that would not render his evidence
unworthy of credence. Nothing inherently improbable
B has been brought out which may justify rejection of the
testimony of PW-9. His conduct of having stayed behind
the bushes for about 4/5 hours and not informing the
police or villagers of the incident until the police arrived
on scene may look at the first blush little out of the
C ordinary but on a deeper scrutiny, does not appear to be
unusual or exceptional. Moreover, his presence at the
time and place of incident is also established from the
evidence of PW-6. In the FIR, it is recorded that PW-9 was
with PW-6 in the Jeep. The evidence of PW-9 further gets
D corroborated by the recovery of a gun and empty as well
as unused cartridges from the site. [Para 15] [46-G-H; 47A-D]
A
3.2. The direct evidence of PW-9 leaves no manner
of doubt that the deceased is dead and the members of
E
the unlawful assembly (including the appellant) armed
with deadly weapons are responsible for his death. In this
view of the matter, There is no merit in the plea that a
person having the same name as that of the deceased
was arrested in Rajasthan and produced before the
F
Judicial Magistrate and that the police failed to verify,
despite the direction of the High Court, as to whether that
person was the same person who is alleged to have been
murdered or some other person and, therefore, factum
of death of the deceased is not established. [Para 20] [49G
A-C]
Anant Chintaman Lagu v. The State of Bombay (1960)
2 SCR 460, relied on.
H
H
4.1. The fact that an incident occurred in which PW-
37
PRITHI v. STATE OF HARYANA
38
6 sustained injuries and the deceased died, is amply A
established by the evidence of PW-6. PW-6 sustaining
injuries is also established from the evidence of the
doctor (PW-1) who medically examined him immediately
after the incident. Merely because PW-6 did not name the
assailants, his evidence cannot be thrown over-board in B
its entirety. [Para 16] [47-F-H]
4.2. It is not correct to say that the testimony of PW6 should be either accepted as it is or rejected in its
entirety. Section 154 of the Evidence Act, 1872 enables C
the court in its discretion to permit the person who calls
a witness to put any questions to him which might be put
in cross-examination by the adverse party. When a
witness is declared hostile and cross-examined with the
permission of the court, his evidence remains admissible D
and there is no legal bar to have a conviction upon his
testimony, if corroborated by other reliable evidence.
[Paras 17, 18 and 19] [48-G, A, E-F]
Khujji @ Surendra Tiwari v. State of Madhya Pradesh
E
(1991) 3 SCC 627; Bhagwan Singh v. State of Haryana
(1976) 1 SCC 389; Sri Rabindra Kumar Dey v. State of
Orissa 1976 (4) SCC 233; Syad Akbar v. State of Karnataka
1980 (1) SCC 30; Koli Lakhmanbhai Chanabhai v. State of
Gujarat (1999) 8 SCC 624, relied on.
F
Case Law Reference:
(1991) 3 SCC 471
Relied on.
Para 5
(1950) SCR 453
Relied on.
Para 5
(1996) 11 SCC 547
Relied on.
Para 5
(2005) 10 SCC 581
Relied on.
Para 5
(1991) 3 SCC 627
Relied on.
Para 17
A
B
SUPREME COURT REPORTS
[2010] 9 S.C.R.
(1976) 1 SCC 389
Relied on.
Para 17
1976 (4) SCC 233
Relied on.
Para 17
1980 (1) SCC 30
Relied on.
Para 17
(1999) 8 SCC 624
Relied on.
Para 17
(1960) 2 SCR 460
Relied on.
Para 18
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1835 of 2009.
C
D
From the Judgment & Order dated 12.09.2008 of the High
Court of Punjab & Haryana at Chandigarh in Crl. Appeal No.
161-DB/98.
Neeraj Kumar Jain, Rishi Malhotra, Sanjay Singh, Pratham,
for the Appellant.
Kamal Mohan Gupta, Gaurav Teotia, Reeta Choudhary for
the Respondent.
The judgment of the Court was delivered by
E
F
G
G
H
H
R.M. LODHA, J. 1. This criminal appeal by special leave
arises in the following way. On October 3, 1990 at about 9.30
a.m., a certain Bhoop Singh, resident of Badopal, owner of the
vehicle (Jeep) bearing registration no. DNC-9324 asked his
driver—Hari Singh (PW-6) to bring Ami Lal from his Dhani
situate in the village Bhodia Bishnoian. PW-6 reached there
and waited for about an hour. Ami Lal and his brother Chhotu
Ram (PW-9) then accompanied PW-6 in the Jeep. One Sant
Lal, who was present at Ami Lal’s Dhani also sat in the Jeep
as he also wanted to go to Badopal. Ami Lal sat in the front
seat near PW-6. PW-9 and Sant Lal occupied the rear seat.
On their return, while PW-6 was driving the jeep towards village
Bhana, he saw one white gypsy belonging to Jee Ram (A-4)
ambushed near the cremation ground. PW-6 stopped his
vehicle. Immediately thereafter A-4, Prithi (A-5)—appellant
PRITHI v. STATE OF HARYANA [R.M. LODHA, J.]
39
herein, Ram Singh @ Guria (A-1), Ram Singh @ Ram Dhan
(A-2) and Mahabir Singh (A-3) armed with guns and rifles came
out of the bushes. A-4 fired a shot which hit the tyre of the jeep.
A-1, A-2, A-3, A-4 and A-5 then rushed towards the Jeep. A-4
fired shot at Ami Lal while A-1 fired shot that hit Sant Lal. All
the occupants of the jeep, viz., PW-6, PW-9, Ami Lal and Sant
Lal jumped out of the jeep. A-5 fired a shot at PW-6 but that hit
the jeep. PW-6, PW-9 and Sant Lal ran away in different
directions. Ami Lal was overpowered by the attacking party by
firing shots at him. A-5 fired another shot at PW-6 which hit him
on the back of his left shoulder. The attacking party took away
Ami Lal (already dead by that time) in their vehicle (gypsy). PW6 after running for some time reached village Chhinder where
one Prithi Singh, son of Ram Pratap Bishnoi took him to Civil
Hospital and got him admitted and then on the intimation sent
by the doctor, police reached the Civil Hospital, recorded
statement of PW-6 and FIR was got registered at police station,
Adampur for the murder of Ami Lal and other offences. The
police after completion of investigation submitted challan
against A-1, A-2, A-3 and A-4. The name of the appellant was
put in column no. 2. However, the Additional Sessions Judge
vide his order dated August 27, 1993 summoned A-5 and
framed charges against all the five accused persons under
Section 302 read with Section 149, Section 307 read with
Sections 149, 148 and 201 of the Indian Penal Code (for short
‘IPC’). The prosecution examined as many as 14 witnesses.
The trial court (Additional Sessions Judge, Hisar) vide his
judgment dated March 20, 1993 convicted the accused persons
(A-1, A-2, A-3, A-4 and A-5) for the offences punishable under
Section 302 read with Section 149, Section 307 read with
Sections 149, 148 and 201 IPC and sentenced them to undergo
life imprisonment and different period of rigorous imprisonment.
2. A-1 to A-5 preferred criminal appeal before the High
Court of Punjab and Haryana challenging their conviction and
the sentence. The High Court vide its judgment dated
September 12, 2008 dismissed the appeal and maintained
40
A
B
C
D
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SUPREME COURT REPORTS
[2010] 9 S.C.R.
A their conviction and sentence.
3. A-1, A-2 and A-4 filed special leave petition [SLP(Crl.)
No. 236 of 2009] against the impugned judgment which came
to be dismissed by this Court on January 23, 2009. Insofar as
A-3 is concerned, he filed a separate special leave petition in
B
which leave was granted. His appeal was dealt with by us
separately as he was juvenile on the date of the incident and
disposed of on June 25, 2010.
4. Mr. Neeraj Kumar Jain, learned senior counsel for the
C appellant at the outset disputed the factum of death of Ami Lal.
He submitted that admittedly the dead body of Ami Lal was not
recovered nor any post-mortem was conducted. He referred to
the application for bail filed by some of the accused persons
during the course of trial and submitted that one Ami Lal was
D arrested in Rajasthan and produced before the Judicial
Magistrate in Jodhpur and while considering that application,
the High Court granted time to the police to verify whether Ami
Lal was alive or dead but the investigating agency failed to
verify whether Ami Lal, who was produced before the Judicial
E Magistrate, Jodhpur, was the same person who is alleged to
have been murdered or some other person. Dealing with the
prosecution evidence, learned senior counsel submitted that the
deposition of PW-6 ought to be accepted either as it is or
should be rejected in toto. He submitted that since PW-6 was
F cross-examined by the accused, there was no question of their
winning over PW-6. Learned senior counsel, thus, submitted
that deposition of PW-6 should have been rejected in its
entirety. As regards the evidence of PW-9, Mr. Neeraj Kumar
Jain, learned senior counsel, vehemently contended that he was
not present at the time and place of incident and he has been
G
planted as eye-witness by the prosecution. He would submit
that the narration of the occurrence by PW-9 appears to be
improbable; he is highly interested witness being brother of the
deceased and his evidence ought not to have been accepted
by the trial court as well as High Court. Learned senior counsel
H
PRITHI v. STATE OF HARYANA [R.M. LODHA, J.]
41
submitted that the appellant has been falsely implicated due to
enmity between Bhoop Singh and the deceased on one hand
and A-4 (relative of the appellant) on the other hand. In any
case, learned senior counsel submitted that from the
prosecution evidence the presence of the appellant at the scene
of occurrence remains highly doubtful.
42
A
A
B
B
5. On the other hand, Mr. Kamal Mohan Gupta, learned
counsel for the State of Haryana stoutly defended the judgment
of the High Court. He submitted that PW-9 has given graphic
description of the incident; his presence is established by the
prosecution evidence, particularly deposition of PW-6 and his C
evidence also gets corroborated from the fact that from the
place of incident one single barrel of .12 bore gun and also
large number of cartridges were recovered. Learned counsel
would submit that merely because PW-9 remained at the spot
till the police came and did not call for help nor informed the D
villagers does not show that he was not present. He submitted
that different persons react differently in different situations.
Learned counsel relied upon a decision of this Court in
Marwadi Kishor Parmanand and another v. State of Gujarat.
Insofar as evidence of PW-6 is concerned, learned counsel for E
the State submitted that he supported the prosecution case to
the extent that he lodged the FIR; he was injured in the incident;
he saw white gypsy at the place of incident and some persons
lying in ambush fired shots as a result of which he sustained
injuries and Ami Lal died. He did not name the assailants and F
to that extent he did not support prosecution case but that did
not mean that his evidence was liable to be rejected in toto.
Responding to the contention of the learned senior counsel for
the appellant that there was nothing in the prosecution evidence
to establish the murder of Ami Lal, learned counsel for the State G
submitted that merely because the dead body of Ami Lal was
not recovered, it cannot be said that Ami Lal was not murdered.
He referred to the deposition of PW-9 who stated categorically
that Ami Lal had died due to the injuries received by him from
the shots fired by the accused and the accused had taken away H
C
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[2010] 9 S.C.R.
the dead body of Ami Lal in their vehicle. In this regard, learned
counsel relied upon a decision of this Court in Sevaka Perumal
and Anr. v. State of Tamil Nadu. Mr. Kamal Mohan Gupta
strenuously urged that the trial court as well as the High Court
have recorded concurrent findings regarding the presence of
the appellant along with other accused at the place of incident
and his participation and accepted the prosecution case as
credible and there is no justification at all by this Court to reweigh
and reassess the evidence and reach a fresh opinion as to the
innocence or guilt of the accused. Learned counsel relied upon
the decisions of this Court in Pritam Singh v. The State, Naresh
Mohanlal Jaiswal v. State of Maharashtra, Anwarul Haq v. State
of U.P.
6. Since the question of factum of death of Ami Lal has
been raised, we have to see what is the proof of death of Ami
Lal. In other words, the question relates to the proof of ‘corpus
delicti’. The expression ‘corpus delicti’ has been subject of
judicial comments from time to time. The term, ‘corpus delicti’
generally means; when applied to any particular offence, the
actual commission by some one of the particular offence
charged (Words and Phrases, Vol. 9A, 2nd reprint, 1976, West
Publishing Co.) In a murder case, `corpus delicti’ consists of
proof of the death of a person alleged to have been murdered
and that such death has been caused by commission of crime
by some one. It is sound principle in criminal jurisprudence that
one does not begin to inquire whether the prisoner is guilty of
a crime until one has established that a crime has been
committed.
7. Sir Matthew Hale (Lord Chief Justice of the Court of
King’s Bench) in ‘The History of the Pleas of the Crown’, Vol. II
at page 290 (1800 Edition) stated his opinion, ‘I would never
convict any person of murder or manslaughter, unless the facts
were proved to be done, or at least the body found dead’.
8. The aforesaid statement of Sir Matthew Hale has not
been accepted in England, Ireland, New Zealand and other
PRITHI v. STATE OF HARYANA [R.M. LODHA, J.]
43
common law countries as it is. In England the legal position is
stated in 9 Halsbury’s Laws of England, 2nd Edition 449 thus:
where no body or part of a body has been found which is proved
to be that of the person alleged to have been killed, an accused
person should not be convicted of either murder or
manslaughter, unless there is evidence either of the killing or
of the death of the person alleged to be killed.
44
A
A
B
B
9. A six-Judge Bench of Irish Court of Crown in the case
of Rex v. Patrick McNicholl speaking through Sir James
Campbell, C.J., with regard to the statement of Sir Matthew
Hale, said that it is not an inflexible legal maxim, but is a wise C
and necessary caution to be addressed by the presiding Judge
to the jury. The Bench held that in a charge of murder, by proof
of the corpus delicti is meant proof of the factum of murder, and
that the accused committed the murder or took part in its
commission. Such proof may be established by the confession D
of the accused without proof of the finding of the dead body.
10. In The King v. Horry, the New Zealand Court of Appeal
explained the legal position that at the trial of a person charged
with murder, the fact of death is provable by circumstantial
evidence, notwithstanding that neither the body nor any trace
of the body has been found.
E
11. Insofar as this Court is concerned, it has been laid
down in Sevaka Perumal2 that it is not essential to establish
corpus delicti; the fact of the death of the deceased must be
established like any other fact. This Court said;
F
“……In a trial for murder it is not an absolute necessity or
an essential ingredient to establish corpus delicti. The fact
of death of the deceased must be established like any G
other fact. Corpus delicti in some cases may not be
possible to be traced or recovered. Take for instance that
a murder was committed and the dead body was thrown
into flowing tidal river or stream or burnt out. It is unlikely
that the dead body may be recovered. If recovery of the H
C
D
E
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SUPREME COURT REPORTS
[2010] 9 S.C.R.
dead body, therefore, is an absolute necessity to convict
an accused, in many a case the accused would manage
to see that the dead body is destroyed etc. and would
afford a complete immunity to the guilty from being
punished and would escape even when the offence of
murder is proved. What, therefore, is required to base a
conviction for an offence of murder is that there should be
reliable and acceptable evidence that the offence of
murder, like any other factum of death was committed and
it must be proved by direct or circumstantial evidence,
although the dead body may not be traced.”
12. Sometimes, there may not be any distinction between
proof of the fact of the crime and the proof of the actor of it.
The evidence of the corpus delicti and the guilt of the person
charged of an offence, many a time is so inter-connected that
one cannot be separated from the other. The same evidence
often applies to both the fact of the crime and the individuality
of the person who committed it. The question now is, whether
the prosecution evidence establishes that Ami Lal was
murdered and the commission of crime is made out against
the appellant.
13. The key witness is PW-9. He has been presented by
the prosecution as an eye-witness. He has given full account
of the incident. This witness has been held credible by the trial
court as well as High Court. The criticism to the deposition of
this witness highlighted by the defence has been considered
by the trial court elaborately and after finding no merit in such
criticism, the trial court after thorough analysis summed up with
meticulous care the evidence of PW-9 thus :
“26..…As discussed above statement made by Chotu Ram
has withstood the test of lengthy cross-examination. There
is nothing to dis-believe him……….
27. The fact that Chhotu Ram remained at the spot till 3.30
p.m. When the police came to the spot does not prove that
PRITHI v. STATE OF HARYANA [R.M. LODHA, J.]
45
he was not present at the spot…….So the conduct of
Chhotu Ram of concealing himself in the crop and not
leaving the place till the arrival of the police does not prove
that he was not present at the spot and does not make his
statement unbelievable. The mere fact that he did not call
any one for help and did not visit his Dhani after the
accused had left the place does not make his statement
unbelievable.
28. Thus from the evidence discussed above it has duly
been proved that the statement of Chhotu Ram it trustworthy and from his statement it has duly been proved that
the occurrence took place in the manner and at the place
as stated by the prosecution.”
14. Insofar as High Court is concerned, the Division Bench
extensively considered the deposition of PW-9 in the following
manner :
“We have carefully examined the evidence of Chhotu Ram
PW9, one of the eye witnesses to the occurrence. He has
given a vivid account of the entire sequence of events and
has fully supported the prosecution case. The defence has
not been able to make any dent in his deposition during
cross-examination. He has clearly stated that on 3rd
October, 1990, he along with Ami Lal, Sant Lal and Hari
Singh were going from village Bhodia Bishnoian to village
Badopal in a jeep bearing registration no. DNC-9324.
When they were crossing the cremation ground near
village Bhana, a white gypsy was seen standing near the
cremation ground. Hari Singh stopped the jeep. Five
accused i.e. Jee Ram, Ram Singh son of Sahi Ram, Ram
Singh son of Ram Karan, Pirthi and Mahabir, emerged
from the bushes. Jee Ram was armed with a rifle whereas
other accused were armed with guns. All the accused
started firing on the jeep. A shot hit Ami Lal, who was
sitting on the front seat. The occupants of the jeep started
running in different direction to save their lives. Hari Singh
46
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[2010] 9 S.C.R.
and Sant Lal also received gun shot injuries. However, they
were able to run away from the spot. He further stated that
he concealed himself in the nearby crops and witnessed
the entire occurrence from there. Even when all occupants
of the Jeep, except Ami Lal, had run away, the accused
came near the jeep and fired at Ami Lal from a close
range. Thereafter, they lifted the dead-body of Ami Lal, put
the same in the gypsy and sped away from the spot. The
police came to the spot at about 3.00 P.M. On the basis
of his information, a site-plan of the place of recovery was
prepared and 47 empties were recovered, out of which 45
were empty cartridges of .12 bore, one missed cartridge
of .12 bore and one empty cartridge of .315 bore. The
Investigating Officer also took into possession the pellets
and the jeep etc. This witness further stated that there was
enmity between Ami Lal and the accused as Ami Lal had
murdered Bhagi Ram, who was brother of Jee Ram
accused. The accused, therefore, wanted to avenge the
murder of Bhagi Ram.
Chhotu Ram was cross-examined by the defence but
he withstood the same and the defence was not able to
extract anything substantial from him during the crossexamination. Chhotu Ram’s version tallies with the initial
version given in the FIR and there is no reason to
disbelieve the same. The factum of recovery of so many
empty cartridges from the scene of occurrence, the injuries
suffered by Hari Singh and Sant Lal, lend sufficient
credence to the testimony of this witness. His version that
he was hiding in the fields is quite believable as in such a
case of firing by number of people, he would have no
option but to hide himself for fear of his life.”
15. It is, thus, seen that PW-9 has been accepted by the
trial court as well as the High Court as a reliable witness. Once
PW-9 is accepted, his evidence proves the fact of death of Ami
Lal and also renders the commission of crime by the accused
PRITHI v. STATE OF HARYANA [R.M. LODHA, J.]
47
(including the appellant) certain. It is true that he is related A
witness inasmuch as he happens to be the brother of the
deceased but that, in our view, would not render his evidence
unworthy of credence. Nothing inherently improbable has been
brought out which may justify rejection of the testimony of PW9. His conduct of having stayed behind the bushes for about 4/ B
5 hours and not informing the police or villagers of the incident
until the police arrived on scene at about 3.00 p.m. may look
at the first blush little out of the ordinary but on a deeper
scrutiny, does not appear to be unusual or exceptional. He was
scared as he saw indiscriminate firing by the accused who C
were armed with guns and rifles; his brother was dead and
removed by the assailants and the other two persons who were
with him got firearm injuries. It may be that any other person in
his place might have reacted differently but the conduct of PW9 in any case does not seem to be improbable. Moreover, his
D
presence at the time and place of incident is also established
from the evidence of PW-6. In the FIR, it is recorded that PW9 was with PW-6 in the Jeep. The evidence of PW-9 further
gets corroborated by the recovery of a gun and empty as well
as unused cartridges from the site.
E
16. As regards the evidence of PW-6, it was vehemently
contended by the learned senior counsel for the appellant that
his evidence should be either accepted as it is or rejected in
its entirety. PW-6 has deposed that he lodged the FIR; he was
injured in the incident; he saw white gypsy at the place of the F
incident and that some persons came out of ambush and fired
shots as a result of which he sustained injuries and Ami Lal
died. It is true that he did not name the assailants. The fact that
an incident occurred in which he sustained injuries and Ami Lal
died is amply established by his evidence as well. That PW-6 G
sustained injuries is also established from the evidence of Dr.
Ajay Kumar (PW-1) who medically examined him immediately
after the incident. Merely because he did not name the
assailants, his evidence cannot be thrown over-board in its
entirety.
H
48
A
B
C
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E
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G
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17. Section 154 of the Evidence Act, 1872 enables the
court in its discretion to permit the person who calls a witness
to put any questions to him which might be put in crossexamination by the adverse party. Some High Courts had earlier
taken the view that when a witness is cross-examined by the
party calling him, his evidence cannot be believed in part and
disbelieved in part, but must be excluded altogether. However
this view has not found acceptance in later decisions. As a
matter of fact, the decisions of this Court are to the contrary. In
Khujji @ Surendra Tiwari v. State of Madhya Pradesh, a 3Judge Bench of this Court relying upon earlier decisions of this
Court in Bhagwan Singh v. State of Haryana, Sri Rabindra
Kumar Dey v. State of Orissa and Syad Akbar v. State of
Karnataka reiterated the legal position that the evidence of a
prosecution witness cannot be rejected in toto merely because
the prosecution chose to treat him as hostile and crossexamined 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 their version is found to
be dependable on careful scrutiny thereof.
18. In Koli Lakhmanbhai Chanabhai v. State of Gujarat,
this Court again reiterated that testimony of a hostile witness
is useful to the extent to which it supports the prosecution case.
It is worth noticing that in Bhagwan Singh9 this Court held that
when a witness is declared hostile and cross-examined with
the permission of the court, his evidence remains admissible
and there is no legal bar to have a conviction upon his
testimony, if corroborated by other reliable evidence.
19. The submission of the learned senior counsel for the
appellant that the testimony of PW-6 should be either accepted
as it is or rejected in its entirety, thus, cannot be accepted in
view of settled legal position as noticed above.
20. We have already noticed evidence of PW-9. He has
been held trustworthy by the trial court as well as the High Court.
There is no reason, much less justifiable one, for us to take a
PRITHI v. STATE OF HARYANA [R.M. LODHA, J.]
[2010] 9 S.C.R. 50
49
different view. He is real brother of Ami Lal. The direct evidence A
of PW-9 leaves no manner of doubt that Ami Lal is dead and
the members of the unlawful assembly (including the appellant)
armed with deadly weapons are responsible for his death. In
this view of the matter, the submission of the learned senior
counsel that one Ami Lal was arrested in Rajasthan and B
produced before the Judicial Magistrate in Jodhpur and that
police failed to verify, despite the direction of the High Court,
as to whether that Ami Lal was the same person who is alleged
to have been murdered or some other person and, therefore,
factum of death of Ami Lal is not established has no merit at C
all and is noted to be rejected.
A
B
22. In an appeal under Article 136 of the Constitution, this
Court does not enter into detailed examination and re-appraisal
of the evidence, particularly when there is concurrence of
opinion between the two courts below. We, however, carefully
examined the evidence of PW-9 and the other evidence
available on record and we are satisfied that no error has been
committed by the High Court in affirming the conviction of the
appellant for the offences punishable under Section 302 read
with Section 149, Section 307 read with Sections 149, 148 and
201 IPC.
23. The appeal has no merit and is dismissed accordingly.
K.K.T.
JULY 28, 2010
[P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]
Penal Code, 1860 – s.376:
C
21. In the case of Anant Chintaman Lagu v. The State of
Bombay, M. Hidayatullah, J. (as His Lordship then was) stated:
“Ordinarily, it is not the practice of this Court to re-examine D
the findings of fact reached by the High Court particularly
in a case where there is concurrence of opinion between
the two Courts below. ….”
SATPAL SINGH
v.
STATE OF HARYANA
(Criminal Appeal No. 763 of 2008)
D
E
E
F
F
G
Rape – Conviction – Challenged on the ground of
inordinate delay in lodging the FIR – Held: Challenge not
tenable since the delay was satisfactorily explained – The
delay occurred because of the intervention of the village
Panchayat which tried to bring about a compromise between
the parties – The complainant moved the investigative
machinery only after the Panchayat disagreed to impose fine
and punishment as suggested by him on the accused.
Rape – Conviction – Challenged on the ground that
prosecutrix and the accused were studying in the same school
and knew each other and it was a case of consent for sexual
intercourse – Held: Challenge not tenable since the
prosecution has successfully established that it was not a
consent case – There was resistance by the prosecutrix and
thus, it cannot, even by any stretch of imagination, be held
that she had voluntarily participated in the sexual act – There
had been no enmity between the two families, and, therefore,
there could be no reason for the prosecutrix and her family
to enrope the accused falsely in a case where the honour of
the family itself remains on stake and the prosecutrix has to
suffer mental agony throughout her life – Crime against
Women.
Appeal dismissed.
FIR – Lodged belatedly – Effect of the delay, in cases
H
50
SATPAL SINGH v. STATE OF HARYANA
51
involving sexual offences and in cases involving other
offences – Explained.
Evidence Act, 1872 – s.35 – Admissibility of a document
– Not same as its probative value – Held: Entry made in the
official record by an official or person authorised in
performance of an official duty is admissible u/s.35 but the
authenticity of the entry would depend on whose instruction/
information such entry stood recorded and what was his
source of information.
52
A
A
B
B
Words and Phrases – “consent” – Meaning of – In the C
context of s.375 r/w s.90 IPC.
According to the prosecution, the appellant raped
PW15, the minor daughter of PW11, when she had gone
to the fields for collecting cattle folder. Pursuant to the D
alleged incident, the Village Panchayat intervened to
bring about a compromise between the parties and
ultimately imposed a fine of Rs.1100/- on the appellant.
But PW11 was dissatisfied with the diktat of the
Panchayat, and at his instance, an FIR was lodged
against the appellant under Sections 376, 201 and 217
IPC, about 4 months after the date of the incident.
Subsequently, the trial court convicted the appellant
under s.376 IPC and sentenced him to seven years
rigorous imprisonment. The High Court upheld the
conviction of the appellant, however, reduced his
sentence to 5 years.
C
D
E
E
F
F
The appellant challenged his conviction on the
grounds (1) that there was inordinate delay in lodging the G
FIR and the prosecution could not furnish any
explanation for the same; (2) that PW15 was major, and
not minor as recorded by the Courts below, and 3) that
PW15 and the appellant were studying in the same
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school and knew each other and it was a case of consent
for sexual intercourse. The appellant contended that he
had been falsely enroped in the crime just to extract
certain amount of money from him.
Dismissing the appeal, the Court
HELD:1.1. Delay in lodging FIR more often than not,
results in embellishment and exaggeration, which is a
creature of an afterthought. A delayed report not only gets
bereft of the advantage of spontaneity, the danger of the
introduction of a coloured version, an exaggerated
account of the incident or a concocted story as a result
of deliberations and consultations, also creep in, casting
a serious doubt on its veracity. Thus, the FIR is to be filed
more promptly and if there is any delay, the prosecution
must furnish a satisfactory explanation for the same for
the reason that in case the substratum of the evidence
given by the complainant/informant is found to be
unreliable, the prosecution case has to be rejected in its
entirety. [Para 14] [62-E-G]
1.2. However, no straight jacket formula can be laid
down in this regard. In case of sexual offences, the criteria
may be different altogether. The delay in lodging the FIR
in sexual offences has to be considered with a different
yardstick. As honour of the family is involved, its
members have to decide whether to take the matter to the
court or not. In such a fact-situation, near relations of the
prosecutrix may take time as to what course of action
should be adopted. Thus, some delay may occur. [Paras
15, 17] [62-G-H; 63-A-B; E-F]
G
H
1.3. In the instant case, the FIR was lodged after
about four months of the commission of offence and that
was done on the instructions of the Superintendent of
Police. There is ample evidence on record to show that
the Panchayat had intervened on the next day of the
SATPAL SINGH v. STATE OF HARYANA
53
incident and it pressurized PW11, the complainant, to
compromise the case and settle it outside the Court. The
Panchayat met several times and ultimately imposed a
fine of Rs.1100/- on the appellant, out of which the
appellant deposited/donated Rs.600/- and Rs. 500/- in
Gurudwara and Temple respectively, and obtained
receipts also. The receipts had been produced before the
trial Court. However, since the demand of PW 11 that “the
appellant be fined to the tune of Rs.5000/- and be taken
in the procession after blackening his face and be
paraded in the village” was not accepted by the
Panchayat, he had raised the grievance before the
Superintendent of Police. The delay in lodging the FIR
has been thus satisfactorily explained. [Paras 9, 18] [60D-G; 63-F]
Karnel Singh v. State of M.P. AIR 1995 SC 2472; State
of Punjab v. Gurmeet Singh & Ors. AIR 1996 SC 1393; State
of Andhra Pradesh v. M. Madhusudhan Rao (2008) 15 SCC
582; Satyapal v. State of Haryana AIR 2009 SC 2190 and
State of Himachal Pradesh v. Prem Singh AIR 2009 SC 1010
– relied on.
2.1. The entry made in the official record by an official
or person authorised in performance of an official duty
is admissible under Section 35 of the Evidence Act, 1872
but the party may still ask the Court/Authority to examine
its probative value. The authenticity of the entry would
depend as on whose instruction/information such entry
stood recorded and what was his source of information.
Thus, entry in school register/certificate requires to be
proved in accordance with law. Standard of proof for the
same remains as in any other civil and criminal case.
[Para 27] [67-D-F]
2.2. In the present case, there is nothing on record
to corroborate the date of birth of PW15. It is not possible
to ascertain as to who was the person who had given the
54
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B
C
D
E
F
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SUPREME COURT REPORTS
[2010] 9 S.C.R.
A date of birth of PW15 as 13.02.1975 at the time of initial
admission in the primary school. More so, it cannot be
ascertained as to who was the person who had recorded
her date of birth in the Primary School Register. More so,
the entry in respect of the date of birth of the prosecutrix
B in the Primary School Register has not been produced
and proved before the trial court. Thus, it cannot be held
with certainty that the prosecutrix was a major. However,
the issue of majority becomes irrelevant since the
prosecution has successfully established that it was not
C a consent case. [Para 28] [67-F-H; 68-A-B]
State of Bihar & Ors. v. Radha Krishna Singh & Ors. AIR
1983 SC 684; Ram Prasad Sharma v. State of Bihar AIR
1970 SC 326; Ram Murti v. State of Haryana AIR 1970 SC
1029; Dayaram & Ors. v. Dawalatshah & Anr. AIR 1971 SC
D 681; Harpal Singh & Anr. v. State of Himachal Pradesh AIR
1981 SC 361; Ravinder Singh Gorkhi v. State of U.P. (2006)
5 SCC 584; Babloo Pasi v. State of Jharkhand & Anr. (2008)
13 SCC 133; Desh Raj v. Bodh Raj AIR 2008 SC 632; Ram
Suresh Singh v. Prabhat Singh @Chhotu Singh & Anr. (2009)
E 6 SCC 681; Mohd. Ikram Hussain v. The State of U.P. & Ors.
AIR 1964 SC 1625; Santenu Mitra v. State of West Bengal
AIR 1999 SC 1587; Shri Raja Durga Singh of Solon v. Tholu
& Ors. AIR 1963 SC 361; Birad Mal Singhvi v. Anand Purohit
AIR 1988 SC 1796; Brij Mohan Singh v. Priya Brat Narain
F Sinha & Ors. AIR 1965 SC 282 and Vishnu Vs. State of
Maharashtra (2006) 1 SCC 283 – relied on.
3.1. A woman can be said to have given consent only
if she has freely agreed to submit herself, while in free
and unconstrained possession of her physical and moral
G power to act in a manner she wanted. Consent implies
the exercise of a free and untrammeled right to forbid or
withhold what is being consented to, it always is a
voluntary and conscious acceptance by one of what is
proposed to be done by another and concurred in by the
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SATPAL SINGH v. STATE OF HARYANA
55
former. An act of helplessness on the face of inevitable
compulsions is not consent in law. Moreso, it is not
necessary that there should be actual use of force. A
threat of use of force is sufficient. [Para 29] [68-C-D]
56
A
3.2. The concept of ‘consent’ in the context of
B
Section 375 IPC has to be understood keeping in mind
the provision of Section 90 IPC, according to which a
consent given under fear/coercion or misconception/
mistake of fact is not a consent at all. The scheme of
Section 90 IPC is couched in negative terminology.
Consent is different from submission. [Para 30] [68-E-F] C
3.3. In the instant case, PW15 has deposed that the
sickle in her hand had fallen down out of fear when the
appellant caught hold of her. She had given teeth bites
and broken the buttons of the shirt of the appellant in D
order to rescue herself from his clutches. She raised a
hue and cry and her brother PW16, who was working in
another field at some distance, came to the spot. The
prosecutrix has also been examined under Section 164
of CrPC, wherein she had deposed in respect of the
E
resistance also. She stood the test of cross-examination
with reasonable certainty. Her version also got support
from the medical evidence of the Doctor (PW 2), who had
opined that possibility of rape with the prosecutrix could
not be ruled out. In such a fact-situation, the question of
drawing an inference that it could be a case of consent F
does not arise at all. There was resistance by the
prosecutrix and thus, it cannot, even by any stretch of
imagination, be held that she had voluntarily participated
in the sexual act. There had been no enmity between the
two families, and, therefore, there could be no reason for G
the prosecutrix and her family to enrope the appellant
falsely in a case where the honour of the family itself
remains on stake and the prosecutrix has to suffer mental
agony throughout her life. [Paras 32, 35] [69-B-D; 70-DH
E]
A
B
C
D
E
F
G
H
SUPREME COURT REPORTS
[2010] 9 S.C.R.
Uday Vs. State of Karnataka AIR 2003 SC 1639; Deelip
Singh @ Dilip Kumar Vs. State of Bihar AIR 2005 SC 203;
Yedla Srinivasa Rao Vs. State of A.P. (2006) 11 SCC 615
and State of H.P. Vs. Mange Ram AIR 2000 SC 2798 – relied
on.
Case Law Reference:
AIR 1995 SC 2472
relied on
Para 13
AIR 1996 SC 1393
relied on
Para 13
(2008) 15 SCC 582
relied on
Para 14
AIR 2009 SC 2190
relied on
Para 15
AIR 2009 SC 1010
relied on
Para 16
AIR 1983 SC 684
relied on
Para 21
AIR 1970 SC 326
relied on
Para 22
AIR 1970 SC 1029
relied on
Para 22
AIR 1971 SC 681
relied on
Para 22
AIR 1981 SC 361
relied on
Para 22
(2006) 5 SCC 584
relied on
Para 22
(2008) 13 SCC 133
relied on
Para 22
AIR 2008 SC 632
relied on
Para 22
(2009) 6 SCC 681
relied on
Para 22
AIR 1964 SC 1625
relied on
Para 22
AIR 1999 SC 1587
relied on
Para 22
AIR 1963 SC 361
relied on
Para 23
AIR 1988 SC 1796
relied on
Para 24
AIR 1965 SC 282
relied on
Para 25
(2006) 1 SCC 283
relied on
Para 26
SATPAL SINGH v. STATE OF HARYANA
57
58
A
A
B
B
From the Judgment & Order dated 07.03.2007 of the High
Court of Punjab & Haryana at Chandigarh in Criminal Appeal C
No. 337-SB of 1994.
C
AIR 2003 SC 1639
relied on
Para 30
AIR 2005 SC 203
relied on
Para 30
(2006) 11 SCC 615
relied on
Para 30
AIR 2000 SC 2798
relied on
Para 31
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 763 of 2008.
Abhinav Ramakrishna, Prashant Shukla, Ajay Pal for the
Appellant.
Rajeev Gaur 'NASEEM', Arunabh Chowdhry, Nazid K. Hye, D
Gainilung Panmei, Anupam Lal Das for the Respondent.
D
The Judgment of the Court was delivered by
DR. B.S. CHAUHAN, J. 1. This appeal has been
preferred against the Judgment and Order dated 7.03.2007
passed by the High Court of Punjab and Haryana at Chandigarh
in Crl. Appeal No. 337-SB of 1994, by which the High Court
has upheld the conviction Order of the Trial Court dated 20th/
21st July, 1994 passed in Sessions Trial No. 21 of 1993,
however, the High Court reduced the sentence from seven
years to five years for the offence punishable under Section 376
of the Indian Penal Code (hereinafter called as, “IPC”).
E
E
F
F
2. The facts and circumstances giving rise to the present
case are that the alleged occurrence of rape took place on G
11.03.1993. Rajinder Kaur (PW 15), the prosecutrix, and her
brother Rajinder Singh (PW 16) had gone to fields for collecting
cattle fodder. Rajinder Singh had gone on a cycle and settled
in a field at some distance from the field where Rajinder Kaur,
the prosecutrix, had reached to cut/collect the grass. The H
G
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[2010] 9 S.C.R.
appellant, Satpal Singh, caught hold of her and out of fear, the
sickle in her hand fell down. The appellant took her to the nearby
wheat field and raped her. She raised an alarm and upon
hearing the same, her brother, Rajinder Singh (PW 16), came
running to the place of occurrence. But by then, the appellant
escaped from the scene. The prosecutrix came to her house
along with her brother and told her mother Smt. Balwant Kaur
that she was raped by the appellant. The father of the
prosecutrix, Balbir Singh (Complainant) (PW 11), was not
present at home and he was informed about the incident when
he returned home in the evening. Balbir Singh (PW 11), after
having consultation with his brother Kulwant Singh, went to
Police Station, Shahbad. However, the police officials on duty
asked him to come on next day. When Balbir Singh (PW 11)
reached the Police Station on next day, he found that a Village
Panchayat had already assembled there and efforts were made
to compromise the matter. However, Balbir Singh (PW 11),
agreed not to launch criminal proceedings in case, the appellant
was fined to the tune of Rs. 5000/- and “be taken in procession
after blackening his face and be paraded in the village”.
Ultimately, the Panchayat imposed fine of Rs. 1100/- only on
the appellant, out of which Rs. 600/- were donated in the
Gurudwara and Rs. 500/- in the temple. Being dissatisfied with
the dictate of the Panchayat and running from pillar to post to
convince the Panchayat members to come to a justifiable
solution, Balbir Singh (PW 11), complainant, approached the
Superintendent of Police, Kurukshetra on 16.07.1993 i.e. after
about four months of the date of incident. On the instructions
of the Superintendent of Police, Kurukshetra, an FIR was
lodged against the appellant and one ASI Ram Kumar on
16.07.1993 under Sections 376, 201 and 217 IPC. ASI Ram
Kumar was arrayed as an accused for the reason that there
had been allegations against him that he forced the matter to
be compromised in order to screen the appellant from the
crime.
3. Dr. Geeta Suri (PW 2), the Medical Officer, examined
SATPAL SINGH v. STATE OF HARYANA
[DR. B.S. CHAUHAN, J.]
59
60
A
A
B
4. The charges were framed against the appellant and ASI
Ram Kumar on 14.09.1993 under Sections 376, 201 and 217
IPC. Both the accused pleaded not guilty and claimed trial.
Thus, the trial was conducted and after recording the statements
and considering the case in totality, the Trial Court convicted
C
the appellant under Section 376 IPC and sentenced to seven
years’ Rigorous Imprisonment and imposed fine to the tune of
Rs.5000/-. In default of payment of fine, he was directed to
undergo Rigorous Imprisonment of six months more. However,
ASI Ram Kumar stood acquitted.
D
5. Being aggrieved, the appellant preferred the appeal
before the High Court of Punjab and Haryana and the High
Court, vide impugned Judgment and Order dated 7.03.2007,
upheld the conviction of the appellant, but considering the
mitigating circumstances, reduced the sentence from seven E
years to five years. Hence, this appeal.
B
the prosecutrix on 17.07.1993. According to her, as the alleged
rape had taken place long ago, the vaginal swap could not be
taken and, therefore, there was no possibility to prove the
alleged act of rape by way of medical report. However, she
opined that possibility of rape could not be ruled out.
6. Sh. Abhinav Ramakrishna, learned counsel for the
appellant, has raised only two issues namely; (a) that there has
been inordinate delay in lodging the FIR and the prosecution
could not furnish any explanation for the same and; (b) that the F
prosecutrix was major and the Courts below have recorded a
wrong finding of fact that she was a minor. The prosecutix and
the appellant had been studying in the same school. They knew
each other and it was a case of consent. The appellant has
falsely been enroped in the crime just to extract certain amount G
of money from him. The appeal deserves to be allowed.
7. On the other hand, Sh. Rajeev Gaur ‘Naseem’, learned
counsel for the respondent-State, has vehemently opposed the
appeal contending that the prosecutrix was a minor at the time
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[2010] 9 S.C.R.
of the incident and even if, she was a major, there was no
consent of the prosecutrix for sexual intercourse. More so, there
had been no demand of money by the prosecutrix or her father,
Balbir Singh (PW 11). The delay occurred because of the
intervention of the Village Panchayat and non-cooperation of
the Police officials. The Panchayat did not agree to the
suggestion of Balbir Singh (PW 11), that the appellant “be taken
in procession after blackening his face and paraded in the
village.” The complainant approached the Superintendent of
Police, Kurukshetra. Thus, no fault can be found with the
prosecution case as delay in lodging FIR stood explained.
Appeal lacks merit and is liable to be dismissed.
8. We have considered the rival submissions made by
learned counsel for the parties and perused the record.
D
E
F
G
H
9. In the instant case, admittedly, the FIR was lodged after
about four months of the commission of offence and that was
done on the instructions of the Superintendent of Police,
Kurukshetra. There is ample evidence on record to show that
the Panchayat had intervened on the next day of the incident
and it pressurised the complainant to compromise the case
and settle it outside the Court. The Panchayat met several times
and ultimately imposed a fine of Rs.1100/- on the appellant, out
of which the appellant deposited/donated Rs.600/- and Rs.
500/- in Gurudwara and Temple respectively, and obtained
receipts also. The receipts had been produced before the trial
Court by Piara Singh (PW 6). However, Balbir Singh (PW 11),
complainant, had been demanding that “the appellant be fined
to the tune of Rs.5000/- and be taken in the procession after
blackening his face and be paraded in the village”. It was not
accepted by the Panchayat, therefore, the complainant had
raised the grievance before the Superintendent of Police,
Kurukshetra.
10. Maya Ram, Sarpanch, Village Dhantori, was examined
as PW8 and was declared hostile. However, in the
examination-in-chief, he stated as under :-
SATPAL SINGH v. STATE OF HARYANA
[DR. B.S. CHAUHAN, J.]
61
“A Panchayat was convened to settle this issue. Members
of Panchayat assembled from four-five villages including
the relatives of both the parties. This dispute/issue was
settled by the Panchayat by imposing the fine of Rs.1100/
- on Satpal Singh.”
62
A
A
B
B
11. Balbir Singh (PW 11) has stated that he went to the
Police Station on the same day. His statement was recorded
there and was asked by the Munshi to come on the next day.
When on the next day, he went to the Police Station at about
8.00-8.30 a.m. along with his daughter Rajinder Kaur, the
prosecutrix, and brother, he noticed 15-20 persons from C
different villages, including a few from his village, who had
advised him to settle the matter for the reason that he had to
marry his daughter. They had also advised not to get his
daughter medically examined as it would be a hurdle for him
in arranging her marriage. But the complainant did not accept D
their suggestion and approached the higher authorities.
12. Both the courts below have considered this aspect at
length and reached the conclusion that delay occurred because
of the intervention of the Panchayat, as the Panchayat had
insisted to compromise the case, rather than moving the
investigating machinery. The High Court observed as under :-
E
“It was a case where the life of a young child of the
complainant was at stake. A tendency on the part of the
villagers or the parents of a young child, who is ravished, F
would normally be to save the honour of the child as first
priority. The respectables in the village could be expected
to intervene in this matter to seek compromise, so as to
avoid the stigma for a young girl. An innocent complainant,
even admitted that he would not have got the case G
registered in case the panchayat had agreed to impose
fine as suggested by him and if the panchayat had
paraded the appellant with blacken face as proposed by
him. This would rather reflect that the witness was truthful
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[2010] 9 S.C.R.
besides being innocent villager, who despite being
subjected to intricacies of the court proceedings, did not
resile from the true accounts of events that had taken
place.”
13. In a rape case the prosecutrix remains worried about
her future. She remains in traumatic state of mind. The family
of the victim generally shows reluctance to go to the police
station because of society’s attitude towards such a woman. It
casts doubts and shame upon her rather than comfort and
sympathise with her. Family remains concern about its honour
and reputation of the prosecutrix. After only having a cool
thought it is possible for the family to lodge a complaint in
sexual offences. (Vide Karnel Singh Vs. State of M.P. AIR
1995 SC 2472; and State of Punjab Vs. Gurmeet Singh &
Ors. AIR 1996 SC 1393).
D
E
F
G
14. This Court has consistently highlighted the reasons,
objects and means of prompt lodging of FIR. Delay in lodging
FIR more often than not, results in embellishment and
exaggeration, which is a creature of an afterthought. A delayed
report not only gets bereft of the advantage of spontaneity, the
danger of the introduction of a coloured version, an
exaggerated account of the incident or a concocted story as a
result of deliberations and consultations, also creeps in, casting
a serious doubt on its veracity. Thus, FIR is to be filed more
promptly and if there is any delay, the prosecution must furnish
a satisfactory explanation for the same for the reason that in
case the substratum of the evidence given by the complainant/
informant is found to be unreliable, the prosecution case has
to be rejected in its entirety. [vide State of Andhra Pradesh
Vs. M. Madhusudhan Rao (2008) 15 SCC 582].
15. However, no straight jacket formula can be laid down
in this regard. In case of sexual offences, the criteria may be
different altogether. As honour of the family is involved, its
members have to decide whether to take the matter to the
H
SATPAL SINGH v. STATE OF HARYANA
[DR. B.S. CHAUHAN, J.]
63
court or not. In such a fact-situation, near relations of the
prosecutrix may take time as to what course of action should
be adopted. Thus, delay is bound to occur. This Court has
always taken judicial notice of the fact that “ordinarily the family
of the victim would not intend to get a stigma attached to the
victim. Delay in lodging the First Information Report in a case
of this nature is a normal phenomenon” [vide Satyapal Vs.
State of Haryana AIR 2009 SC 2190].
64
A
A
B
B
16. In State of Himachal Pradesh Vs. Prem Singh AIR
2009 SC 1010, this Court considered the issue at length and
C
observed as under :-
C
“So far as the delay in lodging the FIR is concerned, the
delay in a case of sexual assault, cannot be equated with
the case involving other offences. There are several factors
which weigh in the mind of the prosecutrix and her family D
members before coming to the police station to lodge a
complaint. In a tradition bound society prevalent in India,
more particularly, rural areas, it would be quite unsafe to
throw out the prosecution case merely on the ground that
there is some delay in lodging the FIR.”
E
D
E
17. Thus, in view of the above, the delay in lodging FIR in
sexual offences has to be considered with a different yardstick.
18. If the instant case is examined in the light of the
aforesaid settled legal proposition, we are of the considered
opinion that the delay in lodging the FIR has been satisfactorily
explained.
F
19. So far as the issue as to whether the prosecutrix was
a major or minor, it has also been elaborately considered by G
the courts below. In fact, the School Register has been
produced and proved by the Head Master, Mohinder Singh
(PW 3). According to him, Rajinder Kaur (PW 15), the
prosecutrix, was admitted in Government School, Sharifgarh,
Dist. Kurukshetra on 2.05.1990 on the basis of School Leaving
H
F
G
H
SUPREME COURT REPORTS
[2010] 9 S.C.R.
Certificate issued by Government Primary School, Dhantori. In
the School Register, her date of birth has been recorded as
13.02.1975. The question does arise as to whether the date
of birth recorded in the School Register is admissible in
evidence and can be relied upon without any corroboration. This
question becomes relevant for the reason that in crossexamination, Sh. Mohinder Singh, Head Master (PW 3), has
stated that the date of birth is registered in the school register
as per the information furnished by the person/guardian
accompanying the students, who comes to the school for
admission and the school authorities do not verify the date of
birth by any other means.
20. A document is admissible under Section 35 of the
Indian Evidence Act, 1872 (hereinafter called as ‘Evidence Act’)
being a public document if prepared by a government official
in the exercise of his official duty. However, the question does
arise as what is the authenticity of the said entry for the reason
that admissibility of a document is one thing and probity of it is
different.
21. In State of Bihar & Ors. Vs. Radha Krishna Singh &
Ors. AIR 1983 SC 684, this Court dealt with a similar contention
and held as under:–
“Admissibility of a document is one thing and its probative
value quite another - these two aspects cannot be
combined. A document may be admissible and yet may
not carry any conviction and weight of its probative value
may be nil.. . . . .
Where a report is given by a responsible officer, which is
based on evidence of witnesses and documents and has
“a statutory flavour in that it is given not merely by an
administrative officer but under the authority of a Statute,
its probative value would indeed be very high so as to be
entitled to great weight.
SATPAL SINGH v. STATE OF HARYANA
[DR. B.S. CHAUHAN, J.]
65
The probative value of documents which, however ancient
they may be, do not disclose sources of their information
or have not achieved sufficient notoriety is precious little.”
22. Therefore, a document may be admissible, but as to
whether the entry contained therein has any probative value may
still be required to be examined in the facts and circumstances
of a particular case. The aforesaid legal proposition stands
fortified by the judgments of this Court in Ram Prasad Sharma
Vs. State of Bihar AIR 1970 SC 326; Ram Murti Vs. State of
Haryana AIR 1970 SC 1029; Dayaram & Ors. Vs.
Dawalatshah & Anr. AIR 1971 SC 681; Harpal Singh & Anr.
Vs. State of Himachal Pradesh AIR 1981 SC 361; Ravinder
Singh Gorkhi Vs. State of U.P. (2006) 5 SCC 584; Babloo
Pasi Vs. State of Jharkhand & Anr. (2008) 13 SCC 133; Desh
Raj Vs. Bodh Raj AIR 2008 SC 632; and Ram Suresh Singh
Vs. Prabhat Singh @Chhotu Singh & Anr. (2009) 6 SCC 681.
In these cases, it has been held that even if the entry was made
in an official record by the concerned official in the discharge
of his official duty, it may have weight but still may require
corroboration by the person on whose information the entry has
been made and as to whether the entry so made has been
exhibited and proved. The standard of proof required herein is
the same as in other civil and criminal cases.
Such entries may be in any public document, i.e. school
register, voter list or family register prepared under the Rules
and Regulations etc. in force, and may be admissible under
Section 35 of the Evidence Act as held in Mohd. Ikram Hussain
Vs. The State of U.P. & Ors. AIR 1964 SC 1625; and Santenu
Mitra Vs. State of West Bengal AIR 1999 SC 1587.
23. There may be conflicting entries in the official document
and in such a situation, the entry made at a later stage has to
be accepted and relied upon. (Vide Shri Raja Durga Singh of
Solon Vs. Tholu & Ors. AIR 1963 SC 361).
66
A
A
B
B
C
C
D
D
SUPREME COURT REPORTS
[2010] 9 S.C.R.
24. While dealing with a similar issue in Birad Mal Singhvi
Vs. Anand Purohit AIR 1988 SC 1796, this Court held as
under:–
“To render a document admissible under Section 35,
three conditions must be satisfied, firstly, entry that is relied
on must be one in a public or other official book, register
or record, secondly, it must be an entry stating a fact in
issue or relevant fact, and thirdly, it must be made by a
public servant in discharge of his official duty, or any other
person in performance of a duty specially enjoined by law.
An entry relating to date of birth made in the school register
is relevant and admissible under Section 35 of the Act, but
entry regarding to the age of a person in a school register
is of not much evidentiary value to prove the age of the
person in the absence of the material on which the age was
recorded.”
25. A Constitution Bench of this Court, while dealing with
a similar issue in Brij Mohan Singh Vs. Priya Brat Narain Sinha
& Ors. AIR 1965 SC 282, observed as under:–
E
E
F
F
G
G
H
26. In Vishnu Vs. State of Maharashtra (2006) 1 SCC 283,
while
dealing with a similar issue, this Court observed that very
H
“The reason why an entry made by a public servant in a
public or other official book, register, or record stating a
fact in issue or a relevant fact has been made relevant is
that when a public servant makes it himself in the discharge
of his official duty, the probability of its being truly and
correctly recorded is high. That probability is reduced to a
minimum when the public servant himself is illiterate and
has to depend on somebody else to make the entry. We
have therefore come to the conclusion that the High Court
is right in holding that the entry made in an official record
maintained by the illiterate Chowkidar, by somebody else
at his request does not come within Section 35 of the
Evidence Act.”
SATPAL SINGH v. STATE OF HARYANA
[DR. B.S. CHAUHAN, J.]
67
often parents furnish incorrect date of birth to the school
authorities to make up the age in order to secure admission
for their children. For determining the age of the child, the best
evidence is of his/her parents, if it is supported by unimpeccable documents. In case the date of birth depicted in
the school register/certificate stands belied by the unimpeccable evidence of reliable persons and
contemporaneous documents like the date of birth register of
the Municipal Corporation, Government Hospital/Nursing Home
etc, the entry in the school register is to be discarded.
Thus, the entry in respect of age of the child seeking
admission, made in the school register by semi-literate
chowkidar at the instance of a person who came along with the
child having no personal knowledge of the correct date of birth,
cannot be relied upon.
