{"id": "184861797", "text": "IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE Before: The Hon'ble Justice Hiranmay Bhattacharyya C.O. 3346 of 2018 The Kolkata Municipal Corporation Vs. Smt. Kajari Banerjee For the petitioner : Mr. Alok Kr. Ghosh, Mr. S.K. Debnath..... advocates For the opposite party : Mr. R.N. Chakraborty, Mr. M. Ahmed............ advocates Heard on : 18.12.2020 Judgment on : 22.12.2020 Hiranmay Bhattacharyya, J.: This application under Article 227 of the Constitution of India is at the instance of Kolkata Municipal Corporation and is directed against the order dated March 27, 2018 passed by the Learned Municipal Assessment Tribunal, Kolkata Municipal Corporation, Second Bench in M.A. Appeal no. 947 of 2012 thereby modifying the order of the Hearing Officer and assessing the annual valuation in respect of the property of the opposite party herein. This case had a chequered career. The Hearing Officer by an order dated March 24, 2012 assessed the annual valuation of the premises in question at Rs. 23,500/- with effect from fourth quarter of 2009-10. Previously, the opposite party herein preferred an appeal being M.A. Appeal no. 947 of 2012 challenging the aforesaid order dated March 24, 2012 passed by the hearing officer. The Learned Municipal Assessment Tribunal by an order dated February 16, 2015 allowed the said appeal upon holding that the reasonable rent of the premises in question should be 1.10 per square feet per month. Kolkata Municipal Corporation challenged the aforesaid order dated February 16, 2015 before this Hon'ble Court by filing an application under Article 227 of the Constitution of India being C.O. no. 2623 of 2017. By an order dated December 18, 2017, a coordinate bench of this court was pleased to allow the Civil Order No. 2623 of 2017 by setting aside the order dated February 16, 2015 and remanding the matter to the Tribunal for its fresh consideration in accordance with law within the time limit stipulated therein. After remand the Learned Tribunal by an order dated March 27, 2018 allowed the said appeal being M.A.A. 947 of 2012 in part thereby modifying the order passed by the Hearing Officer and assessing the annual valuation in respect of the property in question. By the order impugned the Learned Tribunal has reduced the annual valuation fixed by the Hearing Officer and has assessed the same on the basis of the materials placed by the respective parties before the learned Tribunal. Kolkata Municipal Corporation preferred the instant civil revisional application under Article 227 of the Constitution of India being dissatisfied with the annual valuation assessed by the learned Tribunal. Mr. Aloke Ghosh, learned Advocate appearing on behalf of the petitioner has contended that the learned Tribunal below acted illegally and with material irregularity in reversing the finding of the Hearing Officer by assessing the annual valuation of the property in question by taking the annual valuation of a property assessed by the Tribunal in M.A.A. no. 272 of 1996 as the basis. He contends that the learned Tribunal below relied upon a judgment passed in respect of other premises for the purpose of assessing the Annual Valuation without ascertaining as to whether the premises which was the subject matter in M.A.A. 272 of 1996 is identical and comparable with the premises in question. Mr. Ghosh further contends that the assessment period in respect of the property involved in M.A.A. no. 272 of 1996 is fourth quarter of 1993-94 whereas the assessment period of the property in question is fourth quarter of 2009-10. Thus, according to Mr. Ghosh, when there is a long gap of sixteen years in between the assessment period of the case relied upon by the opposite party herein before the Tribunal and the assessment period of the premises in question, the learned Tribunal ought not to have accepted the valuation of the referred case as the basis for assessing the annual valuation of the property in question. Mr. Ghosh also contends that the annual valuation of a premises should be fixed as per the provisions contained in section 174 of the Kolkata Municipal Corporation Act., 1980 ( for short \"the said Act\"). According to him, the learned Tribunal acted illegally and with material irregularity by assessing the annual valuation of the property in question by comparing it with the valuation fixed by the learned Tribunal in respect of other premises. Mr. Ghosh further contends that the learned Tribunal acted illegally and with material irregularity by taking the annual valuation fixed in respect of an old premises as the basis for assessing the