27. Thus, the law on the issue can be summerised that the
entry made in the official record by an official or person
authorised in performance of an official duty is admissible under
Section 35 of the Evidence Act but the party may still ask the
Court/Authority to examine its probative value. The authenticity
of the entry would depend as on whose instruction/information
such entry stood recorded and what was his source of
information. Thus, entry in school register/certificate requires to
be proved in accordance with law. Standard of proof for the
same remains as in any other civil and criminal case.
28. In case, the issue is examined in the light of the
aforesaid settled legal proposition, there is nothing on record
to corroborate the date of birth of the prosecutrix recorded in
the School Register. It is not possible to ascertain as to who
was the person who had given her date of birth as 13.02.1975
at the time of initial admission in the primary school. More so,
it cannot be ascertained as who was the person who had
recorded her date of birth in the Primary School Register. More
so, the entry in respect of the date of birth of the prosecutrix in
68
A
B
C
D
E
F
G
H
SUPREME COURT REPORTS
[2010] 9 S.C.R.
A the Primary School Register has not been produced and proved
before the Trial Court. Thus, in view of the above, it cannot be
held with certainty that the prosecutrix was a major.
Be that as it may, the issue of majority becomes irrelevant
if the prosecution successfully establishes that it was not a
B
consent case.
29. It can be held that a woman has given consent only if
she has freely agreed to submit herself, while in free and
unconstrained possession of her physical and moral power to
C act in a manner she wanted. Consent implies the exercise of
a free and untrammeled right to forbid or withhold what is being
consented to, it always is a voluntary and conscious acceptance
of what is proposed to be done by another and concurred in
by the former. An act of helplessness on the face of inevitable
D compulsions is not consent in law. More so, it is not necessary
that there should be actual use of force. A threat or use of force
is sufficient.
30. The concept of ‘Consent’ in the context of Section 375
IPC has to be understood differently, keeping in mind the
E
provision of Section 90 IPC, according to which a consent given
under fear/coercion or misconception/mistake of fact is not a
consent at all. Scheme of Section 90 IPC is couched in
negative terminology. Consent is different from submission.
[Vide Uday Vs. State of Karnataka AIR 2003 SC 1639; Deelip
F Singh @ Dilip Kumar Vs. State of Bihar AIR 2005 SC 203;
and Yedla Srinivasa Rao Vs. State of A.P. (2006) 11 SCC
615.]
31. In the State of H.P. Vs. Mange Ram AIR 2000 SC
G 2798, this Court, while considering the same issue, held as
under :-
H
“Submission of the body under the fear of terror cannot be
construed as a consented sexual act. Consent for the
purpose of Section 375 requires voluntary participation not
SATPAL SINGH v. STATE OF HARYANA
[DR. B.S. CHAUHAN, J.]
69
70
only after the exercise of intelligence based on the
knowledge of the significance and moral quality of the act
but after having fully exercised the choice between the
resistance and assent.”
A
A
32. Rajinder Kaur (PW 15), the prosecutrix, has deposed
that the sickle in her hand had fallen down out of fear when the
appellant caught hold of her. She had given teeth bites and
broken the buttons of the shirt of the appellant in order to rescue
herself from his clutches. She raised a hue and cry and her
brother, Rajinder Singh (PW 16), who was working in another
field at some distance, came to the spot. The prosecutrix has
also been examined under Section 164 of Code of Criminal
Procedure, 1973, wherein she had deposed in respect of the
resistance also. She stood the test of cross-examination with
reasonable certainty. Her version also got support from the
medical evidence of Dr. Geeta Suri (PW 2), who had opined
that possibility of rape with the prosecutrix could not be ruled
out.
B
B
C
C
33. The Trial Court considered the issue of consent at
length and recorded the following findings :“There is positive and cogent evidence in the statement
of Mst. Rajinder Kaur (PW15) as also in her statement
Ex.PS/2 that resistance was offered by her. She even
makes out a case that she could have even used sickle in
offering resistance but it had fallen away from her hands
on the doll.
D
E
F
34. The High Court dealt with the issue and made the
following observations :“The aspect of consent introduced by the appellant’s
counsel as an alternative plea would also not stand the test
of judicial scrutiny. When analysed in the light of evidence
given by prosecutrix and other PWs, it would show that
prosecutrix had offered resistance, so much as that she
G
SUPREME COURT REPORTS
[2010] 9 S.C.R.
had pulled the buttons of the shirt of the appellant and had
given him teeth bites. She had also raised alarm, which
had attracted her brother, who was present in the nearby
fields. The aspect of consent introduced by taking
advantage of the appellant being a student of the same
school where the prosecutrix was studying, was rightly
discarded by the trial court……it may also need a notice
that such a plea was only raised in the alternative as
otherwise plea of denial alone was earlier raised. Defence
has, without success, tried to encash the aspect of
settlement, which was negotiated during the panchayat
meetings.”
35. Thus, in view of the above, we are of the considered
opinion that in such a fact-situation, the question of drawing an
inference that it could be a case of consent does not arise at
D all. There was resistance by the prosecutrix and thus, it cannot,
even by a stretch of imagination, be held that she had voluntarily
participated in the sexual act. There had been no enmity
between the two families, and, therefore, there could be no
reason for the prosecutrix and her family to enrope the appellant
E falsely in a case where the honour of the family itself remains
on stake and the prosecutrix has to suffer mental agony
throughout her life. We should be alive to the fact that rape not
only distracts the personality of the victim but degrades her very
soul. Prosecutrix generally faces humiliation and is being
F harassed by the defence in her cross-examination during the
trial. Any kind of unwarranted suggestion can be put to her. In
the instant case, the appellant in his statement under Article 313
Cr.P.C. did not hesitate to label the prosecutrix as “Vagabond”.
He further stated that he had falsely been enroped in the case
G “with the connivance of police in order to extort money”.
36. In the totality of the circumstances, we do not find any
force in the appeal. It lacks merit and is accordingly dismissed.
B.B.B.
H
H
Appeal dismissed.
72
[2010] 9 S.C.R. 71
THE GENERAL MANAGER (P) PUNJAB & SIND BANK &
ORS.
v.
DAYA SINGH
(Civil Appeal No. 4120 of 2007)
JULY 28, 2010
A
B
[R.V. RAVEENDRAN AND H.L. GOKHALE, JJ.]
Service Law – Dismissal – Allegation of misconduct –
Against Bank Manager – Misconduct proved – Punishment
of dismissal from service and recovery of pecuniary loss by
the authorities concerned – Writ petition – Allowed by High
Court – On appeal, Held: The finding of Inquiry Officer was
based on documentary evidence and was well reasoned –
There was no violation of principles of natural justice – Scope
of judicial review in departmental disciplinary matter is limited
– Once the charges were found to have been established,
interference of High Court not correct – Punjab and Sind Bank
Officers/Employers (Conduct) Regulations, 1981 – Regulation
24 – Punjab and Sind Bank Officers/Employees (Discipline
and Appeal) Regulations, 1997 – Principles of Natural Justice
– Judicial Review.
Respondent-Manager in the appellant-Bank, was
charge-sheeted by the appellant-Bank. The allegations
against him were that he sanctioned demand loans
against twenty non-existent FDRs to fictitious persons
without any security; that he left the Branch without
handing over the charge of articles and documents; that
he left the station of posting without authorization; that
he stood a guarantor to the loan sanctioned to a
Company without prior permission of the competent
authority; and that he stood as guarantor to the loan
taken by his wife from another Bank without prior
71
C
D
E
SUPREME COURT REPORTS
[2010] 9 S.C.R.
A permission. Inquiry Officer held that all the charges were
proved. Disciplinary Authority concurring with the
findings of the Inquiry Officer, held that the respondent
committed the misconduct under clause 3(1) and 15(v) r/
w Regulation No. 24 of the Punjab and Sind Bank
B Officers/Employers (Conduct) Regulations, 1981. The
penalty of dismissal from service and recovery of
pecuniary loss under Punjab and Sind Bank Officers/
Employees (Discipline and appeal) Regulations, 1997,
was imposed. The appellate authority confirmed the
C order.
All the three orders were challenged in the writ
petition. High Court set aside the impugned orders
holding that the documents produced were neither
detailed nor their nature was explained; that there was
D no discussion or analysis of the evidence presented; that
absence of reason was in violation of principles of
natural justice. High Court directed the Bank to reinstate
the respondent for holding the inquiry afresh. The instant
appeal was filed by the Bank.
E
The respondent contended that the documents did
not establish the misconduct; and that no borrower had
been examined in support of the allegations against him.
Allowing the appeal, the Court
F
G
H
F
HELD: 1.1 The appellant-Bank had taken the
necessary steps to establish the misconduct before the
inquiry officer. The relevant documents including ledger
entries were produced through the concerned witnesses.
The respondent fully participated in the inquiry. He had
G no explanation to offer during the course of the inquiry
or any time thereafter. When all the relevant entries were
in the handwriting of the respondent, the Bank did not
think it necessary to call the borrowers. In fact, as the
inquiry officer states, the respondent should have
H produced the borrowers if he wanted to contend anything
GENERAL MANAGER (P) PUNJAB & SIND BANK &
ORS. v. DAYA SINGH
73
against the documentary evidence produced by the
Bank. In the circumstances, the conclusions arrived at by
the inquiry officer could not have been held as without
any evidence in support. The High Court has clearly erred
in holding that the documents produced were neither
detailed nor their nature was explained. [Para 16] [82-H;
83-A-C]
1.2 There was clear documentary evidence on record
in the handwriting of the respondent which established
his role in the withdrawal of huge amounts for fictitious
persons. The ledger entries clearly showed that whereas
the FDRs were in one name, the withdrawals were shown
in the name of altogether different persons and they were
far in excess over the amounts of FDRs. The respondent
had no explanation and, therefore, it had to be held that
the respondent had misappropriated the amount. Inspite
of a well-reasoned order by the Inquiry Officer, the High
Court has interfered therein by calling the same as
sketchy. The High Court has completely overlooked the
role of the Bank Manager. [Para 19] [85-F-H; 86-A]
74
A
B
C
D
E
State Bank of India vs. Bela Bagchi (2005) 7 SCC 435;
Damoh Panna Sagar Rural Regional Bank vs. Munna Lal
Jain (2005) 10 SCC 84 – relied on.
Managing Director ECIL Hyderabad vs. B. Karunakar
AIR 1994 SC 1074; Suresh Pathrella vs. Oriental Bank of
Commerce AIR 2007 SC 199 – referred to.
2.1 Absence of reasons in a disciplinary order would
amount to denial of natural justice to the charge-sheeted
employee. But the instant case was certainly not one of
that category. Once the charges were found to have been
established, the High Court had no reason to interfere
with the decision. Once the necessary material was
placed on record and when the charge-sheeted officer
F
G
H
SUPREME COURT REPORTS
[2010] 9 S.C.R.
A had no explanation to offer, the Inquiry Officer could not
have taken any other view. The order of a Bank Officer
may not be written in the manner in which a judicial
officer would write. Yet what one has to see is whether
the order is sufficiently clear and contains the reasons
B in justification for the conclusion arrived at. The High
Court has ignored this aspect. [Para 17] [83-F-H; 84-A-B]
2.2 Even though there was sufficient documentary
evidence on record, the High Court has chosen to hold
that the findings of the Inquiry Officer were perverse. A
C
perverse finding is one which is based on no evidence
or one that no reasonable person would arrive 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
D perverse. The scope of judicial review for the High Court
in departmental disciplinary matter is limited. [Paras 17
and 18] [83-G-H; 84-A-D]
Triveni Rubber and Plastics vs. CCE AIR 1994 SC 1341;
E Arulvelu and Anr. vs. State Represented by the Public
Prosecutor and Anr. (2009) 10 SCC 206; T.N. C.S.
Corporation Ltd. vs. K. Meerabai (2006) 2 SCC 255; Bank of
India vs. Degala Sriramulu (1999) 5 SCC 768 – relied on.
F
G
H
Case Law Reference:
AIR 1994 SC 1074
referred to.
Para 13
AIR 2007 SC 199
referred to.
Para 14
AIR 1994 SC 1341
relied on
Para 17
(2009) 10 SCC 206
relied on
Para 17
(2006) 2 SCC 255
relied on
Para 18
(1999) 5 SCC 768
relied on
Para 18
(2005) 7 SCC 435
relied on
Para 19
GENERAL MANAGER (P) PUNJAB & SIND BANK &
ORS. v. DAYA SINGH
(2005) 10 SCC 84
relied on
75
Para 19
76
A
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4120 of 2007.
From the Judgment & Order dated 25.01.2007 of the High
Court of Judicature at Allahabad in Civil Misc. Writ Petition No.
28546 of 2004.
B
Rajat Arora, Rajiv Nanda for the Appellants.
Daya Singh (Respondent-In-Person).
C
The Judgment of the Court was delivered by
GOKHALE J. 1. This appeal seeks to challenge the
judgment and order dated 25.01.2007 rendered by a Division
Bench of Allahabad High Court allowing Civil Writ Petition No.
2846/2004 filed by the respondent. The respondent at the
relevant time in 1997-99 was working as a Manager of a Branch
of Punjab & Sind Bank in Kanpur and he was directed to be
dismissed for misconduct after a departmental inquiry vide
order dated 6th June, 2003. The respondent had challenged
this order and two subsequent orders in his writ petition to the
High Court and these orders have been set aside by the
impugned judgment and order. Being aggrieved by the same,
this appeal has been filed by the General Manager (P) on behalf
of Bank. Apart from setting aside order of dismissal, High Court
directed the reinstatement of the respondent. The respondent
moved a contempt petition for non-implementation thereof. This
Court vide its order dated 7th May, 2007 has stayed the
contempt proceedings. Subsequently, leave was granted on
appellant’s Special leave petition on 6th September, 2007. Mr.
Rajiv Nanda, learned Counsel has appeared for the appellant.
The respondent has appeared in person.
D
E
3. On 9th of March, 1999, when the Zonal Manager,
Lucknow, telephonically made further inquiries with the
respondent, immediately thereafter, the respondent left the
Branch by leaving behind a letter of voluntary retirement dated
9th March, 1999 without handing over the charge of the articles
and documents of the Branch to anybody else. He did not report
D for duty any time thereafter, although a telegram was sent to
him on 11th March, 1999 that he should join immediately. He
was, therefore, suspended on 12th March, 1999. An FIR was
lodged on 13th March, 1999 and the respondent was arrested
along with the Cashier Mr. K.P.Singh.
E
4.The appellant Bank issued a charge-sheet to the
respondent containing the following charges :
C
F
F
G
G
H
[2010] 9 S.C.R.
A Manager of the appellant’s Branch (earlier an extension
counter) at Guru Nanak Girls Degree College, Sunder Nagar,
Kanpur. In a vigilance inspection, it was found on 8th of March,
1999 that some 20 loans to the tune of Rs.16.48 lacs were
disbursed to some persons against FDRs though the FDRs
B were in the names of altogether different persons. It was also
seen that the withdrawals which were allowed, were far in
excess over the amounts in the FDRs. All those entries were
in the hand-writing of the respondent.
Short facts leading to this appeal
2. As stated above, the respondent was working as a
SUPREME COURT REPORTS
H
(i)
He sanctioned demand loan against twenty
non-existent FDR’s amounting Rs.16.48 Lac
to the fictitious persons. Thus he has
misappropriated Rs.16.48 lac by way of
sanctioning demand loans against nonexistent FDRs without any security.
(ii)
He has left the Branch on 9th March, 1999
without handing over the charge of articles
and documents of Branch.
(iii)
He has left his station of posting without
authorization, and he is absconding from the
GENERAL MANAGER (P) PUNJAB & SIND BANK & 77
ORS. v. DAYA SINGH [H.L. GOKHALE, J.]
(iv)
(v)
78
services since 09.03.1999.
A
A
He stands a guarantor to the loan sanctioned
to M/s Mark Tubes, at Branch office
Gurgaon. The loan was sanctioned against
his surety for which he has not obtained prior
permission from the competent authority. The
account turned into NPA account and he has
not made sincere efforts to ensure the
recovery of this loan amount, and
B
B
He has taken guarantee of his wife named C
Mrs. Satvinder Kaur who has taken a loan
from Bank of India, Tilak Nagar, New Delhi110018 in the name of M/s Paper Products.
He has never sought a permission from
competent authority for standing as D
guarantor.
The inquiry could not start earlier since the respondent was
in judicial custody till December, 2001. Thereafter, a full-fledged
inquiry was conducted.
E
5. During the inquiry, relevant documents were produced
through the concerned officers. The material produced before
the inquiry officer with respect to charge No.1 was that some
20 fictitious loans were sanctioned against non-existent FDRs.
A chart to that effect has been produced before us as well as F
photo copies of the documents which were placed before the
inquiry officer. Thus in this compilation at page 21 , there is a
photo copy of a page of loan register which shows at serial
number 54, an advance of a loan of Rs.75000/- to one Rajinder
Kaur against FDR Nos. 115/86 and 116/86. In this very G
compilation at page No.54, there is photocopy of a page of the
FDR ledger wherein the FDR Nos. 115 and 116 are recorded.
The FDR No.115 is worth of Rs.10000/- and No. 116 is worth
of Rs. 2500/- only. FDR No. 115 in the name of one Nand
Kumar whereas FDR No.116 is in the name of one Hardeep H
SUPREME COURT REPORTS
[2010] 9 S.C.R.
Satija. Thus as can be seen, whereas the amounts in the two
FDRs were only Rs.12500/- together, the loan advanced was
Rs.75000/- and that too to a third party one Rajinder Kaur in
whose name either of the FDRs do not stand. The above
referred two extracts of the ledger are brought on record during
the inquiry as Management Exhibits, MEX B-1 and MEX F-1.
6. These amounts are stated to have been handed over
to the respondent by the Cashier of the Bank one K.P. Singh
on 18 occasions and by one Mr. Dixit on two occasions. Mr.
K.P. Singh has deposed during the departmental inquiry. He
C has proved the above referred two extracts. He has stated that
the respondent used to ask him to get such cash as against
FDRs and he used to make the cash available to him. Thus in
all 20 ledger entries were brought on record and exhibited
showing the withdrawals permitted to some persons and the
D ledger entries showing the names of altogether different
persons in whose names the FDRs stood and also that the
FDR amounts were for less than the amount allowed to be
withdrawn. The inquiry officer has dealt with this material on
record in the following words in his report :
E
“Presenting officer relied on MEX A 1-20 MEX BI to 10;
MEX C 1 to 20, MEX F 1 to 20 and MEX G-1 to 20. These
are the documents showing all the entries by CSO in his
own handwriting. The presenting officer also brought in
MW1 to prove payments made to CSO by MW1 through
F
Exhibits marked MEX C 1 to C4; MEX C-6 to C-7; MEX
C-11 to C-20. Through exhibits MEX B1 to B10 presented
that there were no records through which FDRs kept as
security could be proved. P.O. in his plea brought in MEX
E-1 to MEX E-3 to show that FDRs against which the loan
G
were raised too did not belong to borrower and one was
paid to the beneficiary on 11.07.96. P.O. argued advance
was made were non-existent.”
7. Although, the respondent participated in the inquiry and
H
GENERAL MANAGER (P) PUNJAB & SIND BANK &
ORS. v. DAYA SINGH [H.L. GOKHALE, J.]
79
80
filed his reply therein as well as a detailed counter in this Court, A
there is no explanation whatsoever as to how these 20 persons
were given the loans when the FDRs were not in their names
and also why the loan amount is far exceeding the amount that
was deposited. The only submission of the respondent was that
when earlier inspections were carried out, no such allegation B
was made. He submitted that he had increased the business
at the extension counter at the College and that is how it had
become a Branch, yet his work was not being appreciated.
However, no particulars were given to pin point any mala fides.
Besides, all these entries were in his hand-writing and there C
was no explanation in that behalf. As far as the deposition of
Mr. K.P. Singh is concerned, it was sought to be contended
that bank officers had stood surety for his bail and, therefore,
his evidence should not be accepted. That obviously could not
be, in view of the documentary evidence, which was in his own
D
hand-writing and which showed that the loan advances were
far more than the amounts in the FDRs and they were given to
persons other than those in whose names, the FDRs were
issued.
A
E
E
8. The inquiry officer, therefore, concluded in his report as
follows :
‘Assessment of evidence of presenting officer’s and CSO
weighs heavily on P.O. side. He has produced the
documents as available in the branch and proved that
advances made were having incomplete details on each
documents. The C.S.O. has based himself on premises
and has nothing to present in his defence.
F
On going through both written and oral evidence
before me, I posed queries before CSO, whether he can G
produce any evidence of FDRs from Bank records. The
answer was negative and evasive. Further query was
raised whether the borrowers could be produced to prove
his contention. The reply again was negative. Hence
H
B
C
D
F
G
H
SUPREME COURT REPORTS
[2010] 9 S.C.R.
evaluating the document before me and other relevant
evidence, I am of the opinion that charge number 1
based on allegations 1 to 20 stands proved’.
9. Similarly, with respect to the charges Nos. 2 and 3 of
his going away from the branch on 9th March, 1999 without
handing over charge and absconding thereafter, the only
submission forthcoming was that when the Zonal Manager
talked to him, he felt reprimanded and, therefore, he sent his
letter of V.R.S. There was however no explanation as to how
he could walk away without handing over the change and why
he did not turn up even though he was given a telegram to join
on the duty.
10. As far as the charge number 4 and 5 are concerned,
it was alleged against him that he has stood guarantor firstly
for a company in one case and then for his wife which was done
without the permission from the competent authority. The only
defence of the respondent was that there was no harm to the
bank in this, and if necessary the amount be adjusted from his
retirement benefit or otherwise after reinstatement by regular
installments. This was no explanation and this was against the
service rules and hence the inquiry officer held that the charges
were proved.
11. After considering the inquiry report, the Zonal Manager
who was the disciplinary authority came to the conclusion that
the respondent has committed misconduct under Clause 3(1)
and 15(v) read with Regulation No.24 of the Punjab & Sind
Bank Officers Employees (Conduct) Regulations 1981. He
concurred with the findings of the inquiry officer. Therefore, by
the order dated 6th June, 2003, he imposed the penalty of
dismissal from service alongwith recovery of pecuniary loss
under ‘Punjab and Sind Bank officer/employees (Discipline
and appeal) Regulation 1997. That order has been subsequently
confirmed in the internal appeal and in review.
GENERAL MANAGER (P) PUNJAB & SIND BANK &
ORS. v. DAYA SINGH [H.L. GOKHALE, J.]
81
12. As stated above, all these three orders were challenged
in the above writ petition in the High Court, and have come to
be set aside. It was contended on behalf of the respondent that
the report submitted against him by the inquiry officer was too
sketchy and it did not contain any reasons in support of the
findings arrived at by the inquiry officer. The High Court
accepted that submission. It held that the inquiry officer merely
stated in his report that certain documents in support of each
of the charges were presented and also that the submissions
of the petitioner in reply were not tenable and therefore, the
charges stood proved. The High Court held that the documents
produced were neither detailed nor their nature was explained.
It further held that there was no discussion and much less any
analysis of the evidence presented. The Court held that no
specific finding has been recorded on the basis of the evidence
to establish the guilt of the respondent. The absence of good
reason was held to be in breach of the principles of natural
justice. Therefore, the order was set aside.
13. The High Court directed the appellant to reinstate the
respondent though for the limited purpose of holding the inquiry
afresh. That was following the law laid down in Managing
Director ECIL Hyderabad Vs. B. Karunakar AIR 1994 SC
1074. It directed the appellant to hold a fresh inquiry and then
to pass appropriate orders. It is this order which has been
challenged before us.
Rival Contentions
14. Mr. Nanda, learned counsel appearing for the appellant
has taken us through the material which was there before the
inquiry officer and which was also placed before the High Court
and also before this Court. He has referred to the report of the
inquiry officer and as to how the charges were established. The
relevant paragraphs therefrom are already quoted above. Mr.
Nanda, therefore, raised a question - Can this report in any way
be said to be sketchy? He submitted that the inquiry officer may
not have given separate finding based on each and every
82
A
B
C
D
E
F
G
SUPREME COURT REPORTS
[2010] 9 S.C.R.
A document, but he has referred to all the documents produced
in the inquiry and considered them. He pointed out that the
report clearly shows that a complete co-relation was
established between the ledger entries in the loan register and
the entries in the FDR register by producing the relevant pages
B of both these registers. All those entries were noted to be in
the hand-writing of the respondent. It clearly showed that in 20
cases, loans were disbursed to persons in whose name there
were no FDRs and the amounts released were far in excess.
The respondent had not disputed those entries. The inquiry
C officer has, therefore, given the necessary finding and the High
Court has clearly erred in holding that no specific finding had
been recorded on the basis of the evidence to establish the
guilt of the respondent. Mr. Nanda has also stated that once
the charges were established, the High Court had no jurisdiction
to interfere in the decision of the Bank authority and he relied
D
upon the judgments of this Court in Suresh Pathrella Vs.
Oriental Bank of Commerce, AIR 2007 SC 199, State Bank
of India Vs. Bela Bagchi (2005) 7 SCC 435 and Damoh
Panna Sagar Rural Regional Bank Vs. Munna Lal Jain
(2005) 10 SCC 84.
E
15. The respondent who appeared in person reiterated his
submissions which were made during the inquiry. He submitted
that he had improved business at the extension counter to
make it a branch, that he was being made a victim and that
F the documents did not establish the misconduct. On a query
from the Court he could not dispute that the relevant entries
were in his hand-writing. With a view to satisfy ourselves, we
asked him as to what was his explanation with respect to those
entries. He had no particular answer to offer. His only
G submission was that no borrower had been examined in
support of the allegations against him.
Resultant Conclusions
H
16. In view of what is stated above, it is very clear that the
H Bank had taken the necessary steps to establish the
GENERAL MANAGER (P) PUNJAB & SIND BANK &
ORS. v. DAYA SINGH [H.L. GOKHALE, J.]
83
misconduct before the inquiry officer. The relevant documents
including ledger entries were produced through the concerned
witnesses. The respondent fully participated in the inquiry. He
had no explanation to offer during the course of the inquiry or
any time thereafter. When all the relevant entries were in the
handwriting of the respondent, the Bank did not think it
necessary to call the borrowers. In fact, as the inquiry officer
states, the respondent should have produced the borrowers if
he wanted to contend anything against the documentary
evidence produced by the Bank. In the circumstances, the
conclusions arrived at by the inquiry officer as stated above
could not have been held as without any evidence in support.
The High Court has clearly erred in holding that the documents
produced were neither detailed nor their nature was explained.
17. We are rather amazed at the manner in which the High
Court has dealt with the material on record. The Inquiry Officer
is an officer of a Bank. He was considering the material which
has placed before him and thereafter, he has come to the
conclusion that the misconduct is established. He was
concerned with a serious charge of unexplained withdrawals
of huge amounts by a Branch Manager in the name of fictitious
persons. Once the necessary material was placed on record
and when the charge-sheeted officer had no explanation to
offer, the Inquiry Officer could not have taken any other view.
The order of a bank officer may not be written in the manner in
which a judicial officer would write. Yet what one has to see is
whether the order is sufficiently clear and contains the reasons
in justification for the conclusion arrived at. The High Court has
ignored this aspect. Absence of reasons in a disciplinary order
would amount to denial of natural justice to the charge-sheeted
employee. But the present case was certainly not one of that
category. Once the charges were found to have been
established, the High Court had no reason to interfere in the
decision. Even though there was sufficient documentary
evidence on record, the High Court has chosen to hold that the
findings of the Inquiry Officer were perverse. A perverse finding
84
A
SUPREME COURT REPORTS
[2010] 9 S.C.R.
C
A is one which is based on no evidence or one that no
reasonable person would arrive at. This has been held by this
Court long back in Triveni Rubber & Plastics vs. CCE AIR
1994 SC 1341. Unless it is found that some relevant evidence
has not been considered or that certain inadmissible material
B 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 and Another vs. State
Represented by the Public Prosecutor and Another (2009) 10
SCC 206. The decision of the High Court cannot therefore be
C sustained.
D
18. As held in T.N. C.S. Corporation Ltd. vs. K. Meerabai
(2006) 2 SCC 255 the scope of judicial review for the High
Court in departmental disciplinary matter is limited. The
observation of this Court in Bank of India vs. Degala Sriramulu
D (1999) 5 SCC 768 are quite instructive:
B
E
E
F
F
G
G
H
H
“Strict rules of evidence are not applicable to
departmental enquiry proceedings. The only requirement
of law is that the allegation against the delinquent officer
must be established by such evidence acting upon which
a reasonable person acting reasonably and with
objectivity may arrive at a finding upholding the
gravamen of the charge against the delinquent officer.
Mere conjecture or surmises cannot sustain the finding
of guilt even in departmental enquiry proceedings. The
court exercising the jurisdiction of judicial review would
not interfere with the findings of fact arrived at in the
departmental enquiry proceedings excepting in a case
of mala fides or perversity i.e where there is no evidence
to support a finding or where a finding is such that no
man acting reasonably and with objectivity could have
arrived at that finding. The court cannot embark upon
reappreciating the evidence or weighing the same like an
appellate authority. So long as there is some evidence
to support the conclusion arrived at by the departmental
GENERAL MANAGER (P) PUNJAB & SIND BANK &
ORS. v. DAYA SINGH [H.L. GOKHALE, J.]
85
authority, the same has to be sustained. In Union of India
v. H.C. Goel (AIR 1964 SC 364, (1964) 4 SCR 718). the
Constitution Bench has held:
a.
“The High Court can and must enquire
whether there is any evidence at all in
support of the impugned conclusion. In other
words, if the whole of the evidence led in the
enquiry is accepted as true, does the
conclusion follow that the charge in question
is proved against the respondent? This
approach will avoid weighing the evidence.
It will take the evidence as it stands and only
examine whether on that evidence legally the
impugned conclusion follows or not.”
19. In a number of cases including State Bank of India vs.
Bela Bagchi (supra) this Court has held that a bank employee
has to exercise a higher degree of honesty and integrity. He is
concerned with the deposits of the customers of the Bank and
he cannot permit the deposits to be tinkered with in any
manner. In Damoh Panna Sagar Rural Regional Bank’s case
(supra) the Manager of a Bank who had indulged in
unauthorized withdrawals, subsequently returned the amount
with interest. Yet this Court has held that this conduct of
unauthorized withdrawals amounted to a serious misconduct.
Same is the case in the present matter. There was a clear
documentary evidence on record in the handwriting of the
respondent which established his role in the withdrawal of huge
amounts for fictitious persons. The ledger entries clearly
showed that whereas the FDRs were in one name, the
withdrawals were shown in the name of altogether different
persons and they were far in excess over the amounts of FDRs.
The respondent had no explanation and, therefore, it had to be
held that the respondent had misappropriated the amount.
Inspite of a well reasoned order by the Inquiry Officer, the High
Court has interfered therein by calling the same as sketchy. The
86
SUPREME COURT REPORTS
[2010] 9 S.C.R.
A
A High Court has completely overlooked the role of the bank
manager as expected by this Court in the aforesaid judgments.
B
20. In these facts and circumstances, we allow this appeal
and set aside the impugned judgment and order passed by the
Division Bench of the Allahabad High Court. The petition filed
B by the respondent in the High Court will stand dismissed.
Consequently, contempt proceedings initiated by him will also
stand dismissed.
K.K.T.
C
D
E
F
G
H
Appeal allowed.
88
[2010] 9 S.C.R. 87
ARUMUGAM
v.
THE STATE REPRESENTED BY ITS INSPECTOR OF
POLICE
(Criminal Appeal No. 515 of 2007)
JULY 28, 2010
A
A
B
B
[HARJIT SINGH BEDI AND C.K. PRASAD, JJ.]
Penal Code, 1860 – s. 302 – Murder – Son committing
murder of step mother – Accused-son made extra judicial C
confession to his step sister and, thereafter, to Village
Administrative Officer in a short while – Recovery of rope used
for strangulation – Conviction and sentence u/s. 302 by courts
below – Justification of – Held: Justified – Accused after
making extra judicial confession did not try to run away – He D
was annoyed with the mother as he suspected her of being of
low character – Medical evidence duly supported the ocular
evidence – Father and brother-in-law of the accused having
turned hostile would not affect the prosecution case.
According to the prosecution case, the appellant E
committed the murder of S-step mother. He told PW5-step
sister that he had strangled and killed S. Thereafter, the
appellant made an extra-judicial confession to PW1Village Administrative Officer. The statement was
recorded in writing and FIR was registered. On basis of F
the statement, rope used for strangulating the deceased
was recovered. The post mortem examination was carried
out. The doctor opined that the death was on account of
asphyxia due to strangulation. The trial court convicted
and sentenced the appellant for life u/s. 302 IPC. The High G
Court upheld the order. Hence the appeal.
C
D
E
F
G
Dismissing the appeal, the Court
HELD: 1.1 An extra-judicial confession is often called
H
87
H
SUPREME COURT REPORTS
[2010] 9 S.C.R.
a weak type of evidence but in the instant case it has
certain distinctive features. It is of significance that the
appellant had made the extra-judicial confession to PW5
and thereafter to PW1 within a very short time and had
not attempted to run away and he had been handed over
to the police by PW1 at about 6 p.m. at the time when the
FIR had been recorded. PW5 also admitted in her
statement that the appellant was annoyed with the
deceased as he suspected her of being of low character
and an embarrassment to him and he had often asked her
to mend her behaviour to which she had responded that
she would live life on her terms and it was not his
business to interfere in her life. Appellant’s father-PW4
and brother-in-law-PW3 had turned hostile but their
evidence would have been merely to the effect that the
appellant had found fault in the deceased’s behaviour and
in the background of the statement of PW 5 that the
appellant was indeed annoyed with her mother, the
factum of PWs.4 and 3 having turned hostile would not
adversely affect the prosecution story. [Para 7] [92-D-H;
93-A]
1.2 The medical evidence far from contradicting the
ocular evidence clearly supports it. It has been submitted
that body was in a decomposed state on the 20th March
2000 at 4 p.m. when it was subjected to the post mortem
examination which indicated that the incident must have
happened much before 11 a.m. There is a basic flaw in
this evidence. The Post mortem certificate shows that the
post mortem had commenced at 4 p.m. and the finding
was of a fracture in the body of the thyroid bone and that
the deceased would appear to have died due to
strangulation 27 to 30 hours prior to the commencement
of the post-mortem. Thus, it cannot be said that the death
had occurred prior to 11 a.m. on the 19th of March. The
cause of death also reveals that the death had been
caused by strangulation with a rope as there was ligature
ARUMUGAM v. STATE REPRESENTED BY ITS
INSPECTOR OF POLICE
89
mark on the neck. It has been submitted that as per the
evidence of PW5 the deceased was a healthy and strong
woman and was perhaps physically stronger than the
appellant and it would have been impossible for the
appellant to have strangulated her, cannot be accepted.
It is clear from the evidence that the appellant had
prepared well for the day and had apparently hidden the
rope in the field much earlier. It looks, therefore, that the
deceased, though a strong woman, had been
overwhelmed by a sudden attack and strangulated with
the rope, as no other injuries which could show signs of
a struggle, were found on the dead body. Thus, the
findings of the High Court and the trial court are upheld.
[Paras 8 and 9] [93-B-H]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 515 of 2007.
90
A
B
C
C
D
D
E
E
F
F
G
G
H
H
S. Thananjayan for the Respondent.
The Judgment of the Court was delivered by
HARJIT SINGH BEDI, J. 1. This appeal by way of special
leave at the instance of the solitary accused arises out of the
following facts:
2. Saroja was the second wife of PW2, the appellant’s
father and, therefore, the step mother of the appellant. PW5 was
the appellant’s step sister having been born out of the marriage
of PW2 and the deceased whereas PW3 was the husband of
PW5. All the persons aforementioned were residents of village
Thuluvaspushpagiri and were agriculturists by profession. PW2
[2010] 9 S.C.R.
A had lost his first wife, the mother of the appellant, about 22 years
prior to the date of the incident, and one year after her death
PW2 had married the deceased Saroja. It appears that Saroja
was a lady of easy virtue and was involved with several persons
in the village which had annoyed the appellant and he often
B asked her to behave in a dignified way. The deceased,
however, told the appellant that it is not his business to interfere
in her affairs as she was an independent person and entitled
to live her life as she pleased. Saroja’s affairs, however,
continued to rankle the appellant.
From the Judgment & Order dated 01.09.2005 of the High
Court of Judicature at Madras in Criminal Appeal No. 392 of
2001.
Venkat Subramanyam, V. K. Sidharthan, Anup Kumar for
the Appellant.
SUPREME COURT REPORTS
3. At about 9 a.m. on 19th March 2000, PW5 and the
deceased went to the field to perform their daily agricultural
operations. At about 11 a.m. the appellant also arrived at that
place and called out to the deceased to help him lift a bundle
of firewood. The deceased walked towards the appellant and
both of them went into the sugarcane field. A short while later
the appellant alone returned and when questioned by PW5 told
him that he had strangled and killed Saroja. The appellant also
appeared before PW1 the Village Administrative Officer at 4
p.m. and made an extra judicial confession that he had
murdered his step mother. The statement given by the appellant
was reduced to writing (Ex.P-1) by PW1 and he also took the
appellant to Santhavasal Police Station and handed him over
along with the document Ex.P-1 to the Head Constable. A case
was accordingly registered against the appellant under Section
302 of the IPC. The investigation was, however, taken over by
PW15 the Inspector of Police, Arni Taluk, who was holding the
additional charge of Santhavasal Police Station. PW15 reached
the place of incident and recorded the statement of various
witnesses and on the statement made by the appellant
recovered the rope used for strangling the deceased. The dead
body was also sent to the hospital for its post-mortem
examination which was performed the next day at about 4 p.m.
by PW10, the Civil Assistant Surgeon, attached to the
Government Hospital, who found the following injury on the dead
body:
ARUMUGAM v. STATE REPRESENTED BY ITS
INSPECTOR OF POLICE [HARJIT SINGH BEDI, J.]
91
“A ligature mark seen above thyroid cartilage encircling
the neck completely. The width of the ligature mark was 3
cm in size.”
4. The Doctor after receiving the report of the Chemical
Analyst opined that the death was on account of Asphyxia due
to strangulation and that the death had occurred between the
27-30 hours prior to the autopsy. On the completion of the
investigation, a charge sheet was filed against the appellant.
The trial court on the basis of the evidence of PW1 to whom
the appellant had made the extra judicial confession which had
been reduced to the writing Ex.P1 which formed the basis of
FIR and the fact that the medical evidence supported the
contents of the extra judicial confession and that as per the
statement of PW5 the appellant had often called her mother
as being of low character woman which constituted the motive
for the offence, convicted and sentenced him to imprisonment
for life under Section 302 of the IPC. The judgment of the trial
court was thereafter challenged in appeal in the High Court
which too has been dismissed leading to the filing of the present
appeal.
5. It has been argued that the conviction of the appellant
only on the basis of the extra judicial confession was not called
for in the light of the fact that PW2 the father of the appellant,
his sister PW5 and her husband PW3 had turned hostile and
had not supported the prosecution. It has accordingly been
contended that there was, in fact, no valid evidence which could
be utilized for making an order of conviction. It has also been
submitted that as per the prosecution story the statement
Ex.P1 had been recorded at 4 p.m. but the FIR on its basis
had been recorded at 6 p.m. though the office of the Village
Administrative Officer and the Police Station shared a
common wall, was also a factor fatal to the prosecution story,
as the delay had not been explained. It has also been pleaded
that the medical evidence did not support the ocular evidence
in the light of the fact that (as per the Doctor) the body was in
92
A
A
B
B
C
C
D
D
E
E
F
F
G
G
H
H
SUPREME COURT REPORTS
[2010] 9 S.C.R.
a decomposed state and the occurrence had therefore
happened before 11 a.m. on the 19th March 2000.
6. The learned State counsel has, however, pointed out that
both the trial court and the High Court on an appreciation of
the evidence had recorded the conviction against him and there
was absolutely no reason whatsoever to discard the statement
of PW1 to whom the appellant had made an extra judicial
confession and that the medical evidence fully supported the
prosecution story far from the contradicting it.
7. We have heard the learned counsel for the parties and
gone through the record. As per the prosecution story, the
incident happened at 11 a.m. on 19th March 2000 in the fields
adjoining village Thuluvaspushpagiri. Soon after committing the
murder the appellant made a confession to PW5 his step sister
that he had murdered her mother and, thereafter, repeated the
same to PW1, the Village Administrative Officer who recorded
the same in Ex.P1 a written memorandum which was handed
over in the Police Station at 6 p.m. leading to the registration
of the FIR. It is true that an extra judicial confession is often
called a weak type of evidence but we find that the present case
has certain distinctive features. It is of significance that the
appellant had made the extra judicial confession to PW5 and
thereafter to PW1 within a very short time and had not
attempted to run away and he had been handed over to the
police by the Village Administrative Officer at about 6 p.m. at
the time when the FIR had been recorded. PW5 also admitted
in her statement that the appellant was annoyed with the
deceased as he suspected her of being of low character and
an embarrassment to him and he had often asked her to mend
her behaviour to which she had responded that she would live
life on her terms and it was not his business to interfere in her
life. It is true that the appellant’s father PW4 and brother-in-law
PW3 had turned hostile but their evidence would have been
merely to the effect that the appellant had found fault in the
deceased’s behaviour and in the background of the statement
ARUMUGAM v. STATE REPRESENTED BY ITS
INSPECTOR OF POLICE [HARJIT SINGH BEDI, J.]
[2010] 9 S.C.R. 94
93
of PW5 that the appellant was indeed annoyed with her mother,
the factum of PWs.4 and 3 having turned hostile would not
adversely affect the prosecution story.
8. The medical evidence far from contradicting the ocular
evidence clearly supports it. It has been submitted by the
learned counsel for the appellant that body was in a
decomposed state on the 20th March 2000 at 4 p.m. when it
was subjected to the post mortem examination which indicated
that the incident must have happened much before 11 a.m.
There is a basic flaw in this evidence. The Post mortem
certificate Ex.P8 shows that the post mortem had commenced
at 4 p.m. and the finding was of a fracture in the body of the
thyroid bone and that the deceased would appear to have died
due to strangulation 27 to 30 hours prior to the commencement
of the post-mortem. In this background, it can, by no stretch of
imagination, be said that the death had occurred prior to 11
a.m. on the 19th of March. The cause of death also reveals that
the death had been caused by strangulation with a rope as there
was ligature mark on the neck. It has been submitted by the
learned counsel for the appellant that as per the evidence of
PW5 the deceased was a healthy and strong woman and was
perhaps physically stronger than the appellant. An inference is,
thus, sought to be drawn that in this situation, it would have
been well nigh impossible for the appellant to have strangulated
her. We absolutely find no merit in this submission as well. It is
clear from the evidence that the appellant had prepared well
for the day and had apparently hidden the rope in the field much
earlier. It looks, therefore, that the deceased, though a strong
woman, had been overwhelmed by a sudden attack and
strangulated with the rope, as no other injuries which could
show signs of a struggle, were found on the dead body.
A
A
B
B
Appeal dismissed.
JULY 28, 2010
[DALVEER BHANDARI AND K.S. RADHAKRISHNAN,
JJ.]
C
D
E
F
G
9. For the reasons mentioned above, we endorse the
findings of the High Court and the trial court and dismiss the
appeal.
N.J.
SAMEER KUMAR PAL & ANOTHER
v.
SHEIKH AKBAR & OTHERS
(Civil Appeal No. 2398 of 2002)
H
Code of Civil Procedure, 1908 – s. 100 – Second appeal
C – Suit for eviction – Tenant’s case that suit property was a wakf
property, thus, trial court had no jurisdiction to adjudicate the
matter but no plea raised before trial court as also first
appellate court that suit property is a joint family property –
Suit decreed in favour of landlord holding that suit property
D was not a wakf property – Order of trial court upheld by first
appellate court – Second appeal – High Court allowing the
same by setting aside the concurrent findings of fact –
Justification of – Held: Not justified – High Court without any
pleadings or basis held that suit property is a joint family
E property – It was not the case of tenants either before trial court
or first appellate court – Thus, order of High Court is set aside
and that of trial court and first appellate court, upheld – M.P.
Accommodation Control Act, 1961 – ss. 12 (1) (c ) , 12 (1) (f)
and 12 (1) (g).
F
The appellant-landlord filed a suit for eviction against
the respondent-tenant u/ss. 12(1)(c), 12(1)(f) and 12(1)(g)
of the M.P. Accommodation Control Act, 1961. The
respondents filed a written statement that the suit
property was a Wakf property, thus, the trial court did not
G have the jurisdiction to adjudicate the matter but it
nowhere pleaded that the suit property is a joint family
property. The trial court held that the suit property is not
a Wakf property and decreed the suit in favour of the
H
94
SAMEER KUMAR PAL & ANR. v. SHEIKH AKBAR &
ORS.
95
appellants. Before the first appellate court also, the
respondents did not raise the plea that the suit property
was a joint family property. The first appellate court
upheld the order of the trial court. The respondent nos.
1 and 2 then filed a second appeal and the same was
allowed. The High Court set aside the concurrent findings
of fact. Hence the appeal.
96
A
A
Mst. Rukhmabai v. Lala Laxminarayan and Ors. AIR
1960 SC 335; Kuppala Obul Reddy v. Bonala Venpata
Narayan Reddy (dead) by LRs. (1984) 3 SCC 447; Mudi
Gowda Gowdappa Sankh v. Ram Chandra Ravagowda Sankh
(1969) 1 SCC 386 – relied on.
[2010] 9 S.C.R.
Randhi Appalaswami v. Randhi Suryanarayanamurti and
Ors. ILR 1948 Mad 440 – approved.
Case Law Reference:
B
B
Allowing the appeal, the Court
HELD: The High Court without any pleadings or
basis, held that the suit property is a joint family property.
The High Court erroneously observed that the said
property was purchased by the father of the appellants
and his brothers, whereas in fact the property was
purchased by the appellants by sale deed dated
31.12.1991. The assumption of wrong fact has led to total
erroneous finding and conclusion. The High Court in the
impugned judgment weaved out an entirely new case.
Neither there was any pleading nor it was the case of the
respondents either before the trial court or the first
appellate court. The High Court gravely erred in arriving
at the finding without any basis whatsoever. PW1 was
examined by the trial court and in his testimony he
categorically stated that he and his elder brother SKappellant were owners of the property in question. The
High Court was not justified in reversing the concurrent
findings of fact. Thus, the impugned judgment of the High
Court is set aside and that the judgment and order of the
trial court, as upheld by the first appellate court, is
restored. [Paras 8, 9 and 13] [99-C-D; G-H; 100-A; 101-FG]
SUPREME COURT REPORTS
AIR 1960 SC 335
Relied on.
Para 10
(1984) 3 SCC 447
Relied on.
Para 11
(1969) 1 SCC 386
Relied on.
Para 12
ILR 1948 Mad 440
Approved.
Para 12
C
C
D
From the Judgment & Order dated 17.08.2001 of the High
Court of Judicature Madhya Pradesh at Jabalpur in Second
D Appeal no. 596 of 1999.
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2398 of 2002.
Rohit Arya, Akshat Srivastav, Nitin Gaur, P.P. Singh for the
Appellants.
E
Abdul Karim Ansari (for Ram Swarup Sharma) for the
E Respondents.
The Judgment of the Court was delivered by
F
G
F
DALVEER BHANDARI, J. 1. This appeal is directed
against the judgment and order of the High Court of Madhya
Pradesh at Jabalpur dated 17.8.2001 passed in Second
Appeal No.596 of 1999.
2. The appellant is particularly aggrieved by the impugned
judgment because the concurrent findings of fact have been set
G aside by the High Court in the second appeal without any basis,
justification or cogent grounds.
3. Brief facts necessary to dispose of this appeal are
recapitulated as under:
H
H
SAMEER KUMAR PAL & ANR. v. SHEIKH AKBAR &
ORS. [DALVEER BHANDARI, J.]
97
Appellants Sameer Kumar Pal and Subhash Chandra Pal,
both sons of Laxminarayan Pal (who were the plaintiffs in the
trial court), filed a suit in the Court of the Civil Judge, Jabalpur.
In the plaint, it was clearly incorporated that the appellants were
the owners in possession of Shop No.1214 (Old No.892), New
Corporation Chowk, Wright Town, Jabalpur. They purchased the
said shop vide sale-deed dated 31.12.1991.
4. The appellants filed a suit for eviction against the
defendants (respondents herein) under section 12(1)(c) (that the
tenant has created nuisance), 12(1)(f) (for bona fide requirement
of landlord for non-residential purposes) and 12(1)(g) (bona
fide requirements of landlord to carry out repairs) of the M.P.
Accommodation Control Act, 1961. The relevant parts of
section 12 of the Act are set out as under:
“12. Restriction on eviction of tenants.—(1) Notwithstanding
anything to the contrary contained in any other law or
contract, no suit shall be filed in any civil court against a
tenant for his eviction from any accommodation except on
one or more of the following grounds, only, namely—
(a) – (b) x
(c)
x
that the tenant or any person residing with him has
created a nuisance or has done any act which is
inconsistent with the purpose for which he was
admitted to the tenancy of the accommodation, or
which is likely to affect adversely and substantially
the interest of the landlord therein:
(d) – (e)
(f)
x
x
x
98
A
A
B
B
C
C
D
E
F
x
that the accommodation let for non-residential
purpose is required bona fide by the landlord for the
purpose of continuing or starting his business or
that of any of his major sons or unmarried
daughters if he is the owner thereof or for any
G
H
SUPREME COURT REPORTS
[2010] 9 S.C.R.
person for whose benefit the accommodation is
held and that the landlord or such person has no
other reasonably suitable non-residential
accommodation of his own in his occupation in the
city or town concerned;
(g)
that the accommodation has become unsafe, or
unfit for human habitation and is required bona fide
by the landlord for carrying out repairs which cannot
be carried out without the accommodation being
vacated.”
5. In the written statement filed in the trial court, the
respondents herein raised the main objection that the appellants
herein are not the owners of the suit property and the trial court
had no jurisdiction to adjudicate the matter as the suit property
D has been a Wakf property. It may be pertinent to mention that
in the written statement the respondents nowhere took the plea
that the suit property, namely ‘Madras Hotel’ is a joint family
property. The trial court held that the appellants were in bona
fide need of carrying on the business of sweets and for running
E a restaurant. No other vacant property was in possession of the
appellants in Jabalpur. It was also held that the shop in question
is very old, unsafe and in dilapidated condition. There is need
to repair and carry out some structural changes in the shop
which cannot be carried out unless the same is made available
F to the appellants. The trial court clearly held that the appellants
are in bona fide need of the suit property. The trial court also
held that the respondents have not paid rent since September,
1992 and decided the issue of default in favour of the
appellants. The trial court categorically held that the suit property
is not the Wakf property and decreed the suit of the appellants.
G
6. The respondents preferred first appeal before the court
of XIth Additional District Judge, Jabalpur. The entire evidence
was re-appreciated by the appellate court independently and
the court clearly held that the respondents have failed to prove
H
SAMEER KUMAR PAL & ANR. v. SHEIKH AKBAR &
ORS. [DALVEER BHANDARI, J.]
99
that the appellants are in possession of any other nonresidential accommodation in the entire city of Jabalpur. The
first appellate court upheld the findings of the trial court. It may
be pertinent to mention that before the first appellate court also,
no plea was taken that the property in question, namely the
‘Madras Hotel’, was a joint family property. The first appellate
court dismissed the appeal.
7. Respondent nos. 1 & 2, aggrieved by the judgment of
the XIth Additional District Judge, Jabalpur, preferred a second
appeal before the High Court of Madhya Pradesh at Jabalpur.
8. The High Court in the impugned judgment, without any
pleadings or basis, held that the property namely ‘Madras
Hotel’ is a joint family property. The High Court erroneously
observed that the property namely ‘Madras Hotel’ was
purchased by the father of the appellants and his brothers,
whereas in fact the property was purchased by the appellants
vide sale deed dated 31.12.1991. The assumption of wrong
fact has led to total erroneous finding and conclusion. The High
Court in para 8 observed as under:
“……It is firmly established that the building known as
‘Madras Hotel’ belongs to Laxminarayan Pal and his two
sons who are the plaintiffs. That is their joint family property.
This building was purchased by Laxminarayan when he
was carrying on business with his two brothers and the
partition took place long after the acquisition of that
building. In that partition that building was allotted to
Laxminarayan alone……”
9. The High Court in the impugned judgment weaved out
an entirely new case. Neither there was any pleading nor it was
the case of the respondents either before the trial court or the
first appellate court. The High Court gravely erred in arriving at
the finding without any basis whatsoever. Subhash Chandra
Pal, PW1 was examined by the trial court and in his testimony
100
A
B
C
D
E
F
G
H
SUPREME COURT REPORTS
[2010] 9 S.C.R.
A he categorically stated that he and his elder brother Sameer
Kumar were owners of the property in question.
10. The appellants have relied on Mst. Rukhmabai v. Lala
Laxminarayan & Others AIR 1960 SC 335 in which this court
held that there is no presumption that any property whether
B
moveable or immoveable held by a member of a joint Hindu
family is joint family property. The burden lies upon the person
who asserts that a particular property is joint family property to
establish that fact.
C
11. The appellants further relied on Kuppala Obul Reddy
v. Bonala Venpata Narayan Reddy (dead) by LRs. (1984) 3
SCC 447 in which this court held that there were no pleadings
as to the properties being joint properties and no issue as to
joint family had been raised and there was no proper evidence
D to make out any case of the properties being joint family
properties, was raised and no such issue could possibly have
been raised in absence of the pleadings. The court further held
that in absence of any pleading and any issue and further in
the absence of any proper evidence, the view expressed by the
E learned judge of the High Court that the properties were joint
family properties is clearly unwarranted. There may be
presumption that there is a Hindu Joint Family but there can
be no presumption that the joint family possesses joint family
properties.
F
12. The appellants further relied on Mudi Gowda
Gowdappa Sankh v. Ram Chandra Ravagowda Sankh (1969)
1 SCC 386 wherein this Court held that, of course, there is no
presumption that merely because the family is joint so the
property is also joint. So the person alleging the property to be
G joint family property must prove it. In that case, this Court further
held that the burden of proving that any particular property is
joint family property is, therefore, in the first instance, upon the
person who claims it to be coparcenary property. But if the
possession of a nucleus of the joint family property is either
H admitted or proved, any acquisition made by a member of the
[2010] 9 S.C.R. 102
SAMEER KUMAR PAL & ANR. v. SHEIKH AKBAR & 101
ORS. [DALVEER BHANDARI, J.]
joint family is presumed to be joint family property. The Court A
carved out an exception and observed that, “this is, however,
subject to the limitation that the joint family property must be
such as with its aid the property in question could have been
acquired. It is only after the possession of an adequate nucleus
is shown, that the onus shifts on to the person who claims the B
property as self-acquisition to affirmatively make out that the
property was acquired without any aid from the family estate.”
In Mudi Gowda Gowdappa Sankh (supra), this court heavily
relied upon the ratio of Privy Council judgment in Randhi
Appalaswami v. Randhi Suryanarayanamurti & Others ILR C
1948 Mad 440 wherein the legal position of Hindu Law has
been beautifully articulated by Sir John Beaumont. The relevant
portion of the judgment is reproduced as under:
“Proof of the existence of a joint family does not lead to
the presumption that property held by any member of the D
family is joint, and the burden rests upon anyone asserting
that any item of property was joint to establish the fact. But
where it is established that the family possessed some joint
property which from its nature and relative value may have
formed the nucleus from which the property in question may E
have been acquired, the burden shifts to the party alleging
self-acquisition to establish affirmatively that the property
was acquired without the aid of the joint family property.”
13. In this view of the matter, we are constrained to set F
aside the impugned judgment of the High Court. The High Court
was not justified in reversing the concurrent findings of fact in
this case. Consequently, the appeal is allowed and the
impugned judgment of the High Court is set aside and the
judgment and order of the trial court, as affirmed by the first
G
appellate court, is restored. In the facts and circumstances of
the case, the parties are directed to bear their own costs.
N.J.
A
B
JAWANT P. SANKPAL
v.
SUMAN GHOLAP & ORS.
(SLP (Criminal) No. 6408 of 2006)
JULY 28, 2010
[ALTAMAS KABIR AND DR. MUKUNDAKAM SHARMA,
JJ.]
C
D
E
F
G
Appeal allowed.
H
Protection of Human Rights Act, 1993 – s. 12(a) –
Complaint against police officials – Alleging physical torture
of complainant’s son in police custody – State Human Rights
Commission held that police personnel were responsible for
violation of human rights and recommended compensation
– State Government implementing order of the Commission
– Writ petition against order of the Commission dismissed –
On appeal, held: finding by the Commission and High Court
regarding the torture of the complainant’s son in police
custody, is justified – There is no material to refute the
complaint of torture.
Respondent No. 1 filed a complaint before State
Human Rights Commission against the petitioner and
respondent Nos. 3 to 5 (the police officials). She alleged
that when her son had gone to the stall of ‘A’ a merchant,
he was assaulted and injured by him. When he took her
son to the police station, she was asked to wait. In the
meantime ‘A’ and his family came to the police station.
Police entertained the complaint of ‘A’ first. Thereafter
police personnel assaulted the son of the complainant
and also detained him. Complainant was threatened by
the police officials not to reveal the incident to the court
and not to make any complaint before court. Her son was
released on bail. But once again he was taken to police
station and assaulted. The allegations of the complainant
were fully supported by her son, who was detained.
102
JAWANT P. SANKPAL v. SUMAN GHOLAP & ORS.
103
The police officials, in reply, denied the allegations.
In the report submitted by DCP it was mentioned that the
son of the complainant demanded ‘hafta’ from ‘A’ and on
refusal assaulted him; that he inflicted injuries with razor
on himself; that he was a habitual offender and
proceedings under Maharashtra Prevention of
Dangerous Activities of Slumlords, Bootleggers and Drug
Offenders Act, 1981 were also commenced against him.
The Commission disbelieved the defence of the
police personnel and relying on the medical evidence
opined that there was violation of human rights of the
son of complainant at the hands of the petitioner and
respondent Nos. 3, 4 and 5. The Commission
recommended compensation of Rs. 45,000/- to
complainant for police atrocity which was to be later
recovered from the respondents and the petitioner. The
petitioner filed writ petition before High Court, which was
withdrawn on account of the understanding given to him
by the State Government that it had decided not to
implement the order passed by the Commission.
104
A
B
C
D
A the norms relating to custody of persons arrested or
detained in connection with any offence. It is not for this
Court to appraise the evidence further, since two forums
have had a chance to look into the same. Except for a
bare denial, there is no material on record to refute the
B complaint of torture of the son of the complainant by the
petitioner and the respondent Nos. 3 to 5. It is clear that
for whatever reasons, which could also include his
antecedents, he was treated differently from ‘A’ against
whom he had come to make a complaint and ended up
C being the accused. [Para 14] [110-G-H; 111-A-B]
From the Judgment & Order dated 30.8.2006 of the High
D Court of Judicature at Bombay in CRLWP No. 1839 of 2005.
K.N. Rani for the Petitioner.
Sushil Karanjakar, Sanjay Kharde and Asha Gopalan Nair
for the Respondents.
E
The Judgment of the Court was delivered by
F
Dismissing the petition, the Court
HELD: There is no reason to differ with the order of
the State Human Rights Commission which was upheld
by the High Court. There is sufficient material, which has
been duly looked into by the Commission and the High
Court, that the son of the respondent-complainant had
been physically tortured while in custody in violation of
[2010] 9 S.C.R.
CRIMINAL APPELLATE JURISDICTION : SLP (Criminal)
No. 6408 of 2006.
E
The petitioner further filed subsequent writ petition,
which was dismissed on the ground that there was no
necessity to entertain the writ petition in view of the fact
that the earlier writ petition was withdrawn; and that the
State had not challenged the order and had also complied
with the same. Therefore, the instant special leave petition
was filed by the petitioner.
SUPREME COURT REPORTS
G
H
ALTAMAS KABIR, J. 1. The Petitioner herein has
challenged the order of the Bombay High Court dismissing the
Criminal Writ Petition No.1839 of 2005, in which he had
F
challenged the order dated 19th October, 2004, passed by the
Maharashtra State Human Rights Commission in Case
No.1912/2002/3258. The complainant in the said case was one
Smt. Suman Sriram Gholap, the Respondent No.1 herein. In the
said complaint, the State of Maharashtra was made the
G Respondent No.1 through the Commissioner of Police, Brihan
Mumbai. The Respondent Nos.2, 4 and 5 were police
personnel attached to Shahunagar Police Station, Mumbai-17.
The Petitioner herein was made the third Respondent in the
H
JAWANT P. SANKPAL v. SUMAN GHOLAP & ORS. 105
[ALTAMAS KABIR, J.]
106
said complaint case. It was the case of the complainant that
the Respondents had violated the human rights of one Baban,
the son of the complainant, within the scope of Section 12(a)
of the Protection of Human Rights Act, 1993.
A
2. The facts revealed in the complaint and which came to
light during the hearing thereof by the Maharashtra State
Human Rights Commission, Mumbai, hereinafter referred to as
“the Commission”, indicate that the complainant, who is a
widow, had two sons, one Kisan and the other Baban. She
resides in Sanjay Gandhi Nagar Zopadpatti, Matunga, and
works as a domestic servant to earn her livelihood. Her elder
son, Kisan, lives with his family at Vashi at New Mumbai and
the complainant lives with her unmarried younger son, Baban,
at Matunga. In 1998, Baban was arrested by the Dharavi Police
in connection with a case which was tried by the Court of
Sessions and he was acquitted in respect thereof on 2nd May,
2002. Thereafter, various cases were lodged against Baban
and after his acquittal in the case filed by the Dharavi Police,
he left Matunga and went to reside with his elder brother at
Vashi where he earned a living by selling fruits as a street
vendor. On weekends he used to come to see the complainant
and on 30th June, 2002, he had come to Matunga to meet the
complainant. While he was at his mother’s place of residence,
the Respondent No.4 before the Human Rights Commission,
ASI K.R. Kubel, along with some other police personnel, came
and asked Baban to accompany them to the police station. He
was, however, released on the next day.
B
3. On 8th August, 2002, at about 8.00 a.m., Baban had
gone to the stall of one Abbas Bhai. According to the
complainant, he was assaulted and injured by the said Abbas
Sayyed Ali Kadri @ Abbas Ali. The complainant took him with
bleeding injuries to the police station where she was asked to
wait by the Duty Officer. In the meantime, the said Abbas Ali
and his three brothers and some women came to the police
station and soon thereafter the police personnel came out and
SUPREME COURT REPORTS
[2010] 9 S.C.R.
A started assaulting Baban. The petitioner herein told the
complainant to leave the police station. It is the complainant’s
case that she was also abused and forcibly removed from the
police premises while Baban was detained. An hour later, the
police personnel took Baban to hospital while the complainant
B went home.
C
C
D
D
E
E
F
F
G
G
4. It is also the complainant’s case that when in the evening
she went to the police station to enquire about her son, she saw
that he had been placed in the police lockup. She was
thereafter informed by Havildar Kubel that her son would not
be released from the police station and, accordingly, next day
she went to the Court of the Magistrate at Bandra, where Baban
was to be produced for the purpose of remand. It was
mentioned by the complainant in her complaint that she had
been threatened by the police officers in question not to reveal
the incidents of the previous day, but when Baban was produced
she noticed that he had bandages all over his body and there
were injuries on his back and hand. The complainant was
threatened not to make any complaint to the Court as otherwise
her son would be involved in other crimes. Subsequently, Baban
was released on bail on 6th September, 2002, but was, once
again, taken to the police station on 30th September, 2002,
and was assaulted allegedly on the ground that he had
assaulted Abbas Ali’s son. It was the grievance of the
complainant that instead of recording the complaint made by
her or her son against Abbas Ali, the police registered a case
against her son at the behest of Abbas Ali and illegally detained
him in policy custody till he was released on bail. She also
submitted that the police had been harassing her and her sons
without any cause or justification and appropriate action should,
therefore, be taken against them.
5. The complainant’s allegations were fully supported by
her son Baban who reiterated that he had been ill-treated by
the police personnel.
H
H
6. In reply to the charges against the Respondents, all the
JAWANT P. SANKPAL v. SUMAN GHOLAP & ORS.
[ALTAMAS KABIR, J.]
107
Respondents filed their respective replies denying the
allegations, and in particular, in the report submitted by the
Deputy Commissioner of Police, Zone V, Worli, Mumbai, it was
mentioned that the complainant’s son, Baban, had gone to the
shop of Abbas Ali on 8th August, 2002, and demanded a sum
of Rs.5,000/- as ‘hafta’. On Abbas Ali’s refusal to pay the same,
Baban assaulted him with a razor and threatened him that he
would come again the next day. After being treated at Sion
Hospital, the said Abbas Ali lodged a complaint with the
Shahunagar Police Station, on the basis of which Crime No.99
of 2002 was registered against Baban under Sections 387 and
324 IPC, in pursuance whereof Baban was arrested. The report
of the Deputy Commissioner of Police also revealed that Baban
was a habitual offender against whom several criminal cases
had been initiated under Sections 326, 114, 379, 452, 342 and
even 376 IPC between 1992 and 1995 with the Dharavi Police
Station. It was also pointed out that proceedings for detention
had also been commenced against Baban under the
Maharashtra Preventive of Dangerous Activities of Slumlords,
Bootleggers & Drug Offenders Act, 1981.
108
A
B
C
D
7. As far as the police personnel, including the petitioner
herein, are concerned, they had only arrested the complainant’s
son on the complaint made by Abbas Ali, who is a food grain
merchant at the Gandhi Nagar Labour Camp, Mumbai, under
Sections 387 and 324 IPC and they had acted on the
instructions of their superiors. Reference was also made to an
order of detention which had been passed against Baban on
27th February, 2002, and the various other crimes registered
against him and his brother Kisan with the Dharavi Police
Station.
E
8. On the basis of the said allegations, a complaint came
to be filed by the Respondent No.1 before the Maharashtra
State Human Rights Commission, Mumbai, alleging that
instead of recording the complaint made by her or her son
against Abbas Ali, the Petitioner and the Respondent Nos.3
G
F
H
SUPREME COURT REPORTS
[2010] 9 S.C.R.
A to 5 showed undue indulgence to the said Abbas Ali by
registering a case against her son at the behest of Abbas Ali
and illegally detained him in police custody till he was released
on bail. Upon notice being served, the Petitioner herein and the
other Respondents appeared before the Commission and filed
B their respective affidavits, which were considered in detail by
the Commission. The Commission noticed that no affidavit had
been filed on behalf of Abbas Ali nor was any oral evidence
adduced on his behalf. Furthermore, no attempt was made by
any of the police officers, including the Petitioner herein, to
summon the witnesses to the occurrence according to their
C
version. Ultimately, the Commission observed as follows :-
D
“On appreciation of the discrepancies and contradictions
in unfolding the alleged incident either of extortion or
assault by Baban on Abbas Ali, it seems that the entire
version presented in defence is nothing but a concoction.”
9. On the other hand, the complainant and her son Baban
had stated that when they rushed to the police station to lodge
a complaint, they were asked to wait outside. After some time,
E Abbas Ali and his brothers and some women came to the
police station and they were entertained first by the police and
though Baban was the victim of the assault, he was illegally
arrested. The Commission also disbelieved the defence of the
police personnel that Baban inflicted injuries with a razor on
himself having regard to the medical evidence of Dr. Raju Patel
F
of the Lokmanya Tilak General Hospital, which did not support
such theory. The Commission also took note of the Doctor’s
evidence that Baban had complained of chest pain and had
been removed to hospital at 2.30 a.m. He was treated for
tenderness over the left anterior chest, which indicated hairline
G fracture on his ribs. In the said facts, the Commission had no
hesitation in holding that there had been violation of Baban’s
human rights at the hands of the Respondent Nos.3, 4 and 5
and the Petitioner herein. On account of the above, the
Commission recommended as follows :H
JAWANT P. SANKPAL v. SUMAN GHOLAP & ORS.
[ALTAMAS KABIR, J.]
“(a)
(b)
109
the State Government shall pay to the
complainant on behalf of the victim of Police
atrocity a sum of Rs.45,000/- as
compensation and recover the same from the
respondents PSI Shri G.G. Navele, PSI Shri
J.P. Sankpal, PSI Shri K.R. Kubal equally;
110
A
B
that the State Government shall submit within
six seeks from the receipt of these directions
its compliance report to the Commission.”
10. The said order of the Commission was challenged by
the Petitioner herein before the Bombay High Court, which
dismissed the same by the impugned order dated 30th August,
2006, indicating that since the State of Maharashtra had not
challenged the order dated 19th October, 2004, passed by the
Commission and had also complied with the same, there was
no necessity of entertaining the writ petition, particularly, on
account of the fact that an earlier petition filed by the Petitioner
herein where he had sought relief challenging the said order
came to be withdrawn.
11. Appearing for the Petitioner, Mr. K.N. Rai, learned
Advocate, submitted that the antecedents of Baban, the son of
the Respondent No.1 herein, would clearly go to show that he
was a habitual offender and had been involved in various
criminal cases registered against him as he was creating a
reign of terror in the minds of the public in the Matunga Railway
Colony, Sanjay Gandhi Nagar, Kunchi Kurve Nagar, Matunga
Labour Camp and areas adjoining thereto, within the
jurisdiction of Dharavi and Shahunagar Police Stations, and
had even been detained under the Maharashtra Preventive
Detention Act by the Commissioner of Police, Greater Mumbai,
which order has been confirmed by the Advisory Board. Mr. Rai
submitted that the Commission had overlooked the affidavits
filed by the Petitioner and the Respondent Nos.3 to 5 as well
as the report of the Deputy Commissioner of Police, Zone V,
Worli, Mumbai. Mr. Rai submitted that aggrieved by the
C
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SUPREME COURT REPORTS
[2010] 9 S.C.R.
A recommendation made by the Commission, the Petitioner had
filed Writ Petition No.975 of 2005 in the Bombay High Court
which was withdrawn on account of the understanding given to
him on behalf of the State of Maharashtra that it had decided
not to implement the order passed by the Commission. Mr. Rai
B submitted that the same should not be taken into consideration
while considering the writ petition which had subsequently been
filed challenging the order of the Commission, since the earlier
writ petition was withdrawn on the basis of an occurrence which
never materialised.
C
12. Mr. Rai lastly submitted that there was nothing on record
to indicate that Baban had actually been assaulted by the
Petitioner or the Respondent Nos.3 to 5, except for the
allegations made by him and the statement made by the doctor
that he had noticed certain tenderness over certain parts of
D Baban’s body. Mr. Rai urged that having regard to the
antecedents of Baban, the defence taken that he had inflicted
injuries on himself with a razor in order to implicate the Petitioner
and the Respondent Nos.3 to 5, could not be ruled out and ought
not to have been rejected by the Commission.
E
13. As far as the State of Maharashtra is concerned, it has
been submitted that the recommendation of the State Human
Rights Commission had since been implemented and since the
State had chosen not to challenge the order of the Commission,
F no separate submission would be made on behalf of the State.
14. Having regard to the special emphasis laid by Mr. Rai
on Baban’s antecedents, we have carefully considered the
order of the Commission which was upheld by the High Court
and we see no reason to differ with the same. There is sufficient
G material, which has been duly looked into by the Commission
and the High Court that the son of the Respondent No.1 had
been physically tortured while in custody in violation of the norms
relating to custody of persons arrested or detained in
connection with any offence. It is not for us to appraise the
H
JAWANT P. SANKPAL v. SUMAN GHOLAP & ORS.
[ALTAMAS KABIR, J.]
111
evidence further since two forums have had a chance to look
into the same. Except for a bare denial, there is no material on
record to refute the complaint of torture of Baban by the
Petitioner and the Respondent Nos.3 to 5. It is clear that for
whatever reasons, which could also include his antecedents, he
was treated differently from Abbas Ali against whom he had
come to make a complaint and ended up being the accused.
15. In such circumstances, we are not inclined to interfere,
either with the order of the Commission or the High Court, and
the Special Leave Petition is, accordingly, dismissed.
K.K.T.
[2010] 9 S.C.R. 112
A
A
B
B
RAM NIWAS
v.
STATE OF HARYANA
(Criminal Appeal No. 115 of 2007)
JULY 28, 2010
[HARJIT SINGH BEDI AND C.K. PRASAD, JJ.]
Penal Code, 1860:
C
Special Leave Petition dismissed.
D
E
F
ss. 302 and 307 – Prosecution of five accused for murder
and attempt to murder – Conviction of one – HELD: Courts
below have rightly assessed the evidence and held that the
convict and another accused who died during trial, had
committed the offences – Courts below, being cognizant of the
strained relations between the parties and the possibility of
false implication of others, have accordingly given the benefit
of doubt to two of the accused – No interference with the
conviction and the sentence is thus called for – Criminal Law
– Motive.
Evidence – A part of evidence of witness disbelieved –
Effect of.
The appellant along with his brother and three uncles
was prosecuted for attempt to murder PW-6 and for the
murder of his brother ‘SS’. During the trial, two of the
accused died. The trial court convicted the appellant u/
ss 302 and 307 IPC and acquitted the remaining two
accused giving them benefit of doubt. The High Court
affirmed the judgment.
G
In the appeal filed by the convict, it was contended
for the appellant that the prosecution story given by PW7, the mother of the deceased, with respect to
involvement of two of the accused having been
H
112
RAM NIWAS v. STATE OF HARYANA
113
disbelieved, there was no justification for conviction of
the appellant for the murder; and that there being
animosity between the parties due to conviction of the
father of the complainant and the deceased in the earlier
case of murder of the uncle of the appellant, the accused
were falsely implicated in the instant case and, therefore,
the evidence of two witnesses, namely PW-7, the mother,
and PW-8, the brother of the injured and the deceased,
could not be relied upon.
Dismissing the appeal, the Court
114
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B
B
SUPREME COURT REPORTS
[2010] 9 S.C.R.
the possibility of false implication has also been examined
and dealt with. The courts below have rightly assessed
the evidence, and being cognizant of the strained
relations between the parties and the possibility of false
implication, have accordingly given the benefit of doubt
to two of the accused. No interference with the conviction
and the sentence is called for. [para 9] [118-B-D]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 115 of 2007.
C
HELD: 1. The trial court observed that no positive act
towards the murder had been attributed to accused ‘BR’
(who died during trial), ‘YR’ and ‘RS’ for the injury to PW6 or the murder of his brother and there was no evidence
whatsoever of a prior meeting of minds among all the D
accused so as to show their common object or common
intention. On the contrary, the trial court observed, that
the evidence of PW-6 and PW-7 with respect to the
involvement of the appellant and ‘PK’ (who died during
trial) was categorical that it was these two, who had E
committed the murder of the brother of PW-6, and caused
injuries to him. The judgment of the High Court shows
that this aspect has been carefully examined and the
findings have been affirmed. [para 8] [117-F-H; 118-A]
F
2. It is true, that the relations between the two parties
were extremely strained on account of the earlier murder
case. While this fact could, undoubtedly, be a reason for
false implication of the accused, but on the contrary, it
could also be a motive for the commission of the crime.
However, in the light of the fact that the FIR was recorded G
within a reasonable time of the incident and the medical
evidence fully supports the ocular version and,
additionally, the trial court has given the benefit of doubt
to some of the accused, as they had no active role to play,
H
C
From the Judgment & Order dated 18.01.2006 of the High
Court of Punjab and Haryana at Chandigarh in Criminal Appeal
No. 352-DB of 1997.
Sarvesh Bisari and Anil Nag for the Appellant.
D
Kamal Mohan Gupta, Gaurav Teotia and Reeta Choudhary
for the Respondent.
The Judgment of the Court was delivered by
E
F
G
H
HARJIT SINGH BEDI, J. 1. This appeal is directed
against the judgment of the Punjab and Haryana High Court
dated 18th January 2006 whereby the appellant’s appeal has
been dismissed.
2. As per the prosecution story Chanda PW.6 was working
as a Chowkidar in the Nuna Girls High School, which was
being run under the aegis of the Panchayat of the village. He
had three brothers, namely, Subhash, Tej Ram and Sher Singh.
Raj Singh, the father of the three brothers, had been convicted
and sentenced for the murder of one Prem, uncle of Ram Niwas
and Pawan Kumar accused and the brother of Jog Raj, Raj
Singh and Beg Raj accused. On 16th January 1991 at about
8.00 a.m., Chanda left for the school leaving Sher Singh asleep
in the house. While on the way, Chanda observed Pawan
Kumar and Ram Niwas armed with Pharsas coming towards
RAM NIWAS v. STATE OF HARYANA
[HARJIT SINGH BEDI, J.]
115
him. Chanda ran into the school but was followed by Pawan
Kumar and Ram Niwas who caused an injury each to him.
Chanda raised a roula which attracted Kanwal Singh and Tara
and in their presence the two caused more injuries to Chanda
and then ran away from the spot. A short while thereafter Tej
Raj PW-8, Chanda’s brother and their mother Brahmi PW7
reached the school premises and told him that Pawan Kumar,
Ram Niwas, Jog Raj and Raj Singh had murdered Sher Singh
while he was in the house. Brahmi and Tej Raj thereafter
removed Chanda to the hospital where his statement Ex.PF
was recorded by Sub-Inspector Som Dutt PW10 and on its
basis the formal FIR was registered in Police Station Sadar,
Bahadurgarh at 1.30 p.m. the same day. The Sub-Inspector then
proceeded to the village and found Sher Singh lying dead on
the charpai. He made the necessary investigations on the spot
and also dispatched the dead body for the post-mortem
examination to the Civil Hospital, Bahadurgarh. He also
searched for the accused and arrested all of them on 19th
January 1991 and pursuant to disclosure statements made by
Pawan Kumar and Ram Niwas to Inspector Ashok Kumar PW9,
two Pharsas were duly recovered. On the completion of the
investigation, the accused were charge-sheeted for offences
punishable under Sections 148 and 452, and under Sections
302 and 307 against Pawan Kumar and Ram Niwas and under
Sections 302 and 307 read with Section 149 of the Indian
Penal Code against Jog Raj, Beg Raj and Raj Singh.
3. To support its case, the prosecution examined, inter-alia,
Dr. N.K. Mudra PW3, Dr. M.K. Bishnoi PW5, Chanda PW6,
Brahmi PW7,Tej Ram PW8, Inspector Ashok Kumar PW9 and
Inspector Som Dutt PW10 respectively. The prosecution case
then put to the accused and they denied the allegations levelled
against them and some of them pleaded alibis. They also
examined certain witness in defence. Pawan Kumar and Beg
Raj died during the trial. The learned Additional Sessions Judge
on a careful consideration of the evidence acquitted Raj Singh
and Jog Raj but convicted Ram Niwas under Section 302 and
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[2010] 9 S.C.R.
A
A 307 of the IPC and sentenced him to undergo rigorous
imprisonment for life and to pay a fine of Rs.25,000/- on two
counts and in default thereof to undergo further imprisonment
for three years on each count.
B
B
C
D
E
F
G
4. The matter was thereafter taken in appeal by the solitary
appellant, Ram Niwas. The High Court on a consideration of
the arguments observed that merely because the statement of
Brahmi PW7 with regard to the participation of Raj Singh and
Jog Raj had not been believed, could not mean that the case
against the appellant was not made in the light of the fact that
C it was the case of the prosecution that only Ram Niwas and
Pawan Kumar (since deceased) had been wielding Pharsas,
that had been used on Sher Singh and Chanda. It was further
stated that Chanda PW6 was an injured witness and had
lodged the FIR of the murder on information received from
D Brahmi and that the ocular evidence was fully corroborated by
the medical evidence as the deceased had six incised injuries
on his person.
5. Mr. Sarvesh Bisari, the learned counsel for the appellant
has
argued
that having disbelieved the prosecution story as
E
given by PW7 Brahmi with respect to the involvement of Yog
Raj and Raj Singh, there was no justification whatsoever in
relying on her evidence with respect to the murder of Sher Singh
by the appellant. It has also been submitted that the appellant
F and his brother had been roped in on account of the admitted
animosity between the parties inasmuch that Chanda’s and
Sher Singh’s father had been convicted for the murder of Prem,
the uncle of Ram Niwas and Pawan Kumar and brother of Jog
Raj, Raj Singh and Beg Raj and in this view of the matter, the
statement of the two witnesses Brahmi and Chanda was to be
G
looked at with suspicion.
6. The State counsel has, however, supported the
judgment of the trial court and the High Court.
H
H
7. We have gone through the judgment of the trial court with
RAM NIWAS v. STATE OF HARYANA
[HARJIT SINGH BEDI, J.]
117
respect to the acquittal of Raj Singh and Yog Raj. We
reproduce herein below the portions thereof:
“However, as far as the other three accused, namely Yog
Raj, Raj Singh and Beg Raj (who died during the pendency
of trial) are concerned, they are alleged having been seen
present with lathis at the house of PW7 Brahmi Devi and
they, as PW7 deposed, had even run after her and her son
Tej Ram. However, neither their presence is marked nor
any role is associated to them for second part of the
happening at the school compound where Chanda Singh
received injuries. As such, the five accused get grouped
as Ram Niwas and Pawan (who died during trial), as first
group and the remaining three accused, namely, Jog Raj,
Raj Singh and Beg Raj ( who died during the trial) as the
second group.
Though charge against the accused is that all of them
having common object for the present crime, but for the
deposition of PW6 and PW7 Brahmi Devi that she had
seen all the five accused together in her house, the
prosecution has failed to lead any other evidence of prior
meeting of minds or other circumstances from which it may
be inferred that at any occasion, prior to the happening,
they had even physically met and agreed over any such
object.”
8. The trial court further observed that no positive act
towards the murder had been attributed to these accused for
the injury to Chanda or the murder of Sher Singh and there was
no evidence whatsoever of a prior meeting of minds between
all the accused so as to show their common object or common
intention. On the contrary, the trial court observed, that the
evidence of Chanda and Brahmi with respect to the involvement
of Ram Niwas and Pawan Kumar (who died during trial) was
categorical that it was these two, who had committed the
murder of Sher Singh, and caused injuries to Chanda. It is in
this situation that the trial court drew a distinction between the
118
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[2010] 9 S.C.R.
A two sets of accused. We find from the judgment of the High Court
that this aspect has been carefully examined and the findings
have been affirmed.
9. It is true, as contended, that the relations between the
two parties were extremely strained on account of the murder
B
of Prem. While this fact could, undoubtedly, be a reason for
false implication of the accused, but on the contrary, it could
also be a motive for the commission of the crime. However, in
the light of the fact that the FIR had been recorded within a
reasonable time of the incident and the medical evidence fully
C
supports the ocular version, and additionally, the trial court has
given the benefit of doubt to some of the accused, as they had
no active role to play, the possibility of false implication has also
been examined and dealt with. The courts below have, in our
opinion, rightly assessed the evidence and being cognizant of
D the strained relations between the parties and the possibility
of false implication, have accordingly given the benefit of doubt
to two of the accused. No interference is thus called for by us
in this appeal. It is accordingly dismissed.
R.P.
Appeal dismissed.
120
[2010] 9 S.C.R. 119
P.J. AGRO TECH LIMITED & ORS.
v.
WATER BASE LIMITED
(Criminal Appeal No. 1357 of 2010)
JULY 28, 2010
A
B
[ALTAMAS KABIR AND DR. MUKUNDAKAM SHARMA,
JJ.]
s.138—Dishonour of cheque—Liability for default—Held:
In order to attract the provisions of s. 138, the cheque must
have been drawn by a person on the account maintained by
him with the banker—In the instant case, the cheque in
question was neither drawn on the account maintained by the
company against which the complaint was made, nor was it
signed by any of its directors and, therefore, the company and
its directors cannot be made liable for the default committed
by another person—Interpretation of statutes.
INTERPRETATION OF STATUTES;
Strict construction—Held: Provisions in respect of
criminal and quasi criminal action are to be strictly construed,
as such matters are in personam and cannot be used to foist
an offence on some other person, who under the statute was
not liable therefor—Negotiable Instruments Act, 1881—s.
136.
Appellant no.1 company, its Managing Director and
the Chairperson, as also the proforma respondents were
served with summons in a case filed by respondent No.1
against them purported to be u/s 138 of the Negotiable
Instruments Act, 1881 for dishonour of a cheque drawn
by respondent No.11. The appellant company along with
119
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[2010] 9 S.C.R.
A others challenged the order issuing the summonses,
before the High Court contending that the cheque was
neither drawn on its account nor was it signed by any of
its directors but was drawn by respondent no.11 on his
own savings bank accounts; and the complaint was
B abuse of the process of the court filed with the sole
motive of extracting money from the appellants. The High
court dismissed the petition. Aggrieved, the Company
and its directors filed the appeal.
NEGOTIABLE INSTRUMENTS ACT, 1881:
C
SUPREME COURT REPORTS
C
Allowing the appeal, the Court
HELD: 1.1. From a reading of s. 138, of the Negotiable
Instruments Act, 1881, 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
D 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, if
dishonoured, would attract the provisions of s. 138 of the
E Act against the drawer of the cheque. [Para 8] [125-H;
126-A-B]
1.2. In the instant case, the cheque in question may
have been issued by the respondent No.11 for
discharging the dues of the appellant Company and its
F directors to the respondent-company which may have a
good case against the appellant-company for recovery of
its dues before other fora, but it would not be sufficient
to attract the provisions of s.138 of the 1881 Act. The
appellant-company and its directors cannot be made
G liable u/s 138 of the 1881 Act for a default committed by
the respondent No.11. [Para 9] [126-C-E]
2.An action in respect of a criminal or a quasicriminal provision has to be strictly construed in keeping
H with the provisions alleged to have been violated. The
P.J. AGRO TECH LIMITED & ORS. v. WATER BASE 121
LIMITED
122
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. [Para 9] [126-D-E]
A
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1357 of 2010.
B
From the Judgment & Order dated 14.09.2006 of the High
Court of Judicature at Madras in Crl. O.P. No. 22207 of 2003.
Siddhartha Dave, Senthil Jagadeesan for the Appellants.
C
Sudarsh Menon for the Respondent.
The Judgment of the Court was delivered by
ALTAMAS KABIR, J. 1. Leave granted.
2. The Appellant No.1 herein is an agro-based company
having varied interests in providing feed supplements, vaccines
etc. The Appellant Nos.2 and 3 are the Managing Director and
Chairperson of the Appellant No.1 Company, which is based
in Hyderabad in the State of Andhra Pradesh. In order to utilize
the dealer network of the Appellant No.1 Company, the
Respondent No.1 Company approached the Appellants for
distribution of prawn feed manufactured by it. Inasmuch as, the
said venture did not turn out to be very successful, the Appellant
No.1 Company took a decision to discontinue its dealings with
the Respondent No.1 Company. In furtherance of the above, the
Appellant Company settled all its outstandings with the
Respondent No.1 Company and also gave an authorization
letter to the Respondent No.1 Company to collect all other dues
directly from the customers of the Appellant No.1 Company,
who had bought the feed but were yet to pay the price therefor.
The concerned customers were also informed about the
aforesaid decision. Thereafter, on 4th October, 2001, the
Appellant Company requested the Respondent No.1 Company
to coordinate with one K. Balashankar Reddy, the then General
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SUPREME COURT REPORTS
[2010] 9 S.C.R.
A Manager at Nellore, for collecting the dues which were still
outstanding. From the contents of the said letter it appears that
the Respondent Company had accepted the said offer.
However, in the course of making collections from the
customers directly, it was found that some of its employees had
B conspired with the said K. Balashankar Reddy and had
misappropriated some amounts of money and the same was
intimated by the Respondent No.1 Company to the Appellant
Company which asked the former to take action against the
said Balashankar Reddy and its concerned employees.
C
3. Subsequently, however, the Appellant and the Proforma
Respondents received a notice dated 13th December, 2002,
from the Respondent No.1 Company purporting to be a notice
under Section 138 of the Negotiable Instruments Act, 1881,
hereinafter referred to as “the 1881 Act”, wherein it was stated
D that a cheque issued by K. Balashankar Reddy on 25th
November, 2002, drawn on the State Bank of Hyderabad,
Nellore Branch, had been returned dishonoured with the
endorsement “Account closed”. The notice also demanded
repayment of the cheque amount from the Appellants.
E
4. On receiving the said notice, the Appellants replied to
the same on 26th December, 2002, stating that they never had
any account with the State Bank of Hyderabad and the cheque
in question had not been issued by the Appellant No.1
Company. Apparently, there was no response to the reply sent
F
on behalf of the Appellants and instead the Appellants were
served with summons from the Court of XVIIIth Metropolitan
Magistrate, Saidapet, Chennai, in Complaint Case No.1142 of
2003 based on the complaint which had been filed by the
Respondent No.1 on 23rd January, 2003. The Appellants
G entered appearance in the aforesaid complaint case and upon
obtaining copies of the complaint, they were surprised to learn
that the same had been filed against the Appellants on the basis
of a personal cheque issued by the Accused No.11, K.
Balashankar Reddy, from out of his personal savings bank
H account. The said summons was challenged by the Appellants
P.J. AGRO TECH LIMITED & ORS. v. WATER BASE 123
LIMITED [ALTAMAS KABIR, J.]
and the Proforma Respondents before the High Court on the
ground that the Company did not have any account with the
State Bank of Hyderabad and that the cheque had been issued
by K. Balashankar Reddy (Accused No.11) from out of his
personal savings bank account and that none of the Directors
had signed the said cheque. It was contended that the complaint
was an abuse of the process of Court and had been filed with
the sole motive of extracting money from the Appellants. On 14th
September, 2006, the High Court dismissed the said petition
holding that the cheque which had been issued by K.
Balashankar Reddy was to meet the liability of the Appellant
No.1 Company and its Directors on their request and that as a
result they had rightly been prosecuted under Section 138 of
the 1881 Act. The said order of the High Court dismissing the
Appellants’ petition has been challenged in the instant Appeal
essentially on the ground that the High Court had erred in
allowing the complaint proceedings to continue although the
same were not maintainable against the Appellants and the
Proforma Respondents who were not the drawers of the
cheque, nor was the cheque issued from any of their banks.
5. Appearing for the Appellants, Mr. Siddharth Dave,
learned Advocate, submitted that both the learned Magistrate
as well as the High Court had failed to consider in their proper
perspective the provisions of Section 138 of the Negotiable
Instruments Act, 1881. It was pointed out by Mr. Dave that in
order to attract the provisions of Section 138 of the 1881 Act,
it was necessary that a cheque would have to be drawn by a
person on an account maintained by him with his banker and
if the said cheque was dishonoured, it would be deemed that
such person had committed an offence and would, without
prejudice to any other provision of the Act, be punished with
imprisonment for a term which may be extended to two years
or with fine which may extend to twice the amount of the cheque
or with both. Mr. Dave urged that in order to maintain an action
against a person under Section 138 of the 1881 Act, it would
be necessary to show that the cheque had been issued by such
124
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[2010] 9 S.C.R.
A person on an account maintained by him, which fact was absent
in the instant case as far as the Appellants are concerned. It
was reiterated that the cheque in question had been drawn by
the Respondent No.11 in his personal capacity on his bank and
upon dishonour thereof, only he could be prosecuted under
B Section 138 of the 1881 Act. It was further submitted that the
proceedings against the Company and its Directors were not
maintainable and the High Court had erred in law in not
quashing the same.
6. The stand taken on behalf of the Appellants was
vehemently opposed on behalf of the Respondent No.1
Company and a spirited attempt was made to involve the
Appellant No.1 Company and its Directors for dishonour of the
cheque which had been issued by the Respondent No.11 from
his own bank, which did not attract the provisions of Section
D 138 of the 1881 Act against the Appellant No.1 Company and
its Directors. It was urged that since the cheque had been
issued by the Respondent No.11 to liquidate the dues of the
Appellant Company and its Directors, the High Court had quite
justifiably refused to quash the complaint filed by the
E Respondent No.1 Company.
C
7. From the submissions made on behalf of the respective
parties, it is quite apparent that the short point for decision in
this Appeal is whether a complaint under Section 138 of the
1881 Act would be maintainable against a person who was not
the drawer of the cheque from an account maintained by him,
which ultimately came to be dishonoured on presentation.
F
F
G
8. Since the provisions of Section 138 of the 1881 Act
have fallen for consideration in this Appeal, the same are
G extracted hereinbelow :-
H
“138. Dishonour of cheque for insufficiency, etc., of funds
in the account - Where any cheque drawn by a person on
an account maintained by him with a banker for payment
of any amount of money to another person from out of that
H
P.J. AGRO TECH LIMITED & ORS. v. WATER BASE 125
LIMITED [ALTAMAS KABIR, J.]
account for the discharge, in whole or in part, of any debt
or other liability, is returned by the bank unpaid, either
because of the amount of money standing to the credit of
that account is insufficient to honour the cheque or that it
exceeds the amount arranged to be paid from that account
by an agreement made with that bank, such person shall
be deemed to have committed an offence and shall,
without prejudice to any other provisions of this Act, be
punished with imprisonment for a term which may be
extended to two years, or with fine which may extend to
twice the amount of the cheque, or with both:
126
A
B
C
Provided that nothing contained in this section shall
apply unless(a)
(b)
(c)
the cheque has been presented to the bank within
a period of six months from the date on which it is
drawn or within the period of its validity, whichever
is earlier;
the payee or the holder in due course of the cheque,
as the case may be, makes a demand for the
payment of the said amount of money by giving a
notice in writing, to the drawer of the cheque, within
thirty days of the receipt of information by him from
the bank regarding the return of the cheque as
unpaid; and
the drawer of such cheque fails to make the
payment of the said amount of money to the payee
or, as the case may be, to the holder in due course
of the cheque, within fifteen days of the receipt of
the said notice.
D
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[2010] 9 S.C.R.
A 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
B 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.
9. In the instant case, the cheque which had been
dishonoured may have been issued by the Respondent No.11
C
for discharging the dues of the Appellant No.1 Company and
its Directors to the Respondent No.1 Company and the
Respondent Company may have a good case against the
Appellant No.1 Company for recovery of its dues before other
fora, but it would not be sufficient to attract the provisions of
D Section 138 of the 1881 Act. The Appellant Company and its
Directors cannot be made liable under Section 138 of the 1881
Act for a default committed by the Respondent No.11. An
action in respect of a criminal or a quasi-criminal provision has
to be strictly construed in keeping with the provisions alleged
E 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.
10. Having regard to the above, we allow the Appeal and
set aside the order passed by the High Court and quash the
complaint filed by the Respondent No.1 Company as far as the
Appellants and other Proforma Respondents are concerned.
In the event, any of the Appellants and/or Proforma
Respondents have been released on bail, they shall stand
G
discharged from their bail bonds forthwith.
F
Explanation.-For the purposes of this section, “debt or
other liability” means a legally enforceable debt or other
liability.”
From a reading of the said Section, it is very clear that in
SUPREME COURT REPORTS
11. The Appeal is allowed to the aforesaid extent.
R.P.
H
H
Appeal allowed.
128
[2010] 9 S.C.R. 127
MAYANDI
v.
STATE REP.BY INSP.OF POLICE
(Criminal Appeal No. 1501 of 2010)
JULY 28, 2010
A
A
[2010] 9 S.C.R.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1501 of 2010.
From the Judgment and Order dated 29.7.2008 of the High
Court of Judicature at Madras in CRLA No. 679 of 2006.
B
B
[HARJIT SINGH BEDI AND C.K. PRASAD, JJ.]
R. Shunmugha Sundaram, V.G. Pragasam, S.J. Aristotle
and Prabhu Ramasubramanian for the Appeallant.
Sundravardan, S. Thananjayan for the Respondent.
Penal Code, 1860:
s.326 – Injuries by sickle caused to victim – Death of
victim – Medical evidence stating that victim died due to
complications arising out of heart disease and that there was
no suggestion that the death was a result of the injuries –
Conviction by trial court u/ss 302, 506(II) and 341 affirmed by
High Court – HELD: It is the admitted fact that the Doctors
have not opined that the death was caused due to the injuries
caused by the appellant – There is also no evidence to show
that the injuries could have independently caused the death
of the deceased even if the deceased had not been suffering
from a heart problem – It is also the conceded position that
the deceased had a serious heart problem which was a matter
not within the appellant’s knowledge and on the contrary the
medical evidence reveals that the victim had undergone an
angioplasty but had nevertheless suffered a heart attack
thereafter – In this background, the High Court’s assertion that
the death was occasioned by complications on account of the
injuries caused by the appellant is not quite accurate – The
case would fall within s. 326 and not u/s 302– As there was
no intention on the part of appellant to cause the death of the
deceased nor could he be attributed with the knowledge that
death would be caused, the case would not fall u/s 304 (partI) – Conviction of the accused for the offence u/s 302 is altered
to one u/s 326 with a sentence of 10 years R.I. and a fine of
Rs.5,000/- – The sentence under the other provisions is
maintained.
127
SUPREME COURT REPORTS
The following Order of the Court was delivered
C
C
ORDER
Leave granted.
D
D
We had issued notice only with regard to the nature of the
offence on 14th September 2009.
We have heard the learned counsel for both parties.
The brief facts necessary for the disposal of this appeal
are as under:
E
F
G
H
E
The appellant was an employee working in the kitchen of
Palmgrove Hotel, Chennai. At about 6.15 a.m. on 8th February
2005, the deceased Tr. Manickaraja Bala, the Managing
Director of the hotel, came to the store room for carrying out a
store check. As the deceased was returning to his office after
F checking the store, the appellant ˇattacked him with a sickle
which he had concealed on his person. When the deceased
tried to escape, the appellant made a further attack on him and
caused him several injuries on his body and on his hands as
well. PW.1-Tr. Raghavendran, PW.3-P.S.R. Aziri, PW.4-Tr.
G Pravin Padival who were around the place came rushing to the
rescue the deceased but the appellant nevertheless ran away
from the spot. PW.2, PW.4 and several others then took the
deceased to the Apollo hospital where he was admitted to the
Intensive Care Unit.
H
A FIR was thereafter recorded for an offence punishable
MAYANDI v. STATE REP.BY INSP.OF POLICE
129
under Sections 307 etc. of the I.P.C. and on the death of the
injured at about 3.30 a.m. on 9th February 2005 the case was
altered to one under Section 302 etc. of the IPC.
The Trial Court on a consideration of the evidence
convicted the appellant for an offence punishable under
Sections 302, 506 (II) and 341 of the IPC. This judgment was
maintained by the High Court as well. It is in this situation that
the matter is before us today.
Mr. R.Shunmugham Sundram, the learned senior counsel
for the appellant has pointed out that a bare perusal of the
injuries, the post-mortem report and the evidence of the Doctor
would show that the injuries caused by the appellant were not
the cause of his death and he had in fact died of Myocardial
Infarction leading to heart failure. He has further submitted that
the fact that the deceased was already a heart patient and had
undergone angioplasty was a fact not within the knowledge of
the appellant and in this view of the matter a case under Section
302 IPC was not spelt out.
Mr. R. Sunderavardan, the learned senior counsel for the
respondent has however pointed out that even assuming that
the immediate cause of death was the Myocardial Infarction and
not the injuries caused to the deceased but in the light of the
admitted fact that the appellant was an employee of the hotel
of which the deceased was the Managing Director and that very
severe injuries had indeed been caused with a sickle, required
that the appellant would be punishable under Section 304 PartI, IPC.
We have considered the arguments advanced by the
learned counsel.
130
A
A
[2010] 9 S.C.R.
left shoulder, Front of chest and back of chest.
An Elastocreps bandage on the right side of the neck.
1. Left shoulder - on removal of plaster:
B
B
C
C
D
D
E
E
F
F
G
G
We reproduce the injuries found on the dead body of the
deceased at the time of the post-mortem.
“Bandage seen over left forearm and right forearm
below right below. Elastocreps bandage seen on top of
SUPREME COURT REPORTS
A stapled sutured wound seen on the front of outer third
of lest chest (crossing top of the outer as aspect of the left
shoulder) extending up to outer aspect of back of left side
chest. The total length is 16 cms.
A metallic wire is seen on the outer aspect of the left
shoulder cm long on removal of the sutures (staples) the
acromio-calvicular joint was fixed with a tension bank wire.
The surrounding soft tissues were found repaired 16 x 1.5
cm x bone deep.
2. Right hand - curved sutured would seen over the right
palm extending from the volar aspect of the right wrist
passing through the right thenar eminence extending to the
base of right thumb on the dorsal aspect. The total length
is 18 c.m.
On removal of sutures the margins are regular - On further
dissection the underlying muscles of the right thumb,
nerves, blood vessels were found repaired 18 x 3 cms.
Muscle deep.
3. A sutured wound on the palmer aspect of the left thumb
in the middle third,A curved sutured would seen over the
left thenar eminence 6 cm Long. On removal of the sutures
the margins are clean out, the underlying muscles found
repaired 6 x 2 cm x muscle deep.
HEART
An old vertical midline scar 18 cm Long seen in the midline
of chest extending down from the suprasternal notch. On
opening the thorax the underlying sternum was found
sutured with stainless steel wire (old) on further dissection
H
H
MAYANDI v. STATE REP.BY INSP.OF POLICE
131
the heart was found grossly enlarged with increase in
pericardial fat.
On dissection of the heart massive atheromatous changes
seen in the root of aorta. Coronary artery by pass site
made out and stend in situ. Heart sent for Histopathological
examination. Coronary vessels found narrowed.”
PW.13 also noted that the deceased had died due to
complications arising out of Myocardial infarction and admitted
that in the post-mortem report there was no suggestion that the
death was a result of the injuries.
The learned counsel has also brought to our notice the
death summary (Ext.p.8) which had been recorded in Apollo
hospital by the attending Doctor (PW.8) who stated that as the
deceased had lost a great deal of blood as the blood vessels
had been cut and complications had arisen on account of his
age (which was about 70 years) and was already a heart patient,
the cause of death was:
Coronary Artery disease : Acute Coronary
Syndrome, Post Coronary Revascularisation status,
practical post, Coronary artery bypass and post stent.
Post-hand surgery status and Diabetes mellitus. Since he
was already having heart disease bypass surgery had
been done to him. Afterwards heart trouble had occurred
to him.”
132
A
[2010] 9 S.C.R.
counsel for the accused is liable to be rejected and
accordingly the same is rejected.”
A
We have considered the reasons given by the High Court
and also considered the evidence above referred.
B
C
It is the admitted fact that the Doctors have not opined that
the death was caused due to the injuries caused by the
appellant. There is also no evidence to show that the injuries
could have independently caused the death of the deceased
even if the deceased had not been suffering from a heart
C problem. It is also the conceded position that the deceased had
a serious heart problem which was matter not within the
appellant’s knowledge and on the contrary the medical evidence
reveals that he had undergone an angioplasty but had
nevertheless suffered a heart attack thereafter.
B
D
D
E
E
F
F
Keeping in mind the said facts the High Court observed
that:
“In view of the above categorical evidence of PW.8
and PW.13, we are of the considered view that though it
had been stated in Post Mortem report that the death was
due to the ˇ complications of Myocardial Infarction, such
complications is directly attributed to the injuries inflicted
by the accused which resulted in interruption of the free
flow of the blood not only to the various vital organs but also
the heart and therefore the contention of the learned Senior
SUPREME COURT REPORTS
G
In this background the High Court’s assertion that the
death was occasioned by complications on account of the
injuries caused by the appellant is not quite accurate. We are,
therefore, of the opinion that the case would fall within Section
326 of the IPC and not under Section 302 of the IPC thereof.
ˇMr. R. Sundravardan’s argument that this matter would
nevertheless fall within Section 304 Part-I or Part -II of the IPC,
is also rejected as there was no intention on the part of
appellant to cause the death of the deceased nor could he be
attributed with the knowledge that death would be caused.
We accordingly partly allow this appeal, set aside the
acquittal and conviction of the appellant for the offence under
Section 302 of the IPC, and alter his conviction to one under
Section 326 of the IPC and award a sentence of 10 years R.I.
G and a fine of Rs.5,000/- and in default thereof, six months R.I.
The sentence under the other provisions of the IPC is
maintained.
The appeal is allowed in the above terms.
H
H R.P.
Appeal allowed.
[2010] 9 S.C.R. 133
ANAND SINGH & ANR.
v.
STATE OF UTTAR PRADESH & ORS.
(Civil Appeal No. 2523 of 2008)
JULY 28, 2010
134
A
B
[R.V. RAVEENDRAN AND R.M. LODHA, JJ.]
Land Acquisition Act, 1894:
ss. 17, 5A and 48(1) – Invocation of urgency clause and
dispensation of enquiry u/s. 5A – Notification for land
acquisition for public purpose-development of residential
colony – Invocation of urgency clause and dispensation of
enquiry u/s. 5A – Legality of – Challenge to, by appellant-land
owners – Held: Dispensation of enquiry u/s. 5A by invoking
s. 17(4) not justified – No material placed by State
Government either before High Court or Supreme Court
warranting elimination of enquiry u/s. 5A – There was prenotification and post-notification delay – Majority of other land
owners have received compensation – Development
Authority has already spent Rs. 5,28,00,000/- for development
of the acquired land, and more than 60% of work has been
completed – Thus, appellants not entitled to de-acquisition
of land – However, in view of the peculiar facts, appellants
granted liberty to make representation to State Authorities u/
s. 48(1) for release of their land.
s. 5A – Scope of – Held: s. 5A confers a valuable right
on owner or person interested to file objections against the
proposed compulsory acquisition of the particular property for
public purpose – It also makes the provision for compulsory
acquisition, just and in conformity with fundamental principles
of natural justice.
C
D
E
F
G
[2010] 9 S.C.R.
A of enquiry u/s. 5A – Held: Is an exceptional and extra-ordinary
power – It should be invoked only when circumstances warrant
immediate possession – Government has to apply its mind
on the aspect whether urgency justifies elimination of
summary enquiry u/s. 5A – Upon challenge being made to
B the use of power u/s. 17, Government must produce
appropriate material before the court on basis of which
opinion was formed – Where opinion formed on the
considerations is not germane to the purpose, judicial review
of such administrative decision may become necessary –
C Judicial review – Administrative Law.
D
‘Eminent domain’ – Power of – Held: It is acquisition of
private property by the Government in the public interest,
general welfare or for public purpose – It is inherent in the
Government.
The Gorakhpur Development Authority issued
Notifications for acquiring certain land including land of
the appellants for public purpose-development of
residential colony. The urgency clause u/s. 17 of the Land
E Acquisition Act, 1894 was invoked and the enquiry u/s.
5A was dispensed with. The appellants and other tenure
holders filed writ petition challenging the Notifications on
the ground that the urgency clause was invoked
dispensing with enquiry u/s. 5A without any basis and that
F structures and buildings were existing on their respective
holdings, thus, they were entitled to release of their land
from acquisition. The High Court upheld the Notifications.
As regard the prayer for seeking release of their land from
acquisition u/s. 48, the appellants and others were
directed to approach the State Government. Therefore,
G
the appellants filed the instant appeals.
Dismissing the appeals, the Court
s. 17(4) – Urgency clause – Invocation of – Dispensation
133
SUPREME COURT REPORTS
H
HELD: 1. In the instant case, the Government
completely
failed to justify the dispensation of an enquiry
H
ANAND SINGH & ANR. v. STATE OF UTTAR
PRADESH & ORS.
135
u/s. 5A by invoking s. 17(4) of the Land Acquisition Act,
1894. The impugned notifications to the extent they state
that s. 5A of the Act shall not apply suffers from legal
infirmity. [Para 32] [174-B-D]
2. ‘Eminent domain’ is the right or power of a
sovereign State to appropriate the private property within
the territorial sovereignty for public uses or purposes. It
is exercise of strong arm of government to take property
for public uses without owner’s consent. It requires no
constitutional recognition; it is an attribute of sovereignty
and essential to the sovereign government. The power
of eminent domain, being inherent in the government, is
exercisable in the public interest, general welfare and for
public purpose. Acquisition of private property by the
State in the public interest or for public purpose is
nothing but an enforcement of the right of ‘eminent
domain’. [Paras 29, 30] [169-C-E]
136
A
B
C
D
Words and Phrases, Permanent Edition, Volume 14,
1952 (West Publishing Co. – referred to.