annual valuation of the premises in question, which is a newly constructed one. He contends that the procedure adopted by the Tribunal by applying the Mayor's guidelines dated February 8, 1986 for arriving at the annual valuation of the premises in question by taking the annual valuation of an old premises as the basis is not permissible in law. According to him the aforesaid Mayor's guidelines can be applied only in respect of the self-same premises and cannot be applied to arrive at a conclusion in respect of a different premises. Mr. Ghosh contends that the initial onus is upon the assessee to show that the valuation proposed by the Kolkata Municipal Corporation is not correct by producing the materials on record. Once such initial onus is discharged, the onus shifts upon the Municipal Authority to place other materials showing the claim of the assessee placed before the Hearing Officer was wrong. He contends that the assessee failed to discharge her onus in the instant case. In support of his submission that the initial onus lies upon the assessee, he relies upon a judgment in the case of Calcutta Municipal Corporation vs. Kapoor and Company Private Limited reported at 2002(2) CHN 377. Mr. Ghosh further contends that the order of the Tribunal is an unreasoned one and the same is liable to be set aside. He refers to the following unreported judgments of co-ordinate benches of this court in support of his contention that an unreasoned order passed by the Tribunal is liable to be set aside under Article 227 of the Constitution of India. (i) Judgment dated 12.12.2018 passed in CO no. 3368 of 2017 (the Kolkata Municipal Corporation vs. Sri Vivek Kumar Agarwal and Another) (ii) Order dated 05.10.2018 passed in CO 2353 of 2017 the Kolkata Municipal Corporation vs. Rakesh Sarkar (iii) Order dated 11.03.2019 passed in CO no.1747 of 2018 (Kolkata Municipal Corporation vs. Smt. Mallika Pal) (iv) Judgment dated 14.08.2018 passed in CO no. 936 of 2018 (Radhyshyam Bansal vs. The Kolkata Municipal Corporation and others) Mr. Chakraborty, learned advocate for the assessee/ opposite party herein has seriously disputed the contentions of Mr. Ghosh. According to Mr. Chakraborty, the Municipal authority did not produce the records in its possession in respect of the premises in question apart from a copy of the Inspection Book of the assessment period in question. He contends that the municipal authority also relied upon the original proposal (Exhibit A) which is the basis of determination of valuation by the Hearing Officer. According to him the valuation proposed by the municipal authority is without any basis. The assessee filed the written objection before the Hearing Officer disputing the proposed valuation. The assessee discharged her onus as to what could be the reasonable rent for the premises in question by producing a copy of the judgment passed by the Tribunal in M.A.A. 272 of 1996 in respect of a premises which is situated in the vicinity. He contends that the learned Tribunal after considering the materials on record assessed the annual valuation by applying the guidelines framed by the Hon'ble Supreme Court of India in the case of India Automobiles (1960) Ltd. vs. Calcutta Municipal Corporation and Another, reported at (2002) 3 SCC 388. Mr. Chakraborty further refers to two judgments of coordinate benches of this court in the case of Kolkata Municipal Corporation vs. Smt. Shibani Mukherjee, reported at 2017 (3) CLJ (Cal) 593 and Kolkata Municipal Corporation vs. Sri Rama Prasanna Mitra, reported at (2016) 4 WBLR (Cal) 621 and contends that when the Tribunal after considering the materials produced before it had arrived at a conclusion and there is no laches in the decision-making process, the order passed by the Tribunal may not be interfered with. I have heard the learned advocates for the parties and have considered the materials on record. After going through the provisions of the said Act and the Calcutta Municipal Corporation Taxation Rules,1987 (for short, 'the said rules'), I find that the annual valuation should be fixed by the Hearing Officer after hearing the objection from the assessee. Such valuation has to be assessed in accordance with the provisions contained in Section 174 of the said act. The municipal authority proposed the valuation of Rs. 29,170/- in respect of the premises in question with effect from the fourth quarter of 2009-10. The assessee challenged the aforesaid proposed valuation by filing an objection. The Hearing Officer fixed the annual valuation of the premises in question at Rs. 23,500/- by passing the following order on March 24, 2012- \"R.O is present. Heard both sides A.A.C & R.O written objection are considered A.V is fixed at Rs. 23,550/-\" The said act casts a duty upon the Hearing Officer to make an assessment in accordance with law. The Hearing Officer while disposing of the objection filed by the assessee is statutorily obliged of follow the principles of natural justice. Assignment of reason is one limb of the principles of natural justice. The order passed by the Hearing Officer is an appealable one under Section 189 (5) of the said act before the Municipal Assessment Tribunal. When an unreasoned order is passed by the Hearing Officer, the Tribunal while adjudicating the appeal against such an order would feel great difficulty in adjudicating the same. As such the Hearing Officer is obliged to disclose the reasons for arriving at the conclusion. In the instant case, the order passed by the Hearing Officer failed to disclose any reasons for fixing the annual valuation at Rs. 23,550/-. There is no consideration whatsoever of the objections raised by the assessee before the Hearing Officer. Thus, the learned Tribunal was justified in not accepting the valuation fixed by the Hearing Officer. The Hon'ble Supreme Court in the case of India Automobile (supra) held that while determining the rents on the basis of reasonableness, prevalent rate of rent of lands and building in the vicinity of the property being assessed is one of the relevant considerations. The Hon'ble Supreme Court in the said reports held as- \"23. .....................The 1980 Act, therefore, requires application of mind by the municipal authorities to determine the rents on the basis of reasonableness by keeping into account all relevant circumstances including the actual rent received by the owner, hypothetical standard rent, the rent being received by the tenant from his sub-tenant and other relevant consideration, such as prevalent rate of rent of lands and building in the vicinity of the property being assessed............\" The municipal authority took into consideration the reasonable rent at Rs. 3.00/- per square feet for the covered area and Rs. 1.00/- per square feet for the roof. The municipal authority failed to justify the basis of taking the aforesaid rates of reasonable rent. The proposal of the municipal authority was thus without any basis as has been rightly held by the learned Tribunal in the impugned order. There is no dispute to the proposition of law laid down in the case of Kapoor (supra) that the initial onus is upon the assessee to show what is the actual gross annual rent including service charges which could be reasonably expected from the premises in question while valuation is assessed in accordance with the provisions contained in Section 174 of the said act. Rule 19 (6) of the said rules empowers the Municipal Assessment Tribunal to allow a party to produce evidence. The assessee produced the certified copy of the judgment of the Tribunal in M.A.A. 272 of 1996 as an evidence of the expected annual rent prevailing in the locality. Thus, the assessee discharged the initial onus by producing evidence in this regard. The municipal authority also produced copies of the judgments of the Tribunal in M.A.A no. 989 of 2005 and M.A.A. no. 1008 of 2009 as evidence in support of the expected annual rent prevailing in the locality. The decision of the Tribunal in M.A.A. no. 272 of 1996 is in respect of a flat at premises no. 110, Hazra Road within Ward no. 84 of the Kolkata Municipal Corporation. The judgment of the Tribunal in M.A.A. 989 of 2005 is in respect of Nakuleswar Bhattacharjee lane within the same ward. The judgment of the Tribunal M.A.A. no. 1008 of 2009 is in respect of premises on Rashbehari Avenue also within the same ward. The premises in question is a flat situated on Hazra Road within ward no. 84 of the Kolkata Municipal Corporation. The premises of the assessee and the premises which was the subject matter in M.A.A. no. 272 of 1996 are both situated on Hazra Road. The prevalent rate of rent of lands and building in the vicinity of the property being assessed is a relevant consideration for determination of annual valuation of a property as held in India Automobiles (supra). The proposal being the exhibit A is without any basis. The only evidence which were before the Tribunal for the purpose of assessment of the annual valuation of the property in question were the judgments of the Tribunal produced by the parties as evidence of the expected annual rent prevailing in the locality. The municipal commissioner is the custodian of records for the purpose of assessment of annual valuation