3.1 In India, the Land Acquisition Act, 1894 provides
directly for acquisition of particular property for public
purpose. Though right to property is no longer
fundamental right but Article 300A of the Constitution
mandates that no person shall be deprived of his property
save by authority of law. That s. 5A of the Act confers a
valuable right to an individual is beyond any doubt. It
confers an important right in favour of a person whose
land is sought to be acquired. When the government
proceeds for compulsory acquisition of particular
property for public purpose, the only right that the owner
or the person interested in the property has, is to submit
his objections within the prescribed time u/s. 5A of the
Act and persuade the State Authorities to drop the
acquisition of that particular land by setting forth the
E
F
G
H
SUPREME COURT REPORTS
[2010] 9 S.C.R.
A reasons such as the unsuitability of the land for the
stated public purpose; the grave hardship that may be
caused to him by such expropriation, availability of
alternative land for achieving public purpose etc.
Moreover, right conferred on the owner or person
B interested to file objections to the proposed acquisition
is not only an important and valuable right but also
makes the provision for compulsory acquisition, just and
in conformity with the fundamental principles of natural
justice. [Para 30] [169-E-H; 170-A-B]
C
3.2 The exceptional and extra-ordinary power of
doing away with an enquiry u/s. 5A in a case where
possession of the land is required urgently or in
unforeseen emergency is provided in s. 17 of the Act.
Such power is not a routine power and save
D circumstances warranting immediate possession it
should not be lightly invoked. The guideline is inbuilt in
s. 17 itself for exercise of the exceptional power in
dispensing with enquiry u/s. 5A. Exceptional the power,
the more circumspect the Government must be in its
E exercise. Therefore, the Government has to apply its
mind before it dispenses with enquiry u/s. 5A on the
aspect whether the urgency is of such a nature that
justifies elimination of summary enquiry u/s. 5A. A
repetition of statutory phrase in the notification that the
F State Government is satisfied that the land specified in
the notification is urgently needed and the provision
contained in s. 5A shall not apply, though may initially
raise a presumption in favour of the government that prerequisite conditions for exercise of such power have
G been satisfied, but such presumption may be displaced
by the circumstances themselves having no reasonable
nexus with the purpose for which the power has been
exercised. Upon challenge being made to the use of
power u/s. 17, the government must produce appropriate
H
ANAND SINGH & ANR. v. STATE OF UTTAR
PRADESH & ORS.
137
material before the court that the opinion for dispensing
with the enquiry u/s. 5A has been formed by the
government after due application of mind on the material
placed before it. It is true that the power conferred upon
the government u/s. 17 is administrative and its opinion
is entitled to due weight, but in a case where the opinion
is formed regarding the urgency based on
considerations not germane to the purpose, the judicial
review of such administrative decision may become
necessary. As to in what circumstances the power of
emergency can be invoked are specified in s. 17(2) but
circumstances necessitating invocation of urgency
clause u/s. 17(1) are not stated in the provision itself. The
development of an area (for residential purposes) or a
planned development of city, takes many years if not
decades and, therefore, there is no reason why summary
enquiry as contemplated u/s. 5A may not be held and
objections of land owners/persons interested may not be
considered. In many cases on general assumption, likely
delay in completion of enquiry u/s. 5A is set up as a
reason for invocation of extra-ordinary power in
dispensing with the enquiry little realizing that an
important and valuable right of the person interested in
the land is being taken away and with some effort enquiry
could always be completed expeditiously. The special
provision has been made in s. 17 to eliminate enquiry u/
s. 5A in deserving and cases of real urgency. [Para 30]
[170-B-H; 171-A-E]
3.3 The pre-notification and post-notification delay
will have material bearing on the question of invocation
of urgency power, particularly, in a situation where no
material has been placed by the appropriate government
before the court justifying that urgency was of such
nature that necessitated elimination of enquiry u/s. 5A of
the Act. [Para 30] [171-G-H; 172-A]
138
A
A
B
B
C
C
D
D
E
E
F
F
G
G
H
H
SUPREME COURT REPORTS
[2010] 9 S.C.R.
3.4 In a country as big as India, the roof over head is
a distant dream for large number of people. The urban
development continues to be haphazard. The planned
development and housing are matters of priority in
developing nation. In all cases of ‘planned development
of the city’ or ‘for the development of residential area’, the
power of urgency may not be invoked by the Government
and even where such power is invoked, the enquiry
contemplated u/s. 5A should not be dispensed with
invariably. Ordinarily `planned development of city’ or
`development of residential area’ can allow delay of few
months to complete the enquiry u/s. 5A. Therefore, the
Government must do a balancing act and resort to the
special power of urgency u/s. 17 in the matters of
acquisition of land for the public purpose viz.; ‘planned
development of city’ or ‘for development of residential
area’ in exceptional situation. Use of the power by the
Government u/s. 17 for `planned development of the city’
or `the development of residential area’ or for `housing’
must not be as a rule but by way of an exception. Such
exceptional situation may be for the public purposerehabilitation of natural calamity affected persons;
rehabilitation of persons uprooted due to construction of
dam or housing for lower strata of the society urgently;
rehabilitation of persons affected by time bound projects,
etc. The list is only illustrative and not exhaustive. In any
case, without real urgency and need for immediate
possession of the land for carrying out the stated
purpose, heavy onus lies on the government to justify
exercise of such power. Therefore, the use of the power
of urgency and dispensation of enquiry u/s. 5A by the
Government in a routine manner for the ‘planned
development of city’ or ‘development of residential area’
and thereby depriving the owner or person interested of
a very valuable right u/s. 5A may not meet the statutory
test nor could it be readily sustained. [Para 31] [172-B-H;
173-A]
ANAND SINGH & ANR. v. STATE OF UTTAR
PRADESH & ORS.
139
4.1 In February, 2000, a Land Selection Committee
was constituted to identify the availability of land for a
housing colony by the GDA. In April, 2001, the Committee
so constituted inspected the site and proposed
acquisition of land in Village M and few other villages but
nothing further was done as the tenure holders opposed
the acquisition of their land and the Commissioner,
Gorakhpur in public interest stayed proposal for
acquisition. Abruptly the notifications for the proposed
acquisition were issued on November 22, 2003/February
20, 2004 u/s. 4 of the Act. In these notifications urgency
clause was invoked and the enquiry u/s. 5A was
dispensed with. Then, for more than one year nothing
was done. It was only on December 28, 2004 that a
declaration u/s. 6 was made. If the matter could hang on
from April, 2001 to November 22, 2003/February 20, 2004
before the notifications u/s. 4 were issued and for about
a year thereafter in issuance of declaration u/s. 6,
acquisition proceedings could have been arranged in a
manner so as to enable the land owners and/or the
interested persons to file their objections u/s. 5A within
the prescribed time and complete the enquiry
expeditiously. Insofar as Uttar Pradesh is concerned,
there is amendment in section 17. Sub-section (1A)
enables the Government to take possession under subsection (1) of section 17 if the land is required for public
purpose viz.; ‘planned development’. Nevertheless for
forming an opinion that provisions of s. 5A shall not
apply, the State Government must apply its mind that
urgency is of such nature warranting elimination of
enquiry u/s. 5A. Although some correspondence
between the Authorities and the Government was placed
before the High Court by the GDA, but no material was
placed on record by the State Government either before
the High Court or before this Court indicating the
application of mind that the urgency was of such nature
140
A
B
SUPREME COURT REPORTS
[2010] 9 S.C.R.
A which warranted elimination of the enquiry u/s. 5A of the
Act. The GDA wanted the subject land to be acquired
because their land bank had no land and they wanted
land to keep the Authority running. If profit-making and
the sustenance of the Development Authority was the
B motive, surely urgency was not of such nature that it
could allow no delay whatsoever. [Para 32] [173-B-H;
174-A-B]
C
C
D
D
E
E
F
F
G
G
H
H
4.2 In the written submissions of the GDA, it is stated
that subsequent to the declaration made u/s. 6 of the Act
in the month of December, 2004, award was passed and
out of the 400 land owners more than 370 have already
received compensation. Out of the total cost of Rs.
8,85,14,000/- for development of the acquired land, an
amount of Rs. 5,28,00,000/- has already been spent by the
GDA and more than 60% of work has been completed. It
seems that barring the appellants and few others all other
tenure holders/land owners have accepted the ‘takings’
of their land. It is too late in the day to undo what has
already been done. Therefore, in the peculiar facts and
circumstances of the case, the appellants are not entitled
to any relief although dispensation of enquiry u/s. 5A was
not justified. Since the existence of houses/structures
and buildings as on November 22, 2003/February 20, 2004
over the appellants’ land has been seriously disputed, it
may not be appropriate to issue any direction to the State
Government, as prayed for by the appellants, for release
of their land from acquisition. However, as the possession
has not been taken, the interest of justice would be
subserved if the appellants are given liberty to make
representation to the State Authorities u/s. 48(1) of the Act
for release of their land. Therefore, the appellants are
granted liberty to make appropriate representation to the
State Government. [Paras 32 and 33] [174-C-E; 175-B-D]
Raja Anand Brahma Shah v. State of Uttar Pradesh and
ANAND SINGH & ANR. v. STATE OF UTTAR
PRADESH & ORS.
141
Ors. (1967) 1 SCR 373; Jage Ram and Ors. v. State of
Haryana and Ors (1971) 1 SCC 671; Narayan Govind
Gavate and Ors. v. State of Maharashtra and Ors. (1977) 1
SCC 133; State of Punjab and Anr. v. Gurdial Singh and Ors.
(1980) 2 SCC 471; Deepak Pahwa and Ors. v. Lt. Governor
of Delhi and Ors. (1984) 4 SCC 308; State of U.P. v. Smt.
Pista Devi and Ors. (1986) 4 SCC 251; Rajasthan Housing
Board and Ors. v. Shri Kishan and Ors. (1993) 2 SCC 84;
Chameli Singh and Ors.v. State of U.P. and Anr (1996) 2 SCC
549; Meerut Development Authority and Ors. v. Satbir Singh
and Ors. (1996) 11 SCC 462; Om Prakash and Anr. v. State
of U.P. and Ors. (1998) 6 SCC 1; Union of India and Ors. v.
Mukesh Hans (2004) 8 SCC 14; Union of India and Ors. v.
Krishan Lal Arneja and Ors. (2004) 8 SCC 453; Hindustan
Petroleum Corporation Ltd. v. Darius Shapur Chenai and Ors.
(2005) 7 SCC 627; Mahadevappa Lachappa Kinagi and Ors.
v. State of Karnataka and Ors. (2008) 12 SCC 418; Babu Ram
and Anr. v. State of Haryana and Anr. (2009) 10 SCC 115;
Tika Ram and Ors. v. State of Uttar Pradesh and Ors. (2009)
10 SCC 689 – referred to.
142
A
B
C
(1967) 1 SCR 373
Referred to.
Para 14
(1971) 1 SCC 671
Referred to.
Para 15
(1977) 1 SCC 133
Referred to.
Para 16
(1980) 2 SCC 471
Referred to.
Para 17
(1984) 4 SCC 308
Referred to.
Para 18
(1986) 4 SCC 251
Referred to.
Para 19
(1993) 2 SCC 84
Referred to.
Para 20
(1996) 2 SCC 549
Referred to.
Para 21
(1996) 11 SCC 462
Referred to.
Para 22
B
[2010] 9 S.C.R.
(1998) 6 SCC 1
Referred to.
Para 23
(2004) 8 SCC 14
Referred to.
Para 24
(2004) 8 SCC 453
Referred to.
Para 25
(2005) 7 SCC 627
Referred to.
Para 26
(2008) 12 SCC 418
Referred to.
Para 27
(2009) 10 SCC 115
Referred to.
Para 28
(2009) 10 SCC 689
Referred to.
Para 28
C
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2523 of 2008.
D
From the Judgment & Order dated 06.05.2005 of the High
Court of Judicature at Allahabad in Civil Misc. Writ Petition No.
D 16842 of 2005.
With
E
Case Law Reference:
A
SUPREME COURT REPORTS
C.A. Nos. 2517, 2518, 2519, 2524, 2525, 2561, 2703, 2724,
E 2731 of 2008.
K.B. Sinha, S.C. Paul, Roopa Paul, S.S. Munde, Rekha
Pandey, Santosh Kumar Tripathi, Vikram, Sarika Singh,
Shailendra Mishra for the Appellants.
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Shail Kr. Dwivedi, Addl. A.G., P.V. Shetty, Sanjay Visen,
Vandana Mishra, Manoj Kr. Dwivedi, Ashutosh Kr. Sharma,
Manish Srivastava, Gunnam Venkateswara Rao, S.C. Birla,
Tulika Prakash, Sheela Khan, Parveen Rawal, Irshad Ahmad,
Amit Sharma, Anupam Lal Das, Arpit Gupta, Jatinder Kumar
G Bhatia, Kamlendra Mishra for the Respondents
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The Judgment of the Court was delivered by
R.M. LODHA, J. Of this group of ten appeals, 7 arise from
the common judgment and order dated May 6, 2005 passed
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by the High Court of Judicature at Allahabad. The remaining 3
appeals arise from separate judgments (dated January 18,
2007, March 22, 2007 and April 25, 2007) and in one of them,
the common judgment and order dated May 6, 2005 was
followed. As identical questions are involved, these appeals
were heard together and are being disposed of by this common
judgment.
2. The appellants in these appeals have small holdings of
land in Manbela, Hamidpur and Jangal Sikri etc., Pargana
Haveli, District Gorakhpur in the State of Uttar Pradesh. About
209.515 hectares of land including the land of the appellants
was sought to be acquired for the public purpose, namely, for
residential colony by the Gorakhpur Development Authority
(GDA), Gorakhpur. Vide public notices issued under subsection (1) of Section 4 of the Land Acquisition Act, 1894 (for
short, ‘the Act’) on November 22, 2003 and February 20, 2004
notifying for general information that the land mentioned in the
schedule appended thereto was needed for the said public
purpose. The provisions of sub-section (1) of Section 17 of the
Act were also invoked as in the opinion of the Governor, the
land proposed to be acquired was urgently required. By use
of power under Section 17(4) of the Act, it was stated in the
notification that Section 5A of the Act shall not apply. These
public notices are said to have been published in the Official
Gazette as well as other modes as prescribed in Section 4.
3. On December 28, 2004, a declaration was made under
Section 6 of the Act that the land mentioned in the schedule
including the subject land was needed for public purpose,
namely, for the construction of residential colony under a
planned development scheme. By the said notification, the
Collector, Gorakhpur was also directed that on expiration of 15
days from the publication of the notice under Section 9(1), the
possession of the land mentioned in the schedule may be
taken, although no award under Section 11 has been made.
4. The present appellants and the other tenure holders
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A whose land was sought to be acquired pursuant to the
aforesaid notifications, approached the High Court by filing writ
petitions wherein, inter alia, a plea was raised that there was
no justification to invoke urgency clause and there was no
material before the Government for dispensing with the enquiry
B under Section 5A of the Act. They averred that structures and
buildings were existing on their respective holdings and even
otherwise they are entitled to release of their land from
acquisition.
5. The State Government as well as the GDA opposed the
C writ petitions and justified invocation of urgency clause and the
dispensation of summary enquiry under Section 5A as the land
was required for providing residential and housing colony for
the lower income group, middle income group and higher
income group by the GDA.
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6. The High Court by its common judgment and order
dated May 6, 2005 held that none of the grounds raised by the
petitioners in the writ petitions was sustainable and
consequently upheld the notifications under challenge. While
E dealing with the aspect of existence of buildings on the subject
land and petitioners’ prayer for direction to the State
Government to consider deacquisition by exercising its power
under Section 48 of the Act, the Court observed that the
petitioners may approach the State Government for the
F redressal of their grievance in accordance with law. As noticed
above, in one of the subsequent orders, the High Court has
followed the common judgment and order dated May 6, 2005.
7. Be it noticed here that prior to the issuance of the
notifications dated November 22, 2003/February 20, 2004
G under Section 4(1) read with Sections 17(1) and 17(4) of the
Act, somewhere in the month of February, 2000, a Land
Selection Committee was constituted to identify the availability
of land for a housing colony in or around Gorakhpur. The
Committee so constituted made spot inspection in April, 2001
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and proposed acquisition of land in nine villages including
Manbela, Jungle Sikri @ Khorabar, Khorabar @ Subba Bazar,
Salempur @ Mugalpur, Hamidpur etc. However, nothing further
was done as the tenure holders opposed the acquisition of their
land and the Commissioner, Gorakhpur by his order dated May
2, 2001 stayed proposal submitted by the Land Selection
Committee in public interest.
8. Mr. K.B. Sinha, learned senior counsel for the appellants
principally raised two-fold submission before us. Firstly, learned
senior counsel submitted that invocation of urgency clause
under Section 17(1) and dispensation of summary enquiry for
the public purpose, namely, ‘development of residential colony’
were wholly unjustified. He contended that such an act of the
State was in colourable exercise of power. He would submit
that the development of residential colony takes sufficiently long
time and does not necessitate dispensation with the enquiry
and no exceptional circumstances have been brought on record
by the Government that may justify exercise of such
extraordinary power. Secondly, learned senior counsel
submitted that in view of the fact that the appellants have
constructed their residential houses much before the issuance
of impugned notifications, the State must exercise its power
under Section 48 and release their land from acquisition. He
would submit that the State Government has adopted a policy
of pick and choose inasmuch as some land has been released
from acquisition while the appellants’ land has not been
considered for being released.
9. Learned counsel for the other appellants adopted the
arguments of Mr. K.B. Sinha. Insofar as Civil Appeal No. 2703
of 2008 is concerned, learned counsel submitted that in
respect of the land under consideration in this appeal, a
Degree College is in existence and this aspect has been
overlooked by the Government while issuing impugned
notifications.
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10. Mr. Dinesh Dwivedi, learned senior counsel for the
State of Uttar Pradesh as well as Mr. Irshad Ahmad, learned
counsel for the GDA justified the impugned notifications and
submitted that the State Government has acted within its
competence and power in invoking urgency clause and
dispensation of enquiry under Section 5A for the public purpose
viz., development of residential colony since in Gorakhpur
housing was urgently required for various groups of the society.
They submitted that there is no impediment for the State
Government in invoking urgency clause for the public purpose
of housing. On behalf of the GDA, it was contended that many
steps have been taken in developing the land acquired under
the impugned notifications inasmuch as water line, electric line,
sewerage line, drainage etc. have been laid and roads
constructed. In the written arguments submitted by the GDA, it
has been stated that the total cost of development of the
acquired land is Rs. 8,85,14,000/- and out of which 5,28,00,000/
- have already been spent and about 60% work has already
been completed. It has also been submitted by the GDA that
after the award was made, compensation amount has been
deposited and barring appellants and 6-7 other persons, all
land owners have accepted compensation. As regards
appellants’ land, it is stated that structures have been put up
subsequent to the issuance of impugned notifications.
11. Learned senior counsel and counsel for the parties
cited some decisions of this Court in support of their respective
submissions. We shall refer to them appropriately a little later.
12. In the light of the contentions of the parties, the question
for our consideration is as to whether the impugned
notifications dated November 22, 2003/February 20, 2004
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invoking urgency clause and dispensation of enquiry under
Section 5A for the public purpose viz., ‘development of
residential colony’ are legal and valid and if the answer is in
negative, whether on the facts and in the circumstances, the
appellants are entitled to any relief.
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13. Before we advert to the aforesaid question, it is
appropriate that we briefly notice the relevant provisions
contained in the Act. The Act was enacted for the acquisition
of land needed for public purposes and for companies and for
determining the amount of compensation to be made on such
acquisition. Section 4 makes a provision for publication of
preliminary notification notifying that land mentioned therein is
needed for a public purpose. It provides for the mode of
publication of such notification and empowers the authorized
officers to make survey and set out the boundaries of the land
proposed to be taken amongst other acts as provided in the
said Section. Section 5A confers a right on the person
interested in any land which has been notified under Section
4(1) as being needed for a public purpose or likely to be
needed for public purpose to object to the acquisition of the
land. It provides that the objector shall be provided an
opportunity of hearing and after hearing all such objections and
after making such further enquiry, the Collector may submit his
report to the appropriate government along with his
recommendations on the objections and the record of
proceedings. Section 6 provides for declaration of intended
acquisition in the mode prescribed thereunder. The declaration
made under Section 6 is conclusive evidence that the land is
needed for a public purpose and after making such declaration,
the appropriate government may acquire the land in the manner
provided in subsequent provisions. Section 6 also prescribes
time limit in making such declaration. Section 9 provides a
public notice to be given by the Collector stating that the
government intends to take possession of the land and that
claims to compensation for all interests in such land may be
made to him. As per Section 11, the Collector is required to
enquire into the objections that may be received from the
persons interested pursuant to the notice issued under Section
9 and determine the award of compensation, inter alia by
enquiring into the value of the land and the respective interests
of the persons claiming compensation. Section 11-A
prescribes the limitation for making an award under Section 11.
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Section 16 provides for taking possession of the land after the
Collector has made an award under Section 11. The special
powers in cases of urgency and unforeseen emergency are
conferred upon the government under Section 17. Sub-section
(1) thereof provides that in case of urgency the appropriate
government may direct the Collector to take possession of any
land needed for public purpose on expiration of fifteen days
from the publication of the notice mentioned in Section 9,
although no award has been made. Sub-section (2) confers
power on the appropriate government to acquire the immediate
possession of the land for the purposes specified thereunder
in the cases of unforeseen emergency. Sub-section (3A),
however mandates that before taking possession of any land
under sub-section (1) or sub-section (2), the Collector shall
tender payment of 80% of the compensation as estimated by
him to the persons entitled thereto and pay the said
compensation to them unless prevented by the contingencies
under Section 31(2). Sub-section (4) empowers the government
to direct that the provisions of Section 5A shall not apply, on
its satisfaction that the provisions contained in sub-section (1)
or sub-section (2) are applicable and a declaration may be
made under Section 6 after the publication of the notification
under Section 4(1). Insofar as Uttar Pradesh is concerned, subsection (1A) has been inserted after sub-section (1) of Section
17 which provides that the power to take possession under
sub-section (1) may also be exercised, inter alia, if the land is
required for ‘planned development’. Section 48 gives liberty to
the government to withdraw from acquisition of any land.
14. The matters involving invocation of urgency clause and
dispensation of the enquiry under Section 5A have come up
for consideration before this Court from time to time. In Raja
Anand Brahma Shah v. State of Uttar Pradesh and Ors., this
Court observed that the opinion of the government formed under
Section 17(4) of the Act can be challenged as ultra vires in a
court of law, if it could be shown that the government never
applied its mind to the matter or that the action of the
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government is mala fide.
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15. In case of Jage Ram and Ors. v. State of Haryana and
Ors. while considering the urgency provision contained in
Section 17, this Court held that merely because there was
some laxity at an earlier stage, it cannot be inferred that on the
date the notification was issued there was no urgency. It was
held that the conclusion of the government in a given case that
there was urgency is entitled to weight, if not conclusive.
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16. A three-Judge Bench of this Court in Narayan Govind
Gavate and Ors. v. State of Maharashtra and Ors. extensively
considered Section 17 of the Act vis-à-vis extent of judicial
review. That was a case wherein the public purpose recited in
the notification was ‘development and utilization of said land
as a residential and industrial area’. This Court stated the legal
position as follows :
“37. We think that Section 17(4) cannot be read in isolation
from Section 4(1) and 5-A of the Act. The immediate
purpose of a notification under Section 4(1) of the Act is
to enable those who may have any objections to make to
lodge them for purposes of an enquiry under Section 5-A
of the Act. It is true that, although only 30 days from the
notification under Section 4(1) are given for the filing of
these objections under Section 5-A of the Act, yet,
sometimes the proceedings under Section 5-A are unduly
prolonged. But, considering the nature of the objections
which are capable of being successfully taken under
Section 5-A, it is difficult to see why the summary enquiry
should not be concluded quite expeditiously. In view of the
authorities of this Court, the existence of what are prima
facie public purposes, such as the one present in the
cases before us, cannot be successfully challenged at all
by objectors. It is rare to find a case in which objections
to the validity of a public purpose of an acquisition can
even be stated in a form in which the challenge could
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succeed. Indeed, questions relating to validity of the
notification on the ground of mala fides do not seem to us
to be ordinarily open in a summary enquiry under Section
5-A of the Act. Hence, there seems to us to be little difficulty
in completing enquiries contemplated by Section 5-A of
the Act very expeditiously.
38. Now, the purpose of Section 17(4) of the Act is,
obviously, not merely to confine action under it to waste
and arable land but also to situations in which an inquiry
under Section 5-A will serve no useful purpose, or, for
some overriding reason, it should be dispensed with. The
mind of the officer or authority concerned has to be
applied to the question whether there is an urgency of such
a nature that even the summary proceedings under Section
5-A of the Act should be eliminated. It is not just the
existence of an urgency but the need to dispense with an
inquiry under Section 5-A which has to be considered.
39. Section 17(2) deals with a case in which an enquiry
under Section 5-A of the Act could not possibly serve any
useful purpose. Sudden change of the course of a river
would leave no option if essential communications have
to be maintained. It results in more or less indicating, by
an operation of natural physical forces beyond human
control, what land should be urgently taken possession of.
Hence, it offers no difficulty in applying Section 17(4) in
public interest. And, the particulars of what is obviously to
be done in public interest need not be concealed when its
validity is questioned in a Court of justice. Other cases may
raise questions involving consideration of facts which are
especially within the knowledge of the authorities
concerned. And, if they do not discharge their special
burden, imposed by Section 106, Evidence Act, without
even disclosing a sufficient reason for their abstention from
disclosure, they have to take the consequences which flow
from the non-production of the best evidence which could
ANAND SINGH & ANR. v. STATE OF UTTAR
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be produced on behalf of the State if its stand was correct.
40. In the case before us, the public purpose indicated is
the development of an area for industrial and residential
purposes. This, in itself, on the face of it, does not call for
any such action, barring exceptional circumstances, as to
make immediate possession, without holding even a
summary enquiry under Section 5-A of the Act, imperative.
On the other hand, such schemes generally take sufficient
period of time to enable at least summary inquiries under
Section 5-A of the Act to be completed without any
impediment whatsoever to the execution of the scheme.
Therefore, the very statement of the public purpose for
which the land was to be acquired indicated the absence
of such urgency, on the apparent facts of the case, as to
require the elimination of an enquiry under Section 5-A of
the Act.
41. Again, the uniform and set recital of a formula, like a
ritual or mantra, apparently applied mechanically to every
case, itself indicated that the mind of the Commissioner
concerned was only applied to the question whether the
land was waste or arable and whether its acquisition is
urgently needed. Nothing beyond that seems to have been
considered. The recital itself shows that the mind of the
Commissioner was not applied at all to the question
whether the urgency is of such a nature as to require
elimination of the enquiry under Section 5-A of the Act. If
it was, at least the notifications gave no inkling of it at all.
On the other hand, its literal meaning was that nothing
beyond matters stated there were considered.
42. All schemes relating to development of industrial and
residential areas must be urgent in the context of the
country’s need for increased production and more
residential accommodation. Yet, the very nature of such
schemes of development does not appear to demand
such emergent action as to eliminate summary enquiries
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17. In State of Punjab and Anr. v. Gurdial Singh and Ors.
H while dealing with the invocation of Section 17 of the Act for
under Section 5-A of the Act. There is no indication
whatsoever in the affidavit filed on behalf of the State that
the mind of the Commissioner was applied at all to the
question whether it was a case necessitating the
elimination of the enquiry under Section 5-A of the Act. The
recitals in the notifications, on the other hand, indicate that
elimination of the enquiry under Section 5-A of the Act was
treated as an automatic consequence of the opinion
formed on other matters. The recital does not say at all that
any opinion was formed on the need to dispense with the
enquiry under Section 5-A of the Act. It is certainly a case
in which the recital was at least defective. The burden,
therefore, rested upon the State to remove the defect, if
possible, by evidence to show that some exceptional
circumstances which necessitated the elimination of an
enquiry under Section 5-A of the Act and that the mind of
the Commissioner was applied to this essential question.
It seems to us that the High Court correctly applied the
provisions of Section 106 of the Evidence Act to place the
burden upon the State to prove those special
circumstances, although it also appears to us that the High
Court was not quite correct in stating its view in such a
manner as to make it appear that some part of the initial
burden of the petitioners under Sections 101 and 102 of
the Evidence Act had been displaced by the failure of the
State to discharge its duty under Section 106 of the Act.
The correct way of putting it would have been to say that
the failure of the State to produce the evidence of facts
especially within the knowledge of its officials, which rested
upon it under Section 106 of the Evidence Act, taken
together with the attendant facts and circumstances,
including the contents of recitals, had enabled the
petitioners to discharge their burden under Sections 101
and 102 of the Evidence Act.”
ANAND SINGH & ANR. v. STATE OF UTTAR
PRADESH & ORS. [R.M. LODHA, J.]
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the public purpose, namely, grain market, this Court stated that
compulsory taking of a man’s property is a serious matter and
the smaller the man the more serious the matter. This Court
observed that hearing the owner before depriving him is both
reasonable and pre-emptive of arbitrariness and denial of this
administrative fairness is constitutional anathema except for
good reasons. It was further observed that save in real urgency
where public interest does not brook even the minimum time
needed to give a hearing land acquisition authorities should not,
having regard to Articles 14 (and 19), burke an enquiry under
Section 17 of the Act.
18. In the case of Deepak Pahwa and Ors. v. Lt. Governor
of Delhi and Ors., a three-Judge Bench of this Court was
concerned with the challenge to the notification issued under
Sections 4 and 17 of the Act for the public purpose viz.;
‘construction of a New Transmitting Station for the Delhi Airport’.
While noticing the decision of this Court in Jage Ram2, the
Court observed that very often the delay makes the problem
more and more acute and increases the urgency of the
necessity for acquisition. It was further observed that prenotification delay would not render the invocation of the urgency
provisions void.
19. In the case of State of U.P. v. Smt. Pista Devi and Ors.,
this Court was concerned with the question of urgency in
acquisition of large tract of land by the Meerut Development
Authority for its housing scheme with the object of providing
housing accommodation to the residents of Meerut city. The
notification under Section 4 read with Section 17(1) and (4) was
published in the U.P. Gazette on July 12, 1980 and the
declaration under Section 6 of the Act was issued on May 1,
1981. The possession of the land was taken and handed over
to the Meerut Development Authority in July 1982. Thereafter,
about 17 persons who owned in all about 40 acres of land out
of the total of about 412 acres acquired, filed writ petitions in
the High Court challenging the aforesaid notifications on the
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A ground that the action of the government in invoking Section
17(1) of the Act and dispensing with the enquiry under Section
5A of the Act was not called for in the circumstances of the
case. The High Court after hearing the parties held that the
dispensation with the enquiry under Section 5A was invalid one
B and, accordingly, quashed the notifications. Aggrieved by the
judgment of the High Court, the State of U.P. as well as Meerut
Development Authority preferred appeal before this Court by
special leave. This Court set aside the judgment of the High
Court. While doing so, this Court held thus :
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“6. What was said by the learned Judge in the context of
provision of housing accommodation to Harijans is equally
true about the problem of providing housing
accommodation to all persons in the country today having
regard to the enormous growth of population in the country.
The observation made in the above decision of the High
Court of Andhra Pradesh is quoted with approval by this
Court in Deepak Pahwa v. Lt. Governor of Delhi, (1984)
4 SCC 308, even though in the above decision the Court
found that it was not necessary to say anything about the
post-notification delay. We are of the view that in the facts
and circumstances of this case the post-notification delay
of nearly one year is not by itself sufficient to hold that the
decision taken by the State Government under Section
17(1) and (4) of the Act at the time of the issue of the
notification under Section 4(1) of the Act was either
improper or illegal.
7. It was next contended that in the large extent of land
acquired which was about 412 acres there were some
buildings here and there and so the acquisition of those
parts of the land on which buildings were situated was
unjustified since those portions were not either waste or
arable lands which could be dealt with under Section 17(1)
of the Act. This contention has not been considered by the
High Court. We do not, however, find any substance in it.
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The government was not acquiring any property which was
substantially covered by buildings. It acquired about 412
acres of land on the outskirts of Meerut city which was
described as arable land by the Collector. It may be true
that here and there were a few super-structures. In a case
of this nature where a large extent of land is being acquired
for planned development of the urban area it would not be
proper to leave the small portions over which some superstructures have been constructed out of the development
scheme. In such a situation where there is real urgency it
would be difficult to apply Section 5-A of the Act in the case
of few bits of land on which some structures are standing
and to exempt the rest of the property from its application.
Whether the land in question is waste or arable land has
to be judged by looking at the general nature and condition
of the land. It is not necessary in this case to consider any
further the legality or the propriety of the application of
Section 17(1) of the Act to such portions of land proposed
to be acquired, on which super-structures were standing
because of the special provision which is inserted as subsection (1-A) of Section 17 of the Act by the Land
Acquisition (U.P. Amendment) Act (22 of 1954) which
reads thus:
“(1-A) The power to take possession under sub-section (1)
may also be exercised in the case of land other than waste
or arable land, where the land is acquired for or in
connection with sanitary improvements of any kind or
planned development.”
8. It is no doubt true that in the notification issued under
Section 4 of the Act while exempting the application of
Section 5-A of the Act to the proceedings, the State
Government had stated that the land in question was
arable land and it had not specifically referred to subsection (1-A) of Section 17 of the Act under which it could
take possession of land other than waste and arable land
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by applying the urgency clause. The mere omission to refer
expressly Section 17(1-A) of the Act in the notification
cannot be considered to be fatal in this case as long as
the government had the power in that sub-section to take
lands other than waste and arable lands also by invoking
the urgency clause. Whenever power under Section 17(1)
is invoked the government automatically becomes entitled
to take possession of land other than waste and arable
lands by virtue of sub-section (1-A) of Section 17 without
further declaration where the acquisition is for sanitary
improvement or planned development. In the present case
the acquisition is for planned development. We do not,
therefore find any substance in the above contention.”
20. In Rajasthan Housing Board and Ors. v. Shri Kishan
and Ors., a large extent of land was acquired for the benefit of
D Rajasthan Housing Board. While dealing with the provisions
contained in Sections 17(4) and (1), 4 and 6 of Rajasthan Land
Acquisition Act, 1953 (the provisions being pari materia to the
provisions of the Act), this Court held that the satisfaction under
Section 17(4) is a subjective one and that so long as there is
E material upon which the Government could have formed the said
satisfaction fairly, the Court would not interfere nor would it
examine the material as an appellate authority. This Court
noticed that in view of the time bound programme stipulated
by the lender (HUDCO) and a large number of engineers and
F other subordinate staff for carrying out the said work having
already been appointed, the satisfaction of the State
Government that holding an enquiry under Section 5A would
result in uncalled for delay endangering the entire scheme and
time schedule of the Housing Board could not be faulted.
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21. In Chameli Singh and Ors. v. State of U.P. and Anr..
, a three-Judge Bench of this Court was seized with a matter
wherein acquisition of the land was for the public purpose,
namely, for providing ‘houses to Scheduled Castes’. Dealing
with a challenge to the opinion of urgency formed by the
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appropriate government and its satisfaction to eliminate the
enquiry under Section 5A, this Court observed that the opinion
of the government is entitled to great weight unless it is vitiated
by mala fides or colourable exercise of power. Noticing the
earlier judgments of this Court, particularly, Pista Devi6,
Deepak Pahwa5, Jage Ram2, Narayan Govind Gavate3 and
Rajasthan Housing Board8, this Court said:
“14. What was said by Chinnappa Reddy, J. in the context
of provisions of housing accommodation to Harijans is
equally applied to the problem of providing housing
accommodation to all persons in the country in State of
U.P. v. Pista Devi, (1986) 4 SCC 251, holding that today
having regard to the enormous growth of population,
urgency clause for planned development in urban areas
was upheld by a two-Judge Bench. The ratio of Kasireddy
Papaiah case, AIR 1975 AP 269, was quoted with
approval by a three-Judge Bench in Deepak Pahwa v. Lt.
Governor of Delhi, (1984) 4 SCC 308. The delay by the
officials was held to be not a ground to set at naught the
power to exercise urgency clause in both the above
decisions. It would thus be clear that housing
accommodation to the Dalits and Tribes is in acute
shortage and the State has undertaken as its economic
policy under planned expenditure to provide shelter to them
on a war footing, in compliance with the constitutional
obligation undertaken as a member of the UNO to the
resolutions referred to hereinbefore.
15. The question, therefore, is whether invocation of
urgency clause under Section 17(4) dispensing with inquiry
under Section 5-A is arbitrary or is unwarranted for
providing housing construction for the poor. In Aflatoon v.
Lt. Governor of Delhi, (1975) 4 SCC 285, a Constitution
Bench of this Court had upheld the exercise of the power
by the State under Section 17(4) dispensing with the
inquiry under Section 5-A for the planned development of
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Delhi. In Pista Devi case this Court while considering the
legality of the exercise of the power under Section 17(4)
exercised by the State Government dispensing with the
inquiry under Section 5-A for acquiring housing
accommodation for planned development of Meerut, had
held that providing housing accommodation is national
urgency of which court should take judicial notice. The prenotification and post-notification delay caused by the
officer concerned does not create a cause to hold that
there is no urgency. Housing conditions of Dalits all over
the country continue to be miserable even till date and is
a fact of which courts are bound to take judicial notice. The
ratio of Deepak Pahwa case was followed. In that case a
three-Judge Bench of this Court had upheld the notification
issued under Section 17(4), even though lapse of time of
8 years had occurred due to inter-departmental
discussions before receiving the notification. That itself was
considered to be a ground to invoke urgency clause. It was
further held that delay on the part of the lethargic officials
to take further action in the matter of acquisition was not
sufficient to nullify the urgency which existed at the time of
the issuance of the notification and to hold that there was
never any urgency. In Jage Ram v. State of Haryana,
(1971) 1 SCC 671, this Court upheld the exercise of the
power of urgency under Section 17(4) and had held that
the lethargy on the part of the officers at an early stage was
not relevant to decide whether on the day of the notification
there was urgency or not. Conclusion of the Government
that there was urgency, though not conclusive, is entitled
to create weight. In Deepak Pahwa case this Court had
held that very often persons interested in the land proposed
to be acquired may make representations to the
authorities concerned against the proposed writ petition
that is bound to result in multiplicity of enquiries,
communications and discussions leading invariably to
delay in the execution of even urgent projects. Very often
delay makes the problem more and more acute and
ANAND SINGH & ANR. v. STATE OF UTTAR
PRADESH & ORS. [R.M. LODHA, J.]
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increases urgency of the necessity for acquisition. In
Rajasthan Housing Board v. Shri Kishan, (1993) 2 SCC
84, this Court had held that it must be remembered that
the satisfaction under Section 17(4) is a subjective one
and that so long as there is material upon which
Government could have formed the said satisfaction fairly,
the Court would not interfere nor would it examine the
material as an appellate authority. In State of U.P. v.
Keshav Prasad Singh, (1995) 5 SCC 587, this Court had
held that the Government was entitled to exercise the
power under Section 17(4) invoking urgency clause and
to dispense with inquiry under Section 5-A when the
urgency was noticed on the facts available on record. In
Narayan Govind Gavate case a three-Judge Bench of this
Court had held that Section 17(4) cannot be read in
isolation from Section 4(1) and Section 5-A of the Act.
Although 30 days from the notification under Section 4(1)
are given for filing objections under Section 5-A, inquiry
thereunder unduly gets prolonged. It is difficult to see why
the summary inquiry could not be completed quite
expeditiously. Nonetheless, this Court held the existence
of prima facie public purpose such as the one present in
those cases before the Court could not be successfully
challenged at all by the objectors. It further held that it was
open to the authority to take summary inquiry under
Section 5-A and to complete inquiry very expeditiously. It
was emphasised that:
“... The mind of the officer or authority concerned has to
be applied to the question whether there is an urgency of
such a nature that even the summary proceedings under
Section 5-A of the Act should be eliminated. It is not just
the existence of an urgency but the need to dispense with
an inquiry under Section 5-A which has to be considered.”
16. It would thus be seen that this Court emphasised the
holding of an inquiry on the facts peculiar to that case. Very
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often the officials, due to apathy in implementation of the
policy and programmes of the Government, themselves
adopt dilatory tactics to create cause for the owner of the
land to challenge the validity or legality of the exercise of
the power to defeat the urgency existing on the date of
taking decision under Section 17(4) to dispense with
Section 5-A inquiry.
17. It is true that there was pre-notification and postnotification delay on the part of the officers to finalise and
publish the notification. But those facts were present
before the Government when it invoked urgency clause
and dispensed with inquiry under Section 5-A. As held by
this Court, the delay by itself accelerates the urgency:
Larger the delay, greater be the urgency. So long as the
unhygienic conditions and deplorable housing needs of
Dalits, Tribes and the poor are not solved or fulfilled, the
urgency continues to subsist. When the Government on the
basis of the material, constitutional and international
obligation, formed its opinion of urgency, the court, not
being an appellate forum, would not disturb the finding
unless the court conclusively finds the exercise of the power
mala fide. Providing house sites to the Dalits, Tribes and
the poor itself is a national problem and a constitutional
obligation. So long as the problem is not solved and the
need is not fulfilled, the urgency continues to subsist. The
State is expending money to relieve the deplorable
housing condition in which they live by providing decent
housing accommodation with better sanitary conditions.
The lethargy on the part of the officers for pre and postnotification delay would not render the exercise of the
power to invoke urgency clause invalid on that account.”
22. A three-Judge Bench of this Court in Meerut
Development Authority & Ors. v. Satbir Singh and Ors. held
that the acquisition for housing development is an urgent
purpose and exercise of power under Section 17(4) dispensing
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with the enquiry under Section 5A is not invalid.
23. In Om Prakash and Anr. v. State of U.P. and Ors., the
question presented before this Court for consideration was,
inter alia, whether the State Government was justified in
invoking urgency clause under Section 17(1) and dispensing
with the enquiry under Section 5A for acquisition of the land for
residential and industrial purpose for the purposes of New
Okhla Industrial Development Authority (NOIDA). The argument
on behalf of the appellants therein was that there was no
relevant material with the appropriate government to enable it
to arrive at its subjective satisfaction about dispensing with the
enquiry under Section 5A in connection with the subject
acquisition and there was delay of more than one year in
issuance of declaration under Section 6 after issuance and
publication of notification under Section 4 read with Section 17
of the Act. This Court observed :
“…….Even that apart, if that was the urgency suggested
by NOIDA on 14-12-1989, we fail to appreciate as to how
the State authorities did not respond to that proposal
equally urgently and why they issued notification under
Section 4 read with Section 17(4) after one year in January
1991. On this aspect, no explanation whatsoever was
furnished by the respondent-State authorities before the
High Court. It is also interesting to note that even after
dispensing with inquiry under Section 5-A pursuant to the
exercise of powers under Section 17(4) on 5-1-1991,
Section 6 notification saw the light of day only on 7-1-1992.
If the urgency was of such a nature that it could not brook
the delay on account of Section 5-A proceedings, it is
difficult to appreciate as to why Section 6 notification in
the present case could be issued only after one year from
the issuance of Section 4 notification. No explanation for
this delay is forthcoming on record. This also shows that
according to the State authorities, there was no real
urgency underlying dispensing with Section 5-A inquiry
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despite NOIDA suggesting at the top of its voice about the
need for urgently acquiring the lands for the development
of Sector 43 and other sectors.”
Noticing the conflict in the decisions of this Court in Narayan
Govind Gavate3 and Pista Devi6, the Bench said :
“20. It is no doubt true that the aforesaid decision of the
three-Judge Bench of this Court was explained by a latter
two-Judge Bench decision of this Court in State of U.P. v.
Pista Devi, (1986) 4 SCC 251, as being confined to the
fact situation in those days when it was rendered. However,
it is trite to note that the latter Bench of two learned Judges
of this Court could not have laid down any legal proposition
by way of a ratio which was contrary to the earlier decision
of the three-Judge Bench in Narayan Govind Gavate. In
fact, both these decisions referred to the fact situations in
the light of which they were rendered.”
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24. In the case of Union of India and Ors. v. Mukesh Hans,
a three-Judge Bench of this Court while dealing with the
interpretation of Section 17(4) of the Act and the procedure to
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be followed by the appropriate government while dispensing
with the enquiry contemplated under Section 5A of the Act said:
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31. Section 17(4) as noticed above, provides that in cases
where the appropriate Government has come to the
conclusion that there exists an urgency or unforeseen
emergency as required under sub-section (1) or (2) of
Section 17, it may direct that the provisions of Section 5A shall not apply and if such direction is given then Section
5-A inquiry can be dispensed with and a declaration may
be made under Section 6 on publication of Section 4(1)
notification and possession can be made.
32. A careful perusal of this provision which is an exception
to the normal mode of acquisition contemplated under the
Act shows that mere existence of urgency or unforeseen
ANAND SINGH & ANR. v. STATE OF UTTAR
PRADESH & ORS. [R.M. LODHA, J.]
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emergency though is a condition precedent for invoking
Section 17(4), that by itself is not sufficient to direct the
dispensation of the Section 5-A inquiry. It requires an
opinion to be formed by the Government concerned that
along with the existence of such urgency or unforeseen
emergency there is also a need for dispensing with Section
5-A inquiry which indicates that the legislature intended the
appropriate Government to apply its mind before
dispensing with Section 5-A inquiry. It also indicates that
mere existence of an urgency under Section 17(1) or
unforeseen emergency under Section 17(2) would not by
itself be sufficient for dispensing with Section 5-A inquiry.
If that was not the intention of the legislature then the latter
part of sub-section (4) of Section 17 would not have been
necessary and the legislature in Sections 17(1) and (2)
itself could have incorporated that in such situation of
existence of urgency or unforeseen emergency
automatically Section 5-A inquiry will be dispensed with.
But then that is not the language of the section which in
our opinion requires the appropriate Government to further
consider the need for dispensing with Section 5-A inquiry
in spite of the existence of unforeseen emergency. This
understanding of ours as to the requirement of an
application of mind by the appropriate Government while
dispensing with Section 5-A inquiry does not mean that in
each and every case when there is an urgency
contemplated under Section 17(1) and unforeseen
emergency contemplated under Section 17(2) exists that
by itself would not contain the need for dispensing with
Section 5-A inquiry. It is possible in a given case the
urgency noticed by the appropriate Government under
Section 17(1) or the unforeseen emergency under Section
17(2) itself may be of such degree that it could require the
appropriate Government on that very basis to dispense
with the inquiry under Section 5-A but then there is a need
for application of mind by the appropriate Government that
such an urgency for dispensation of the Section 5-A
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inquiry is inherent in the two types of urgencies
contemplated under Sections 17(1) and (2) of the Act.
33. An argument was sought to be advanced on behalf of
the appellants that once the appropriate Government
comes to the conclusion that there is an urgency or
unforeseen emergency under Sections 17(1) and (2), the
dispensation with inquiry under Section 5-A becomes
automatic and the same can be done by a composite
order meaning thereby that there is no need for the
appropriate Government to separately apply its mind for
any further emergency for dispensation with an inquiry
under Section 5-A. We are unable to agree with the above
argument because sub-section (4) of Section 17 itself
indicates that the “Government may direct that the
provisions of Section 5-A shall not apply” (emphasis
supplied) which makes it clear that not in every case where
the appropriate Government has come to the conclusion
that there is urgency and under sub-section (1) or
unforeseen emergency under sub-section (2) of Section
17, the Government will ipso facto have to direct the
dispensation of the inquiry. For this we do find support from
a judgment of this Court in the case of Nandeshwar Prasad
v. State of U.P., (1964) 3 SCR 425, wherein considering
the language of Section 17 of the Act which was then
referable to waste or arable land and the U.P. Amendment
to the said section, this Court held thus:
“It will be seen that Section 17(1) gives power to the
Government to direct the Collector, though no award has
been made under Section 11, to take possession of any
waste or arable land needed for public purpose and such
land thereupon vests absolutely in the Government free
from all encumbrances. If action is taken under Section
17(1), taking possession and vesting which are provided
in Section 16 after the award under Section 11 are
accelerated and can take place fifteen days after the
ANAND SINGH & ANR. v. STATE OF UTTAR
PRADESH & ORS. [R.M. LODHA, J.]
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publication of the notice under Section 9. Then comes
Section 17(4) which provides that in case of any land to
which the provisions of sub-section (1) are applicable, the
Government may direct that the provisions of Section 5-A
shall not apply and if it does so direct, a declaration may
be made under Section 6 in respect of the land at any time
after the publication of the notification under Section 4(1).
It will be seen that it is not necessary even where the
Government makes a direction under Section 17(1) that
it should also make a direction under Section 17(4). If the
Government makes a direction only under Section 17(1)
the procedure under Section 5-A would still have to be
followed before a notification under Section 6 is issued,
though after that procedure has been followed and a
notification under Section 6 is issued the Collector gets
the power to take possession of the land after the notice
under Section 9 without waiting for the award and on such
taking possession the land shall vest absolutely in
Government free from all encumbrances. It is only when
the Government also makes a declaration under Section
17(4) that it becomes unnecessary to take action under
Section 5-A and make a report thereunder. It may be that
generally where an order is made under Section 17(1), an
order under Section 17(4) is also passed; but in law it is
not necessary that this should be so. It will also be seen
that under the Land Acquisition Act an order under Section
17(1) or Section 17(4) can only be passed with respect
to waste or arable land and it cannot be passed with
respect to land which is not waste or arable and on which
buildings stand.”
(emphasis supplied)
34. A careful reading of the above judgment shows that
this Court in the said Nandeshwar Prasad case has also
held that there should be an application of mind to the facts
of the case with special reference to this concession of
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Section 5-A inquiry under the Act.
35. At this stage, it is relevant to notice that the limited right
given to an owner/person interested under Section 5-A of
the Act to object to the acquisition proceedings is not an
empty formality and is a substantive right, which can be
taken away for good and valid reason and within the
limitations prescribed under Section 17(4) of the Act. The
object and importance of Section 5-A inquiry was noticed
by this Court in the case of Munshi Singh v. Union of India,
(1973) 2 SCC 337, wherein this Court held thus:
“7. Section 5-A embodies a very just and
wholesome principle that a person whose property
is being or is intended to be acquired should have
a proper and reasonable opportunity of persuading
the authorities concerned that acquisition of the
property belonging to that person should not be
made. ... The legislature has, therefore, made
complete provisions for the persons interested to
file objections against the proposed acquisition and
for the disposal of their objections. It is only in cases
of urgency that special powers have been conferred
on the appropriate Government to dispense with
the provisions of Section 5-A:”
36. It is clear from the above observation of this Court that
right of representation and hearing contemplated under
Section 5-A of the Act is a very valuable right of a person
whose property is sought to be acquired and he should
have appropriate and reasonable opportunity of
persuading the authorities concerned that the acquisition
of the property belonging to that person should not be
made. Therefore, in our opinion, if the appropriate
Government decides to take away this minimal right then
its decision to do so must be based on materials on record
to support the same and bearing in mind the object of
Section 5-A.”
ANAND SINGH & ANR. v. STATE OF UTTAR
PRADESH & ORS. [R.M. LODHA, J.]
167
25. In Union of India and Ors. v. Krishan Lal Arneja and
Ors., the issue under consideration before this Court related
to the validity of notification for the acquisition of the land for a
public purpose, inter alia, ‘housing of the government offices’
and ‘residential use of government servants’ invoking Section
17(1) and (4). This Court emphasized that failure to take timely
action for acquisition by the authorities cannot be a ground to
invoke the urgency clause to the serious detriment to the right
of the land owner to raise objections to the acquisition under
Section 5A. It was observed that Gurdial Singh4 is not an
authority for the proposition that in the absence of material to
justify urgency clause, long delay in issuing the notification could
be ignored or condoned to uphold the validity of such
notification.
26. In Hindustan Petroleum Corporation Ltd. v. Darius
Shapur Chenai and Ors., this Court observed that Section 5A
of the Act confers a valuable right in favour of a person whose
lands are sought to be acquired. It was further observed that
the Act is an expropriatory legislation and, therefore, its
provisions should be strictly construed as it deprives a person
of his land without consent.
27. This Court in the case of Mahadevappa Lachappa
Kinagi and Ors. v. State of Karnataka and Ors. posited that
Section 17 of the Act confers extraordinary powers on the
authorities under which it can dispense with the normal
procedure laid down under Section 5A of the Act in cases of
exceptional urgency and that such powers cannot be lightly
resorted to except in case of real urgency enabling the
government to take immediate possession of the land proposed
to be acquired for public purpose. That case related to the
acquisition of land for the rehabilitation of 145 families uprooted
because of commissioning of barrage of Bhima River. It was
held that the case indicated an exceptional case where
exceptional power under Section 17 could be invoked.
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28. Now, two recent decisions of this Court need to be
noticed. In Babu Ram and Anr. v. State of Haryana and Anr.,
this Court was concerned with the legality of the notification for
acquisition of land for construction of sewage treatment plant.
The appropriate government invoked its power under Section
17(2)(c) and by invoking its power under Section 17(4) excluded
the application of Section 5A of the Act. After referring to few
decisions of this Court, particularly, Gurdial Singh4 and Om
Prakash10, it was observed that these decisions assign a great
deal of importance to the right of a citizen to file objections
under Section 5A of the Act and the fact that such right was
elevated to the status of a fundamental right is in itself sufficient
to indicate that great care had to be taken by the authorities
before resorting to Section 17(4) of the Act and they have to
satisfy themselves that there was an urgency of such nature
which could brook no delay whatsoever. In another case, viz.;
Tika Ram and Ors. v. State of Uttar Pradesh and Ors.,
constitutional validity of the provisions of Sections 17(1), 17(1A),
17(3A), 17(4) and the proviso to Section 17(4) as amended
by U.P. Act 5 of 1991 was under challenge besides the various
other provisions of the Act. This Court overruled the challenge
to the constitutionality of the aforenoticed provisions. As
regards invocation of power under Section 17 of the Act and
doing away with Section 5A enquiry, it was held :
“115. While considering as to whether the Government
was justified in doing away with the inquiry under Section
5-A, it must be noted that there are no allegations of mala
fides against the authority. No evidence has been brought
before the judgment and the High Court has also
commented on this. The housing development and the
planned developments have been held to be the matters
of great urgency by the Court in Pista Devi case. In the
present case we have seen the judgment of the High Court
which has gone into the records and has recorded
categorical finding that there was sufficient material before
the State Government and the State Government has
ANAND SINGH & ANR. v. STATE OF UTTAR
PRADESH & ORS. [R.M. LODHA, J.]
169
objectively considered the issue of urgency. Even before
this Court, there were no allegations of mala fides. A
notice can be taken of the fact that all the lands which were
acquired ultimately came to be utilised for the Scheme.
We, therefore, reject the argument that there was no
urgency to justify dispensation of Section 5-A inquiry by
applying the urgency clause”.
29. ‘Eminent domain’ is right or power of a sovereign State
to appropriate the private property within the territorial
sovereignty to public uses or purposes. It is exercise of strong
arm of government to take property for public uses without
owner’s consent. It requires no constitutional recognition; it is
an attribute of sovereignty and essential to the sovereign
government. (Words and Phrases, Permanent Edition, Volume
14, 1952 (West Publishing Co.,).
30. The power of eminent domain, being inherent in the
government, is exercisable in the public interest, general welfare
and for public purpose. Acquisition of private property by the
State in the public interest or for public purpose is nothing but
an enforcement of the right of eminent domain. In India, the Act
provides directly for acquisition of particular property for public
purpose. Though right to property is no longer fundamental right
but Article 300A of the Constitution mandates that no person
shall be deprived of his property save by authority of law. That
Section 5A of the Act confers a valuable right to an individual
is beyond any doubt. As a matter of fact, this Court has time
and again reiterated that Section 5A confers an important right
in favour of a person whose land is sought to be acquired.
When the government proceeds for compulsory acquisition of
particular property for public purpose, the only right that the
owner or the person interested in the property has, is to submit
his objections within the prescribed time under Section 5A of
the Act and persuade the State authorities to drop the
acquisition of that particular land by setting forth the reasons
such as the unsuitability of the land for the stated public
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A purpose; the grave hardship that may be caused to him by such
expropriation, availability of alternative land for achieving public
purpose etc. Moreover, right conferred on the owner or person
interested to file objections to the proposed acquisition is not
only an important and valuable right but also makes the
B provision for compulsory acquisition just and in conformity with
the fundamental principles of natural justice. The exceptional
and extraordinary power of doing away with an enquiry under
Section 5A in a case where possession of the land is required
urgently or in unforeseen emergency is provided in Section 17
C of the Act. Such power is not a routine power and save
circumstances warranting immediate possession it should not
be lightly invoked. The guideline is inbuilt in Section 17 itself
for exercise of the exceptional power in dispensing with enquiry
under Section 5A. Exceptional the power, the more circumspect
the government must be in its exercise. The government
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obviously, therefore, has to apply its mind before it dispenses
with enquiry under Section 5A on the aspect whether the
urgency is of such a nature that justifies elimination of summary
enquiry under Section 5A. A repetition of statutory phrase in
the notification that the state government is satisfied that the
E land specified in the notification is urgently needed and
provision contained in Section 5A shall not apply, though may
initially raise a presumption in favour of the government that
pre-requisite conditions for exercise of such power have been
satisfied, but such presumption may be displaced by the
F circumstances themselves having no reasonable nexus with the
purpose for which power has been exercised. Upon challenge
being made to the use of power under Section 17, the
government must produce appropriate material before the court
that the opinion for dispensing with the enquiry under Section
G 5A has been formed by the government after due application
of mind on the material placed before it. It is true that power
conferred upon the government under Section 17 is
administrative and its opinion is entitled to due weight, but in a
case where the opinion is formed regarding the urgency based
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on considerations not germane to the purpose, the judicial
review of such administrative decision may become necessary.
As to in what circumstances the power of emergency can be
invoked are specified in Section 17(2) but circumstances
necessitating invocation of urgency under Section 17(1) are not
stated in the provision itself. Generally speaking, the
development of an area (for residential purposes) or a planned
development of city, takes many years if not decades and,
therefore, there is no reason why summary enquiry as
contemplated under Section 5A may not be held and objections
of land owners/persons interested may not be considered. In
many cases on general assumption, likely delay in completion
of enquiry under Section 5A is set up as a reason for invocation
of extraordinary power in dispensing with the enquiry little
realizing that an important and valuable right of the person
interested in the land is being taken away and with some effort
enquiry could always be completed expeditiously. The special
provision has been made in Section 17 to eliminate enquiry
under Section 5A in deserving and cases of real urgency. The
government has to apply its mind on the aspect that urgency is
of such nature that necessitates dispensation of enquiry under
Section 5A. We have already noticed few decisions of this
Court. There is conflict of view in the two decisions of this Court
viz.; Narayan Govind Gavate3 and Pista Devi6. In Om
Prakash10 this Court held that decision in Pista Devi6 must
be confined to the fact situation in those days when it was
rendered and the two-Judge Bench could not have laid down
a proposition contrary to the decision in Narayan Govind
Gavate3. We agree. As regards the issue whether prenotification and post-notification delay would render the
invocation of urgency power void, again the case law is not
consistent. The view of this Court has differed on this aspect
due to different fact-situation prevailing in those cases. In our
opinion such delay will have material bearing on the question
of invocation of urgency power, particularly in a situation where
no material has been placed by the appropriate government
before the court justifying that urgency was of such nature that
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31. In a country as big as ours, the roof over head is a
distant dream for large number of people. The urban
development continues to be haphazard. There is no doubt that
planned development and housing are matters of priority in
developing nation. The question is as to whether in all cases
of ‘planned development of the city’ or ‘for the development of
residential area’, the power of urgency may be invoked by the
government and even where such power is invoked, should the
enquiry contemplated under Section 5A be dispensed with
invariably. We do not think so. Whether `planned development
of city’ or `development of residential area’ cannot brook delay
of few months to complete the enquiry under Section 5A? In
our opinion, ordinarily it can. The government must, therefore,
do a balancing act and resort to the special power of urgency
under Section 17 in the matters of acquisition of land for the
public purpose viz.; ‘planned development of city’ or ‘for
development of residential area’ in exceptional situation. Use
of the power by the government under Section 17 for `planned
development of the city’ or `the development of residential area’
or for `housing’ must not be as a rule but by way of an exception.
Such exceptional situation may be for the public purpose viz.,
rehabilitation of natural calamity affected persons; rehabilitation
of persons uprooted due to commissioning of dam or housing
for lower strata of the society urgently; rehabilitation of persons
affected by time bound projects, etc. The list is only illustrative
and not exhaustive. In any case, sans real urgency and need
for immediate possession of the land for carrying out the stated
purpose, heavy onus lies on the government to justify exercise
of such power. It must, therefore, be held that the use of the
power of urgency and dispensation of enquiry under Section
5A by the government in a routine manner for the ‘planned
development of city’ or ‘development of residential area’ and
thereby depriving the owner or person interested a very
valuable right under Section 5A may not meet the statutory test
nor could be readily sustained.
ANAND SINGH & ANR. v. STATE OF UTTAR
PRADESH & ORS. [R.M. LODHA, J.]
173
32. Adverting now to the facts of the present case, it would
be seen that somewhere in February, 2000, a Land Selection
Committee was constituted to identify the availability of land for
a housing colony by the GDA. In April, 2001, the Committee
so constituted inspected the site and proposed acquisition of
land in Village Manbela and few other villages but nothing
further was done as the tenure holders opposed the acquisition
of their land and the Commissioner, Gorakhpur in public interest
stayed proposal for acquisition. Abruptly the notifications for the
proposed acquisition were issued on November 22, 2003/
February 20, 2004 under Section 4 of the Act. In these
notifications urgency clause was invoked and the enquiry under
Section 5A was dispensed with. Then, for more than one year
nothing was done. It was only on December 28, 2004 that a
declaration under Section 6 was made. If the matter could hang
on from April, 2001 to November 22, 2003/February 20, 2004
before the notifications under Section 4 were issued and for
about a year thereafter in issuance of declaration under Section
6, acquisition proceedings could have been arranged in a
manner so as to enable the land owners and/or the interested
persons to file their objections under Section 5A within the
prescribed time and complete the enquiry expeditiously. It is
true that insofar as Uttar Pradesh is concerned, there is
amendment in Section 17. Sub-section (1A) enables the
Government to take possession under sub-section (1) of
Section 17 if the land is required for public purpose viz.;
‘planned development’. Yet for forming an opinion that
provisions of Section 5A shall not apply, the state government
must apply its mind that urgency is of such nature warranting
elimination of enquiry under Section 5A. Although some
correspondence between the authorities and the government
was placed before the High Court by the GDA, but no material
has been placed on record by the State Government either
before the High Court or before this Court indicating the
application of mind that the urgency was of such nature which
warranted elimination of the enquiry under Section 5A of the
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A Act. It is interesting to note that GDA wanted the subject land
to be acquired because their land bank had no land and they
wanted land to keep the Authority running. If profit-making and
the sustenance of the Development Authority was the motive,
surely urgency was not of such nature that it could brook no
B delay whatsoever. In the facts and circumstances of the present
case, therefore, the Government has completely failed to justify
the dispensation of an enquiry under Section 5A by invoking
Section 17(4). For this reason, the impugned notifications to
the extent they state that Section 5A shall not apply suffer from
C legal infirmity. The question, then, arises whether at this distance
of time, the acquisition proceedings must be declared invalid
and illegal. In the written submissions of the GDA, it is stated
that subsequent to the declaration made under Section 6 of the
Act in the month of December, 2004, award has been made
and out of the 400 land owners more than 370 have already
D
received compensation. It is also stated that out of the total cost
of Rs. 8,85,14,000/- for development of the acquired land, an
amount of Rs. 5,28,00,000/- has already been spent by the
GDA and more than 60% of work has been completed. It, thus,
seems that barring the appellants and few others all other tenure
E holders/land owners have accepted the `takings’ of their land.
It is too late in the day to undo what has already been done.
We are of the opinion, therefore, that in the peculiar facts and
circumstances of the case, the appellants are not entitled to any
relief although dispensation of enquiry under Section 5A was
F not justified.
33. On behalf of the appellants, it was vehemently argued
that the government may be directed to release their land from
proposed acquisition. It was submitted by the appellants that
G houses/structures and buildings (including educational building)
are existing on the subject land and as per the policy framed
by the State Government, the land deserves to be exempted
from acquisition. The submission of the appellants has been
countered by the respondents and in the written submissions
H filed by the GDA, it is stated that the houses/structures and
ANAND SINGH & ANR. v. STATE OF UTTAR
PRADESH & ORS. [R.M. LODHA, J.]
[2010] 9 S.C.R. 176
175
buildings which are claimed to exist, have been raised by the
appellants subsequent to the notification under Section 4(1) of
the Act and, therefore, they are not entitled to release of their
land from acquisition. In our view, since the existence of houses/
structures and buildings as on November 22, 2003/February
20, 2004 over the appellants’ land has been seriously disputed,
it may not be appropriate to issue any direction to the State
Government, as prayed for by the appellants, for release of their
land from acquisition. However, as the possession has not
been taken, the interest of justice would be subserved if the
appellants are given liberty to make representation to the State
authorities under Section 48(1) of the Act for release of their
land. We, accordingly, grant liberty to the appellants to make
appropriate representation to the State Government and
observe that if such representation is made by the appellants
within two months from today, the State Government shall
consider such representation in accordance with law and in
conformity with the State policy for release of land under
Section 48(1) without any discrimination within three months
from receipt of such representation.
34. In the result, these appeals fail and are dismissed,
subject to the liberty reserved to the appellants for making
representations under Section 48 (1) of the Act.
35. I.A. for impleadment is rejected and I.A. for discharge
of Advocate – Mr. S.C. Birla is allowed.
A
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B
B
JULY 28, 2010
[R.V. RAVEENDRAN AND H.L. GOKHALE, JJ.]
C
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D
D
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F
36. No order as to costs.
N.J.
M/S. SUMITOMO HEAVY INDUSTRIES LIMITED
v.
OIL & NATURAL GAS COMPANY
(Civil Appeal No. 3185 of 2002)
Appeals dismised.
G
H
Arbitration: International commercial contract – Works
contract between respondent and contractor – Respondent
agreed to compensate contractor for all necessary and
reasonable extra cost caused by a change in law affecting the
contractor economically – Contractor entered into a subcontract with a sub-contractor for a part of a contract – Under
the existing law, the income arising out of the work done was
not subject to income tax in India – Change in law after closing
of bid – Under the amended law, the work done under the
tender and the income arising therefrom became subject to
Income Tax Act, 1961 under s.44BB with retrospective effect
– Tax liability imposed on sub-contractor – He paid and
received reimbursement from contractor – Contractor claimed
it from respondent company – Respondent rejected the claim
– Reference to arbitration – Umpire passed award holding the
respondent liable to indemnify contractor for sum paid to subcontractor on account of assessment of income tax due to
change in law – High Court set aside the award – Held:
Respondent was liable to indemnify contractor for sum paid
to sub-contractor – Sub-contractor played pivotal role in the
execution of entire contract – Contractor reimbursed the tax
amount to sub-contractor in view of commitment made – The
reimbursement was not voluntary act and arose out of change
in law – There was nexus between payment to sub-contractor
and the responsibility of the respondent – View taken by
umpire on the construction of arbitration clause was plausible
one and High Court erred in interfering with same – Income
176
SUMITOMO HEAVY INDUSTRIES LIMITED v. OIL &
NATURAL GAS COMPANY
177
Tax Act, 1961 – s.44BB – Territorial Waters, Continental Shelf,
Exclusive Economic Zone and other Maritime Zones Act,
1976 – Clauses 6(6), 7(7) – Contract.
Deeds and documents: International commercial contract
– Interpretation of.
178
A
B
Words and phrases: ‘perverse finding’ – Meaning of.
The respondent invited tenders for installation of a
platform complex. The closing date for the bid was
11.10.1982. The work was to be done beyond the fiscal
limit of Indian Income Tax laws as it then existed, and
therefore, the income arising therefrom under the existing
law was not subject to income tax in India. The appellant
was a successful bidder. An agreement was entered into
between the appellant and the respondent. Clause 17.3
of the agreement provided that the respondent company
would compensate the contractor for all necessary and,
reasonable extra cost caused by any change in law,
affecting the contractor economically. The appellant
entered into a sub-contract with MII for execution of a
part of a work under the contract. The work was
completed in 1984. Meanwhile, a notification dated
31.3.1983 was issued by Government of India under
clauses 6(6) and 7(7) of the Territorial Waters, Continental
shelf, Exclusive Economic Zone and other Maritine Zones
Act, 1976, extending Income Tax Act, 1961 to the
continental shelf of India and the exclusive Economic
Zone with effect from 1.4.1983. Under the amended law,
the work done under the tender and the income arising
therefrom, became subject to the Income Tax Act, 1961.
By Finance Act, 1987, Clause 44BB was introduced in the
Income Tax Act, 1961 with retrospective effect from
1.4.1983. In 1988, MII was served notices for re-opening
and revising the assessments already made for the AY
1984-85 and 1985-86. The authorities rejected the
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SUPREME COURT REPORTS
[2010] 9 S.C.R.
A objections of MII and imposed tax on MII. MII paid that
amount and claimed it from the appellant. The appellant
re-imbursed the same and claimed it from the respondent
under Clause 17.3. The respondent rejected the claim.
The appellant served on the respondent a notice of
B arbitration and filed their statement of claim. Both the
parties appointed their respective arbitrators. The two
arbitrators differed in their determination, and the matter
was referred to an umpire, who gave his award. He
declared that in the event of appellant becoming liable to
C pay further sums to MII, due to any assessment of income
tax on MII or under the sub-contract pursuant to Section
44BB of Income Tax Act, the respondent would have to
compensate the appellant against such payment of tax.
A single judge of the High Court set aside the award
D passed by the umpire which decision was confirmed by
a Division Bench. The decision of High Court was
challenged in the instant appeal.
Allowing the appeal, the Court
E
E
F
F
G
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HELD: 1.1. The instant case was dealing with an
International Commercial Contract under which the
appellant reimbursed the tax liability of their subcontractor (MII) which arose out of change in the law after
the date of bid closing. This was stated to have affected
the position of the appellant economically for which the
appellant sought equivalent compensation from the
respondent as per its construction of clause 17.3. [Para
31] [199-B-E]
1.2. MII became liable to pay the tax amount to the
G government of India only because of the retrospective
change in the Indian Income Tax Law, brought in
subsequent to the date of bid closing. The liability of the
appellant to reimburse that amount to MII arose in view
of the commitment made by the appellant in their subH
SUMITOMO HEAVY INDUSTRIES LIMITED v. OIL &
NATURAL GAS COMPANY
179
contract to MII. It cannot be ignored that if there was no
change in law, this situation would not have arisen at all.
It was therefore not possible to treat this payment as
voluntary, that is, in the absence of any liability. [Para 32]
[199-G-H; 200-A-B]
1.3. The relevant material and evidence placed before
the arbitrator clearly showed that MII was the principal
sub-contractor and throughout was in picture in the
contract between the appellant and the respondent. In
fact, it was because of the expertise of MII that it was
given a pivotal role in the execution of the entire contract.
The appellant had entered into a back to back contract
with MII to the knowledge of the respondent. The
performance of obligation under the sub-contract by MII,
formed part and parcel of appellant’s obligations under
the Head-contract. The respondent had taken up the
responsibility for the income tax liabilities of the appellant.
The appellant had taken up the responsibility for the tax
liabilities of MII and the respondent cannot be said to be
ignorant of it. In any case, clause 17.3 has to be given a
meaningful interpretation. It is confined only to the
necessary and reasonable extra cost, caused by change
in law occurring after the date of bid closing. The claim
of appellant was restricted only to that extent. The
contract was otherwise completely executed, payments
were made and the discharge certificate was issued long
back. MII had already filed its returns for the two relevant
assessment years 1984-85 and 1985-86. In 1988, its
assessment was reopened in view of the change in law,
for which appellant had made the payment and had
sought reimbursement from the respondent. In the
circumstances, the submission of absence of nexus
between payment to MII and the responsibility of the
respondent cannot be accepted. [Para 33] [200-C-H]
Union of India v. M/s D.N Revri & Co. (1976) 4 SCC 147;
180
A
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[2010] 9 S.C.R.
A Central Bank of India Ltd., Amritsar v. Hartford Fire Insurance
Co. Ltd. AIR 1965 SC 1288; Polymat India (P) ltd. v. National
Insurance Co. Ltd. (2005) 9 SCC 174 – referred to.
B
B
C
C
D
D
E
E
2.1. The umpire entertained appellant’s claim only
after giving a meaningful interpretation to clause 17.3
after considering all the material on record as well as the
context. He looked into the evidence including that of the
respondent’s officer as to how MII had participated in the
bid clarification meetings. He considered the submission
of the appellant as to how the sub-contract was also tax
protected, which was their main plea. The court can
interfere, if there is an error apparent on the face of the
award or where the umpire had exceeded his jurisdiction
or travelled beyond the reference. In the instant case, the
award did not suffer from any of the defects so as to call
for interference. In the circumstances, the approach
adopted by the umpire being a plausible one,
interpretation was not open to interference. Perhaps, it
can be said to be a situation where two views were
possible, out of which the umpire had legitimately taken
one. [Paras 34, 35] [201-A-H; 202-A]
Steel Authority of India Limited v. Gupta Brothers Steel
Tubes Limited (2009) 10 SCC 63; Triveni Rubber & Plastics
v. CCE AIR 1994 SC 1341 – relied on.
F
G
H
F
2.2. A perverse finding is a finding which is not only
against the weight of evidence but altogether against the
evidence. In the instant case, the findings and award of
the umpire were rendered after considering the material
on record and giving due weightage to all the terms of
G the contract. Calling the same to be perverse was highly
unfair to the umpire. The umpire considered the fact
situation and placed a construction on the clauses of the
agreement which according to him was the correct one.
One may at the most say that one would have preferred
H
SUMITOMO HEAVY INDUSTRIES LIMITED v. OIL & 181
NATURAL GAS COMPANY
another construction of clause 17.3 but that would not
make the award in any way perverse. Nor can one
substitute one’s own view in such a situation, in place of
the one taken by the umpire, which would amount to
sitting in appeal. The umpire was legitimately entitled to
take the view which he holds to be the correct one after
considering the material before him and after interpreting
the provisions of the agreement. If he does so, the
decision of the umpire has to be accepted as final and
binding. [Para 36] [202-C-H; 203-A-B]
Arulvelu and Another v. State Represented by the Public
Prosecutor and Another (2009) 10 SCC 206; Kwality
Manufacturing Corporation v. Central Warehousing
Corporation (2009) 5 SCC 142 – relied on.
3. It is an obligation of the parties to a contract that
they must perform their respective promises, and if a
party does not so perform, the arbitrator or the umpire
has to give the necessary direction, if sought. In that
process, they have to give a meaningful interpretation to
all the relevant clauses of the contract to make them
effective and not redundant. The intention of the parties
in providing a clause like clause 17.3 could not be
ignored. It had to be given a due weightage. This was
what the umpire had done and had given the direction
to the respondent to compensate the appellant for the
amount of the necessary and reasonable extra cost
caused by change in law. The award of the umpire was
a well reasoned award and one within his jurisdiction,
and which gave a meaningful interpretation to all the
clauses of the contract including clause 17.3. In the
circumstances, the High Court clearly erred in interfering
with the award rendered by the umpire. [Para 37] [203-BE]
4. It was canvassed by the appellant in the High
Court and before the Supreme Court also that the award
182
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[2010] 9 S.C.R.
A rendered by the umpire was one on a question of law,
and on that ground also the High Court was not expected
to interfere with the award. The Supreme Court was not
required to go into that issue since it was otherwise
holding that the award was not only a plausible one but
B a well reasoned one and in the circumstances the
interference by the High Court was not called for. [Paras
38 and 39] [203-F; 204-E-F]
M/s Kapoor Nilokheri Co-op Diary Farm Society Ltd. v.
Union of India and Others (1973) 1 SCC 708; M/s Tarapore
C
& Co. v. Cochin Shipyard Ltd. AIR 1984 SC 1072; Rajasthan
State Mines & Minerals Ltd. v. Eastern Engineering
Enterprises & Anr JT 1999 (7) SC 379 7 – referred to.
case Law Reference:
D
E
F
G
D
E
F
(1976) 4 SCC 147
referred to
Para 28
AIR 1965 SC 1288
referred to
Para 30
(2005) 9 SCC 174
referred to
Para 30
referred to
Para 35
AIR 1994 SC 1341
relied on
Para 36
(2009) 10 SCC 206
referred to
Para 36
(2009) 5 SCC 142
relied on
Para 36
(1973) 1 SCC 708
referred to
Para 38
AIR 1984 SC 1072
referred to
Para 38
JT 1999 (7) SC 379
referred to
Para 38
(2009) 10 SCC 63
G
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
3185 of 2002.
H
H
From the Judgment & Order dated 19.12.2001 of the High
Court of Bombay in Appeal No. 126 of 2000 in Arbitration
SUMITOMO HEAVY INDUSTRIES LIMITED v. OIL &
NATURAL GAS COMPANY
183
Petition No. 104 of 1998 in Award No. 11 of 1998.
184
A 1961 (concerning the profits and gains in connection with the
business of exploration of minerals) and which amount was paid
by the appellant to MII. The respondent had declined to
reimburse the tax amount.
B
B
The Judgment of the Court was delivered by
GOKHALE, J. 1. This appeal is directed against the
judgment and order dated 19th December 2001 rendered by
a Division Bench of the Bombay High Court in Appeal No. 126
of 2000 confirming the decision of a single Judge of that Court
dated 29th November, 1999, in Arbitration Petition No. 104 of
1998 whereby the High Court has set aside the Award dated
27th June, 1995 made by the umpire in an Arbitration claim of
the appellant against the respondent. The question involved in
this appeal is as to whether as held by the Division Bench, the
umpire had failed to apply his mind to the material on record
and the clauses of the contract between the parties thereby
rendering a perverse award, or whether his decision was a
possible one and the High Court had erred in interfering therein.
2. The appellant had entered into a contract with the first
respondent for installing and commissioning of Well-cumProduction Platform Deck and connected system including
submarine pipelines on a turn-key basis at its Bombay High
(South) Offshore Site for extraction of oil. The appellant had
appointed M/s.Mc Dermott International Inc (in short ‘MII’) as
the Sub-Contractor in execution of this work by a back to back
contract to the full knowledge of the respondent. The appellant
had sought from the respondent the reimbursement of the
Income-tax amount which MII was required to pay to the Union
of India under newly added Clause 44BB of the Income Tax Act
[2010] 9 S.C.R.
A
Dusyant Dave, Shyam Divan, Pratap Venugopal, Hitesh
Modi, Vikram Mehta, S. Trehan, Kush Chaturvedi, Vikas Mehta,
Deepti (for K.J. John & Co.) for the Appellant.
Vivek Tankha, ASG, Gaurav Agrawal, Barsha Misra, P.S.
Sudheer, Sumit Attri, Noami Chandra, Suman Jyoti Khaitan for
the Respondent.
SUPREME COURT REPORTS
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3. The appellant, therefore, invoked the Arbitration clause
in the agreement between the appellant and the respondent.
The appellant contended that their liability had arisen due to
change of law and that under clause 17.3 of the General
Conditions of Contract forming part of the contract between the
parties, the respondent was required to reimburse this amount
C since it was in the nature of necessary and reasonable extra
cost arising out of change of law. (In the General Conditions of
contract its clauses are referred to as sections.) As against this,
the submission of the respondent was that they were
responsible only for the appellant’s tax liability under clause 23
D of the General Conditions, and if at all, it was the responsibility
of the appellant under clause 13.2.7 thereof to take care of the
obligations of the Sub-Contractor.
4. The two arbitrators appointed by the appellant and the
respondent
differed while deciding this claim of the appellant
E
for reimbursement. This led to Sir Micheal Kerr entering the
reference as the Umpire who has accepted appellant’s claim,
by award dated 27.6.1995. By the said award, the umpire
directed the respondent to pay the appellant the sum of
F Japanese Yen 129,764,463/- with interest at 4.5% per annum
from 15.5.1991 to date of award. He declared that in the event
of appellant becoming liable to pay further sums to MII
thereafter, due to any assessment of income tax on MII under
the present sub-contract pursuant to Section 44 BB of Income
Tax Act, then Respondent shall indemnify the appellant against
G
any such payment on demand. He awarded costs also. The
respondent sought setting aside of the award of the umpire by
invoking the jurisdiction of a learned single Judge of Bombay
High Court under Clause – 30 of the Arbitration Act, 1940. The
learned single Judge took the view that the said reimbursement
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SUMITOMO HEAVY INDUSTRIES LIMITED v. OIL &
NATURAL GAS COMPANY [H.L. GOKHALE, J.]
185
by appellant to MII was a voluntary act on the part of the
appellant and the terms of the contract did not require the
respondent to reimburse the said income-tax amount to the
appellant. The learned single Judge held that the construction
placed by the umpire on clause 17.3 of the agreement was
‘clearly an impossible one’, and therefore, the Court would be
justified in interfering with the findings and the award. The
learned single Judge, therefore, allowed the Arbitration Petition
and set aside the Award.
5. Being aggrieved by this judgment and order, the
appellant preferred an appeal, which came to be dismissed by
the Division Bench of the Bombay High Court by its above
referred to judgment and order dated 19th December, 2001.
The Division Bench held that the only possible view of all the
clauses of the contract was that the respondent could not be
held to be liable to the appellant for the income-tax liability of
the sub-contractor and that the umpire exceeded his jurisdiction
in allowing appellant’s claim under Clause 17.3 of the General
Conditions. The Division Bench, therefore, dismissed the
appeal by its judgment and order dated 19th December, 2001.
Being aggrieved by this judgment and order the present appeal
has been filed by Special Leave. It may be mentioned at this
stage that it was submitted on behalf of the respondent before
the single judge that the revised assessment of the subcontractor was not referable to Clause 44 BB of Income Tax
Act, and that the conclusion of the umpire be interfered on that
ground also. The submission did not find favour with the
learned single judge. The respondent challenged that finding
by filing a cross-appeal and submitted that, if the cross-appeal
was not maintainable, the respondent be permitted to challenge
that finding while defending the judgment. The Division Bench
overruled this challenge of the respondent to that finding.
186
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B
C
D
E
F
G
The short facts leading to this appeal are as follows:
6. On 22nd July, 1982 the respondent invited tenders for
H
SUPREME COURT REPORTS
[2010] 9 S.C.R.
A installation and commissioning on turn-key basis of a Platform
Complex on its Bombay High (South) Offshore Site. The closing
date for the bid was 11.10.1982. On the date of closing of the
bid, the fiscal limit of Indian Income-tax Laws was 12 Nautical
Miles in the territorial waters of India. The work to be done under
B the above mentioned tender was about 100 miles off the coast,
and hence, the income arising therefrom was not subject to
income-tax in India. The appellant had submitted its tender offer
on 11th October 1982, which was accepted by the respondent
and an agreement between the two came to be signed on 7th
C September, 1983 for executing the above work for the contract
price of J.Y.10,823,237,000/-. Clause – 13.1 of the General
Conditions of Contract which provides for this contract price laid
down that “the contract price is the firm price without escalation
subject to the provisions of the contract”. The contract clearly
stipulated that the remuneration provided to the appellant under
D
the contract would be tax protected and would be net of all
taxes.
7. Consequent upon signing of the contract the appellant
entered into a sub-contract with MII on 28th December, 1983
E for execution of a part of a work under the above mentioned
contract. The work was ultimately completed as per the contract
and the respondent certified that the appellant had successfully
completed the contract and a Certificate of Completion and
Acceptance was issued on 11th April, 1984. A Discharge
F Certificate was also issued by the respondent on 18th May,
1984.
8. The Government of India, Ministry of Finance,
Department of Revenue issued a notification on 31st March,
1983 under Clauses 6(6) and 7(7) of the Territorial Waters,
G
Continental Shelf, Exclusive Economic Zone and other Maritime
Zones Act, 1976, extending Income Tax Act, 1961 to the
Continental Shelf of India and the Exclusive Economic Zone with
effect from 1.4.1983. Hence, under the amended law, the work
done under the above mentioned tender and the income arising
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SUMITOMO HEAVY INDUSTRIES LIMITED v. OIL &
NATURAL GAS COMPANY [H.L. GOKHALE, J.]
187
therefrom, became subject to the Income Tax Act, 1961. By
Finance Act, 1987 Clause 44BB was introduced in the Income
Tax Act, 1961 with retrospective effect from 1.4.1983. This
clause is a special provision for computing profits and gains
in connection with the business of exploration etc. of minerals.
It is obvious that all these changes in law took place after the
closing date of the bid i.e. after 11th October, 1982.
9. In July, 1987 the Foreign Tax Division of the Department
of Revenue, Ministry of Finance issued a circular in respect of
turn-key projects of foreign contractors engaged in the business
of exploration of oil and natural gas in India. This circular
contained guidelines for computing the tax liability under the
above referred to Clause 44BB of the Income Tax Act, 1961
and instructions were given to all Commissioners of Income Tax
to assess the tax liability accordingly. In the year 1988 the
above referred to MII was served with income-tax notices to reopen and revise the assessments already made for the
assessment years 1984-85 and 85-86. MII was informed that
it was required to pay the tax on the income from the
respondent for the work executed by them at Bombay High
(South) Offshore Site. MII pointed out that it had already filed
tax returns for these two years stating that it had incurred loss,
and it was no more liable to pay income-tax. The authorities
rejected the objections of MII and a tax liability was imposed
to the tune of US$ 1,12,447.84 (Rupees 1,85,23,780/-). MII paid
that amount and claimed it from the appellant. The appellant
reimbursed the same, and claimed it from the respondent under
clause 17.3 of the General Conditions of Contract, which
provided for situations arising out of change of law. The
respondent did not accept this claim. As pointed out earlier,
respondent contended that they were responsible for the tax
liability of the appellant alone under clause 23 of the General
Conditions of Contract, and under clause 13.2.7 thereof it was
the responsibility of the appellant to meet all the obligations of
the Sub-Contractor.
188
A
B
C
SUPREME COURT REPORTS
[2010] 9 S.C.R.
A
10. On 6th March, 1991 the appellant served on the
respondent a notice of arbitration under clause 17.2 of the
agreement between the parties and filed their statement of
claim on 13th October, 1992. Both the parties appointed their
respective arbitrators as per the agreement. The two arbitrators
B differed in their determination, vide ‘Reasons for conclusions’
dated 4.7.1994 and 18.7.1994. Hence, the matter was referred
to Sir Micheal Kerr as Umpire, who gave his award as
aforesaid.
C
The Relevant Terms of the Agreement entered into
between the Parties.
11. To understand the scope of the controversy it will be
necessary to refer to the relevant clauses of the agreement
dated 7.9.1983 between the parties.
D
E
D
12. Clause B of the agreement specifically states that the
following documents including the annexures listed thereunder
shall be deemed to form, and will be read and construed as
integral parts of the contract, and in case of any discrepancy,
conflict or dispute, they shall be referred to in the order of priority
E
as stated hereunder:
Order of Priority:
F
G
H
F
G
H
1.
Agreement
2.
Annex. ‘A’ General Conditions of the Contract
3.
Annex.’B’ Scope of Work (as briefly outlined)
4.
Annex. ‘C’ Contract Price Schedule
5.
Annex. ‘D’ Project Schedule
6.
Annex. ‘E’ Minutes of Meeting
7.
Annex. ‘F’ Contract Specifications & Drawings
SUMITOMO HEAVY INDUSTRIES LIMITED v. OIL &
NATURAL GAS COMPANY [H.L. GOKHALE, J.]
189
13. In the present matter we are concerned with the
provisions of the General Conditions of Contract and the claim
of the appellant for reimbursement of the amounts paid by the
appellant to its sub-contractor. Clause 3.1 deals with
Assignment and clause 3.2 deals with Conditions of
Subcontracting. Clauses 3.1 and 3.2(i) read as follows:
190
A
B
14. Clause 5.10.5 lays down that the Contractor shall
protect, indemnify and hold the Company (ONGC) harmless
against all losses and claims, including such claims arising out
B
of the negligence of the Contractor or its subcontractors, and
the particulars of this indemnity are specified in this clause.
3.1 – Assignment:
3.2 – Conditions for Subcontracting:
Concerning the works and facilities covered by the
Contract having to be executed and commissioned on
turnkey basis by the Contractor, the following conditions
shall apply as regards subcontracting of any portion of the
work entrusted to the Contractor.
(i) In case of plant, equipment and allied requirement
to be procured, installed and commissioned on the
platform structure for the purpose of receiving, processing,
pumping, compressing, etc., and also any other facilities
to be provided thereon, the Contractor shall, subject to the
limitations imposed on him with regard to the makes/
manufacturer of certain plant and equipment specifically
stipulated to be procured against this Contract, be free to
sublet the work to the manufacturers/authorized agents of
the respective plant and equipment for procurement of the
necessary supplies. In respect of those stipulated items
referred to above, the Contractor shall not arrange
alternative makes other than those agreed already for
[2010] 9 S.C.R.
A
“3.0 – ASSIGNMENT AND SUBCONTRACTING:
The Contractor shall not, except with the previous
consent in writing of the Company, transfer or assign their
obligations or interests in the Contract or any part thereof
in any manner whatsoever.”
SUPREME COURT REPORTS
C
D
procurement without the prior written consent of the
Company.”
15. Clause 5.11.3. lays down that the Contractor shall
observe and comply with and shall ensure that all his
C subcontractors also observe and comply with the laws,
regulations or requirements of any states which are littoral
states with respect to any sea areas comprised at site, and of
any international authority or international convention or other
rule of international law or custom applicable thereto. This is
D subject to the exception in clause 5.11.2 which provides as
follows:
“The Contractor shall conform in all respects, and
shall ensure that all his subcontractors also conform in all
respects with the provisions of any statute, ordinance or
laws as aforesaid except where such laws, statutes or
ordinances conflict with any laws, statutes or ordinances
of United States of America and Japan, Contractor
confirms that there is presently no law or regulation which
should preclude its performance of the works under the
Contract.”
E
E
F
F
G
16. Clause – 13 provides for Contract Price and Payment/
Discharge Certificate. Clause 13.1 lays down the Contract
Price, which is mentioned earlier. Clause 13.2 lays down the
G Payment Procedure and sub-clause 13.2.7 provides as follows:
H
“13.2.7 – The Company shall not be responsible/obliged
for making any payments or any other related obligations
under this Contract to the Contractor’s Subcontractor/
Vendors. The Contractor shall be fully liable and
H
SUMITOMO HEAVY INDUSTRIES LIMITED v. OIL &
NATURAL GAS COMPANY [H.L. GOKHALE, J.]
191
responsible for meeting all such obligations and all
payments to be made to its Subcontractors/Vendors and
any other third party engaged by the Contractor in any way
connected with the discharge of the Contractor’s obligation
under the Contract and in any manner whatsoever.
17. Next relevant clause 17 relates to Laws/Arbitration.
Clause - 17.1 is on applicable laws, which lays down that “all
questions, disputes or differences arising under, out of or in
connection with this Contract shall be subject to the laws of
India.” Clause 17.2 provides for arbitration in the event of any
dispute and for appointment of one Arbitrator each by the
parties, that the arbitration will be held at London, and further
that the decision of the arbitrators and in the event of their failing
to arrive at an agreed decision, the decision of the umpire shall
be final and binding on the parties.
192
A
A
B
B
C
C
19. The last clause relevant for our purpose is clause – 23
which is on Duties and Taxes, and in that Clause the respondent
has taken care of the Customs Duties and Income-tax which
would be payable by the appellant. It reads as follows:
structures, sub-assemblies and equipment and all
components which are to be incorporated in the Works
under the Contract shall be borne by the Company. The
Company shall bear all Indian income taxes levied or
imposed on the Contractor under the Contract, on account
of its or their offshore personnel while working at offshore
or on account of payments received by Contractor from the
Company for Work done under the Contract.
Notwithstanding the foregoing, the Company shall have no
obligation whatsoever in respect of the Contractor’s
onshore employees whether they may be expatriate or
Question arising for consideration
D
E
F
G
“23.0 – DUTIES AND TAXES:
Indian Customs Duties, if any, levied upon fabricated
[2010] 9 S.C.R.
nationals.”
18. Clause 17.3 makes the provision in the event of a
Change in Law. This clause reads as follows:
“Should there be, after the date of bid closing a
change in any legal provision of the Republic of India or
any political sub-division thereof or should there be a
change in the interpretation of said legal provision by the
Supreme Court of India and/or enforcement of any such
legal provision by the Republic of India or any political
subdivision thereof which affects economically the position
of the Contractor; then the Company shall compensate
Contractor for all necessary and reasonable extra cost
caused by such a change.”
SUPREME COURT REPORTS
H
20. As stated above, the submission of the appellant was
that the tax liability of MII arose out of change of law and the
appellant had to reimburse that amount to MII. This affected the
position of the appellant economically. The reimbursement of
the tax liability of MII by the appellant was merely the necessary
and reasonable extra cost arising due to the change of law.
E
There is no dispute that this liability of MII arose out of the
change of law after the date of bid closing. This being the
position, according to the appellant the respondent was liable
to compensate the appellant to that extent.
D
F
21. As against this submission of the appellant, the
submission of the respondent was that under clause 23 of the
General Conditions of Contract, referred to above, the
respondent was liable to bear all Indian taxes levied or imposed
on the appellant under the contract on account of the payment
G received by the appellant from the respondent for work done
under the contract or on account of its off-shore personnel while
working at off-shore. This Clause states that the respondent had
no obligation whatsoever in respect of appellant’s on-shore
employees whether they were expatriate or nationals.
H Accordingly to the respondent they had not taken over the
SUMITOMO HEAVY INDUSTRIES LIMITED v. OIL &
NATURAL GAS COMPANY [H.L. GOKHALE, J.]
193
liability to pay any taxes which may be due to be paid by the
sub-contractors of the appellant which, according to them was
also clear from Clause 13.2.7 of the General Conditions of
Contract which laid down the Payment Procedure and which
stated that the respondent shall not be responsible or obliged
for making any payment in any other related obligations under
the contract to the appellant’s sub-contractors.
22. As stated earlier, the umpire has taken the view that
the tax liability of MII reimbursed by the appellant was the
necessary and reasonable extra cost arising out of change of
law and that the respondent was required to compensate the
appellant to that extent in view of the provision contained in
Clause 17.3 of the General Conditions of Contract. The
question for decision is whether the umpire exceeded his
jurisdiction in making the award or whether there is an error
apparent on the face of the award. This necessitates
consideration of the question whether the view taken by the
umpire on the construction of clause 17.3 was a possible one
and in which case whether it was open to the High Court to
interfere with the Award. Alternatively, the question is whether
the view taken by the umpire was an impossible one and in
which case whether there was no error in the High Court
interfering with the Award rendered by the umpire.
194
A
A
B
B
C
C
(1)
[2010] 9 S.C.R.
Since 11 October 1982, the date of the bid closing,
has there been
(a)
any (relevant) change in any legal provision
of the Republic of India; or
(b)
any (relevant) change in the enforcement of
any such legal provision by the Republic of
India/
(2) If the answer to (1) (a) or (b) be “yes”, has this affected
economically the position of SHI?
(1) and (2) are of course interdependent, and the insertion
of (“relevant” is designed to provide the necessary
connection).
D
D
(3) If the answer to (2) is also “yes” have SHI incurred any
“necessary and reasonable extra cost caused by any
changes” as referred to in (1) above?
E
If the answer to (3) is also “yes” then ONGC are liable. If
any of the answers are different, then ONGC are not liable.”
F
F
24. It is seen from the award that before answering these
three questions the learned umpire went into the issue as to
what approach should be adopted while examining the scope
and application of clause 17.3. The respondent submitted that
this clause was in the nature of an indemnity and that it must
be construed strictly and narrowly. This view is also accepted
by the Division Bench. The Division Bench observed as follows:
G
G
H
H
E
The approach of the Umpire
23. To find an answer to the question we have to see as
to what was the approach adopted by the umpire. To decide
as to whether the respondent was liable under the above
referred clause 17.3, the umpire framed three questions. They
are reflected in Para 6.2 of the award which reads as follows:-
SUPREME COURT REPORTS
“6.2 ONGC liability on the true construction of Clause
17.3 effectively depends on the answers to three questions
in the circumstances of this case, of which the first can be
divided into two parts. These are the following:
“The Umpire further erred in law by refusing to put a
narrow interpretation on the indemnity clause 17.3. Clause
17.3 being indemnity clause should not have been given
wider interpretation. The indemnity clause should be
construed strictly analogously to an exemption clause. The
SUMITOMO HEAVY INDUSTRIES LIMITED v. OIL &
NATURAL GAS COMPANY [H.L. GOKHALE, J.]
195
Umpire overlooked the commercial principle that every
business venture carried its own risk.”
196
A
A
B
B
C
C
25. The umpire on the other hand observed in Para 6.3.3
as follows:
“It is self-evident that Clause 17.3 is couched in wide
terms. This is commercially understable, since it was
designed to cover a wide and potentially unforeseeable
spectrum- the possible impact of possible changes in
Indian law in the future. I can therefore see no reason for
giving to it any particularly strict or narrow interpretation.
From the point of view of its commercial purpose, the
contrary approach would be more justifiable. However, in
relation to the present facts, it seems to me that this
question has no practical significance. The proper
approach is to construe the Clause on the basis of the
ordinary and natural meaning of the words used, in the
usual way, and of course in its context, as already
mentioned.”
26. The umpire has noted this context in Para 2.2.4 of the
award. He noted that the bid made it clear that a large part of
the contract works were to be fabricated, positioned and
installed by MII as the named and approved principal subcontractor of the appellant for this purpose. In para 2.2.4 he
referred to the evidence of the Project Manager of the
respondent, the sub-contract between the appellant and MII, and
the fact of the terms of the proposed sub-contract having been
set out in the bid document. The umpire recorded in Para 2.2.4
as follows:
“The evidence of Mr. B.L. Goel, ONGC’s Project
Manager, was that MII had participated in the Bid
Clarification meetings between ONGC and SHI, and had
been approved by ONGC as Subcontractors of SHI
because ONGC were familiar with their work and relied
D
D
E
E
F
G
H
SUPREME COURT REPORTS
[2010] 9 S.C.R.
on their expertise. In this connection SHI placed some
reliance on the fact that under the heading of MII’s
“Schedule of Hourly Rates”, a number of the terms of the
proposed Subcontract between SHI and MII were out set
in the Bid, including a provision which made it clear that,
in the same way as in the Head Contract between SHI and
ONGC, the Subcontract was to be “tax protected”, with the
consequence that SHI would be liable for all Indian tax that
might become payable by MII. This provision, which
referred to MII as “Contractor” and SHI as “Customer” was
in the following terms:
“Any foreign (i.e non-U.S.A.) taxes incurred by
Contractor and Contractor’s employees and which are
imposed by or payable to any foreign governmental
authority, whether by way of withholding, assessment or
otherwise, for work performed hereunder shall be borne
by Customer. Any such taxes which are paid directly by
Contractor, shall be reimbursed by Customer.”
As will be seen hereafter, what became Clause 23
in the Head Contract and thus subsequently also in the
Subcontract, was in different terms, but the substance was
the same.”
27. In this background, the umpire answered the three
questions
and held that there was a relevant change in view of
F
the enactment of Clause 44 BB in the Income Tax Act with
retrospective effect. The enactment of this clause caused MII
to become liable to pay the tax which they paid. Since the
appellant had to pay this amount of tax to MII, it did affect
G economically the position of the appellant. Then the umpire
posed a question whether the payments made by appellant to
MII can properly be described as cost to the appellant. The
umpire took the view that the word ‘cost’ is a very wide word
and that obviously the payments were an ‘extra cost’. He held
that when the payment arises under a contractual obligation to
H
SUMITOMO HEAVY INDUSTRIES LIMITED v. OIL & 197
NATURAL GAS COMPANY [H.L. GOKHALE, J.]
pay or refund some other party’s tax, then such a payment is
obviously a cost under the contract in question. The cost was
therefore ‘necessary cost’ and it was also ‘reasonable’ since
it was only the added tax amount. He accordingly held that the
appellant was legally obliged to make this payment to MII in
view of the back to back contract between the appellant and
MII and that the respondent was required to reimburse the
same to the appellant.
198
A
B
Consideration of the rival submissions
28. The Division Bench has found fault with the umpire in
not placing a narrow and strict interpretation on clause 17.3.
Mr. Dushyant Dave learned Senior Advocate appearing for the
appellant submitted that it would not be right to apply strict rules
of construction ordinarily applicable to conveyances and other
formal documents to a commercial contract like the present one
and referred to and relied upon the judgment of this Court in
Union of India vs. M/s D.N Revri & Co. reported in (1976) 4
SCC 147. As held in that judgment, he submitted that the
meaning of a contract, and particularly a commercial one, must
be gathered by adopting a common sense approach and not
by a narrow pedantic and legalistic interpretation. The present
case relates to an international commercial contract and as
noted earlier the appellant and MII had agreed to subject
themselves to the domestic laws of India as well as the
International law and conventions. On this background the
appellant wanted to safeguard itself in the event of change of
law in India to which the respondent had agreed. It was
submitted that any narrow interpretation of Clause 17.3 to
exclude the reimbursement of the income tax liability of the subcontractor will defeat the purpose in providing this safeguard
under clause 17.3 and will make it otiose.
C
D
E
F
G
29. On the other hand Mr. Vivek Tankha, learned Additional
Solicitor General appearing for the respondent pressed for the
acceptance of the approach of the Division Bench viz. that
H
SUPREME COURT REPORTS
[2010] 9 S.C.R.
A clause 17.3 must be construed as an indemnity clause and that
it must be read strictly and narrowly. As far as this submission
is concerned, one has to note that as per Section 124 of the
Indian Contract Act, a Contract of Indemnity is one under which
one party promises to save the other from loss caused to him
B by the conduct of the promisor or any other person. Thus in the
present case, under clause 5.10.5 of the General Conditions
of contract, the appellant has given the indemnity to the
respondent against all losses that the respondent may suffer
out of the negligence of appellant or their sub-contractor. Clause
C 17.3 thereof does not deal with any such losses. It makes a
provision for compensation in the event of the appellant being
subjected to extra cost arising on account of change of law. It
cannot be compared with indemnity for loss due to conduct of
the promisor or of a third party.
D
30. Mr. Tankha submitted that clauses in the contract have
to be given a literal interpretation. He relied upon the judgments
of this Court in Central Bank of India Ltd., Amritsar vs. Hartford
Fire Insurance Co. Ltd. AIR 1965 SC 1288 and Polymat India
(P) ltd. vs. National Insurance Co. Ltd. (2005) 9 SCC 174 in
E support. He contended that under the terms of the present
contract respondent has taken up the income tax liability of the
contractor alone, and clause 17.3 would not have the effect of
passing on the burden of the income tax liability of the sub
contractor as well on to the respondent. In this connection we
F must notice that both these judgments are concerning clauses
in insurance policies. In the case of Central Bank of India
(supra) the concerned clause in the insurance policy was “This
Insurance may be terminated at any time at the request of the
Insured.” This Court held that the words “at any time” can only
G mean “at any time the party concerned likes”. It was in this
context that this Court held that the intention of the parties is to
be looked for in the words used. In Polymat India (P) Ltd. (supra)
the question for the consideration was whether as per the terms
of the insurance policy the goods lying outside the shed were
H covered thereunder. The terms used in the policy were ‘factory-
SUMITOMO HEAVY INDUSTRIES LIMITED v. OIL &
NATURAL GAS COMPANY [H.L. GOKHALE, J.]
199
cum-godown-cum-office’. Obviously the goods lying outside the
factory and godown could not be held to be covered under the
policy. This Court held that the interpretation could not be given
de-hors the context.
31. There is no difficulty in accepting that the clauses of
an insurance policy have to be read as they are. In an insurance
policy the party which is insured makes a proportionate
advance payment to the Insurance Company and gets an
assurance to protect itself against the loss or the damage which
it might suffer in certain eventuality. Consequently the terms of
the insurance policy fixing the responsibility of the Insurance
Company are read strictly. Such is not the situation in the
present case. Here we are not concerned with a clause in an
insurance policy. We are dealing with an International
Commercial Contract under which the appellant has reimbursed
the tax liability of their sub-contractor which arose out of change
in the law after the date of bid closing. This is stated to have
affected the position of the appellant economically for which the
appellant is seeking equivalent compensation from the
respondent as per its construction of clause 17.3. When clause
17.3 provides that the respondent company shall compensate
the contractor for all necessary and reasonable extra cost
caused by such a change in law, affecting the contractor
economically, could the claim for reimbursement made by the
appellant from the respondent be held as not covered under
this clause?
32. The respondents had contended in the High Court and
also before us that it was not necessary for the appellant to
reimburse this tax amount to MII and that it was only a voluntary
payment on their part. It was also submitted that this payment
arose out of the contract between the appellant and MII and not
because of change of law as such. Now, as can be seen from
the evidence as narrated above, MII became liable to pay this
tax amount to the Union of India only because of the
retrospective change in the Income Tax Law, brought in
200
A
B
SUPREME COURT REPORTS
[2010] 9 S.C.R.
A subsequent to the date of bid closing. The liability of the
appellant to reimburse that amount to MII arose in view of the
commitment made by the appellant in their sub-contract to MII.
It cannot be ignored that if there was no change of law, this
situation would not have arisen at all. It is therefore not possible
B to treat this payment as voluntary, that is, in the absence of any
liability.
C
C
D
D
E
E
F
F
G
G
H
H
33. It was canvassed on behalf of the respondent that there
is no nexus between that payment to MII and the responsibility
of the respondent. However, as can be seen from clause 3 of
the General condition quoted above, the sub-contracting was
clearly contemplated by the parties and was provided for in their
agreement. The relevant material and evidence placed before
the arbitrator clearly shows that MII was the principal subcontractor and has all throughout been in picture in the contract
between the appellant and the respondent. In fact it is because
of the expertise of MII that it was given a pivotal role in the
execution of the entire contract. The appellant had entered into
a back to back contract with MII to the knowledge of the
respondent. The performance of their obligation under the subcontract by MII, formed part and parcel of appellant’s obligations
under the Head-contract. The respondent had taken up the
responsibility for the income tax liabilities of the appellant. So
had the appellant taken up the responsibility for the tax liabilities
of MII and the respondent cannot be said to be ignorant there
of. In any case clause 17.3 will have to be given a meaningful
interpretation. It is confined only to the necessary and
reasonable extra cost, caused by change in law occurring after
the date of bid closing. The claim of appellant was restricted
only to that extent. It is necessary to note that the contract was
otherwise completely executed, payments were made and the
discharge certificate was issued long back. MII had already
filed its returns for the two relevant assessment years 1984-85
and 1985-86. In 1988 its assessment has been reopened in
view of the change in law, for which appellant had made the
payment and had sought reimbursement from the respondent.
SUMITOMO HEAVY INDUSTRIES LIMITED v. OIL &
NATURAL GAS COMPANY [H.L. GOKHALE, J.]
201
In the circumstances the submission of absence of nexus can
not be accepted.
34. In the present matter the Division Bench has observed,
that the umpire exceeded his jurisdiction in awarding Appellant’s
claim under clause 17.3 of the agreement and that he has failed
to apply his mind to the pleadings, documents and the evidence
as well as particular clause of the contract to declare that the
award was perverse. In fact as seen above, the umpire has
entertained appellant’s claim only after giving a meaningful
interpretation to clause 17.3 after considering all the material
on record as well as the context. Respondent had contended
in their arbitration petition before the High Court that it was not
permissible to refer to the pre-contractual negotiations and the
documents arising therein. What the umpire has however done
is to look into the context with a view to understand the text. As
we have noted above the umpire has looked into the evidence
before him including that of the respondent’s officer as to how
MII had participated in the bid clarification meetings. He
considered the submission of the appellant as to how the subcontract was also tax protected, which was their main plea. It
is true that if there is an error apparent on the face of the award
or where the umpire had exceeded his jurisdiction or travelled
beyond the reference, the court can interfere. However in view
of what is noted above it is not possible to say that the award
suffers from any of the above defects so as to call for
interefence.
35. The view canvassed on behalf of the respondent was
that clause 17.3 ought to be read narrowly like an indemnity
clause or given a literal interpretation as in the case of an
insurance policy. The umpire on the other hand has observed
that this clause is couched in wide terms and it was
commercially understandable and sensible, since it was
designed to cover a wide and potentially unforseeable spectrum
viz. the likely impact of a possible change in Indian law in future.
In the circumstances the approach adopted by the umpire being
202
A
B
C
SUPREME COURT REPORTS
[2010] 9 S.C.R.
A a plausible interpretation, is not open to interfere. The Division
bench was clearly in error when it observed that the view of the
umpire on clause 17.3 is by no stretch of imagination a
plausible or a possible view. Perhaps, it can be said to be a
situation where two views are possible, out of which the umpire
B has legitimately taken one. As recently reiterated by this Court
in Steel Authority of India Limited versus Gupta Brothers Steel
Tubes Limited reported in (2009) 10 SCC 63 if the conclusion
of the arbitrator is based on a possible view of the matter, the
court is not expected to interfere with the award. The High Court
C has erred in so interfering.
D
D
E
E
F
F
G
G
H
H
36. 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
vs. CCE AIR 1994 SC 1341 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 and Another vs. State
Represented by the Public Prosecutor and Another (2009) 10
SCC 206. In the present case, the findings and award of the
umpire are rendered after considering the material on record
and giving due weightage to all the terms of the contract. Calling
the same to be perverse is highly unfair to the umpire. The
umpire has considered the fact situation and placed a
construction on the clauses of the agreement which according
to him was the correct one. One may at the highest say that
one would have preferred another construction of clause 17.3
but that cannot make the award in any way perverse. Nor can
one substitute one’s own view in such a situation, in place of
the one taken by the umpire, which would amount to sitting in
appeal. As held by this Court in Kwality Manufacturing
SUMITOMO HEAVY INDUSTRIES LIMITED v. OIL &
NATURAL GAS COMPANY [H.L. GOKHALE, J.]
203
Corporation versus Central Warehousing Corporation
reported in (2009) 5 SCC 142, the court while considering
challenge to arbitral award does not sit in appeal over the
findings and decision of the arbitrator, which is what the High
Court has practically done in this matter. The umpire is
legitimately entitled to take the view which he holds to be the
correct one after considering the material before him and after
interpreting the provisions of the agreement. If he does so, the
decision of the umpire has to be accepted as final and binding.
37. It is an obligation of the parties to a contract that they
must perform their respective promises, and if a party does not
so perform, the arbitrator or the umpire has to give the
necessary direction if sought. In that process, they have to give
a meaningful interpretation to all the relevant clauses of the
contract to make them effective and not redundant. The intention
of the parties in providing a clause like clause 17.3 could not
be ignored. It had to be given a due weightage. This is what
the umpire has done and has given the direction to the
respondent to compensate the appellant for the amount of the
necessary and reasonable extra cost caused by change in law.
We have no hesitation in holding that the award of the umpire
is a well reasoned award and one within his jurisdiction, and
which gives a meaningful interpretation to all the clauses of the
contract including clause 17.3. In the circumstances in our view
the High Court has clearly erred in interfering with the award
rendered by the umpire.
38. There is one more submission which has to be referred
to. It was canvassed on behalf of the appellant in the High Court
and before us also that the award rendered by the umpire was
one on a question of law and on that ground also the Court was
not expected to interfere with the award. Mr. Dave took us
through the notice of intention to appoint the arbitrator, the
request for arbitration, the summary of issues submitted by the
appellant and the draft issues submitted by the respondent. He
then contended that appellant’s claim essentially depended on
204
A
B
C
D
E
F
G
[2010] 9 S.C.R.
A the interpretation of the clauses of contract which plea was
specifically raised through these draft issues and this stood on
the same footing, as a reference of an issue of law for
arbitration. Amongst others, the judgment in M/s Kapoor
Nilokheri Co-op Diary Farm Society Ltd. vs. Union of India
B and Others in (1973) 1 SCC 708 was relied upon in support
of this proposition. As against that, Mr. Tankha submitted that
in paragraph 23 of M/s Tarapore & Co. v. Cochin Shipyard
Ltd. AIR 1984 SC 1072, the judgment in Kapoor Nilokheri has
been read as one in the facts of that case. He further relied
C upon the judgment in Rajasthan State Mines & Minerals Ltd.
vs. Eastern Engineering Enterprises & Anr JT 1999 (7) SC
379 to submit that the award of the arbitrator on a question of
law is immune from a challenge in a Court only when it is
rendered on a specific question of law referred to him and that
the same was not the situation in the present matter. The
D
Division Bench has accepted this submission of the respondent
and held that in the present case there was no specific question
of law referred to the arbitrators or the umpire. It held that what
was referred for arbitration was the determination of the claim
of the appellant against the respondent, and that an incidental
E question involving interpretation cannot be said to be a specific
question of law.
39. However, we are not required to go into that issue since
we are otherwise holding that the award was not only a
F plausible one but a well-reasoned award. In the circumstance
the interference by the High Court was not called for. In that view
of the matter we allow this appeal and set aside the judgment
of the learned single Judge, as well as that of the Division
Bench. The award made by the Umpire is upheld and there shall
G be a decree in terms of the award. The arbitration petition filed
by the respondent for setting aside the award shall stand
dismissed with cost.
D.G.
H
SUPREME COURT REPORTS
Appeal allowed.
206
[2010] 9 S.C.R. 205
BIRAPPA & ANR.
v.
STATE OF KARNATAKA
(Criminal Appeal No. 682 of 2006)
JULY 28, 2010
A
B
[HARJIT SINGH BEDI AND C.K. PRASAD, JJ.]
Penal Code, 1860:
s.302 – Murder – Evidence of a single witness – Three
accused prosecuted for murder – Conviction by trial court of
A-1 and acquittal of the other two – High Court dismissing
appeal of A-1 and allowing appeal of State qua A-2 and also
convicting him in terms similar to A-1 – HELD: It is now well
settled that where the prosecution story rests only on a single
witness the evidence of such a witness must inspire full
confidence – In the instant case, the conduct of PW.1 was
clearly unnatural which makes his evidence extremely
suspicious – As per the prosecution story he had seen his
brother being cut up at about 6.00 p.m. at a place half a
kilometer away from the village near a temple and in an area
which was heavily populated and he had rushed home at 6.00
p.m. and then returned at 8.00 p.m. to look for his brother –
In his evidence he did not utter a single word as to the places
he had visited while in search or the inquiries he had made
from the neighbourhood which had several shops and
residential houses along a very busy road – Therefore, PW.1
was perhaps not an eye-witness and he lodged the FIR only
after the dead body had been discovered – This explains the
delay in lodging the FIR – It has come in the evidence of PW.1
that he had rushed to the police station at 9.00 a.m –
Curiously enough, however, the FIR was recorded at 2.00 p.m
– The High court has glossed over this glaring flaw by
observing that it was a mistake on the part of the police officer
to have recorded the FIR belatedly – However, the special
205
C
D
SUPREME COURT REPORTS
[2010] 9 S.C.R.
A report was delivered at 5.55 p.m. at the Magistrate’s residence
which was only half a kilometre away – Therefore, it appears
that the FIR was recorded at about 5.30 or 5.45 p.m., that is,
at the time when the dead body had been received in the
hospital – CW.6, though cited as a witness, was not produced
B as a PW – PW-11, the wife of the deceased, supported the
prosecution story in the examination-in-chief but when she
was called for further cross-examination after a few days she
disowned her earlier statements – It is true that this witness
was declared hostile, but this casts a doubt on the prosecution
C story – On a cumulative reading of these factors, the judgment
of the High Court cannot be maintained – Accordingly, the
conviction of the appellants is set aside – Evidence –
Testimony of single witness.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
D No. 682 of 2006.
From the Judgment & Order dated 05.12.2005 of the High
Court of Karnataka at Bangalore in Criminal Appeal No. 123
of 2004 C/w Criminal Appeal No. 1332 of 2003.
E
E
Rajesh Mahale for the Appellants.
Sanjay R. Hegde, Ramesh Kr. Mishra, K. Joshi for the
Respondent.
F
F
The following order of the Court was delivered
ORDER
This appeal arises out of the following facts:
G
H
Gulappa deceased was the younger brother of Kareppa
Gadad (PW.1) and Ramappa Gadad (CW-6). They resided
separately in their garden near village Koonur, Jamkhandi
Taluk. About four months prior to August 2002 Kareppa
Rangappa Kote, the father of A.1 Birappa, was found dead in
H a well in the village Koonur and it was not known as to whether
G
BIRAPPA & ANR. v. STATE OF KARNATAKA
207
it was an accidental death or a murder, but rumour had it that
he had been murdered by Gulappa, the deceased in the
present matter. This rumour caused a great deal of ill will
between Birappa, appellant No.1, and the deceased on which
the appellant threatened that he would kill him one day. On 8th
August 2002, which happened to be the Amavas day, the
deceased went to the Kali Devi temple at about 4.00 p.m. to
make his offerings and as he came out from the temple and
sat down at a nearby tea shop to take tea he was attacked by
Birappa, his cousin Kareppa A.2 and Muttappa A.3. Mutappa
also made an exhortation than as it was Amavas day and a
sacrifice had to be offered to the Goddess, Gulappa ought to
be that sacrifice. This created a fear in the mind of Kareppa
(PW.1) and Gulappa and they attempted to escape from the
place by rushing towards the Hulyal road. They were however
chased by the accused and whereas Kareppa caught hold of
the deceased Birappa caused him several injuries. Kareppa
(PW.1) ran for his life and informed his brother Ramappa about
the accident and also the wife of Gulappa, Shivakka (PW.11).
They also attempted to trace out the whereabouts of Gulappa
during the night but remained unsuccessful and it was only at
9.00 a.m. the next morning that they found his dead body in the
sugarcane field of one Derappa Shivaramatti. They also
noticed that his neck has been virtually severed from the body.
Kareppa (PW.1) thereafter went to the Jharkhandi police station
and made a statement at about 2.00 p.m. before Malakappa
Siddappa Malabagi (PW.12) and a case under Sec.302,
Sec.201 and 109 read with Section 34 of the IPC was duly
registered. The dead body was also dispatched for its ˇ -3post-mortem and was received at the hospital at 5.45 p.m. on
9th August 2002. The accused A.1 and A.2 were arrested on
the 10th August 2002 and on the completion of the investigation
they were charged for offence punishable under Sections 302/
201 and 109 read with Section 34 of the IPC and A.3 for the
offences punishable under Sections 302 read with Section 109
of the IPC. The accused pleaded not guilty and were brought
to trial.
208
A
A
B
B
C
D
E
F
G
H
SUPREME COURT REPORTS
[2010] 9 S.C.R.
The Trial Court relying primarily on the evidence of PW.1
as supported by medical evidence and the circumstances of
the case convicted Birappa under Sec.302 whereas Kareppa
A.2 and A.3 was acquitted on the ground that no overt act had
been attributed to them.
Two appeals were therefore filed before the High Court.
The High Court dismissed the appeal of Birappa and allowed
the State Appeal qua appellant No.2 Kareppa and also
convicted and sentenced him to in terms similar to his coappellant. The acquittal of Muttappa, the third accused, was
C however maintained. The present appeal has been filed under
Section 380 of the Cr.P.C. directly in this Court. ˇ
Mr. Rajesh Mahale the learned counsel for the appellants
has raised several arguments before us. He has pointed out
D that PW.1 was the only effective witness who had appeared for
the prosecution and that it was apparent that he had not
witnessed the incident and had been brought in much later and
this was the reason why the FIR had been lodged after an
inordinate delay. He has also pleaded that some support for
E the statement of PW.1 could have been found from the
contemporaneous evidence of the wife of the deceased
PW.11, but this lady had not supported the prosecution and had
disowned her statement made to the police.
Mr. Sanjay Hegde the learned counsel for the State has,
however supported the judgment of the High Court and has
submitted that there was no reason to doubt the evidence of
PW.1 and that his conduct inspired full confidence as he had
rushed to the village, informed his brother and the wife of the
deceased and had then returned to the place of incident, made
G a search for his brother the whole night and on discovering the
dead body the next morning had lodged the FIR at about 2.00
p.m. It has accordingly been urged that there was no delay in
lodging of the FIR and on the contrary its very promptitude
strengthened the prosecution story.
H
F
BIRAPPA & ANR. v. STATE OF KARNATAKA
209
We have considered the arguments advanced by the
learned counsel for the appellants and for the State very
carefully. It is now well settled that where the prosecution story
rests only on a single witness the evidence of such a witness
must inspire full confidence. We find however that the conduct
of PW.1 was clearly unnatural which makes his evidence
extremely suspicious. As per the prosecution story he had seen
his brother being cut up at about 6.00 p.m. at a place half a
kilometer away from the village near a temple and in an area
which was heavily populated (as Konnur was a large village)
and he had rushed home at 6.00 p.m. and then returned at 8.00
p.m. to look for his brother. PW.1 in his evidence did not utter
a single word as to the places he had visited while in search
or the inquiries he had made from the neighbourhood which had
a Chemist shop, a tea shop, a liquor vend and several
residential houses in the fields along a very busy road. We are
therefore of the opinion that PW.1 was perhaps not an eye
witness and he had lodged the FIR only after the dead body
had been discovered. This perhaps explains the delay in the
lodging of the FIR. It has come in the evidence of PW.1 that he
had rushed to the police station at 9.00 a.m. Curiously enough
however the FIR had been recorded at 2.00 p.m. The High court
has glossed over this glaring flaw by observing that it was a
mistake on the part of the police officer to have recorded the
FIR belatedly. Some justification for this argument could
perhaps have been found if the special report had been
delivered within a reasonable time. It has however come in the
evidence of PW.9, the police constable who had been deputed
to deliver the special report to the Magistrate, that the distance
between the police station and the Magistrate’s residence
where he had delivered the special report at 5.55 p.m. was only
a half kilometer. We therefore find some substance in Mr.
Mahale’s argument that the FIR had indeed been recorded at
about 5.30 or 5.45 p.m. that is at the time when the dead body
had been received in the hospital.
It is significant also that some corroboration could have
210
A
B
SUPREME COURT REPORTS
[2010] 9 S.C.R.
A been found from the prosecution story had Ramappa ˇ(CW.6),
the brother of the deceased supported the evidence of PW.1.
CW.6 though cited as a witness was not produced as a PW.
The wife of the deceased PW.11 Shivakka supported the
prosecution story in the examination in chief but when she was
B called for further cross-examination after a few days she
disowned her earlier statements saying :
“I did not come to know as to how my husband died and
who have committed the murder of my husband. Kareppa
did not inform me as to who have committed the murder
of may husband. Nobody informed me that accused have
assaulted my husband.”
C
C
D
It is true that this witness was declared hostile but in the
light of the uncertain and shaky evidence we have no option
D but to treat this as the final blow to the prosecution story.
E
On a cumulative reading of the aforesaid factors we are
of the opinion that the judgment of the High Court cannot be
maintained. Accordingly, we allow the appeal, set aside the
conviction of the appellants and direct that the appellants, who
E
are in custody, shall be released forthwith if not required in
connection with any other case.
R.P.
F
G
H
Appeal allowed.
[2010] 9 S.C.R. 211
BEERE GOWDA
v.
STATE OF KARNATAKA
(Criminal Appeal No. 1466 of 2005)
212
SUPREME COURT REPORTS
[2010] 9 S.C.R.
A
A accused, matter has been dealt with by High Court and it has
been observed that though there appeared to be some
suspicion, but there is no concrete evidence of abetment of
the murder by her as she had come to the house after the
incident – Appeal dismissed.
B
B
s.302 – Father and step mother causing death of 2½
years old daughter from the first wife, by administering her
nitric and sulphuric acids – Acquittal by trial court of both –
Acquittal of step mother affirmed by High Court – But father
of deceased convicted u/s 302 – HELD: It is undoubtedly true
that if two views are possible and the trial court has recorded
an acquittal, interference by High Court should be restricted
– However, in case High Court finds that the view taken by
trial court was not based on the evidence, it would defeat the
ends of justice if the order was not set aside – The present
case falls under the category where High Court was fully
justified in interfering in the matter – The view taken by trial
court was not justified to say the least – There is one strong
circumstance which has not been noticed by either of the
courts below that nitric and sulphuric acids would not be of any
domestic use and would not be available as a household
article – It has come in evidence that the acids had been
obtained from PW.17 and after the two acids had been mixed
the concoction was put into the mouth of the child – High
Court’s observation that acid had been forcibly put into the
mouth is based on the medical evidence as injuries were
found all over the body including the mouth, arms and the
chest which clearly showed that the child tried to save herself
and fought back when the acid was being administered – As
regards the parity claimed by the convict vis-à-vis t he co-
C
From the Judgment and order dated 26.11.2004 of the
High Court of Karnataka at Bangalore in Criminal Appeal No.
C 723 of 1999.
211
H
JULY 28, 2010
[HARJIT SINGH BEDI AND C.K. PRASAD, JJ.]
Penal Code, 1860:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1466 of 2005.
Ajit Kumar Panda, (A.C.) for the Appellant.
D
Ramesh Kumar Mishra, K. Joshi, Ramesh S. Jadhav and
Vikrant Yadav (for Sanjay R. Hegde) for the Respondent.
D
The following order of the Court was delivered
ORDER
E
F
G
This appeal at the instance of the accused arises out of
E the following facts:
Pallavi, aged two and half years, was the daughter of the
appellant Beere Gowda and his first wife Jayanthi Gowda. The
marriage between the appellant and Jayanthi had taken place
F about five or six years earlier. It appears that at the time of the
marriage Jayanthi was pregnant but after some time the two
fell out and the appellant left her in her parents’ home promising
to take her back after performing the marriage of his sister. A
few days later however he performed a marriage with Indramma
G co-accused, since acquitted. After the marriage of the appellant
and Indramma the relations between the appellant and Jayanthi
became unpleasant and Jayanthi was often assaulted and was
made to do all the household chores and was also compelled
to undergo a Family Planning Operation at Kalsapura P.H.C.,
H
BEERE GOWDA v. STATE OF KARNATAKA
213
as the appellant apparently did not want to have any child from
her. It is the case of the prosecution that as Pallavi was an
unwanted child, the two accused, thought it fit to get rid of her
so that she could not claim any share in her father’s property.
The appellant accordingly obtained nitric & sulphuric acid from
PW.16 Ranganatha-Chari, a goldsmith, and it is further the
prosecution case that this was administered to Pallavi on 22nd
September 1996 which ultimately led to her death. An FIR was
accordingly lodged by Jayanthi PW.1 in which the above facts
were given in detail. The appellant who had in the meanwhile,
absconded was arrested on 26th September 1996 and on his
statement under Section 27 of the Evidence Act a bottle
containing a mixture of the two acids was found from the
kitchen of his home. On the completion of the investigation the
appellant and Indramma were charged for offences punishable
under Sections 498A and 302 read with Section 34 of the IPC
and as they denied all allegations they were brought to trial.
The Sessions Judge vide his judgment dated 28th April
1999 held that the greater possibility on the evidence was that
Pallavi had taken the acid by accident and that there was no
evidence to suggest that it had been administered to ˇher
forcibly. The Court further held that there was no evidence to
show that the two accused had in any way misbehaved with
Jayanthi prior to the murder. The Trial Court also observed that
the discrepancies inter se the statements of the witnesses went
to the root of the matter and as such there was a doubt as to
the truthfulness of the prosecution story.
An appeal was thereafter taken to the High Court. The High
Court has, by the impugned judgment, set aside the acquittal
of appellant No.1 while maintaining that of the second accused
and convicted and sentenced him under Section 302 of the
IPC, with a sentence of imprisonment for life and fine of
Rs.2000/- and in default six months R.I.
214
A
B
C
D
E
F
G
It is in this situation the present appeal is before us.
H
SUPREME COURT REPORTS
[2010] 9 S.C.R.
A
Mr. Ajit Kumar Panda, the learned amicus curiae for the
appellant, has raised three arguments before us in the course
of the hearing of this appeal. He has first pointed out that it was
by now well settled that if two views were possible on the
evidence and the Trial Court had chosen to take one view in
B favour of an accused it was not open to the High Court to take
a different view, unless the judgment of the Trial Court could be
said to be perverse although the High Court was entitled to
reappraise the evidence in its entirety. It has also been
submitted that the finding of the High Court that the acid had
C been forcibly administered to Pallavi was based on mere
conjectures and did not emanate from the evidence. It has finally
been urged that Indramma, the co-accused, having been given
the benefit of doubt, the appellant ought to have been given the
same benefit as well.
D
The learned State counsel has however pointed out that
the Trial Court had completely ignored the fact that it was on
the statement of the appellant under Section 27 of the Evidence
Act that a bottle containing a mixture of nitric acid and sulphuric
acid had been recovered from his house and the fact that it was
E not possible for the child to have consumed the acid
accidentally was the only possible view on the evidence, was
erroneous.
We have heard the arguments advanced by the learned
F counsel for the parties very carefully. It is undoubtedly true that
if two views are possible and the Trial Court has recorded an
acquittal interference by the High Court should be restricted.
However, in case the High Court finds that the view taken by
the Trial Court was not based on the evidence, it would defeat
the ends of justice if the order was not set aside. We are of
G
the opinion that the present case falls under the category where
the High Court was fully justified in interfering in the matter. The
view taken by the Trial Court to our mind was not justified to
say the least. There is one strong circumstance which has not
been noticed by the either of the courts below but has been
H
BEERE GOWDA v. STATE OF KARNATAKA
215
pointed out by the learned State Counsel, that nitric and
sulphuric acid would not be of any domestic use and would not
be available as a household article. It has come in evidence
that the acid had been obtained from PW.17 and after the two
acids had been mixed the concoction had been put into the
mouth of child. The High Court’s observation that acid had been
forcibly put into the mouth is based on the medical evidence
as injuries had been found all over the body including the mouth,
arms and the chest which clearly showed that the child had tried
to save herself and had fought back when the acid was being
administered. It has rightly been pointed out by the High Court
that if the acid had been taken accidentally by the child there
would have been no burn injuries on other parts of the body as
they would have been confined only to the mouth and the lips.
We also find no merit in Mr. Panda’s arguments with
regard to the parity claimed vis-a-vis Indramma. This matter
has been dealt with by the High Court and it has been observed
that though there appeared to be some suspicion, but no
concrete evidence of abetment of the murder by her as she had
come to the house after the incident. We therefore find no merit
in this appeal.
Dismissed.
R.P.
Appeal dismissed.
[2010] 9 S.C.R. 216
A
A
B
B
REKHABEN H. SHETH
v.
CHARU K. MEHTA & SONS.
(SLP (C) No. 35164 of 2009)
JULY 29, 2010
[ALTAMAS KABIR AND A.K. PATNAIK, JJ.]
C
D
E
Contempt of Court – Application by Trustee of a Trust
against petitioner and respondent nos. 2-5 for their removal
C from trusteeship of the Trust – Order of High Court restraining
petitioner and respondent nos. 2-5 from taking any policy
decision and entering into financial transaction without prior
approval of Joint Charity Commissioner – Issuance of cheque
to professionals by petitioner and respondent nos. 2-5 without
D prior sanction of Joint Charity Commissioner – Contempt
Petition – Show cause notice to petitioner and respondent
nos. 2-5 by High Court – On appeal, held: Funds of the Trust
were utilized to a considerable extent not for the purpose of
Trust but for defending Trustees against allegations brought
E against them by Trustee – Thus, order of High Court does not
call for interference – Bombay Public Trust Act, 1950 – s. 41
D.
The respondent no.1 permanent trustee of a Medical
Trust filed an application against the petitioner and the
F respondent nos. 2-5 for their removal from Trusteeship
of the Trust on the ground of malfeasance, misfeasance,
misappropriation of trust funds and breach of trust. The
Joint Charity Commissioner restrained the petitioner and
the respondent nos. 2-5 from taking any policy decision
G and entering into financial transactions with regard to the
Trust without the prior approval of the Joint
Administrators. The High Court modified the said order
to the extent that the prior approval was to be taken from
H
216
REKHABEN H. SHETH v. CHARU K. MEHTA &
SONS.
217
the Joint Charity Commissioner and not the
Administrators. It is alleged that the petitioner and the
respondent nos. 2 - 5 had withdrawn huge amounts from
the Trust funds and had issued cheques in favour of
solicitors and advocates appearing for them in the
litigations pending before the various courts, including
the proceedings before the Joint Charity Commissioner.
The respondent no. 1 filed Contempt Petition. The Single
Judge of High Court held that the payments made to
advocates would constitute financial transactions with
regard to the Trust and, therefore, prior approval of the
Joint Charity Commissioner was required to be obtained
before such payments were made to the advocates. It
issued notice to show cause on the Contempt Petition to
the petitioner and the respondent nos. 2-5. Hence, the
Special Leave Petitions.
218
A
B
[2010] 9 S.C.R.
A paid to the counsel amounting to approximately Rs.3½
crores. Although, an attempt was made by to justify such
expenditure, the submissions cannot be accepted since
as observed by the Single Judge of the High Court, most
of the said funds were spent by the petitioner, the
B respondent nos.2 to 5 and the other Trustees for
defending themselves in respect of the various cases
which had been brought against them by the respondent
no.1. [Para 15] [224-G-H; 225-A-E]
E
1.2 It cannot be said that payments made to lawyers
advocates and solicitors does not amount to Contempt
in the special facts of the instant case. The fact that the
funds of the Trust were being utilized to a considerable
extent, not for the purposes of the Trust but for defending
the Trustees against the allegations brought against them
D by the respondent no.1 cannot be ignored. These are
prima facie observations which should not influence the
outcome of the matter pending before the High Court
which has to decide the matter on its own merits. In these
circumstances, the order of the High Court is not
E interfered with. [Paras 16 and 17] [225-E-H]
F
Union of India v. Mario Cabral e Sa (1982) 3 SCC 262;
Tamilnadu Mercantile Bank Shareholders Association v. SC
Sekar (2009) 2 SCC 784; State of J&K v. Trehan Industries
(P) Ltd. (2005) 11 SCC 459 – referred to.
C
D
Dismissing the Special Leave Petitions, the Court
HELD: 1.1 There is no reason to interfere with the
order of the Single Judge of High Court issuing notice
on the contempt petition filed by the respondent no.1. It
was observed that the respondent no.1 had raised
serious objections in the main application about the
payment of advocate’s fees from Trust funds for fighting
personal litigations of the Trustees. The Judge took
sufficient care to indicate that except for cognizance of
the allegations made against the petitioner and the
respondent nos.2 to 5, cognizance against the other
Trustees had not been taken as the material against them
were insufficient to frame charges. However, liberty was
also given that when sufficient material in support of the
allegations was placed on record, it could take
cognizance of such complaint. A chart has been filed on
behalf of the petitioner, respondent nos.2 to 5 and the
other Trustees to show the amounts which had been
SUPREME COURT REPORTS
C
F
Case Law Reference:
G
G
(1982) 3 SCC 262
Referred to.
Para 12
(2009) 2 SCC 784
Referred to.
Para 12
(2005) 11 SCC 459
Referred to.
Para14
CIVIL APPELLATE JURISDICTION : SLP (Civil) No.
35164 of 2009.
H
H
REKHABEN H. SHETH v. CHARU K. MEHTA &
SONS.
219
From the Judgment & Order dated 11.09.2009 of the High
Court of Judicature at Bombay in Contempt Petition No. 123
of 2009 in Writ Petition no. 5732 of 2008.
220
A
WITH
SLP (C) 6685 of 2010.
B
Ashok Desai, Arvind Varma, Jayant Bhushan, Ranjit
Kumar, Prateek Sakreria, Gaurav Agrawal, Gopal Jain, Raj
Patel, Kanika Agnihotri, Ajay Bhargava, Vanita Bhargava,
Abhijeet Swaroop (for Khaitan & Co,) Sameer Parekh, Lalit
Chauhan, Ranjeeta Rohatagi, Somanadri Goud (for Parekh &
Co.), Guru Krishana Kumar, Ajay Kumar, Sanjay Jain, Lalit
Chauhan, Sanjay Kharde, Asha G. Nair Sanjay Jalan for the
appearing parties.
C
The Judgment of the Court was delivered by
ALTAMAS KABIR, J. 1. These Special Leave Petitions
arise out of an order dated 11th September, 2009 passed by
a learned Single Judge of the Bombay High Court in Contempt
Petition No.123/09 arising out of an order passed on 9th
September, 2008, in Writ Petition No.5732/08.
2. The Respondent No.1, Charu K. Mehta, is a permanent
Trustee of the Lilavati Kirtilal Mehta Medical Trust. She had filed
an application under Section 41D of the Bombay Public Trusts
Act, 1950, against the Petitioner herein and the Respondent
Nos.2 - Vijay K. Mehta, Respondent No.3 - Dr. Amritlal C. Shah,
Respondent No.4 – Niket V. Mehta, and Respondent No.5 –
Sushila V. Mehta in SLP(C)No.35164/09, for their removal from
Trusteeship of the aforesaid Trust on the ground of
malfeasance, misfeasance, misappropriation of Trust funds,
breach of Trust, etc. An interim application was also filed for
the removal/ suspension/dismissal of the colluding Trustees.
Charges were framed against the Petitioner and the aforesaid
Respondents by the Joint Charity Commissioner, Mumbai, on
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[2010] 9 S.C.R.
3rd June, 2008, and the Trustees were restrained from taking
any policy decision and from entering into any financial
transaction with regard to the Trust.
3. The aforesaid Respondents Nos.2 and 3 in
SLP(C)No.35164/09 challenged the said order of the Joint
B
Charity Commissioner in Writ Petition Nos.3849 and 3850 of
2008. By common orders passed in those writ petitions on 11th
July, 2008 and 15th July, 2008, the orders impugned in the writ
petitions were set aside and the Joint Charity Commissioner
was directed to pass fresh orders in accordance with law.
C
Thereafter, the Joint Charity Commissioner passed an adinterim order on 9th September, 2008, restraining the Petitioner
and the Respondent Nos.2, 3, 4 and 5 herein from taking any
policy decision and entering into financial transactions, without
the prior approval of the Joint Administrators appointed by this
D Court. Aggrieved by the said ad-interim order, the Respondent
Nos.2 and 3 herein filed Writ Petition No.5732/08, wherein the
High Court modified the aforesaid order passed by the Joint
Charity Commissioner on 9th September, 2008. The operative
part of the order of the Joint Charity Commissioner was
E modified to the extent that the prior approval was to be taken
not from the Administrators but from the Joint Charity
Commissioner.
F
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4. The Bombay High Court, therefore, confirmed the order
of the Joint Charity Commissioner that the Respondents Nos.1
to 9 in the Application filed before him should not take any
policy decision and should not enter into any financial
transaction with regard to the Trust without the prior approval
of the Joint Charity Commissioner till further orders.
5. In the Contempt Petition filed by the Respondent No.1
herein, it has been alleged that the Petitioner herein and the
Respondents Nos.2, 3, 4 and 5 had withdrawn huge amounts
from the Trust funds and had issued cheques in favour of
solicitors and advocates appearing for them in the litigations
REKHABEN H. SHETH v. CHARU K. MEHTA &
SONS. [ALTAMAS KABIR, J.]
221
pending before the various courts, including the proceedings
before the Joint Charity Commissioner under Section 41D of
the Bombay Public Trusts Act, 1950. Rejecting the defence of
the Petitioner and the Respondents Nos.2, 3, 4 and 5 herein
that payment of fees to advocates and solicitors did not amount
to financial transactions being undertaken by the Trust and that
the services of the advocates and solicitors had to be engaged
to defend the interest of the Trust, the learned Single Judge
observed that the question as to whether payments to
advocates were financial transactions within the meaning of the
order passed by the Joint Charity Commissioner, as modified
by the High Court, was still at large.
6. The learned Single Judge arrived at a prima facie view
that the payments made to advocates would constitute financial
transactions with regard to the Trust and, therefore, prior
approval of the Joint Charity Commissioner was required to be
obtained before such payments were made to the advocates.
While making such observations, the learned Judge also
noticed that the Trust was not a party in many of the
proceedings which were initiated by one group of Trustees
against the others. The learned Single Judge, accordingly,
issued notice to the Petitioner and the Respondent Nos.2, 3,
4 and 5 herein to show cause as to why action should not be
taken against them under the Contempt of Courts Act for having
willfully disobeyed the directions contained in the order dated
9th September, 2008 in Writ Petition No.5732/08 by issuing
cheques to professionals without the prior sanction of the Joint
Charity Commissioner.
7. It is the said order of the learned Single Judge of the
Bombay High Court and the notice issued to show cause on
the Contempt Petition filed by the Respondent No.1 herein, that
is the subject matter of the present Special Leave Petitions.
222
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8. Appearing for the Petitioner, Rekhaben H. Sheth, in
S.L.P. (c) No.35164 of 2009, Mr. Ashok Desai, learned Senior
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SUPREME COURT REPORTS
[2010] 9 S.C.R.
A Advocate, urged that the expression “financial transactions”
indicated in the order passed by the Joint Charity
Commissioner on 9th September, 2008, subsequently modified
by the High Court, did not include the payment of fees to
professionals, such as Solicitors, Advocates and Chartered
B Accountants for the services rendered by them in the interest
of the Trust. It was submitted that such transactions were meant
to cover the essential expenses incurred for the day-to-day
running of the hospital and were entered into in lieu of goods
provided to the hospital. Mr. Desai submitted that it is only for
C the purposes of acquiring certain tangible objects that the
hospital could enter into financial transactions and not for other
purposes where there was no return involved. In fact, according
to Mr. Desai, applying the said expression for effecting
payment to professionals would lead to an absurd situation
where every time professional such as an Advocate or Solicitor
D
has to be engaged, the prior permission of the Joint Charity
Commissioner would have to be taken. It was urged that the
entire process would be lengthy and self-defeating and would
be difficult to put into operation each time matters came up
before different Courts for consideration.
E
9. Mr. Desai contended that the expenses incurred
towards payment of professional fees to Solicitors, Advocates
and Chartered Accountants were not on account of defending
the Trustees in personam but to defend the interests of the Trust
F and the hospital against the repeated litigations initiated by the
Respondent No.1, Charu K. Mehta, against the other Trustees.
Referring to the various definitions of the aforesaid expression,
Mr. Desai contended that the same could not apply to the facts
of this case.
G
10. Mr. Desai also contended that even if it be held that
the Petitioner and the Respondent Nos.2 to 5 and the other
Trustees had acted against the interests of the Trust in utilizing
its funds for payment to lawyers and other professionals, the
same could at best be a case before another forum, but there
H
REKHABEN H. SHETH v. CHARU K. MEHTA &
SONS. [ALTAMAS KABIR, J.]
223
was no element of contempt of Court involved since the monies
paid were not on account of any tangible goods received, but
for preservation and protection of the Trust. Mr. Desai submitted
that the contempt petition which has been filed by the
Respondent No.1, upon which cognizance has been taken by
the learned Single Judge, was wholly erroneous and was liable
to be set aside. Mr. Desai submitted that the contempt
proceedings had been initiated by the Respondent No.1,
against all the other Trustees with the sole intention of harassing
the other Trustees and disturbing the smooth management of
the Trust.
11. On the question of maintainability of the contempt
proceedings, it was urged by Mr. Desai that although Section
19 of the Contempt of Courts Act, 1971, made provisions for
appeals against orders which adversely affected those in
contempt, since appeal was a creature of statute the provisions
of Section 19 of the above Act would still continue to be
operative.
12. In support of the submissions made by him, Mr. Desai
firstly referred to the decision of this Court in Union of India v.
Mario Cabral e Sa [(1982) 3 SCC 262] and Tamilnadu
Mercantile Bank Shareholders Association v. SC Sekar
[(2009) 2 SCC 784], wherein it had been reiterated that once
a period which had been prescribed under the Act had expired,
contempt proceedings which had been initiated earlier could
not be proceeded with further.
13. Mr. Desai’s submissions were reiterated by learned
counsel appearing for the respondents in the other Special
Leave Petitions. Mr. Ranjit Kumar, learned Senior Advocates,
contended that on a mistaken interpretation of the expression
“financial transactions”, the High Court had taken cognizance
of the contempt petition filed and had directed notices to issue
thereupon. Referring to the order of the Joint Charity
Commissioner dated 3rd June, 2008, Mr. Ranjit Kumar
224
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[2010] 9 S.C.R.
A submitted that the said order was capable of being decompartmentalized in that the same neither indicated any
policy decision nor a financial transaction which could have
brought the matter within the ambit of a contempt under the
Contempt of Courts Act vis-à-vis the said order. Mr. Ranjit
B Kumar further urged that the two have to be read together and
would have to be read conjunctively and not disjunctively so as
to give a meaningful and harmonious construction thereto. It
was further contended that till a decision was rendered as to
what would constitute “financial transactions”, contempt
C proceedings would not lie, since such decision would
determine whether the alleged contemnors could be said to be
in contempt of the order passed by the Joint Charity
Commissioner on 9th September, 2008.
14. On the question of issuance of notice, Mr. Jayant
D Bhushan referred to and relied upon the decision of this Court
in State of J&K v. Trehan Industries (P) Ltd. [(2005) 11 SCC
459], where the question of civil contempt fell for the
consideration of the Jammu & Kashmir High Court. Mr. Bhushan
pointed out that in the said decision it had been categorically
E pointed out that the petitioners therein could not have a cause
of grievance persuading them to approach the Supreme Court.
Mr. Jayant Bhushan concluded on the note that no special
circumstances existed in regard whereof the Special Leave
Petition could have been filed. He lastly pointed out that the Joint
F Charity Commissioner had by his order dated 10th October,
2008, suspended the Petitioner and the Respondent Nos.2 to
5 and had appointed an Administrator to look after the affairs
of the Trust on the application filed by the Respondent No.1
herein, Charu K. Mehta, under Section 41D of the Bombay
G Public Trust Act, 1950.
H
15. Having carefully considered the submissions made on
behalf of respective parties, we see no reason to interfere with
the order of the learned Single Judge issuing notice on the
contempt petition filed by the Respondent No.1 herein. The
REKHABEN H. SHETH v. CHARU K. MEHTA &
SONS. [ALTAMAS KABIR, J.]
225
learned Judge observed that the Respondent No.1 had raised
serious objections in the main application about the payment
of Advocate’s fees from Trust funds for fighting personal
litigations of the Trustees. The learned Judge took sufficient
care to indicate that except for cognizance of the allegations
made against the Petitioner and the Respondent Nos.2 to 5,
cognizance against the other Trustees had not been taken as
the material against them were insufficient to frame charges.
However, liberty was also given that when sufficient material in
support of the allegations was placed on record, it could take
cognizance of such complaint. A chart has been filed on behalf
of the Petitioner, Respondent Nos.2 to 5 and the other Trustees
to show the amounts which had been paid to the learned
counsel amounting to approximately Rs.3½ crores. Although,
an attempt was made by Mr. Desai to justify such expenditure,
we are unable to agree with his submissions, since as
observed by the learned Single Judge of the Bombay High
Court, most of the said funds were spent by the Petitioner, the
Respondent Nos.2 to 5 and the other Trustees for defending
themselves in respect of the various cases which had been
brought against them by the Respondent No.1, Charu K. Mehta.
16. We are not convinced with Mr. Desai’s submissions
that payments made to lawyers, advocates and solicitors does
not amount to Contempt in the special facts of this case. This
Court cannot ignore the fact that the funds of the Trust were
being utilized to a considerable extent, not for the purposes of
the Trust but for defending the Trustees against the allegations
brought against them by the Respondent No.1. There are, of
course, prima facie observations which should not influence the
outcome of the matter pending before the High Court which has
to decide the matter on its own merits.
226
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D
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17. In these circumstances, we are not inclined to interfere
with the order of the High Court and the Special Leave Petitions
are, accordingly, dismissed, but without any order as to costs.
18. We have, however, been informed by Mr. Ranjit Kumar,
H
[2010] 9 S.C.R.
A learned senior counsel, who has appeared for Amritlal C. Shah,
in S.L.P. (C) No.6685 of 2010, that after the matter was heard,
the Petitioner No.3, Vijay K. Mehta, passed away on 23rd July,
2010. Since we have dismissed the Special Leave Petitions,
it will now be open to the other Petitioners herein to inform the
B learned Court below of the subsequent event and take further
steps in that regard.
N.J.
C
SUPREME COURT REPORTS
Special Leave Petitions dismissed.
228
[2010] 9 S.C.R. 227
DR. BASAVAIAH
v.
DR. H.L. RAMESH & ORS.
(Civil Appeal No. 6057 of 2010)
JULY 29, 2010
A
An advertisement was issued for appointment of
Readers in Sericulture in the University. The
qualifications necessary for appointment as Readers was
consistently good academic record with a Doctorate
Degree or equivalent published work. The appellants
were appointed as Readers in Sericulture in the year 1999
on the basis of their qualifications. The respondent
challenged the appointments of the appellants on the
ground that the appellants were not qualified to be
appointed as Readers in Sericulture. The Single Judge
of High Court dismissed the writ petition. However, the
227
[2010] 9 S.C.R.
A Division Bench of High Court set aside the appointment
of the appellants. Hence the appeal.
Allowing the appeals, the Court
B
[DALVEER BHANDARI AND T.S. THAKUR, JJ.]
Service law – Appointment – Appointment of appellants
as Readers in Sericulture – Challenge to, by respondent on
the ground that appellants were not qualified – High Court
upholding the appointment – However, Division Bench of
High Court set aside the appointment – On appeal, held: In
academic matters, courts have a very limited role particularly
when no mala fide has been alleged against experts
constituting selection committee – Expert Committee
carefully examined and scrutinized the qualification,
experience and published work of appellants before selecting
them for posts of Readers in Sericulture – High Court not
justified in sitting in appeal over the recommendations of
expert committee – Thus, order of Division Bench of High
Court is set aside and that of Single Judge of High Court is
restored.
SUPREME COURT REPORTS
C
D
E
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HELD: 1. In the academic matters, the courts have a
B very limited role particularly when no mala fide has been
alleged against the experts constituting the selection
committee. It would normally be prudent, wholesome and
safe for the courts to leave the decisions to the
academicians and experts. As a matter of principle, the
C courts should never make an endeavour to sit in appeal
over the decisions of the experts. The courts must realize
and appreciate its constraints and limitations in academic
matters. [Para 45] [244-E-F]
Dr. J. P. Kulshrestha & Others v. Chancellor, Allahabad
University & Others (1980) 3 SCC 418; Maharashtra State
Board of Secondary and Higher Secondary Education &
Another v. Paritosh Bhupeshkumar Sheth & Others (1984) 4
SCC 27; Neelima Misra v. Harinder Kaur Paintal & Others
(1990) 2 SCC 746; Bhushan Uttam Khare v. Dean, B.J.
E
Medical College & Others (1992) 2 SCC 220; Dalpat
Abasaheb Solunke & Others v. Dr. B.S. Mahajan & Others
(1990) 1 SCC 305; The Chancellor & Another etc. v. Dr.
Bijayananda Kar & Others (1994) 1 SCC 169; Chairman J&K
State Board of Education v. Feyaz Ahmed Malik & Others
F (2000) 3 SCC 59; Dental Council of India v. Subharti K.K.B.
Charitable Trust & Another (2001) 5 SCC 486; Medical
Council of India v. Sarang & Others (2001) 8 SCC 427; B.C.
Mylarappa alias Dr. Chikkamylarappa v. Dr. R.
Venkatasubbaiah & Others (2008) 14 SCC 306; Rajbir Singh
G Dalal (Dr.) v. Chaudhari Devi Lal University, Sirsa & Another
(2008) 9 SCC 284; All India Council for Technical Education
v. Surinder Kumar Dhawan & Others (2009) 11 SCC 726 –
relied on.
D
H
DR. BASAVAIAH v. DR. H.L. RAMESH & ORS.
229
2.1 The Division Bench allowed the appeal filed by
respondent no. 1 on the short ground that the appellants
did not have Doctorate degree in Sericulture. Therefore,
they were not qualified for appointment as Readers in
Sericulture. In the impugned judgment, the court did not
properly comprehend the advertisement in which it was
clearly mentioned that the prescribed qualification for the
appointment as Readers was Doctorate degree or
equivalent published work. Admittedly, both these
appellants had extensive published work in the national
and international journals of repute to their credit. This
is clearly indicated in extenso in the application forms
which they had filled for the appointments for the posts
of Readers. [Paras 23 and 25] [237-C-G]
2.2 The courts have to show deference and
consideration to the recommendation of an Expert
Committee consisting of distinguished experts in the
field. [Para 27] [238-G-H]
The University of Mysore and Anr. v. C.D. Govinda Rao
and Anr. AIR 1965 SC 491; Dr. M.C. Gupta and Ors. v. Dr.
Arun Kumar Gupta and Ors. (1979) 2 SCC 339 – referred
to.
2.3 It is abundantly clear from the affidavit filed by the
University that the Expert Committee consisting of highly
qualified five distinguished experts had carefully
examined and scrutinized the qualification, experience
and published work of the appellants before selecting
them for the posts of Readers in Sericulture. They found
them eligible and suitable. Thereafter, recommendations
for their appointments were made. The Division Bench
was not justified in sitting in appeal over the unanimous
recommendations made by the country’s leading experts
in the field of Sericulture. The Expert Committee had in
fact scrutinized the merits and de-merits of each
230
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[2010] 9 S.C.R.
A candidate including qualification and the equivalent
published work and its recommendations were sent to the
University for appointment which were accepted by the
University. [Paras 25, 26 and 27] [238-E-F; 237-F-H; 238A; G-H; 239-A]
B
2.3 According to the experts of the Selection Board,
both the appellants had requisite qualification and were
eligible for appointment. If they were selected by the
Commission and appointed by the Government, no fault
can be found in the same. The High Court interfered and
C
set aside the selections made by the experts committee.
[Para 32] [240-F-H]
2.4 In the impugned judgment, the High Court ignored
the consistent legal position. They were expected to
D abide by the discipline of the precedents of the courts.
Consequently, the impugned judgment of the Division
Bench of the High Court is set aside and the judgment
of the Single Judge of the High Court is restored. The
University of Mysore-respondent is directed to give
E regular pay-scale to the appellants from 1st August, 2010.
The appellants would not be entitled to claim any arrears
or benefits for the past period. [Paras 46 and 47] [244-GH; 245-A]
F
G
H
Case Law Reference:
AIR 1965 SC 491
Referred to.
Para 28
(1979) 2 SCC 339
Referred to.
Para 30
(1980) 3 SCC 418
Relied on.
Para 33
(1984) 4 SCC 27
Relied on.
Para 34
(1990) 2 SCC 746
Relied on.
Para 35
(1992) 2 SCC 220
Relied on.
Para 36
(1990) 1 SCC 305
Relied on.
Para 37
DR. BASAVAIAH v. DR. H.L. RAMESH & ORS.
231
(1994) 1 SCC 169
Relied on.
Para 38
(2000) 3 SCC 59
Relied on.
Para 39
(2001) 5 SCC 486
Relied on.
Para 40
(2001) 8 SCC 427
Relied on.
Para 41
(2008) 14 SCC 306
Relied on.
Para 42
(2008) 9 SCC 284
Relied on.
Para 43
(2009) 11 SCC 726
Relied on.
Para 44
232
A
B
A both the appellants Dr. Basavaiah and Dr. D. Manjunath,
because exactly similar issues have been raised in both the
appeals. But, for the sake of convenience, the facts of Civil
Appeal No. 6057 of 2010 arising out of SLP (C) No. 9473 of
2006 are recapitulated.
B
4. The short controversy which needs to be adjudicated in
these cases is whether the appellants Dr. Basavaiah and Dr.
D. Manjunath were qualified to be appointed as Readers in
Sericulture?
C
D
6. The appellants in both the appeals were appointed as
Readers in Sericulture in the year 1999 on the basis of the
D qualifications possessed by them in accordance with the
vacancy Notification No. ET.8/335/98-99 dated 12.11.1998. As
per the notification, the qualifications necessary for appointment
as Readers as per the said notification are set out as under:
E
E
F
F
WITH
C.A. No. 6058 of 2010.
P.N. Mishra, K. Mariarputham, E.C. Vidya Sagar, Yatish
Mohan, B.K. Choudhary, Bramjeet Mishra, Girish Aanthamurthy,
Vijayanthi Girish, P.P. Singh, G.V. Chandrashekar, N.K. Verma,
Anjana Chandrashekar for the appearing parties.
The Judgment of the Court was delivered by
DALVEER BHANDARI, J. 1. Leave granted.
2. These appeals are directed against the judgment and
order dated 2.8.2005 passed in Writ Appeal No. 5014 of 2004
and dated 22.3.2006 passed in Review Petition Nos. 593, 594
and 632 of 2005 in Writ Appeal No. 5014 of 2004 by the High
Court of Karnataka at Bangalore
[2010] 9 S.C.R.
C
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
6057 of 2010.
From the Judgment & Order dated 02.08.2005 of the High
Court of Karnataka at Bangalore in Writ Appeal No. 5014 of
2004(S-RES) and order dated 22.03.2006 in R.P. No. 594 of
2005.
SUPREME COURT REPORTS
G
G
5. Brief facts which are necessary to dispose of the
appeals are recapitulated as under:
“READER: Prospective candidates shall have consistently
good academic record with a Doctorate Degree or
equivalent published work. Candidates from outside the
university system, in addition, shall also possess at least
55% marks or an equivalent grade at Master’s degree
level.
Applicants shall possess eight years experience of
teaching and/or research including 3 years for a Ph.D.
Degree, and shall have made some mark in the areas of
scholarship as evidenced by quality of publications,
contribution to educational innovation, design of new
courses, curricula, etc.”
(emphasis supplied)
7. Dr. Basavaiah obtained M.Sc. and Ph.D. degrees in
3. By this judgment, we propose to decide the cases of
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H
DR. BASAVAIAH v. DR. H.L. RAMESH & ORS.
[DALVEER BHANDARI, J.]
233
Botany. Thereafter, he served as Senior Research Assistant
in the Central Sericultural Research and Training Institute (for
short CSRTI), Mysore from the years 1986 to 1992. Dr.
Basavaiah, the appellant herein while working as Senior
Research Assistant, joined the Karnataka State Sericulture
Research and Development Institute (for short, KSSRDI) at
Bangalore as Scientific Officer-II and continued to work there
till 31.1.1994. In addition to the research work he had taught
many training courses and also worked as the examiner of
M.Sc. Sericulture.
8. The appellant was selected to the higher post of
Scientific Officer-I (Scientist-D). The appellant had also
undergone Overseas Training in Sericulture for two months in
the Department of Sericulture at Zhejiang Agricultural University,
Hangzhou, China and had also passed certificate course in
Genetic Engineering from the Indian Institute of Science,
Bangalore.
9. The appellant had 18 years of research experience and
out of that, 13 years was directly in the field of Sericulture. He
also worked for six years at CSRTI, Mysore, which is an
internationally renowned Sericulture Research and Training
Institute and seven years at KSSRDI, Bangalore.
10. The appellant had more than five years of teaching
experience. The appellant’s twenty Research Papers were
published on Sericulture in Journals of national and international
repute. The appellant was the first author in twelve Research
Papers and in other eight Research Papers he was the second
author. The appellant possessed the equivalent qualification
prescribed in the said vacancy notification dated 12.11.1998.
11. The appellant, Dr. Basavaiah was M.Sc. and Ph.D. in
Botany. He had also got sixteen years of Research experience.
He also possessed postgraduate diploma in Sericulture and
worked as Sericulture inspector in the State Government and
also worked as Senior Research Assistant at the CSRTI,
234
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SUPREME COURT REPORTS
[2010] 9 S.C.R.
A Mysore. He worked as the Scientific Officer II with effect from
29.5.1992 to 31.1.1994 and he worked as the Scientific OfficerI with effect from 1.2.1994 till his appointment as the Reader
in the University of Mysore. In addition to these, he had about
twenty publications to his credit.
B
12. In the counter affidavit of the University it was asserted
that the appellant in C.A. No.6058/2010 @ SLP (C) No.9474/
2006 Dr. Manjunath was M.Sc. and Ph.D. in Zoology and also
had teaching experience. He had got research experience of
about twenty two years. He had joined the CSRTI as Senior
C
Research Assistant on 28.3.1981. He was promoted to the post
of Senior Research Officer on 15.10.1986 and he had worked
in that Institute till his appointment in the University of Mysore.
He had also published a number of Papers in Sericulture and
number of connected subjects as per the certificate produced
D by him. He was also teaching M.Sc. Sericultural Technology
course, in addition to other courses.
13. Dr. H. L. Ramesh, the respondent in both the appeals
challenged the appointments of both the appellants in the High
E Court on the ground that the appellants were not qualified to
be appointed as Readers in Sericulture. The learned single
Judge on 11.10.2004 after examining the pleadings and
scrutinizing the arguments of the parties dismissed the writ
petition filed by the 1st respondent (Dr. H.L. Ramesh) in the Writ
F Petition No. 24300 of 1999.
14. Respondent Dr. H. L. Ramesh, aggrieved by the said
judgment preferred a Writ Appeal before the Division Bench
of the High Court. The writ appeal was allowed and the
appointments of the appellants were set aside leaving it open
G to the University of Mysore to make fresh selection in
accordance with the law.
15. The appellants aggrieved by the said judgment have
filed these special leave petitions against the judgment of the
H Division Bench of the High Court.
DR. BASAVAIAH v. DR. H.L. RAMESH & ORS.
[DALVEER BHANDARI, J.]
235
16. In the Writ Petition No. 24300/99 before the learned
Single Judge of the High Court of Karnataka, the University of
Mysore filed a separate counter affidavit. It was contended in
the said counter affidavit filed by the University that the
qualifications prescribed for the post of Reader, according to
the Advertisement issued on 12.1.1998, are as under:
236
A
B
Therefore, it is very clear that the advertisement does
not specify that only those who possess M.Sc. in
Sericulture are eligible for the post of Reader in
Sericulture. It is submitted that the candidates with the
Master Degree and Ph.D. are also qualified to apply for
the post and for consideration for the post. Therefore, the
contention of respondent, Dr. H.L. Ramesh that the
qualification required for the post of Reader in Sericulture
in Master Degree and Ph.D. Degree only in Sericulture is
not correct. It is needless to mention that Botany, Zoology
and Sericulture are all interrelated subjects.”
B
17. The University of Mysore further submitted that there
was no merit in the contention of Dr. H.L. Ramesh that the
appellants Dr. Basavaiah and Dr. Manjunath were not qualified
to be appointed as Readers in the Sericulture.
C
C
D
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[2010] 9 S.C.R.
A experts. The said Committee consisted of the following
eminent experts:
“…..According to notification prospective candidate
shall have consistently good academic record with a
doctorate degree or equivalent published work.
It further specified that applicant shall possess 8
years experience of teaching and/or Research including
3 years of a Ph.D. degree and shall have made some
mark in the areas of scholarship as evidenced by quality
of publication, contribution to educational innovation,
design of new courses etc.
SUPREME COURT REPORTS
(a)
Prof. Y. Srinivasa Reddy Chairman, DOS in
Sericulture Manasagangothri, Mysore – 6.
(b)
Prof. M. C. Devaiah, Dept. of Sericulture. University
of Agri. Sciences Bangalore.
(c)
Prof. S. Govindappa, Dept. of Sericulture Sri
Venkateswar University Tirupati.
(d)
Dr. S. B. Dandin, Director Karnataka State
Sericulture Research and Development Institute,
Bangalore
(e)
Prof. V. Subramaniam Dept. of Textile Technology
Anna University Chennai.
19. The Committee appointed by the University thoroughly
scrutinized the qualification, experience and published works
of both the candidates and made its unanimous
E recommendations in favour of their appointments. The University
also clearly stated that the appointments of the appellants were
made in consonance with the terms of the provisions of the Act.
Admittedly, for the selections to the post of Readers, an Expert
Committee was constituted and thereafter, its
recommendations were accepted by the University and issued
F
orders accordingly. No one had any grievance so far as the
constitution of Experts Committee was concerned and no mala
fides have been levelled against any member of the expert
committee.
G
G
H
21. According to the advertisement, a relevant portion of
which has been set out in the preceding paragraph it is clearly
indicated that the qualification for appointment to the post of
H Reader was that candidates must possess consistently good
18. We deem it appropriate to mention that the University
had constituted an Expert Committee consisting of the leading
20. We have heard the learned counsel for the parties.
DR. BASAVAIAH v. DR. H.L. RAMESH & ORS.
[DALVEER BHANDARI, J.]
237
academic record with a Doctorate Degree or equivalent
published work.
22. According to respondent no.1, the appellants were not
eligible to be appointed because they had degrees in Zoology
and Botany respectively whereas only respondent no.1 was
eligible because he was the only one who had the Doctorate
degree in the subject of Sericulture.
23. In the impugned judgment dated 2.8.2005, the Division
Bench did not properly comprehend the qualifications for the
appointment of the Reader given in the advertisement. It is
clearly indicated in the advertisement that the qualification for
appointment as Reader was a Doctorate degree or equivalent
published work. Admittedly, both these appellants had extensive
published work in the national and international journals of
repute to their credit. This is clearly indicated in extenso in the
application forms which they had filled for the appointments for
the posts of Readers.
24. The learned Single Judge dismissed the writ petition
filed by respondent no.1 on the ground that selection had taken
place in 1999 and the appellants were working in their
respective teaching posts and the court did not deem it
appropriate to disturb the existing arrangement and dismissed
the petition.
25. The Division Bench in the impugned judgment allowed
the appeal filed by Dr. H.L. Ramesh, respondent no. 1 herein,
on the short ground that the appellants herein did not have
Doctorate degree in Sericulture. Therefore, they were not
qualified for appointment as Readers in Sericulture. In the
impugned judgment, the court did not properly comprehend the
advertisement in which it was clearly mentioned that the
prescribed qualification was Doctorate degree or equivalent
published work. According to the affidavit which has been filed
by the University, the Expert Committee consisting of highly
qualified five distinguished experts evaluated the qualification,
238
A
B
C
C
D
D
F
G
H
[2010] 9 S.C.R.
A experience and the published work of the appellants. They found
them eligible and suitable. The relevant portion of the affidavit
reads as under:-
B
E
SUPREME COURT REPORTS
“All the abovesaid members of the committee are experts
in the field of Sericulture. The said selection committee
thoroughly scrutinized the relative merits and demerits of
each candidates and made its recommendations. It is
needless to mention that the selection and appointment of
teachers is to be made in terms of Section 49 of the Act.
This respondent University has strictly followed the
Government orders issued from time to time regarding
reservations. After taking into consideration the orders
issued by the Government and the guidelines issued by
the University, the recommendation of the expert selection
committee has been accepted by the University and
accordingly impugned orders have been issued.”
26. It is abundantly clear from the affidavit filed by the
University that the Expert Committee had carefully examined
and scrutinized the qualification, experience and published work
E of the appellants before selecting them for the posts of Readers
in Sericulture. In our considered opinion, the Division Bench
was not justified in sitting in appeal over the unanimous
recommendations of the Expert Committee consisting of five
experts. The Expert Committee had in fact scrutinized the merits
F and de-merits of each candidate including qualification and the
equivalent published work and its recommendations were sent
to the University for appointment which were accepted by the
University.
27. It is the settled legal position that the courts have to
G show deference and consideration to the recommendation of
an Expert Committee consisting of distinguished experts in the
field. In the instant case, experts had evaluated the qualification,
experience and published work of the appellants and thereafter
recommendations for their appointments were made. The
H Division Bench of the High Court ought not to have sat as an
DR. BASAVAIAH v. DR. H.L. RAMESH & ORS.
[DALVEER BHANDARI, J.]
239
appellate court on the recommendations made by the country’s
leading experts in the field of Sericulture.
28. A similar controversy arose about 45 years ago
regarding appointment of Anniah Gowda to the post of
Research Reader in English in the Central College, Bangalore,
in the case of The University of Mysore and Anr. v. C.D.
Govinda Rao and Anr. AIR 1965 SC 491, in which the
Constitution Bench unanimously held that normally the Courts
should be slow to interfere with the opinions expressed by the
experts particularly in a case when there is no allegation of
mala fides against the experts who had constituted the
Selection Board. The court further observed that it would
normally be wise and safe for the courts to leave the decisions
of academic matters to the experts who are more familiar with
the problems they face than the courts generally can be.
29. We have been called upon to adjudicate the similar
matter of the same University almost after half a century. In a
judicial system governed by precedents, the judgments
delivered by the Constitution Bench and other Benches must
be respected and relied on with meticulous care and sincerity.
The ratio of the Constitution Bench has not been properly
appreciated by the learned judges in the impugned judgment.
30. In Dr. M.C. Gupta & Others v. Dr. Arun Kumar Gupta
& Others (1979) 2 SCC 339, somewhat similar controversy
arose for adjudication, in which the State Public Service
Commission invited applications for two posts of Professors
of Medicine in the State Medical Colleges. The two appellants
as well as respondent nos.1, 2 and 3 applied for the said post.
Appellant no.1 had teaching experience of about 6 years and
6 months as a Lecturer in Cardiology in the department of
medicine and about 3 years and 2 months as Reader in
Medicine in S. N. Medical College, Agra. Since there was no
separate Department of Cardiology in that College, Cardiology
formed part of general medicine and as such he was required
to teach general medicine to undergraduate students and to
240
A
B
C
D
E
F
G
H
SUPREME COURT REPORTS
[2010] 9 S.C.R.
A some post-graduate students in addition to Cardiology.
Similarly, appellant no.2 had one year’s experience as postdoctoral teaching fellow in the Department of Medicine, State
University of New York, Buffalo, one year’s teaching experience
as Lecturer while posted as a Pool Officer and 15 months’
B teaching experience as post-doctoral research fellow in the
Department of Medicine in G.S.V.M. Medical College, Kanpur
and about 4 years’ and 6 months’ teaching experience as
Assistant Professor of Medicine, State University of New York,
Buffalo. The cardiology is a part of medicine and the teaching
C experience acquired while holding the post of Lecturer in
Cardiology, was teaching experience in a subject which
substantially formed part of general medicine and over and
above the same. The Commission was amply justified in
reaching to the conclusion that he had the requisite teaching
experience. The High Court was, therefore, in error in quashing
D
his selection of the appellant in this case.
31. The teaching experience of foreign teaching institutions
can be taken into consideration if it is from the recognized and
institution of repute. It cannot be said that the State University
E of New York at Buffalo, where appellant no.2 served as an
Assistant Professor would not be an institution of repute. The
experts aiding and advising the Commission must be quite
aware of institutions in which the teaching experience was
acquired by him and this one is a reputed University.
F
32. According to the experts of the Selection Board, both
the appellants had requisite qualification and were eligible for
appointment. If they were selected by the Commission and
appointed by the Government, no fault can be found in the
same. The High Court interfered and set aside the selections
G
made by the experts committee. This Court while setting aside
the judgment of the High Court reminded the High Court that it
would normally be prudent and safe for the courts to leave the
decision of academic matters to experts. The Court observed
as under:
H
DR. BASAVAIAH v. DR. H.L. RAMESH & ORS.
[DALVEER BHANDARI, J.]
241
“7. ….When selection is made by the Commission aided
and advised by experts having technical experience and
high academic qualifications in the specialist field, probing
teaching research experience in technical subjects, the
Courts should be slow to interfere with the opinion
expressed by experts unless there are allegations of mala
fides against them. It would normally be prudent and safe
for the Courts to leave the decision of academic matters
to experts who are more familiar with the problems they
face than the Courts generally can be…”
33. In Dr. J. P. Kulshrestha & Others v. Chancellor,
Allahabad University & Others (1980) 3 SCC 418, the court
observed that the court should not substitute its judgment for
that of academicians:
“17. Rulings of this Court were cited before us to hammer
home the point that the court should not substitute its
judgment for that of academicians when the dispute relates
to educational affairs. While there is no absolute ban, it is
a rule of prudence that courts should hesitate to dislodge
decisions of academic bodies. … … …”
242
A
B
C
35. In Neelima Misra v. Harinder Kaur Paintal & Others
(1990) 2 SCC 746, the court relied on the judgment in
[2010] 9 S.C.R.
A University of Mysore (supra) and observed that in the matter
of appointments in the academic field, the court generally does
not interfere. The court further observed that the High Court
should show due regard to the opinion expressed by the
experts constituting the Selection Committee and its
B recommendation on which the Chancellor had acted.
36. In Bhushan Uttam Khare v. Dean, B.J. Medical
College & Others (1992) 2 SCC 220, the court placed reliance
on the Constitution Bench decision in University of Mysore
(supra) and reiterated the same legal position and observed
C
as under:
“8. … the Court should normally be very slow to pass
orders in its jurisdiction because matters falling within the
jurisdiction of educational authorities should normally be
left to their decision and the Court should interfere with
them only when it thinks it must do so in the interest of
justice. … … …”
D
D
E
37. In Dalpat Abasaheb Solunke & Others v. Dr. B.S.
Mahajan & Others (1990) 1 SCC 305, the court in some what
E
similar matter observed thus:
34. In Maharashtra State Board of Secondary and Higher
Secondary Education & Another v. Paritosh Bhupeshkumar
Sheth & Others (1984) 4 SCC 27, the court observed thus:
“29. … As has been repeatedly pointed out by this
Court, the Court should be extremely reluctant to substitute
its own views as to what is wise, prudent and proper in
relation to academic matters in preference to those
formulated by professional men possessing technical
expertise and rich experience of actual day-to-day working
of educational institutions and the departments controlling
them. .. … …”
SUPREME COURT REPORTS
F
F
G
G
H
H
“… … …It is needless to emphasise that it is not the
function of the court to hear appeals over the decisions of
the Selection Committees and to scrutinize the relative
merits of the candidates. Whether a candidate is fit for a
particular post or not has to be decided by the duly
constituted Selection Committee which has the expertise
on the subject. The court has no such expertise. The
decision of the Selection Committee can be interfered with
only on limited grounds, such as illegality or patent material
irregularity in the constitution of the Committee or its
procedure vitiating the selection, or proved mala fides
affecting the selection etc. It is not disputed that in the
present case the University had constituted the Committee
in due compliance with the relevant statutes. The
DR. BASAVAIAH v. DR. H.L. RAMESH & ORS.
[DALVEER BHANDARI, J.]
243
Committee consisted of experts and it selected the
candidates after going through all the relevant material
before it. In sitting in appeal over the selection so made
and in setting it aside on the ground of the so called
comparative merits of the candidates as assessed by the
court, the High Court went wrong and exceeded its
jurisdiction.”
244
A
B
38. The Chancellor & Another etc. v. Dr. Bijayananda Kar
& Others (1994) 1 SCC 169, the court observed thus:
“9. This Court has repeatedly held that the decisions
of the academic authorities should not ordinarily be
interfered with by the courts. Whether a candidate fulfils the
requisite qualifications or not is a matter which should be
entirely left to be decided by the academic bodies and the
concerned selection committees which invariably consist
of experts on the subjects relevant to the selection….”
39. In Chairman J&K State Board of Education v. Feyaz
Ahmed Malik & Others (2000) 3 SCC 59, the court while
stressing on the importance of the functions of the expert body
observed that the expert body consisted of persons coming
from different walks of life who were engaged in or interested
in the field of education and had wide experience and were
entrusted with the duty of maintaining higher standards of
education. The decision of such an expert body should be given
due weightage by courts.
40. In Dental Council of India v. Subharti K.K.B.
Charitable Trust & Another (2001) 5 SCC 486, the court
reminded the High Courts that the court’s jurisdiction to interfere
with the discretion exercised by the expert body is extremely
limited.
SUPREME COURT REPORTS
[2010] 9 S.C.R.
A the court should not normally interfere or interpret the rules and
should instead leave the matter to the experts in the field.
42. In B.C. Mylarappa alias Dr. Chikkamylarappa v. Dr.
R. Venkatasubbaiah & Others (2008) 14 SCC 306, the court
again reiterated legal principles and observed regarding
B
importance of the recommendations made by the expert
committees.
C
43. In Rajbir Singh Dalal (Dr.) v. Chaudhari Devi Lal
University, Sirsa & Another (2008) 9 SCC 284, the court
C reminded that it is not appropriate for the Supreme Court to
sit in appeal over the opinion of the experts.
D
44. In All India Council for Technical Education v.
Surinder Kumar Dhawan & Others (2009) 11 SCC 726, again
D the legal position has been reiterated that it is a rule of prudence
that courts should hesitate to dislodge decisions of academic
bodies.
E
F
G
41. In Medical Council of India v. Sarang & Others (2001)
8 SCC 427, the court again reiterated the legal principle that
H
45. We have dealt with the aforesaid judgments to reiterate
and reaffirm the legal position that in the academic matters, the
E courts have a very limited role particularly when no mala fide
has been alleged against the experts constituting the selection
committee. It would normally be prudent, wholesome and safe
for the courts to leave the decisions to the academicians and
experts. As a matter of principle, the courts should never make
F an endeavour to sit in appeal over the decisions of the experts.
The courts must realize and appreciate its constraints and
limitations in academic matters.
46. In the impugned judgment, the High Court has ignored
G the consistent legal position. They were expected to abide by
the discipline of the precedents of the courts. Consequently, we
are constrained to set aside the impugned judgment of the
Division Bench of the High Court and restore the judgment of
the Single Judge of the High Court.
H
47. The University of Mysore, respondent herein, is
DR. BASAVAIAH v. DR. H.L. RAMESH & ORS.
[DALVEER BHANDARI, J.]
[2010] 9 S.C.R. 246
245
directed to give regular pay-scale to the appellants from 1st
August, 2010. To avoid any further litigation, we may make it
clear that the appellants would not be entitled to claim any
arrears or benefits for the past period.
A
A
48. The appeals are allowed, but, in the facts and
circumstances of the case, we direct the parties to bear their
own costs.
B
B
N.J.
UNION OF INDIA AND OTHERS
v.
MAHAVEER C. SINGHVI
(SLP (C) No. 27702 of 2008)
JULY 29, 2010
[ALTAMAS KABIR, J.M. PANCHAL AND CYRIAC
JOSEPH, JJ.]
Appeals allowed.
Service Law:
C
Discharge of an IFS probationer during the period of
probation – Challenged – HELD: The order had been issued
on account of the alleged misconduct of the probationer which
was the very basis of the order, although nothing was found
D against him on the basis of the inquiries conducted – The
order was passed as a punitive measure without giving the
probationer any opportunity of defending himself and, as
such, was rightly set aside by the High Court – Natural justice.
The respondent, who was appointed to the Indian
E Foreign Service on 21.9.1999, was, by order dated
13.6.2002, discharged from the service as IFS Probationer
during the period of probation. He challenged the order
before the Central Administrative Tribunal. It was
submitted that the order was passed because the
F respondent protested against the manner in which he
had been deprived of his choice of German as his
language allotment by deliberately altering the rules of
allotment of languages for the year 1999 to benefit a
certain candidate. The Tribunal dismissed the application.
G The respondent filed a writ petition before the High Court
emphasizing that his discharge from service was not a
discharge simpliciter, but was the result of an inquiry
conducted behind his back on a complaint of one ‘NC’
regarding threat and abusive and sexually explicit
246
H
UNION OF INDIA AND ORS. v. MAHAVEER C.
SINGHVI
247
remarks alleged to have been made by him to her
daughter, though nothing adverse could be found
against him. The High Court quashed the order of
discharge and directed reinstatement of the respondent
with all consequential benefits. Aggrieved, the Union of
India and others filed the petition for special leave to
appeal.
248
*Purshotam Lal Dhingra vs. Union of India 1958 SCR
828; and Radhey Shyam Gupta vs. U.P. State Agro Industries
Corporation Ltd. and Anr. 1998 (3) Suppl. SCR 558 = (1999)
2 SCC 21, relied on.
A decision was ultimately taken by the Director, Vigilance
Division to terminate the services of the respondent,
stating that the proposal had the approval of the Minister
of External Affairs. [Para 31] [264-E-H; 265-A-E]
B
B
C
D
E
Shamsher Singh vs. State of Punjab and Another 1975
(1) SCR 814=AIR 1974 SC 2192 = 1974 (2) SCC 831,
referred to.
1.2. In the instant case, although, nothing was found
against the respondent on the basis of the inquiries
conducted on the complaint made by ‘NC’, the same was
taken into consideration which is reflected from the
observation made by the Joint Secretary (CNV) that he
had no doubt that the respondent would blacken the
country’s name. There is absolutely no material on record
to support such an observation made by a responsible
official in the Ministry, which clearly discloses the
prejudice of the authorities concerned against the
respondent. What is, however, most damning is that a
[2010] 9 S.C.R.
A
Dismissing the petition, the Court
HELD: 1.1. It has been repeatedly expressed by this
Court from Purshotam Lal Dhingra* onwards that if the
inquiries on the allegations made against an employee
formed the foundation of the order of discharge, without
giving the employee concerned an opportunity to defend
himself, such an order of discharge would be bad and
liable to be quashed. [para 29] [264-A-B]
SUPREME COURT REPORTS
F
G
H
Dipti Prakash Banerjee vs. Satyendra Nath Bose
National Centre for Basic Sciences, Calcutta and Ors. 1999
(1) SCR 532= (1999) 3 SCC 60, held inapplicable.
1.3. The petitioners have not been able to
satisfactorily explain why the rules/norms for allotment of
C languages were departed from only for the year 1999, so
that the respondent was denied his right of option for
German. The mode of allotment was amended for the
1999 Batch in such a calculated fashion that the officer,
who was at Serial No.7, was given the choice of German
D over and above the respondent who was graded at two
stages above her. [Para 29] [263-F-H]
1.4. Not only is it clear from the materials on record,
but even in their pleadings the petitioners have
themselves admitted that the order of 13th June, 2002,
E
had been issued on account of the respondent’s
misconduct and that misconduct was the very basis of
the said order. That being so, having regard to the
consistent view taken by this Court that if an order of
discharge of a probationer is passed as a punitive
F measure, without giving him an opportunity of defending
himself, the same would be invalid and liable to be
quashed, and the same finding would also apply to the
respondent’s case. The order dated 13th June, 2002, by
which the respondent was discharged from service, was
G punitive in character and had been motivated by
considerations which are not reflected in the said order.
[Para 28 and 31] [264-F-G; 263-E]
1.5. Since the High Court has gone into the matter in
depth
after perusing the relevant records and nothing has
H
UNION OF INDIA AND ORS. v. MAHAVEER C.
SINGHVI
249
250
been pointed out to persuade this Court to take a
different view, there is no reason to interfere with the
judgment and order of the High Court. [Para 31] [264-EH]
A
Shamsher Singh vs. State of Punjab and Another 1975
(1) SCR 814=AIR 1974 SC 2192 = 1974 (2) SCC 831;
Benjamin (A.G.) vs. Union of India 1967 (1) LLJ 718 (SC);
Pavanendra Narayan Verma vs. Sanjay Gandhi PGI of
Medical Sciences 2001 (5) Supl. SCR 41= (2002) 1 SCC
520; State of Haryana vs. Satyender Singh Rathore 2005 (3)
Suppl. SCR 126= (2005) 7 SCC 518; Jai Singh vs. Union of
India (2006) 9 SCC 717; Gujarat Steel Tubes Ltd. vs. Gujarat
Steel Tubes Mazdoor Sabha AIR 1980 SC 1896; Life
Insurance Corp. of India vs. Shri Raghvendra Seshagiri Rao
Kulkarni JT 1997 (8) SC 373; State of Punjab vs. Shri Sukh
Raj Bahadur 1968 (3) SCR 234; Chaitanya Prakash and Anr.
vs. H. Omkarappa (2010) 2 SCC 623; State of Bihar vs. Shiva
Bhikshuk Mishra 1971 (2) SCR 191= (1970) 2 SCC 871;
Anoop Jaiswal vs. Government of India and Anr. 1984 (2)
SCR 453=(1984) 2 SCC 369; Nehru Yuva Kendra
Sangathan vs. Mehbub Alam Laskar 2008 (1) SCR 1069 =
(2008) 2 SCC 479, cited.
B
A
B
D
C
held inapplicable
para 5
1958 SCR 828
relied on
para 13
1998 (3) Suppl.
SCR 558
cited
para 14
1975 (1) SCR 814
referred to
para 15
1958 SCR 828
cited
para 20
1967 (1) LLJ 718 (SC) cited
para 21
2001 (5) Supl. SCR 41 cited
para 22
[2010] 9 S.C.R.
2005 (3) Suppl. SCR 126 cited
para 22
(2006) 9 SCC 717
cited
para 22
AIR 1980 SC 1896
cited
para 22
JT 1997 (8) SC 373
cited
para 22
1968 (3) SCR 234
cited
para 22
(2010) 2 SCC 623
cited
para 23
cited
para 27
1984 (2) SCR 453
cited
para 27
2008 (1 ) SCR 1069
cited
para 27
1971 (2) SCR 191
C
CIVIL APPELLATE JURISDICTION : SLP (Civil) No.
27702
of 2008.
D
From the Judgment & Order dated 29.08.2008 of the High
Court of Delhi at New Delhi in W.P. (C) No. 8091/2003.
E
P.P. Malhotra, ASG, Rekha Pandey, Rohitash S. Nagar,
E Madhurima, Chetan Chawla, Anil Katiyar, B. Krishna Prasad
for the Petitioners.
Case Law Reference:
1999 (1) SCR 532
SUPREME COURT REPORTS
Jayant Bhushan, Pallav Shisodia, Manish K. Bishnoi,
Samir Ali Khan, Gautam Talukdar for the Respondent.
F
G
H
F
The Judgment of the Court was delivered by
ALTAMAS KABIR, J. 1. After an outstanding academic
career under the Rajasthan Secondary Board and the
University of Jodhpur, the Respondent appeared for the Civil
G Services Examination, 1998, conducted by the Union Public
Service Commission and on account of his brilliant
performance, he was appointed to the Indian Foreign Service
on 21st September, 1999. But on 13th June, 2002, he was
discharged from service by the following order :H
UNION OF INDIA AND ORS. v. MAHAVEER C.
SINGHVI [ALTAMAS KABIR, J.]
251
“The President hereby discharges forthwith from
service Shri Mahaveer C. Singhvi, IFS Probationer (1999
Batch), in accordance with the terms of employment
issued vide order No.Q/PA.II/578/32/99 dated 21st
September, 1999.
By order and in the name of the President.
252
A
B
Sd/(P.L. Goyal)
Addl. Secretary (AD)”
2. Although, the aforesaid order appears to be an
innocuous order of discharge simpliciter of a probationer, the
same has given rise to a question of law relating to service
jurisprudence which has been considered over and over again
for the last five decades. However, even though the principles
laid down by this Court in the various cases have been uniformly
followed, there have been individual cases which have thrown
up new but related issues which have been considered on their
own merits. As will be apparent from the aforesaid order dated
13th June, 2002, the question with which we are concerned in
this Special Leave Petition (S.L.P.) relates to the discharge
from service of a probationer during his period of probation. In
order to be able to appreciate the said question in the facts of
this case, it is necessary to set out the background in which
the order of 13th June, 2002, came to be passed and the
manner in which the same was dealt with by the Central
Administrative Tribunal and the Delhi High Court.
3. The case made out by the Respondent before the
Central Administrative Tribunal, is that he was deployed to the
East Asia Division of the Ministry of External Affairs. He was,
thereafter, asked to give his preference for allotment of the
study of a compulsory foreign language. The Respondent opted
for French, German, Arabic and Spanish in the said order of
preference. In view of his position in the merit list, the
Respondent should have been allotted German. However, in
deviation from the prevalent procedure whereby the allotments
C
D
E
F
G
H
SUPREME COURT REPORTS
[2010] 9 S.C.R.
A relating to study of a compulsory foreign language were made
on the basis of gradation in the merit list, the Respondent was
informed by a letter dated 11th January, 2001, that he had been
allotted Spanish which was his last choice. The Respondent
thereafter made a representation against such allotment, but
B he was directed by the Petitioner No.2 Mr. P.L. Goyal, who was
the then Additional Secretary (Admn.), to remain silent over the
issue. The Respondent was, thereafter, posted in Madrid,
Spain, in confirmation of the allocation of Spanish to him, but
for his language training he was directed to proceed to
C Valladolid, which was at a great distance from Madrid. The
Respondent thereupon made a further request for arranging his
language training at Madrid, where he had been posted since
he wanted to take his dependent and ailing parents with him
to Madrid. On account of the sudden deterioration of the health
condition of his parents, the Respondent sought permission to
D
join the language course at a later date and such permission
was apparently granted by the Mission at Madrid by a
communication dated 10th September, 2001. As the date for
the new course was not intimated to the Respondent and there
was no improvement in his father’s condition, the Respondent
E sought further extension to join the Mission and the same was
also granted on 18th February, 2002. Accordingly, the
Respondent planned to join the Mission in July/August, 2002,
but in the note of 18th February, 2002, the request for providing
medical facilities and diplomatic passports to the Respondent’s
F dependent parents was not granted. According to the
Respondent, he was thereafter served with the order of
discharge from service dated 13th June, 2002, set out
hereinabove.
4. The Respondent challenged the said order dated 13th
June, 2002, before the Central Administrative Tribunal in
O.A.No.2038 of 2002, contending that after the expiry of his
period of probation, he stood confirmed and his services could
not have been terminated without an enquiry in view of the
H provisions of Article 311(2) of the Constitution. It was also
G
UNION OF INDIA AND ORS. v. MAHAVEER C.
SINGHVI [ALTAMAS KABIR, J.]
253
contended that the order of 13th June, 2002, had been passed
in complete violation of the principles of natural justice as the
Respondent was not given a hearing or an opportunity to
defend himself against the allegations which formed the
foundation of the said order. It was also submitted that since
the Respondent had protested against the dubious manner in
which he had been illegally deprived of his choice of German
as his language allotment, the authorities who had deliberately
altered the rules of allotment of language for the year 1999 to
benefit a certain candidate, were determined to see that the
Respondent was discharged from service. It was submitted that
the method adopted for the year 1999 for allotment of languages
was discontinued thereafter and the authorities thereafter
reverted to the old method which was continuously followed till
it was altered only for the year 1999. It was submitted that by
adopting the method in question, the candidates who figured
in the select list of ten, but were graded below the Respondent,
were given an opportunity to exercise their option, while denying
such opportunity to the Respondent who was left with no option
of preference as per his choice at the end of the exercise.
5. Negating the submissions made on behalf of the
Respondent herein, the Tribunal by its judgment and order
dated 4th September, 2003, dismissed the Respondent’s
O.A.No.2038 of 2002, upon holding that the Petitioners had no
intention of conducting an inquiry against the Respondent, but
they did not also want him to continue in service, which could
only be a motive and not the foundation for discharging the
Respondent from service. In order to buttress its finding, the
Tribunal relied upon the decision of this Court in Dipti Prakash
Banerjee vs. Satyendra Nath Bose National Centre for Basic
Sciences, Calcutta & Ors. [(1999) 3 SCC 60], wherein the
question as to in what circumstances an order of termination
of a probationer can be said to be punitive fell for consideration.
It was held by this Court that whether an order of termination of
a probationer can be said to be punitive or not depends on
whether the allegations which are the cause of the termination
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A are the motive or foundation. It was observed that if findings
were arrived at in inquiry as to misconduct, behind the back of
the officer or without a regular departmental enquiry, a simple
order of termination is to be treated as founded on the
allegations and would be bad, but if the enquiry was not held,
B and no findings were arrived at and the employer was not
inclined to conduct an enquiry, but, at the same time, he did
not want to continue the employee’s services, it would only be
a case of motive and the order of termination of the employee
would not be bad.
C
6. One other aspect which was subsequently agitated
before the High Court but does not find place in the decision
rendered by the Central Administrative Tribunal in its judgment
and order dated 4th November, 2003, relates to a complaint
alleged to have been made against the Respondent by one
D Mrs. Narinder Kaur Chadha, the mother of one Ms. Arleen
Chadha, to the Minister of External Affairs on 7th February,
2002, alleging that the Respondent had been threatening her
daughter and the entire family. In the said complaint, it was
indicated that the Respondent had met her daughter in 1997
E and had been harassing her since then. It was also indicated
that her daughter had been thoroughly demoralized and
disturbed by the Respondent’s behaviour and that she had
suffered both mentally and physically, as a result of which her
marriage could not be finalized. The complainant sought
F suitable action against the Respondent for allegedly misusing
his official position.
7. It also appears that the Minister concerned had met Mrs.
Narinder Kaur Chadha and Ms. Arleen Chadha on the same
day and the matter had been referred to the Joint Secretary and
G
the Director (Vigilance) and a copy of the complaint was sent
by the Minister to the Vigilance Division on 8th February, 2002,
with a direction that the matter be looked into at the earliest.
Some enquiries appear to have been conducted about the
Respondent’s conduct and character by the Joint Secretary,
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Foreign Service Institute (FSI) but nothing adverse could be
found against him. Despite the above, on 19th February, 2002,
the Joint Secretary (Vigilance) held further discussions with the
Joint Secretary (Admn.) and, thereafter, a Memorandum was
issued to the Respondent on the very same day alleging his
unauthorized absence.
8. Although, the said allegations were duly denied by the
Respondent, on 8th March, 2002, the Director, Vigilance
Division, prepared a formal inquiry report stating that there were
some complaints of misconduct against the Respondent and
that the Minister desired action to be taken against him.
Accordingly, on 5th April, 2002, Shri P.L. Goyal, Additional
Secretary (Admn.) noted that as desired by the Minister, the
Respondent had been called for a hearing in the presence of
the Joint Secretary (CNV) and Under Secretary (FSP) and a
decision was ultimately taken by the Director on 23rd April,
2002, to terminate the services of the Respondent and stated
that the proposal had the approval of the Minister of External
Affairs. Certain new materials were introduced against the
Respondent relating to a written complaint which had been
received from a Desk Officer in the Department of Personnel
& Training (DoPT) alleging that the Respondent had threatened
him and tried to bribe him to effect a change in allotment of his
service from the I.F.S. The proposal to terminate the services
of the Respondent was said to have been ultimately approved
by all the superior authorities and in their reply filed before the
Tribunal, the Petitioners had stated that the Respondent herein
had been discharged from service, primarily for his misconduct
in office. This led the Tribunal to conclude that the record was
so clear that the only conclusion that could have been arrived
at is that the findings of misconduct arrived at by the Petitioners
were only the motive for the orders discharging the Respondent
from service.
9. The Respondent challenged the judgment and order of
the Tribunal dated 4th September, 2003, dismissing his
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A O.A.No.2038 of 2002, before the Delhi High Court in
W.P.(C)No.8091 of 2003. It was emphasized on his behalf that
his discharge from service was not a discharge simpliciter, but
the decision taken in that behalf was the result of an enquiry
conducted behind his back in relation to a complaint alleged
B to have been made by Mrs. Narinder Kaur Chadha regarding
threatening, abusive and sexually explicit remarks allegedly
made by the Respondent to her daughter. It was submitted that
the same would be evident from the pleadings made on behalf
of the Petitioners which would unequivocally constitute an
C admission on the part of the Petitioners that the order of
discharge dated 13.6.2002 discharging the Respondent from
his duties was passed because of the Respondent’s alleged
misconduct which was the very foundation of the said order.
10. It was also contended that the Additional Secretary, Mr.
D P.L. Goyal and some others were nursing a grudge against him
on account of his protest against the dubious alteration of the
allotment of language rules for the year 1999, in order to give
a choice of language allotment to five candidates who were
below the Respondent in the Select List of ten chosen for the
E Foreign Service, while denying the same to the Respondent.
Once the complaint was received from Mrs. Narinder Kaur
Chadha, the Petitioners stepped into over drive to remove the
Respondent from the Foreign Service Cadre by any means at
their disposal, but without giving the Respondent an opportunity
F of hearing to defend himself.
11. On behalf of the Petitioners herein, the submissions
made before the Tribunal were reiterated by the learned
Additional Solicitor General. It was admitted that the Petitioners
had discharged the Respondent from service for misconduct
G
during his period of probation, which the Petitioners were
entitled to do not only under the terms and conditions of the
Respondent’s appointment, but also under Rule 16(2) of the
Indian Foreign Service (Recruitment, Cadre, Promotion,
Seniority) Rules, 1961, which empowers the Central
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Government to discharge any probationer from service, who
may be found unsatisfactory during the period of probation.
12. It was also contended that since no enquiry was
contemplated against the Respondent, the order of discharge
simpliciter during the Respondent’s period of probationary
service, without attaching any stigma, was valid and no
interference was called for therewith in the Writ Petition.
Reliance was placed on several decisions, but, in particular,
on the decision in Dipti Prakash Banerjee’s case (supra) which
has been discussed hereinbefore in paragraph 5.
13. After considering the various decisions cited by the
learned Additional Solicitor General, beginning with the
decision of this Court in Purshotam Lal Dhingra vs. Union of
India [1958 SCR 828], the High Court accepted the case of
the Respondent and observed that it was left with no doubt that
the entire object of the exercise was to camouflage the real
intention of the Petitioners, which was to remove the
Respondent for something about which they had convinced
themselves, but did not think it necessary to give the
Respondent an opportunity to clear his name. The High Court
by the impugned judgment dated 29.9.2008, accordingly
quashed the order of discharge of the Respondent from the
Indian Foreign Service dated 13.6.2002, along with the orders
passed by the Tribunal on 4.9.2003 dismissing the
Respondent’s O.A.No.2038 of 2002 and on 14.11.2003
rejecting the Respondent’s Review Application No.323 of 2003,
with a direction to reinstate the Respondent in the Indian
Foreign Service Cadre of the 1999 Batch, along with all
consequential benefits, including consequential seniority, within
a month from the date of the order.
14. In allowing the Writ Petition filed by the Respondent,
the High Court referred to and relied on the decision of this
Court in the case of Radhey Shyam Gupta vs. U.P. State Agro
Industries Corporation Ltd. & Anr. [(1999) 2 SCC 21], wherein
this Court had held that in cases where termination is preceded
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A by an enquiry, evidence is received and findings as to
misconduct of a definite nature are arrived at behind the back
of the officer and where on the basis of such a report the
termination order is issued, such an order would be violative
of the principles of natural justice.
B
15. The High Court also referred to the Special Bench
decision of this Court in Shamsher Singh vs. State of Punjab
and another [ AIR 1974 SC 2192 = 1974 (2)SCC 831] which
was a decision rendered by a Bench of seven Judges, holding
that the decisive factor in the context of the discharge of a
C
probationer from service is the substance of the order and not
the form in determining whether the order of discharge is
stigmatic or not or whether the same formed the motive for or
foundation of the order.
16. In the facts of the case the High Court came to the
conclusion that a one-sided inquiry had been conducted at
different levels. Opinions were expressed and definite
conclusions relating to the Respondent’s culpability were
reached by key officials who had convinced themselves in that
E regard. The impugned decision to discharge the Respondent
from service was not based on mere suspicion alone. However,
it was all done behind the back of the Respondent and
accordingly the alleged misconduct for which the services of
the respondent were brought to an end was not merely the
F motive for the said decision but was clearly the foundation of
the same.
D
17. The High Court was convinced that although the order
of discharge dated 13.6.2002 by which the Respondent was
discharged from service was not without substance, the same
G was bad and liable to be quashed since the respondent’s
services had been terminated without a formal inquiry and
without giving him any reasonable opportunity to defend himself.
18. Appearing for the Petitioners, Mr. P.P. Malhotra,
learned
Additional Solicitor General of India, reiterated the
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arguments which had been advanced before the learned
Tribunal and also before the High Court emphasizing that since
the Respondent had been discharged from service by a simple
order of discharge without any stigma attached thereto, the
Respondent was not entitled to the protection of Article 311(2)
of the Constitution. It was urged that since the Respondent had
not completed the probationary period, and was a probationer
when the order of discharge was made, it was within the
competence of the Petitioners to pass such an order if they
were dissatisfied with the performance of the Respondent
during the probation period. It was sought to be urged that an
assessment of a candidate appointed on probation has to be
made before his services may be confirmed. The process to
make an assessment of the performance of the probationer
often requires the confirming authorities to look into and
consider his complete performance, which could include lapses
on his part which could have adverse consequences for the
employer.
19. Mr. Malhotra submitted that in the instant case the
indisciplined acts and behaviour of the Respondent during his
period of probation were noticed and it was found that instead
of being an asset to the Indian Foreign Service, the Respondent
would ultimately become an embarrassment and thus were of
the view that he should be discharged from the service. Mr.
Malhotra repeated the stand taken by him before the High Court
that it was not the intention of the Petitioners to conduct an
inquiry into the various materials received relating to the
services of the Respondent, and, accordingly, a decision was
taken to discharge him from service on the ground of his
unsatisfactory performance during his period of probation,
although, the same does not find any place in the order of
discharge which was an order of discharge simpliciter. Mr.
Malhotra urged that in a series of judgments passed by this
Court it had repeatedly been held that if no stigma was attached
to the separation of ways between the authorities and the
probationer, the same would not amount to being the
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A foundation of a discharge simpliciter. Mr. Malhotra urged that
the High Court had erred in taking a contrary stand and had
travelled beyond its jurisdiction in going beyond the satisfaction
of the authorities in reaching the conclusion that the inquiry
conducted against the Respondent formed the foundation and
B not the motive for the impugned order of discharge.
20. In the aforesaid regard, Mr. Malhotra firstly referred to
the decision of this Court in Purshotam Lal Dhingra vs. Union
of India [1958 SCR 828] as to the scope of Article 311 of the
Constitution in relation to the appointment of a Government
C servant to a permanent post either in a substantive capacity or
on probation or even on an officiating basis. Dealing with
appointments on probation, this Court observed that an
appointment to a permanent post in Government service on
probation means, as in the case of a person appointed by a
D private employer, that the person so appointed is taken on trial.
Such an employment on probation would generally be for fixed
periods, but could also remain unspecified and under the
ordinary law of master and servant would come to an end during
or at the end of the probation period, if the servant so appointed
E on trial was found unsuitable and his service was terminated
by a notice. It was accordingly held that appointment to a
permanent post in Government service on probation is of a
transitory character and the person so appointed does not
acquire any substantive right to the post and his service can
F be terminated at any time during the period of probation.
G
21. Reference was also made to the decision rendered
by this Court in Benjamin (A.G.) vs. Union of India [1967 (1)
LLJ 718 (SC)], where the principles enunciated in Purshotam
Lal Dhingra (supra) were followed in regard to the termination
G
of service of a temporary Government servant. What was
sought to be highlighted was the right of the authorities to stop
a departmental proceeding and to pass an order of discharge
simpliciter to avoid attaching a stigma to the order of dismissal.
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22. Several other decisions on the same question, namely,
UNION OF INDIA AND ORS. v. MAHAVEER C.
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(1) Pavanendra Narayan Verma vs. Sanjay Gandhi PGI of
Medical Sciences [(2002) 1 SCC 520]; (2) State of Haryana
vs. Satyender Singh Rathore [(2005) 7 SCC 518]; (3) Dipti
Prakash Banerjee (supra); (4) Jai Singh vs. Union of India
[(2006) 9 SCC 717]; (5) Gujarat Steel Tubes Ltd. vs. Gujarat
Steel Tubes Mazdoor Sabha [AIR 1980 SC 1896]; (6) Life
Insurance Corp. of India vs. Shri Raghvendra Seshagiri Rao
Kulkarni [JT 1997 (8) SC 373]; and (7) State of Punjab vs. Shri
Sukh Raj Bahadur [1968 (3) SCR 234] were also referred to
by Mr. Malhotra. In the two latter cases, this Court relying on
the principles laid down in Purshotam Lal Dhingra’s case
(supra), reiterated the law that the requirement to hold a regular
departmental enquiry before dispensing with the services of a
probationer cannot be invoked in the case of a probationer,
especially when his services are terminated by an innocuous
order which does not cast any stigma on him. However, it was
also observed that it cannot be laid down as a general rule that
in no case can an enquiry be held. If the termination was
punitive and was brought about on the ground of misconduct,
Article 311(2) would be attracted and in such a case a
departmental enquiry would have to be conducted.
23. Mr. Malhotra lastly referred to one of the latest
decisions of this Court in this field in Chaitanya Prakash & Anr.
vs. H. Omkarappa [(2010) 2 SCC 623], wherein it was
observed that even if an order of termination refers to
unsatisfactory service of the concerned employee, the same
could not be termed as stigmatic.
24. Mr. Malhotra submitted that having regard to the
consistent view of this Court that the services of a probationer
can be discharged during the probationary period on account
of unsatisfactory service by way of termination simpliciter,
without holding a departmental enquiry, the order of the High
Court was contrary to the settled legal position and was,
therefore, liable to be set aside.
25. Appearing for the respondent, Mr. Jayant Bhushan,
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A learned Senior Advocate, submitted that the contentions urged
on behalf of the Petitioners herein had been fully considered
by the High Court which had, after considering the various
decisions of this Court, rightly come to the conclusion that the
Respondent’s discharge from service was not a discharge
B simpliciter, but was on account of several findings arrived at
behind his back on the basis of complaints made relating to
the Respondent’s moral integrity. He also submitted that apart
from the above, the protest raised by the Respondent with
regard to the unlawful manner in which the allotment of foreign
C languages to the 1999 Batch of I.F.S. officers had been made
by the authorities, was also a major factor in the decisionmaking process for removing the Respondent from the service.
It was contended that the authorities were desperate to cover
up the highly dubious and motivated manner in which the rules
of allotment were altered only in respect of the 1999 Batch of
D
I.F.S. appointees in order to favour a particular candidate who
was graded lower than the Respondent. Mr. Bhushan
highlighted the fact that despite being graded higher than five
other candidates in the select list of ten, the Respondent was
denied his right of preference relating to allotment of a foreign
E language of his choice in order to accommodate one Ms.
Devyani Khobragade, who was graded at two places below the
Respondent and wanted German as her first preference. Mr.
Bhushan submitted that a great amount of political pressure
was brought to bear upon the concerned authorities to ensure
F that Ms. Khobragade was allotted German as her language
preference, as she happened to be daughter of a powerful
I.A.S. officer in Maharashtra.
26. Mr. Bhushan submitted that the High Court had
G correctly held that the order of discharge was only a
camouflage, and in substance, it was a punitive order based
on malafide considerations relating to findings of misconduct
recorded against the Respondent behind his back.
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27. Mr. Bhushan submitted that, as has been rightly held
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263
by the High Court, the case of the Respondent was fully
covered by the series of decisions of this Court which have also
been referred to on behalf of the petitioners. Mr. Bhushan,
however, laid special emphasis on the following decisions of
this Court, some of which have also been cited on behalf of the
petitioners, namely, (1) State of Bihar vs. Shiva Bhikshuk
Mishra [(1970) 2 SCC 871]; (2) Shamsher Singh (supra); (3)
Gujarat Steel Tubes Ltd. (supra); (4) Anoop Jaiswal vs.
Government of India & Anr. [1984) 2 SCC 369]; (5) Nehru
Yuva Kendra Sangathan vs. Mehbub Alam Laskar [(2008) 2
SCC 479], wherein it has been repeatedly observed that if a
discharge is based upon misconduct or if there is a live
connection between the allegations of misconduct and
discharge, then the same, even if couched in language which
is not stigmatic, would amount to a punishment for which a
departmental enquiry was imperative. Various other decisions
were also cited by Mr. Bhushan, which reflect the same views
as expressed by this Court in the above-mentioned decisions.
28. From the facts as disclosed and the submissions made
on behalf of the respective parties, there is little doubt in our
minds that the order dated 13th June, 2002, by which the
Respondent was discharged from service, was punitive in
character and had been motivated by considerations which are
not reflected in the said order.
29. The Petitioners have not been able to satisfactorily
explain why the rules/norms for allotment of languages were
departed from only for the year 1999 so that the Respondent
was denied his right of option for German and such choice was
given to Ms. Khobragade who was at two stages below the
Respondent in the gradation list. The mode of allotment was
amended for the 1999 Batch in such a calculated fashion that
Ms. Khobragade, who was at Serial No.7, was given her choice
of German over and above the Respondent who was graded
at two stages above her. The reason for us to deal with this
aspect of the matter is to see whether the case of the
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A Respondent is covered by the views repeatedly expressed by
this Court from Purshotam Lal Dhingra (supra) onwards to the
effect that if the inquiries on the allegations made against an
employee formed the foundation of the order of discharge,
without giving the employee concerned an opportunity to
B defend himself, such an order of discharge would be bad and
liable to be quashed.
30. In addition to the above, the then Minister of External
Affairs, Government of India, appears to have taken an active
interest on the complaint made by Mrs. Narinder Kaur Chadha
C and, although, nothing was found against the Respondent on
the basis of the inquiries conducted, the same was taken into
consideration which is reflected from the observation made by
Mr. Jayant Prasad, Joint Secretary (CNV) that he had no doubt
that the respondent would blacken the country’s name. There
D is absolutely no material on record to support such an
observation made by a responsible official in the Ministry, which
clearly discloses the prejudice of the authorities concerned
against the Respondent.
31. Since the High Court has gone into the matter in depth
after perusing the relevant records and the learned Additional
Solicitor General has not been able to persuade us to take a
different view, we see no reason to interfere with the judgment
and order of the High Court impugned in the Special Leave
Petition. Not only is it clear from the materials on record, but
F
even in their pleadings the Petitioners have themselves
admitted that the order of 13th June, 2002, had been issued
on account of the Respondent’s misconduct and that
misconduct was the very basis of the said order. That being
so, having regard to the consistent view taken by this Court that
G if an order of discharge of a probationer is passed as a punitive
measure, without giving him an opportunity of defending himself,
the same would be invalid and liable to be quashed, and the
same finding would also apply to the Respondent’s case. As
has also been held in some of the cases cited before us, if a
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finding against a probationer is arrived at behind his back on
the basis of the enquiry conducted into the allegations made
against him/her and if the same formed the foundation of the
order of discharge, the same would be bad and liable to be
set aside. On the other hand, if no enquiry was held or
contemplated and the allegations were merely a motive for the
passing of an order of discharge of a probationer without giving
him a hearing, the same would be valid. However, the latter view
is not attracted to the facts of this case. The materials on record
reveal that the complaint made by Mrs. Narinder Kaur Chadha
to the Minister of External Affairs had been referred to the Joint
Secretary and the Director (Vigilance) on 8th February, 2002,
with a direction that the matter be looked into at the earliest.
Although, nothing adverse was found against the Respondent,
on 19th February, 2002, the Joint Secretary (Vigilance) held
further discussions with the Joint Secretary (Admn.) in this
regard. What is, however, most damning is that a decision was
ultimately taken by the Director, Vigilance Division, on 23rd
April, 2002, to terminate the services of the Respondent, stating
that the proposal had the approval of the Minister of External
Affairs. This case, in our view, is not covered by the decision
of this court in Dipti Prakash Banerjee‘s case (supra).
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32. The Special Leave Petition is, accordingly dismissed,
with cost to the Respondent, assessed at Rs.25,000/- to be
paid to the Respondent by the Petitioners. All interim orders
are vacated and the Petitioners are given a month’s time from
today to comply with the directions given by the High Court in
its order dated 29th August, 2008, while allowing the writ
application filed by the Respondent.
F
R.P.
Special Leave Petition dismissed.
DASRATH
v.
STATE OF M.P.
(Criminal Appeal No. 1645 of 2009)
JULY 29, 2010
[V.S. SIRPURKAR AND DR. MUKUNDAKAM SHARMA,
JJ.]
Penal Code, 1860:
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s.304B – Dowry death – Appellant-husband and other
accused allegedly poured kerosene on deceased and lit fire,
which resulted in her death – Conviction of appellant u/s.304B
– Held: Appellant was rightly held guilty u/s.304B – Deceased
D died unnatural death within seven years of marriage – Report
of chemical analyser that kerosene residues found in the
clothes of deceased – Evidence of witness that the demands
were made on account of dowry and deceased was subjected
to cruelty and harassment by her in-laws soon before her
death – Presumption u/s.113B of Evidence Act also fully
E
established the case of prosecution – Necessary ingredients
of s.304B – Discussed – Evidence Act, 1872 – s.113B –
Crime against women.
F
s.201 – Unnatural death of wife of appellant – Hurried
cremation – Neither police informed nor the parents of the
deceased – Offence u/s.201 made out.
Prosecution case was that the deceased was married
to the appellant, and she was subjected to cruel
G treatment by the appellant and his family members. On
the fateful day, the brother of the deceased (PW-8) went
to the matrimonial home of the deceased on the occasion
of rakhi and came to know that the deceased was set on
fire by her in-laws by pouring kerosene and was in
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267
hospital. He returned and informed his father (PW-4)
about the incident. The father alongwith the co-villagers
proceeded to the hospital. On the way, one person
informed them about the death of the deceased. By the
time, they reached the village of appellant, the cremation
of the deceased was conducted. A chargesheet was filed
against the appellant, his father, the accused no.1 and his
sister, the accused no.3 under Sections 302, 304B and
201 IPC. Trial Court convicted the appellant and accused
no.1 under Section 304B IPC and under Section 201 IPC;
however it acquitted accused no.3. High Court upheld the
order of conviction of appellant. Accused no.1 died
during pendency of appeal and his appeal abated.
Aggrieved appellant filed the appeal.
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Dismissing the appeal, the Court
D
HELD: 1. There can be no dispute that the deceased
had died an un-natural death. In fact there was enough
evidence to suggest that she suffered the burn injuries.
It was not the defence of the accused that she died a
natural death. Both the courts below specifically held that
the deceased suffered burn injuries and died because of
the same. In fact PW-8 was specific in his evidence that
the deceased was burnt on account of the kerosene
poured on her body. No doubt, this witness was disbelieved and rightly so, insofar as his evidence about the
accused deliberately burning the deceased was
concerned. Again, it is clear from the report of the
chemical analyzer that the kerosene residues were found
from Packet-A which contained the clothes of the
deceased which were seized during the investigation.
Therefore, it is clear that the death was caused because
of the burns and not in the normal circumstances. The
finding of the trial Court and the appellate Court in that
behalf was correct. The argument of the defence cannot
be accepted that in the absence of corpus delicti, the
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A conviction would not stand. Similarly, there can be no
dispute that the deceased died within seven years of her
marriage. PW-1 specifically asserted that the marriage
was performed 3-4 years prior to the incident. Though this
witness was declared hostile, at least the fact that
B marriage had taken place 3-4 years prior to the incident
could be safely accepted. According to PW-2, also the
marriage had taken place within 5-6 years prior to trial.
Again even this witness was declared hostile. However,
that claim remained un-controverted. Third witness PW3, asserted that the marriage was performed 6-7 years
C
earlier to the date of his evidence. His evidence was in
May, 1997 and even taking that the marriage took place
somewhere in the year 1990, it would still be within seven
years. The father of the deceased also said that the
marriage took place 6-7 years prior to the date of his
D evidence which was again 30.09.1997. According to his
evidence, even if the marriage could date back to the year
1987, it would still put the death of the deceased within
seven years of her marriage. Therefore, it is certain that
the deceased died an un-natural death by burning within
E seven years of her marriage. The evidence shows that
there were demands of buffalo made to the father of the
deceased who did not accept that demand. He also
specifically stated in his evidence that after 1-½ years of
the marriage when he went to the house of the deceased,
F door was closed and the appellants were beating the
deceased and that the floor was smeared with blood and
blood was also oozing out from the mouth of the
deceased. He also asserted about the demand of a large
size television as the television which was given in
G marriage was a small colour television. This evidence of
torture was well supported by the evidence of PW-6, PW7 and PW-9. In view of this, the trial court and the courts
below recorded that the deceased died an un-natural
death because of burning within seven years of her
H marriage and that she was subjected to cruelty and
DASRATH v. STATE OF M.P.
269
270
harassment by her husband and/or relatives in
connection with the demand for dowry and that she was
subjected to cruelty soon before her death. [Paras 10, 11]
[274-B-H; 275-A-G]
A
2. As regards the offence under Section 201, IPC, it
was incumbent upon the accused persons to first inform
the police about the un-natural death of the deceased.
They did not do so. On the other hand, even after her
death, they did not inform either the police or even the
relatives like her father etc., though they could have done
so. Instead they hurriedly conducted the funeral thereby
causing destruction of evidence. In this case, funeral was
conducted in the evening. From all this, the prosecution
not only proved the offence under Section 304B, IPC with
the aid of Section 113B, Indian Evidence Act but also the
offence under Section 201, IPC. All the three ingredients
of Section 304B, IPC viz. that the death of a woman has
been caused by burns or bodily injury or occurs
otherwise than under normal circumstances; that such
death has been caused or has occurred within seven
years of her marriage; and that soon before her death the
woman was subjected to cruelty or harassment by her
husband or any relative of her husband in connection
with any demand for dowry.” as also the presumption
under Section 113B of the Evidence Act were fully
established the case of prosecution. Both the courts
below fully considered all the aspects of the mater. The
judgments of courts below are confirmed. [Paras 14, 15,
16] [276-D-H; 277-A-B]
B
State of Rajasthan v. Jaggu Ram 2008 (12) SCC 51 –
referred to.
referred to
B
[2010] 9 S.C.R.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1645 of 2009.
From the Judgment & Order dated 03.08.2007 of the High
Court of Madhya Pradesh Judicature at Jabalpur, Gwalior
Bench in Criminal Appeal No. 505/2001.
Dr. J.N. Singh, Jai Prakash Pandey for the Appellant.
Aishwarya Bhati, Rashid Khan, C.D. Singh for the
Respondent.
C
D
E
F
G
Case Law Reference:
2008 (12) SCC 51
A
SUPREME COURT REPORTS
Para 13
H
C
The Judgment of the Court was delivered by
V.S. SIRPURKAR, J. 1. The present appeal is directed
against the judgment of the High Court dismissing the appeal
of the appellant Dasrath. He was convicted by the Trial Court
D of the offence under Section 304B, Indian Penal Code (IPC)
and was sentenced to suffer rigorous imprisonment for 10
years and pay a fine of Rs. 5,000/- and in default directed to
suffer further imprisonment for one year. He was also convicted
for the offence under Section 201, IPC and was directed to
E suffer rigorous imprisonment for one year with a fine of
Rs.1,000/- and in default to suffer three month’s further
imprisonment.
2. Initially, as many as three accused persons came to be
tried by the Sessions Judge, they being accused No.1, Kalyan,
F
accused No.2, Dasrath and accused No.3, Smt. Usha. While
accused No.2, Dasrath is the present appellant, accused No.1,
Kalyan Singh and accused No.3, Smt. Usha are his father and
sister, respectively. The Trial Court had also convicted Kalyan
Singh for the same offence. However, it acquitted accused
G No.3, Smt. Usha from all the charges. Both the accused had
filed an appeal challenging their conviction and the sentences
before the High Court. However, during the pendency of the
appeal, accused No.1 Kalyan Singh expired and his appeal,
thus, abated. The appeal of Dasrath, the present appellant
H
DASRATH v. STATE OF M.P. [V.S. SIRPURKAR, J.]
271
came to be dismissed by the High Court and that is how he is
before us.
3. Shortly stated, the prosecution story was that Dasrath
was married to Pinki who died under suspicious circumstance
of burning. An intimation regarding death came to be given to
the Police Station Pandhokhar, Distt. Gwalior. The said
intimation was given by the complainant Vadehi Saran s/o
Ramanand Kaurav who was none else but the father of the
deceased Pinki. It was, inter alia, stated that on that day i.e.
12.8.1992 in the morning his son Jitendra Singh had gone to
village Saujna for Rakhi festival to his daughter Pinki’s house.
But he returned at about 7 p.m. and told him that Pinki had
caught fire and was sent to Daboh for treatment. Vadehi Saran
further stated that on hearing the news, he along with some covillagers went to Daboh. However, one Santosh belonging to
his village met him near Dugdha Dairy and told him that Pinki
had died. Then Vadehi Saran along with others went to village
Saujna. But by the time they reached there, Pinki’s cremation
was over. It was because of this that they came to the Police
Station and further action was requested on the basis of the
death report.
4. On this basis, a First Information Report was got
registered on 16.8.92 wherein it was recorded that the death
intimation was given on 12.8.92 at 23.15 hours orally about the
death of Pinki. It was recorded on a preliminary inquiry made
by Head Constable Jaswir Singh by visiting village Saujna and
the Station House Officer R.S. Purohit had also made inquiries
relating to the death. The place of occurrence was examined
by SDOP R.K. Hirodia and inquiry was made from the
deceased’s father Vadehi Saran, uncle Uttam Singh, brothers
Janved Singh and Jitendra Singh, mother Vidya Devi and sister
Pratibha. During this inquiry, it was found that the deceased was
married 2 years prior to the date of incident and because of
the non-payment of dowry, her husband Dasrath, father-in-law
Kalyan Singh and Sister-in-law Usha were harassing her. The
272
A
B
C
D
E
F
G
SUPREME COURT REPORTS
[2010] 9 S.C.R.
A earlier statement given by Vadehi Saran was repeated. It was
then mentioned that on 12.8.1992 the sister-in-law Usha,
husband Dasrath caught hold of Pinki and father-in-law Kalyan
Singh poured kerosene oil on her and set her on fire because
of which she got burnt. The accused thereafter cremated her
B and cleaned the place where occurrence had taken place.
5. On the basis of this, further investigation ensued and
after its completion, a charge-sheet came to be filed in the
Court for offences under Sections 302, 304 B and 201 IPC.
The accused were charged accordingly. The prosecution,
C during the trial, examined as many as 11 witnesses. The
accused persons abjured the guilt and as stated earlier only
two of them came to be convicted, namely, Kalyan Singh and
Dasrath. However, due to the death of Kalyan Singh during the
pendency of the appeal, the appeal filed by Dasrath alone is
D to be considered.
6. Learned Senior Counsel, Dr. J.N. Singh appearing on
behalf of the accused attacked the judgment of both the Courts
below, firstly, contending that conviction under Section 304B,
E IPC and Section, 201, IPC was wholly incorrect as it was not
proved that Pinki had died a suspicious or un-natural death
within the seven years of her marriage nor was her body found.
He also contended that there was no question of demanding
any dowry as no complaint was ever made for dowry nor was
F there any evidence regarding the demands of dowry. Lastly, he
suggested that there was no question of any offence having
been committed. He pointed out that the Trial Court had
acquitted all the accused of the offence under Section 302, IPC
though a charge was also framed under that Section and there
was no appeal by the State Government against the acquittal
G
under Section 302, IPC. Under such circumstances, it was clear
that the accused persons could not be held responsible for the
death of Pinki.
7. As against this, Ms. Aishwarya Bhati, Learned Counsel
H
H
DASRATH v. STATE OF M.P. [V.S. SIRPURKAR, J.]
273
appearing on behalf of the respondent pointed out that it could
not be said that the death did not take place within seven years
of marriage as the accused himself had admitted that the
marriage had taken place six years prior to the trial. She further
pointed out that there was a clear assertion made by the
witnesses in their evidence. More particularly, Vadehi Saran
(PW 4), Janved Singh (PW-5), Pratibha (PW-6) and Jitendra
Singh (PW-8) had clearly asserted that the dowry was asked
for by the accused persons. Learned Counsel further contended
that if Pinki had died of burning, a report ought to have been
made for un-natural death which the accused did not bother to
make, instead they had cremated the body of Pinki without even
intimating the relatives of the deceased and also without
waiting for the police. This was the most suspicious
circumstance which pointed towards the guilt of the accused.
8. It is on the basis of these rival versions that it is to be
seen as to whether the appellant Dasrath was rightly convicted
for the offence.
9. The first contention raised by the Learned Counsel for
the defence regarding the corpus delicti not being found was
countered by Ms. Bhati by saying that there can be no dispute
about the death of Pinki. It is not the defence of the accused
that Pinki was still living. On the other hand, the accused
persons admittedly had cremated her body on the fateful day.
Therefore, this is not a case, according to her, of corpus delicti
not being found and, therefore, there being a serious suspicion
about the death having taken place at all. The question is, in
the absence of corpus delicti, could it be presumed that the
accused persons alone were responsible for the death of Pinki.
We must hasten to add here that the accused persons have
already been acquitted of the murder charge. What remains to
be seen is as to whether Pinki died an un-natural death within
seven years of her marriage and whether her death was
attributable to the demand of dowry and further whether she
274
A
SUPREME COURT REPORTS
[2010] 9 S.C.R.
A was dealt with cruelly soon before her death. If these ingredients
are proved by the prosecution then the conviction of the
accused under Section 304B, IPC will be complete.
B
B
C
C
D
D
E
E
F
F
G
G
H
H
10. There can be no dispute that Pinki had died an unnatural death. In fact there is enough evidence to suggest that
Pinki suffered the burn injuries. It is not the defence of the
accused that she died a natural death. Both the Courts have
very specifically held that Pinki suffered burn injuries and died
because of the same. In fact Jitendra Singh (PW-8) was
specific in his evidence that Pinki was burning on account of
the kerosene having been poured on her body. In fact it is
apparent from his cross-examination that when Pinki shouted,
neighbours rushed to her house. There can be no dispute that
this witness has been dis-believed and rightly so, insofar as his
evidence about the accused deliberately burning Pinki is
concerned. However, there can be no dispute that Pinki was
burnt and it was clear that she had died an un-natural death.
Again, it is clear from the report of the chemical analyzer that
the kerosene residues were found from Packet-A which
contained the clothes of Pinki which were seized during the
investigation. Therefore, it is clear that Pinki’s death was
caused because of the burns and not in the normal
circumstances. The finding of the Trial Court and the appellate
Court in that behalf is correct. For this reason we are not
impressed by the argument of the Learned Counsel that in the
absence of corpus delicti, the conviction could not stand.
Similarly, there can be no dispute that Pinki died within seven
years of her marriage. Gandharv Singh (PW-1) had specifically
asserted that the marriage was performed 3-4 years prior to
the incident. Though this witness was declared hostile, at least
the fact that marriage had taken place 3-4 years prior to the
incident can be safely accepted. According to PW-2, Bhagwati
Saran also the marriage had taken place within 5-6 years prior
to trial. Again even this witness was declared hostile. However,
that claim remained un-controverted. Third witness PW-3, Hari
DASRATH v. STATE OF M.P. [V.S. SIRPURKAR, J.]
275
Saran asserted that the marriage was performed 6-7 years
earlier to the date of his evidence. His evidence was in May,
1997 and even taking that the marriage took place somewhere
in the year 1990, it would still be within seven years. Vadehi
Saran, the father also said that the marriage had taken place
6-7 years prior to the date of his evidence which was again
30.09.1997. Therefore, according to his evidence even if the
marriage could date back to the year 1987, it would still put the
death of Pinki within seven years of her marriage.
11. Therefore, it is certain that Pinki died an un-natural
death by burning within seven years of her marriage. As regards
dowry, Learned Counsel for the defence pointed out that there
was no specific evidence nor was any allegation made in the
First Information Report. We are not much impressed as we
have seen from the evidence that there were demands of
Buffalo made to Vadehi Saran, father of Pinki who did not
accept that demand. Vadehi Saran has also specifically stated
in his evidence that after 1 ½ years of the marriage when he
went to the house of Pinki in the month of Shravan, door was
closed and the appellants were beating Pinki and that the floor
was smeared with blood and blood was also oozing out from
the mouth of Pinki. He also asserted about the demand of a
large size television as the television which was given in
marriage was a small colour television. This evidence of torture
is well supported by the evidence of Pratibha (PW-6), Anant
Ram Singh (PW-7) and Uttam Singh (PW-9). In view of this,
the Trial court and the appellate Court have recorded that, firstly,
Pinki died an un-natural death because of burning within seven
years of her marriage and, secondly concluded that she was
subjected to cruelty and harassment by her husband and/or
relatives in connection with the demand for dowry and that she
was subjected to cruelty soon before her death.
276
A
B
C
D
SUPREME COURT REPORTS
[2010] 9 S.C.R.
A persons to firstly, inform the police about the un-natural death
of Pinki. They did not do so. On the other hand, even after her
death, they did not inform either the police or even the relatives
like her father etc., though they could have done so. In stead
they hurriedly conducted the funeral thereby causing destruction
B of evidence.
13. In State of Rajasthan v. Jaggu Ram [2008 (12) SCC
51], this Court has considered the circumstance about the noninformation to the parents and the hurried cremation. This was
also a case where accused persons were tried for offence
C under Section 304B, IPC, where the accused, after the death
of the unfortunate lady did not bother to inform her parents. In
paragraph 26, this Court took a serious note of the manner in
which the body was disposed of. The Court observed “the
disposal of the dead body in a hush-hush manner clearly
D establishes that the accused had done so with the sole object
of concealing the real cause of death of Shanti @ Gokul.”
14. In that case, the funeral was conducted in the wee
hours. In this case, funeral was conducted in the evening.
E
E
F
F
15. From all this, it is clear that the prosecution has not
only proved the offence under Section 304B, IPC with the aid
of Section 113B, Indian Evidence Act but also the offence
under Section 201, IPC. We are satisfied that all the three
ingredients of Section 304B, IPC, they being:
1. that the death of a woman has been caused by burns
or bodily injury or occurs otherwise than under normal
circumstances;
G
G
2. that such death has been caused or has occurred within
seven years of her marriage; and
3. that soon before her death the woman was subjected
to cruelty or harassment by her husband or any relative of
her husband in connection with any demand for dowry.”
12. Similar is the case as regards the offence under
Section 201, IPC. In fact it was incumbent upon the accused
H
H
DASRATH v. STATE OF M.P. [V.S. SIRPURKAR, J.] 277
as also the presumption under Section 113B of India Evidence
Act are fully established the case of prosecution.
16. We have gone through the judgments of the Trial Court
as well as the appellate Court carefully and we find that both
the Courts have fully considered all the aspects of this matter.
We, therefore, find nothing wrong with the judgments and
confirm the same. The appeal is, therefore, dismissed.
D.G.
[2010] 9 S.C.R. 278
A
A
B
B
SRINIVAS GUNDLURI & ORS.
v.
M/S. SEPCO ELECTRIC POWER CONSTRUCTION
CORPORATION & ORS.
(Criminal Appeal No. 1377 of 2010)
JULY 30, 2010
[P. SATHASIVAM AND ANIL R. DAVE, JJ.]
Appeal dismissed.
Code of Criminal Procedure, 1973 – s. 156(3) – Police
C officer’s power to investigate cognizable case – Criminal
complaint against appellants u/ss. 405, 406, 418, 420, 427,
503, 504, 506/34 and 120B of IPC before Magistrate –
Magistrate u/s. 156(3) directing police officer to register FIR,
conduct investigation and submit charge sheet thereafter –
D Legality of – Held: To proceed u/s. 156 (3), a bare reading of
complaint is required and if it discloses a cognizable offence,
then Magistrate instead of applying his mind to the complaint
for deciding whether or not there is sufficient ground for
proceeding, may direct police for investigation – On facts,
E Magistrate only ordered investigation u/s. 156 (3) – He
perused the complaint without examining the merits of the
claim that there is sufficient ground for proceeding or not –
Thus, the Magistrate did not commit any illegality in directing
police investigation.
F
The respondent-SEPCO and SSVG entered into a
works contract. It is alleged that SSGV misappropriated
the advance money given by SEPCO. SEPCO filed a
criminal complaint against SSVG u/ss. 405, 406, 418, 420,
427, 503, 504, 506/34 and 120B of IPC before the
G Magistrate, Korba. By the order dated 04.07.2009, the
Magistrate allowed the application filed under section 156
(3) of the Code of Criminal Procedure, 1973 and directed
the Station House Officer to register FIR, after due
H
278
SRINIVAS GUNDLURI v. SEPCO ELECTRIC POWER
CONSTRUCTION CORPORATION
279
enquiry, and to submit a chargesheet after investigation.
The appellant-Managing Director and Principal Officer of
SSVG filed a Writ Petition praying for quashing the order
passed by the Magistrate and to prohibit further
proceedings pending before the Magistrate. The Single
Judge of High Court dismissed the writ petition. The
Division Bench of the High Court upheld the order.
Thereafter, the police took the appellant into custody and
produced him for transit warrant before CMM, Hyderabad.
The appellant was granted transit bail. By order dated
22.04.2010, the CMM rejected the application for extension
of transit bail and issued non-bailable warrant against the
appellant for his arrest and production before the
Magistrate, Korba. The appellant challenged the order.
The High Court passed an interim order staying the said
order. Hence these appeals.
280
A
B
C
D
Allowing the appeal of SEPCO and dismissing that
of SSVG, the Court
HELD: 1.1 From the order of the Magistrate dated
04.07.2009 it is clear that the Magistrate only ordered
investigation under section 156 (3) of the Code of
Criminal Procedure, 1973. It also shows that the
Magistrate perused the complaint without examining the
merits of the claim that there is sufficient ground for
proceeding or not, directed the police officer concerned
for investigation under section 156 (3) of the Code. The
Single Judge of the High Court rightly observed that the
Magistrate did not bring into motion the machinery of
Chapter XV of the Code. He did not examine the
complainant or his witnesses under section 200 of the
Code which is the first step in the procedure prescribed
under the said Chapter. The question of taking next step
of the procedure envisaged in section 202 did not arise.
Instead of taking cognizance of the offence, the
Magistrate merely allowed the application filed by the
E
F
G
H
SUPREME COURT REPORTS
[2010] 9 S.C.R.
A complainant/SEPCO under section 156(3) of the Code
and sent the same along with its annexure for
investigation by the police officer concerned under
section 156 (3) of the Code. To proceed under section 156
(3) of the Code, what is required is a bare reading of the
B complaint and if it discloses a cognizable offence, then
the Magistrate instead of applying his mind to the
complaint for deciding whether or not there is sufficient
ground for proceeding, may direct the police for
investigation. In the instant case, the Single Judge and
C Division Bench of the High Court rightly pointed out that
the Magistrate did not apply his mind to the complaint for
deciding whether or not there is sufficient ground for
proceeding and, therefore, the Magistrate has not
committed any illegality in directing the police to register
FIR and conduct investigation. [Para 13] [298-G-H; 300D
A-G]
1.2 As a matter of fact, even after receipt of such
report, the Magistrate under section 190 (1) (b) may or
may not take cognizance of offence. In other words, he
E is not bound to take cognizance upon submission of the
police report by the Investigating Officer, hence, by
directing the police to file chargesheet or final report and
to hold investigation with a particular result cannot be
construed that the Magistrate has exceeded his power as
F provided in sub-section (3) of section 156. Neither the
chargesheet nor the final report has been defined in the
Code. The chargesheet or final report whatever may be
the nomenclature, it only means a report under section
173 of the Code which has to be filed by the police officer
G on completion of his investigation. [Paras 13 and 14] [300G-H; 301-B-C]
H
1.3 The Magistrate in passing the impugned order
has not committed any illegality leading to manifest
injustice warranting interference by the High Court in
SRINIVAS GUNDLURI v. SEPCO ELECTRIC POWER
CONSTRUCTION CORPORATION
281
exercise of extraordinary jurisdiction conferred under
Article 226 of the Constitution of India. The Single Judge
as well as the Division Bench rightly refused to interfere
with the limited order passed by the Magistrate. The
challenge at this stage by the appellants is pre-mature
and the High Court rightly rejected their request. [Para 14]
[301-C-D]
1.4 It is true that the counsel for the appellants,
highlighted that out of the claim of Rs. 21 crores, Rs. 10
crores have already been paid, the appellants have also
laid counter claim for Rs. 10 crores and in such a factual
scenario, there is no need to continue the criminal
proceedings and pray for deferment of the same till the
outcome of the civil proceedings. However, the counsel
for SEPCO, by taking through various allegations in the
complaint highlighted that SSVG by misappropriating the
advance money for the purpose other than for which it
was granted submitted that the Magistrate correctly
exercised his jurisdiction under Section 156 (3) and
referred the matter for investigation. He also submitted
that the complaint very much discloses cognizable
offence under sections 405, 406, 418, 420, 427, 503, 504,
506/34 and 120B of IPC. The Magistrate is justified in
asking to register FIR, conduct investigation on the facts
mentioned in the complaint and after completion of the
investigation submit a report in the Court. No illegality is
found either in the course adopted by the Magistrate or
in ultimate direction to the police. [Para 15] [301-E-H; 302A-B]
1.5 The order passed by the Single Judge of the High
Court as well as the the Division Bench of the High Court
is upheld. As on date there is no impediment for the
police to investigate and submit report as directed by
Chief Judicial Magistrate. Interim orders in respect of all
the proceedings including the order dated 27.04.2010
passed by the High Court in Crl. Misc. Petition are
282
A
SUPREME COURT REPORTS
[2010] 9 S.C.R.
A vacated. [Para 17] [302-E-F]
Devarapalli Lakshminarayana Reddy and Ors. vs. V.
Narayana Reddy and Ors. (1976) 3 SCC 252; Tula Ram and
Ors. vs. Kishore Singh (1977) 4 SCC 459 – relied on.
B
B
Madhavrao Jiwajirao Scindia and Ors. vs. Sambhajirao
Chandrojirao Angre and Ors. (1988) 1 SCC 692 –
distinguished.
Case Law Reference:
C
D
C
D
(1988) 1 SCC 692
distinguished.
Para 9
(1976) 3 SCC 252
relied on.
Para 10
(1977) 4 SCC 459
relied on.
Para 10
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1377 of 2010.
From the Judgment & Order dated 01.04.2010 of the High
Court of Chhattisgarh at Bilaspur in W.A. No. 281 of 2009.
E
WITH
E
Crl. A. No. 1378 of 2010.
F
Dr. A.M. Singhvi, C.A. Sundaram, Kunal Verma, Sanjay
Sen, Rana S. Biswas, Achintya Dwivedi, Mridul Chakravarty,
F Hemant Singh, Sharmila Upadhyay, Atul Jha and D.K. Sinha
for the appearing parties.
The Judgment of the Court was delivered by
P. SATHASIVAM, J. 1. Leave granted.
G
G
H
2. The appeal arising out of S.L.P.(Crl.) No. 3267 of 2010
is directed against the final judgment dated 01.04.2010 passed
by the High Court of Chhattisgarh at Bilaspur in W.A. No. 281
of 2009 whereby the High Court dismissed the appeal filed by
H the appellants herein and the appeal arising out of S.L.P.(Crl.)
SRINIVAS GUNDLURI v. SEPCO ELECTRIC POWER
CONSTRUCTION CORPORATION [P. SATHASIVAM, J.]
283
No. 5095 of 2010 is preferred against the interim order dated
27.04.2010 passed by the High Court of Judicature of Andhra
Pradesh at Hyderabad in Crl. R.C. M.P. No. 1307 of 2010 in
Crl. R.C. No. 893 of 2010 staying the order dated 22.04.2010
passed by the Chief Metropolitan Magistrate, Hyderabad
rejecting the application for extension of transit bail and also
recording of the fact that fraud has been played upon the Court
and resultantly, non-bailable warrant was issued against
respondent No.1 in this appeal for his arrest and production
before JMFC, Korba, Chhattisgrarh.
3. The facts leading to the filing of these two appeals are:
(a) M/s SEPCO Electric Power Construction Corporation
(in short “SEPCO”) was engaged in erection of power plant
at village Nariyara in Akaltara District Janjgir-Champa.
SEPCO awarded constructional work to M/s SSVG
Engineering Projects Private Limited (in short “SSVG”) the
appellants in appeal arising out of SLP (Crl.) No. 3267 of
2010 as per the terms and conditions of the contract
settled between SEPCO and SSVG. The contract value
of the work was Rs. 42,92,19,800/- and the work was to
be completed within a period of two months. As per the
terms, 50% of the value of the contract was to be paid in
advance. SSVG was required to go ahead with the project
work immediately. The work order was issued by SEPCO
on 16.06.2009. A cheque for a sum of Rs. 20,97,46,840/
-towards payment of 50% advance was issued to SSVG
on 25.06.2009. SSVG wrote a letter on 28.06.2009 to the
Dy. General Manager, SEPCO complaining that despite
repeated requests, SEPCO has not handed over the site
for commencing the work and requested to hand over the
site so as to enable it to complete the work within two
months. However, SEPCO vide letter dated 29.06.2009
cancelled the work order dated 16.06.2009 on the ground
that the company has failed to mobilize requisite
manpower, machinery and equipment by that date but
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diverted the amount for some other purpose than the one
as agreed, hence demanded refund of advance money.
(b) On 03.07.2009, SSVG received a letter from the
Union Bank of India whereby it was apprised that the
Bank has received a letter on 02.07.2009 from the Police
Station Balco Nagar requesting to freeze their current
account with immediate effect on the complaint of
SEPCO. Subsequently, SSVG came to know that on
04.07.2009, SEPCO has filed a criminal complaint
against them in the Court of Chief Judicial Magistrate,
Class I Korba. The Chief Judicial Magistrate, by his order
dated 04.07.2009, allowed the application of SEPCO
filed under Section 156 (3) of the Code of Criminal
Procedure (hereinafter referred to as ‘the Code’) and
forwarded the original complaint along with documents to
the concerned Station House Officer (SHO) directing him
to register FIR, after due enquiry, and to submit a
chargesheet after investigation. Mr. Srinivas Gundluri,
Managing Director & Principal Officer, SSVG also
received a memo from Police Station, Balco Nagar, for
recording his statement. In this background, the
Managing Director and Principal Officer, Director and
Promoter as well as the Company - SSVG Engineering
Projects Pvt. Ltd. filed Writ Petition No. 3647 of 2009
before the High Court of Chhattisgarh praying for
quashing and setting aside the order dated 04.07.2009
passed by the Chief Judicial Magistrate, Class I, Korba
and the proceedings drawn by the Magistrate on the
complaint of SEPCO. They also prayed for issuance of
writ of prohibition in order to prohibit further proceedings
pending in the Court of Magistrate, Class I, Korba in
connection with the complaint lodged by SEPCO and
quashing the communication dated 03.07.2009 by the
bank relating to freezing of the SSVG’s account.
(c) The learned single Judge, by order dated 03.09.2009,
SRINIVAS GUNDLURI v. SEPCO ELECTRIC POWER 285
CONSTRUCTION CORPORATION [P. SATHASIVAM, J.]
dismissed writ petition No. 3647 of 2009 and held that the
Magistrate passed an order under Section 156 (3) of the
Code after perusing the complaint which discloses
commission of cognizable offence and has not committed
any illegality by directing the police to register FIR. The
learned single Judge further held that since the police
authorities are investigating into the matter after registering
FIR and final report is yet to be filed, therefore, challenge
at this stage by SSVG is premature.
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(d) Questioning the order of the learned single Judge,
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SSVG preferred W.A. No 281 of 2009 before the Division
Bench of the same High Court. The Division Bench,
entirely agreeing with the reasons assigned by the learned
single Judge, by order dated 01.04.2010, dismissed their
writ appeal and permitted the Magistrate to proceed in
accordance with law. Against the decision of the Division D
Bench, SSVG preferred appeal arising out of SLP (Crl.)
3267 of 2010 before this Court.
(e) On 09.04.2010, Chhatisgrarh Police had taken Srinivas
Gundluri, Managing Director and Principal Officer of E
SSVG into custody in Crime No. 272 of 2009 and
produced him for transit warrant before CMM at
Hyderabad and on the same day he applied for transit bail
and the same was granted directing him to appear before
Magistrate Class-I, Korba on or before 19.04.2010. On F
19.04.2010, Srinivas Gundluri moved an application before
the CMM, Hyderabad, for extension of the period of transit
bail on the ground of his illness and of his wife and another
application before the Judicial Magistrate Ist class, Korba,
Chhattisgarh seeking extension of time on the ground that G
the S.L.P. filed against the order of the writ appeal is listed
before this Court on 20.04.2010 and as such, the time to
surrender be extended by a week. On 22.04.2010, when
the matter was taken up for hearing before CMM,
Hyderabad, none appeared for Srinivas Gundluri,
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therefore, the Magistrate took cognizance of such fact and
in view of the fraud played upon the court rejected the
application for extension of time and issued non-bailable
warrant against him for his arrest and production before
the JMFC Korba, Chhattisgarh. Before this Court, on
26.04.2010, counsel for the appellant herein offered to pay
a sum of Rs. 5 crores to SEPCO of which 2 crores to be
paid within two days and sought four weeks’ time to pay
another Rs. 3 crores and this Court granted an order of
interim protection of stay of arrest till 14.05.2010. On
26.04.2010, Srinivas Gundluri filed a petition before the
High court of Andhra Pradesh, under Section 397 read with
Section 401 read with Section 482 of the Code challenging
the order dated 22.04.2010 passed by the CMM,
Hyderabad. In the said petition, State of Andhra Pradesh
and State of Chhattisgarh were arrayed as parties and
represented through their Public Prosecutors. SEPCO was
not made a party as required under Section 397 read with
Section 401. The High Court of Andhra Pradesh, on
27.04.2010, passed an interim order staying the order
dated 22.04.2010 passed by the CMM Hyderabad.
Aggrieved by the said order, SEPCO filed appeal @
S.L.P.(Crl.) 5095 of 2010 before this Court. On
14.05.2010, this Court after issuing notice tagged this
S.L.P. along with S.L.P.(Crl.)No. 3267 of 2010. For
convenience, we refer the parties as described in SLP
(Crl.) 3267 of 2010.
4. Heard Dr. A. M. Singhvi, learned senior counsel for the
appellants, Mr. C.A. Sundaram, learned senior counsel for the
contesting respondent-SEPCO and Mr. Atul Jha, learned
G counsel for the State of Chhattisgarh.
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5. Dr. Singhvi, learned senior counsel, at the outset,
highlighted that in view of the facts and circumstances, more
particularly, suit for recovery of money filed by SEPCO is
pending in the civil court and counter claim of the appellants is
SRINIVAS GUNDLURI v. SEPCO ELECTRIC POWER
CONSTRUCTION CORPORATION [P. SATHASIVAM, J.]
287
also pending in the same suit, proper course would be to
appoint an arbitrator to resolve the dispute. However, according
to him, instead of pursuing the said legal and contractual
remedy, the respondent-SEPCO rushed to the Magistrate and
the Magistrate committed an error in invoking jurisdiction under
Section 156 (3) of the Code by directing the Investigation
Officer concerned to submit a charge sheet in the Court. He
also submitted that inasmuch as the appellants, as on date,
have repaid Rs. 10 crores as against the claim of Rs. 21 crores
and made a counter claim for Rs.10 crores, the criminal
proceedings could be deferred till appropriate decision being
taken in the civil proceedings. On the other hand, Mr. Sundaram,
learned senior counsel for SEPCO, after taking us through the
salient features in the complaint, specific allegations with
reference to the criminality of the respondents, various terms
of the contract and the conduct of the appellant in diverting the
entire amount received for a different purpose and in view of
the Sections 156 (3) and 190 of the Code, the Magistrate is
well within his powers to pass the impugned order and the
same has been rightly considered and approved by the learned
single Judge and Division Bench of the High Court contended
that there is no merit in the appeal filed by the appellants. He
also pleaded that the learned single Judge of the High Court
of Andhra Pradesh committed an error in granting stay in
respect of order dated 22.04.2010 passed by the CMM,
Hyderabad in Crl. M.P. No. 690 of 2010 in Crime No. 272 of
2009, P.D. Balco, Korba District, Chhattisgarh pending Crl.
R.C. No. 893 of 2010 on the file of the High Court.
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A refer certain relevant provisions of the Code which are as
under:“Section 156 - Police officer’s power to investigate
cognizable case:
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(1) Any officer in charge of a police station may, without
the order of a Magistrate, investigate any cognizable case
which a Court having jurisdiction over the local area within
the limits of such station would have power to inquire into
or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall
at any stage be called in question on the ground that the
case was one which such officer was not empowered
under this section to investigate.
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(3) Any Magistrate empowered under section 190 may
order such an investigation as above-mentioned.
Section 173 - Report of police officer on completion of
investigation
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(1) Every investigation under this Chapter shall be
completed without unnecessary delay.
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(1A) The investigation in relation to rape of a child may be
completed within three months from the date on which the
information was recorded by the officer in charge of the
police station.
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(2) (i) As soon as it is completed, the officer in charge of
the police station shall forward to a Magistrate empowered
to take cognizance of the offence on a police report, a
report in the form prescribed by the State Government,
stating-
6. We have carefully perused the relevant materials and
considered the rival contentions.
7. Inasmuch as, admittedly, for the recovery of amount, civil
suit and counter claim are pending in the civil court, we may
not be justified in expressing our views in respect of suit and
counter claim of the respective parties. However, in order to
answer the contentions raised by both parties, it is useful to
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(a) the names of the parties;
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(b) the nature of the information;
SRINIVAS GUNDLURI v. SEPCO ELECTRIC POWER 289
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(c) the names of the persons who appear to be
acquainted with the circumstances of the case;
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(d) whether any offence appears to have been
committed and, if so, by whom;
(e) whether the accused has been arrested;
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(f) whether he has been released on his bond and,
if so, whether with or without sureties;
(g) whether he has been forwarded in custody
under section 170;
(h) whether the report of medical examination of the
woman has been attached where investigation
relates to an offence under section 376, 376A,
376B, 376C or 376D of the Indian Penal Code(45
of 1860).
(ii) The officer shall also communicate, in such manner as
may be prescribed by the State Government, the action
taken by him, to the person, if any, by whom the information
relating to the commission of the offence was first given.
(3) Where a superior officer of police has been appointed
under section 158, the report, shall, in any case in which
the State Government by general or special order so
directs, be submitted through that officer, and he may,
pending the orders of the Magistrate, direct the officer in
charge of the police station to make further investigation.
(4) Whenever it appears from a report forwarded under this
section that the accused has been released on his bond,
the Magistrate shall make such order for the discharge of
such bond or otherwise as he thinks fit.
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section 170 applies, the police officer shall forward to the
Magistrate along with the report(a) all documents or relevant extracts thereof on
which the prosecution proposes to rely other than
those already sent to the Magistrate during
investigation;
(b) the statements recorded under section 161 of
all the persons whom the prosecution proposes to
examine as its witnesses.
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(5) When such report is in respect of a case to which
(6) If the police officer is of opinion that any part of any such
statement is not relevant to the subject-matter of the
proceeding or that its disclosure to the accused is not
essential in the interests of justice and is inexpedient in
the public interest, he shall indicate that part of the
statement and append a note requesting the Magistrate
to exclude that part from the copies to be granted to the
accused and stating his reasons for making such request.
(7) Where the police officer investigating the case finds it
convenient so to do, he may furnish to the accused copies
of all or any of the documents referred to in sub-section
(5).
(8) Nothing in this section shall be deemed to preclude
further investigation in respect of an offence after a report
under sub-section (2) has been forwarded to the
Magistrate and, where upon such investigation, the officer
in charge of the police station obtains further evidence,
oral or documentary, he shall forward to the Magistrate a
further report or reports regarding such evidence in the
form prescribed; and the provisions of sub-sections (2) to
(6) shall, as far as may be, apply in relation to such report
or reports as they apply in relation to a report forwarded
under sub-section (2).
SRINIVAS GUNDLURI v. SEPCO ELECTRIC POWER 291
CONSTRUCTION CORPORATION [P. SATHASIVAM, J.]
Section 200 - Examination of complainant
A Magistrate taking cognizance of an offence on complaint
shall examine upon oath the complainant and the witnesses
present, if any, and the substance of such examination
shall be reduced to writing and shall be signed by the
complainant and the witnesses, and also by the
Magistrate:
Provided that, when the complaint is made in writing, the
Magistrate need not examine the complainant and the
witnesses—
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(a) if a public servant acting or purporting to act in
the discharge of his official duties or a Court has
made the complaint; or
(b) if the Magistrate makes over the case for inquiry
or trial to another Magistrate under section 192:
Provided further that if the Magistrate makes over the case
to another Magistrate under section 192 after examining
the complainant and the witnesses, the latter Magistrate
need not re-examine them.
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(a) if the complaint is in writing, return it for
presentation to the proper Court with an
endorsement to that effect;
[2010] 9 S.C.R.
(1) Any Magistrate, on receipt of a complaint of an offence
of which he is authorised to take cognizance or which has
been made over to him under section 192 , may, if he
thinks fit and shall in a case where the accused is residing
at a place beyond the area in which he exercises his
jurisdiction postpone the issue of process against the
accused, and either inquire into the case himself or direct
an investigation to be made by a police officer or by such
other person as he thinks fit, for the purpose of deciding
whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be
made(a) where it appears to the Magistrate that the
offence complained of is triable exclusively by the
Court of Sessions; or
(b) where the complaint has not been made by a
Court, unless the complainant and the witnesses
present (if any) have been examined on oath under
section 200 .
(2) In an inquiry under sub-section (1), the Magistrate may,
if he thinks fit, take evidence of witness on oath:
Section 201 - Procedure by Magistrate not competent to
take cognizance of the case
If the complaint is made to a Magistrate who is not
competent to take cognizance of the offence, he shall,—
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(b) if the complaint is not in writing, direct the
complainant to the proper Court.
Provided that if it appears to the Magistrate that the
offence complained of is triable exclusively by the
Court of Session, he shall call upon the complainant
to produce all his witnesses and examine them on
oath.
(3) If an investigation under sub-section (1) is made by a
person not being a police officer, he shall have for that
investigation all the powers conferred by this Code on an
officer in charge of a police station except the power to
arrest without warrant.”
Section 202 - Postponement of issue of process
8. A perusal of the above provisions, particularly, Section
SRINIVAS GUNDLURI v. SEPCO ELECTRIC POWER
CONSTRUCTION CORPORATION [P. SATHASIVAM, J.]
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156 (3) and Sections 200 and 202 of the Code would reveal
that Chapter XII of the Code contains provisions relating to
information to the police and their powers to investigate
whereas Chapter XV, which contains Section 202, deals with
provisions relating to the steps which a Magistrate has to adopt
while and after taking cognizance of any offence on a complaint.
As rightly observed by the learned single Judge of the High
Court, the provisions of the above two Chapters deal with two
different facets altogether.
9. Dr. Singhvi, learned senior counsel, relying on a
judgment of this Court in Madhavrao Jiwajirao Scindia & Ors.
vs. Sambhajirao Chandrojirao Angre & Ors. (1988) 1 SCC
692 contented that the learned Magistrate is not justified in
issuing direction to the Investigation Officer and the same is
liable to be interfered with and the High Court ought to have
interfered with and quashed the same. We have perused the
facts of this case. The High Court, in the said decision, quashed
the prosecution against two of the four accused. We have also
gone through the factual details as stated in paragraphs 2, 3
and 4 as well as the submissions made by the counsel. After
narrating all the events in paragraph 7, Their Lordships have
held that:
“7. The legal position is well settled that when a
prosecution at the initial stage is asked to be quashed, the
test to be applied by the court is as to whether the
uncontroverted allegations as made prima facie establish
the offence. It is also for the court to take into consideration
any special features which appear in a particular case to
consider whether it is expedient and in the interest of
justice to permit a prosecution to continue. This is so on
the basis that the court cannot be utilised for any oblique
purpose and where in the opinion of the court chances of
an ultimate conviction are bleak and, therefore, no useful
purpose is likely to be served by allowing a criminal
prosecution to continue, the court may while taking into
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consideration the special facts of a case also quash the
proceeding even though it may be at a preliminary stage.
On perusal of the factual details, while agreeing with the
legal principles, we are of the view that since in the said case
summons were ordered to be issued by the learned Magistrate,
the said decision is distinguishable and not applicable to the
case on hand.
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10) Mr. Sundaram, learned senior counsel for SEPCO
pressed into service the decisions rendered in Devarapalli
C Lakshminarayana Reddy & Ors. vs. V. Narayana Reddy &
Ors. (1976) 3 SCC 252 and Tula Ram & Ors. vs. Kishore Singh
(1977) 4 SCC 459.
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11. In Devarapalli Lakshminarayana Reddy (supra), a
D bench of three Hon’ble Judges have explained the power of the
Magistrate under Section 156 (3) and Sections 200 and 202.
The following discussion and ultimate conclusion are relevant
which reads as under:-
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“13. It is well settled that when a Magistrate receives a
complaint, he is not bound to take cognizance if the facts
alleged in the complaint, disclose the commission of an
offence. This is clear from the use of the words “may take
cognizance” which in the context in which they occur
cannot be equated with “must take cognizance”. The word
“may” gives a discretion to the Magistrate in the matter. If
on a reading of the complaint he finds that the allegations
therein disclose a cognizable offence and the forwarding
of the complaint to the police for investigation under
Section 156(3) will be conducive to justice and save the
valuable time of the Magistrate from being wasted in
enquiring into a matter which was primarily the duty of the
police to investigate, he will be justified in adopting that
course as an alternative to taking cognizance of the
offence, himself.
SRINIVAS GUNDLURI v. SEPCO ELECTRIC POWER
CONSTRUCTION CORPORATION [P. SATHASIVAM, J.]
295
14. This raises the incidental question: What is meant by
“taking cognizance of an offence” by a Magistrate within
the contemplation of Section 190? This expression has not
been defined in the Code. 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
of Section 190(l)(a). If, 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.
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15. This position of law has been explained in several
cases by this Court, the latest being Nirmaljit Singh Hoon
v. State of West Bengal.
16. The position under the Code of 1898 with regard to
the powers of a Magistrate having jurisdiction, to send a
complaint disclosing a cognizable offence — whether or
not triable exclusively by the Court of Session — to the
police for investigation under Section 156(3), remains
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unchanged under the Code of 1973. The distinction
between a police investigation ordered under Section
156(3) and the one directed under Section 202, has also
been maintained under the new Code; but a rider has
been clamped by the first proviso to Section 202(1) that if
it appears to the Magistrate that an offence triable
exclusively by the Court of Session has been committed,
he shall not make any direction for investigation.
17. Section 156(3) occurs in Chapter XII, under the caption
: “Information to the Police and their powers to investigate”;
while Section 202 is in Chapter XV which bears the
heading: “Of complaints to Magistrates”. The power to
order police investigation under Section 156(3) is different
from the power to direct investigation conferred by Section
202(1). The two operate in distinct spheres at different
stages. The first is exercisable at the pre-cognizance
stage, the second at the post-cognizance stage when the
Magistrate is in seisin of the case. That is to say in the
case of a complaint regarding the commission of a
cognizable offence, the power under Section 156(3) can
be invoked by the Magistrate before he takes cognizance
of the offence under Section 190(l)(a). But if he once takes
such cognizance and embarks upon the procedure
embodied in Chapter XV, he is not competent to switch
back to the pre-cognizance stage and avail of Section
156(3). It may be noted further that an order made under
sub-section (3) of Section 156, is in the nature of a
peremptory reminder or intimation to the police to exercise
their plenary powers of investigation under Section 156(1).
Such an investigation embraces the entire continuous
process which begins with the collection of evidence under
Section 156 and ends with a report or charge-sheet under
Section 173. On the other hand, Section 202 comes in at
a stage when some evidence has been collected by the
Magistrate in proceedings under Chapter XV, but the
same is deemed insufficient to take a decision as to the
SRINIVAS GUNDLURI v. SEPCO ELECTRIC POWER 297
CONSTRUCTION CORPORATION [P. SATHASIVAM, J.]
next step in the prescribed procedure. In such a situation,
the Magistrate is empowered under Section 202 to direct,
within the limits circumscribed by that section an
investigation “for the purpose of deciding whether or not
there is sufficient ground for proceeding”. Thus the object
of an investigation under Section 202 is not to initiate a
fresh case on police report but to assist the Magistrate in
completing proceedings already instituted upon a
complaint before him.
18. In the instant case the Magistrate did not apply his mind
to the complaint for deciding whether or not there is
sufficient ground for proceeding; but only for ordering an
investigation under Section 156(3). He did not bring into
motion the machinery of Chapter XV. He did not examine
the complainant or his witnesses under Section 200 CrPC,
which is the first step in the procedure prescribed under
that chapter. The question of taking the next step of that
procedure envisaged in Section 202 did not arise. Instead
of taking cognizance of the offence, he has, in the exercise
of his discretion, sent the complaint for investigation by
police under Section 156.”
12. In Tula Ram & Ors. vs. Kishore Singh (supra) again
this Court considered order for investigation under Section 156
(3) on a complaint. After considering various earlier decisions,
the Court on a careful consideration of the facts and
circumstances of the case propounded the following legal
propositions:“…. 1. That a Magistrate can order investigation under S.
156 (3) only at the pre-cognizance stage, that is to say,
before taking cognizance under Sections 190, 200 and
204 and where a Magistrate decides to take cognizance
under the provisions of Chapter 14 he is not entitled in law
to order any investigation under Section 156 (3) though in
cases not falling within the proviso to Section 202 he can
order an investigation by the police which would be in the
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nature of an enquiry as contemplated by Sec. 202 of the
Code.
2. Where a Magistrate chooses to take cognisance he can
adopt any of the following alternatives:
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(a) He can peruse the complaint and if satisfied that there
are sufficient grounds for proceeding he can straightaway
issue process to the accused but before he does so he
must comply with the requirements of Section 200 and
record the evidence of the complainant or his witnesses.
(b) The Magistrate can postpone the issue of process and
direct an enquiry by himself.
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(c) The Magistrate can postpone the issue of process and
direct an enquiry by any other person or an investigation
by the police.
3. In case the Magistrate after considering the statement
of the complainant and the witnesses or as a result of the
investigation and the enquiry ordered is not satisfied that
there are sufficient grounds for proceeding he can dismiss
the complaint.
4. Where a Magistrate orders investigation by the police
before taking cognizance under S. 156 (3) of the Code and
receives the report thereupon he can act on the report and
discharge the accused or straightaway issue process
against the accused or apply his mind to the complaint
filed before him and take action under Section 190 as
described above.”
13. With these legal principles, we also verified the
allegations in the complaint made by SEPCO as well as the
order of the Magistrate dated 04.07.2009. The order of the
Magistrate reads as under:“IN THE COURT OF CHIEF JUDICIAL MAGISTRATE,
SRINIVAS GUNDLURI v. SEPCO ELECTRIC POWER
CONSTRUCTION CORPORATION [P. SATHASIVAM, J.]
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KORBA (CHHATISGARH)
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COMPLAINT CASE NO. OF 2009
M/s Sepco Electric Power Construction Corporation
Vs.
Mr. Srinivas Gundluri and Ors.
04.07.2009
Present case was produced before me because Smt.
Saroj Nand Das, Judicial Magistrate 1st Class, Korba, is
on leave. Complainant present along with his counsel Shri
B.K. Shukla, Advocate. Complaint under Section 200
Cr.P.C. has been filed against Respondents-accused
praying for taking cognizance against them under Sections
405, 406, 418, 420, 427, 503, 504, 506/34 and 120B of
Indian Penal Code. It has been further prayed that case
be sent to the concerned Police Officer under Section 156
(3) Cr.P.C.
Heard on the application. Perused Complaint under
Section 200 Cr.P.C. According to this complaint, a prayer
has been made to take cognizance against Accused-Mr.
Srinivas Gundluri and Smt. Bharati Devi, Director and
others under Sections 405, 406, 418, 420, 427, 503, 504,
506/34 and 120B of Indian Penal Code. All these are
cognizable offences.
Therefore, application filed on behalf of the Complainant
under Section 156 (3) Cr.P.C. is allowed and original
complaint and other documents are sent to concerned
Station House Officer and he is directed to register a first
information report and conduct investigation in the matter
on the basis of facts mentioned in the and after completion
of investigation, to submit a charge sheet in the Court.
Sd/- Illegible
Chief Judicial Magistrate
Korba (Chhatisgarh)”
SUPREME COURT REPORTS
[2010] 9 S.C.R.
From the above, it is clear that the Magistrate only ordered
investigation under Section 156 (3) of the Code. It also shows
that the Magistrate perused the complaint without examining the
merits of the claim that there is sufficient ground for proceeding
or not, directed the police officer concerned for investigation
under Section 156 (3) of the Code. As rightly observed by the
learned single Judge of the High Court, the Magistrate did not
bring into motion the machinery of Chapter XV of the Code.
He did not examine the complainant or his witnesses under
Section 200 of the Code which is the first step in the procedure
prescribed under the said Chapter. The question of taking next
step of the procedure envisaged in Section 202 did not arise.
As rightly pointed out by Mr. Sundaram, instead of taking
cognizance of the offence, the learned Magistrate has merely
allowed the application filed by the complainant/SEPCO under
Section 156(3) of the Code and sent the same along with its
annexure for investigation by the police officer concerned under
Section 156 (3) of the Code. To make it clear and in respect
of doubt raised by Mr. Singhvi to proceed under Section 156
(3) of the Code, what is required is a bare reading of the
complaint and if it discloses a cognizable offence, then the
Magistrate instead of applying his mind to the complaint for
deciding whether or not there is sufficient ground for
proceeding, may direct the police for investigation. In the case
on hand, the learned single Judge and Division Bench of the
High Court rightly pointed out that the Magistrate did not apply
his mind to the complaint for deciding whether or not there is
sufficient ground for proceeding and, therefore, we are of the
view that the Magistrate has not committed any illegality in
directing the police for investigation. In the facts and
circumstances, it cannot be said that while directing the police
to register FIR, the Magistrate has committed any illegality. As
a matter of fact, even after receipt of such report, the Magistrate
under Section 190 (1) (b) may or may not take cognizance of
offence. In other words, he is not bound to take cognizance upon
submission of the police report by the Investigating Officer,
hence, by directing the police to file chargesheet or final report
SRINIVAS GUNDLURI v. SEPCO ELECTRIC POWER 301
CONSTRUCTION CORPORATION [P. SATHASIVAM, J.]
and to hold investigation with a particular result cannot be
construed that the Magistrate has exceeded his power as
provided in sub-section 3 of Section 156.
14. Neither the chargesheet nor the final report has been
defined in the Code. The chargesheet or final report whatever
may be the nomenclature, it only means a report under Section
173 of the Code which has to be filed by the police officer on
completion of his investigation. In view of our discussion, in the
case on hand, we are satisfied that the Magistrate in passing
the impugned order has not committed any illegality leading to
manifest injustice warranting interference by the High Court in
exercise of extraordinary jurisdiction conferred under Article 226
of the Constitution of India. We are also satisfied that learned
single Judge as well as the Division Bench rightly refused to
interfere with the limited order passed by the Magistrate. We
also hold that challenge at this stage by the appellants is premature and the High Court rightly rejected their request.
15. It is true that Dr. Singhvi, learned senior counsel for the
appellants, highlighted that out of the claim of Rs. 21 crores,
Rs. 10 crores have already been paid, the appellants have also
laid counter claim for Rs. 10 crores and in such a factual
scenario, there is no need to continue the criminal proceedings
and prayed for deferment of the same till the outcome of the
civil proceedings. However, Mr. Sundaram for SEPCO, by
taking us through various allegations in the complaint
highlighted that SSVG by misappropriating the advance money
for the purpose other than for which it was granted submitted
that the Magistrate correctly exercised his jurisdiction under
Section 156 (3) and referred the matter for investigation. He
also submitted that the complaint very much discloses
cognizable offence under Sections 405, 406, 418, 420, 427,
503, 504, 506/34 and 120B of IPC. Whatever may be, we are
not here to find out the truth or otherwise of those allegations
but the Magistrate is justified in asking to register FIR, conduct
investigation on the facts mentioned in the complaint and after
302
A
A
B
B
C
C
SUPREME COURT REPORTS
[2010] 9 S.C.R.
completion of the investigation submit a report in the Court. We
do not find any illegality either in the course adopted by the
Magistrate or in ultimate direction to the police.
16. Dr. Singhvi has also brought to our notice that the
respondent - SEPCO has made another complaint in respect
of the same issue before the Chief Metropolitan Magistrate,
Hyderabad. According to him, the same is not permissible and
the stay granted by the High Court in Crl. M.P. 1307 of 2010 in
Crl. R.C. No. 893 of 2010 is justifiable. However, we are not
expressing anything on the said complaint and it is for the
appropriate Court to consider about the merits of the claim
made by both the parties.
17. In the light of what has been stated above, we are in
agreement with the order dated 20.07.2009 passed by the
learned single Judge of the High Court of Chhattisgarh in W.P.
No. 3647 of 2009 as well as the order dated 01.04.2010
passed by the Division Bench of the High Court of Chhattisgarh
in WA No. 281 of 2009. As on date there is no impediment for
the police to investigate and submit report as directed in the
order dated 04.07.2009 by Chief Judicial Magistrate, Korba
District, Chhattisgarh. Interim orders in respect of all the
proceedings including the order dated 27.04.2010 passed by
the High Court of Andhra Pradesh in Crl. M.P. No. 1307 of
2010 in Crl. R.C. No. 893 of 2010 are vacated and both parties
are at liberty to pursue their remedy in the pending proceedings
in accordance with law.
D
D
E
E
F
F
G
18. In the result, the appeal arising out of SLP (Crl.) 3267
of 2010 of Srinivas Gundluri and others (SSVG) is dismissed
and the appeal arising out of SLP (Crl.) No. 5095 of 2010 filed
G by SEPCO is allowed to the extent indicated above.
N.J.
H
Appeals disposed of.