and is under an obligation to produce the records in connection therewith. It is also not in dispute that several directions were passed by the Tribunal upon the municipal commissioner to produce the records in connection with the instant matter. For reasons best known to the municipal authority, no evidence has been produced from their end to show the prevailing reasonable rent in the locality namely Hazra Road in the instant case. The only evidence that was available before the Tribunal with regard to the prevailing rate of rent on Hazra Road was the judgment passed by the Tribunal in M.A.A. no. 272 of 1996. The Tribunal was thus justified in accepting the rate of rent fixed in M.A.A. 272 of 1996 as the basis for calculation of the annual valuation in the instant case. The decision of the Tribunal in M.A.A. no 272 of 1996 fixing the reasonable rent in respect of a flat on Hazra Road was with effect from fourth quarter of 1993-94 whereas the valuation of the premises of the assessee in the instant case is with effect from fourth quarter of 2009-10. The Learned Tribunal was justified in enhancing the valuation proportionately by applying the guidelines given in the Mayor's order dated February 8, 1986 in the absence of any other evidence on record. The Tribunal cannot be faulted with for enhancing the annual valuation proportionately by applying the Mayor's order in the instant case. The premises of the opposite party herein is a new construction and the premises which is the subject matter of M.A.A. 272 of 1996 is an old one, the learned Tribunal assessed the reasonable rent of the premises in question at Rs. 1.10/- per square feet per month for the covered area and Rs. 0.55/- per square feet per month for the roof area with effect from fourth quarter of 2009-10. The annual valuation fixed by the Tribunal cannot be said to be without any basis. Though there was an element of guess- work in assessing the annual valuation of the property in question but the same was inevitable in the circumstances of the instant case and the municipal authority was wholly responsible for the same as they have withheld the best evidence. The assessment of annual valuation made by the Tribunal has a reasonable nexus to the materials available on record and as such the same cannot be said to be an arbitrary one. There is also no laches in the decision-making process. It has been held by a coordinate bench of this court in Shibani Mukherjee (supra) that no interference under Article 227 of the Constitution of India is called for if the court finds no laches in the decision-making process. It has also been held by this court in Ramaprasanna (supra) that in the absence of any material produced by the municipal authority to show that the annual valuation would have been much higher than what has been assessed by the Municipal Assessment Tribunal and the Municipal Tribunal has decided the annual valuation of the premises on the basis of the materials on record, the order passed by the Tribunal does not call for any interference. The judgments cited by the opposite party squarely applies to the facts of the instant case. Now, I propose to deal with the decisions relied upon by Mr. Ghosh. In the case of Mallika Pal (supra) the order of the Municipal Assessment Tribunal was set aside on the ground that the learned Tribunal reduced the valuation without assigning any reasons therefore. In the case of Radhyshyam Bansal (supra) the order of the Municipal Assessment Tribunal was set aside and the matter was sent back on remand to the Tribunal as the learned Tribunal mechanically affirmed the unreasoned assessment of annual rent made by the Hearing Officer and also that the yardsticks for assessment of the annual rent fixed by the Hon'ble Supreme Court of India in various judgments was not followed by the Tribunal. In Rakesh Sarkar (supra) a coordinate bench of this court was pleased to set aside the order passed by the Municipal Assessment Tribunal as the same was an unreasoned one. In the case of Vivek Kumar Agarwal (supra) a coordinate bench of this court was pleased to set aside the order passed by the Tribunal as the same was an unreasoned one and also that the Tribunal being a quasi-judicial authority did not follow the procedures for disposal of an appeal. In the instant case the Learned Tribunal followed the procedures laid down under the said act and the said rules while deciding the appeal against the order passed by the Hearing Officer. The Tribunal allowed the parties to produce evidences in support of their respective cases in appeal. The Tribunal arrived at a valuation after taking into consideration the materials on record and by supplying cogent reasons in support of the conclusion arrived at. The yardsticks framed by the Hon'ble Supreme Court of India for determination of the annual valuation of the property in question have also been followed by the Tribunal in the instant case. For the reasons as aforesaid, the decisions relied upon by Mr. Ghosh do not have any manner of application in the instant case. In view of the reasons as aforesaid, I am of the view that the impugned order does not suffer from any infirmity warranting interference under Article 227 of the Constitution of India. C.O. no. 3346 of 2018 is dismissed without, however, any order as to costs. Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties on priority basis. 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{"id": "51061623", "text": "REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2760 OF 2010 Indian Bank and another \u2026Appellants Versus Mahaveer Khariwal \u2026Respondent JUDGMENT M.R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 02.02.2009 passed by the Division Bench of the High Court of Delhi at New Delhi in Letters Patent Appeal No. 246 of 2007, by which the Division Bench has allowed Signature Not Verified the said appeal preferred by the respondent herein and has Digitally signed by ARJUN BISHT Date: 2021.01.22 16:09:02 IST Reason: quashed and set aside the judgment and order passed by the learned Single Judge and has quashed and set aside communication dated 20.04.2004 of the bank rejecting the application for voluntary retirement and has directed the appellant\u00adbank to release retiral dues of the respondent in accordance with the Pension Regulations, 1995 with simple interest at the rate of 9% per annum from the date of filing of writ petition, the employer\u00adbank has preferred the present appeal. 2. The facts leading to the present appeal in nutshell are as under: That the respondent herein \u2013 original writ petitioner \u2013 employee (hereinafter referred to as the \u2018employee\u2019) was working with the appellant bank \u2013 employer (hereinafter referred to as the \u2018employer\u2019), who was promoted as Chief Manager SMG\u00adIV. In March, 1998, he was transferred and posted as Chief Manager, Colombo Branch, Colombo. Thereafter, by order dated 13.05.2013, he was transferred from Colombo overseas branch to the Defence Colony Branch, New Delhi as Chief Manager (BM). The employee applied for 30 days\u2019 leave to visit London as his son was admitted in the hospital. Thereafter, the employee wrote to the employer seeking extension of leave. The application for leave as well as the application for extension of leave were refused by the employer and the employee was directed to report on duty at Defence Colony Branch, New Delhi. That on 21.01.2004, the employee submitted an application seeking voluntary retirement from the services of the employer in accordance with Circular No. 32/97\u00ad98 dated 15th July, 1997 and the format given by the employer for submitting the notice of voluntary retirement. In the application for voluntary retirement, the employee requested for waiver of three months\u2019 notice, as required under Regulation 29 of the Indian Bank Employees Pension Regulations, 1995 (hereinafter referred to as \u2018Pension Regulations, 1995\u2019) and requested/authorised the employer to deduct the salary of the notice period from out of the amount payable by the employer on retirement. The employer vide letter dated 20.04.2004, which was served on the employee on 23.04.2004, rejected the request of the employee for voluntary retirement on the ground that the employee was not eligible under Pension Regulations, 1995. 3. Being aggrieved by the rejection of the application for voluntary retirement, the employee preferred Writ Petition (C) No. 16972 of 2005. One another prayer was for a direction to the employer to reimburse the educational expenses for the son of the employee, who had been sent to Singapore for his education while he was posted at Colombo. One another prayer was for grant of traveling allowance bills for the journey from Colombo to New Delhi, which was declined by the employer on account of delay in submitting the bills. The learned Single Judge by judgment and order dated 11.10.2006 dismissed the writ petition so far as challenge to the rejection of his voluntary retirement application vide communication dated 20.04.2004. However, granted the prayers for traveling allowance bills and educational expenses. 4. Feeling aggrieved and dissatisfied with the judgment and order passed by the learned Single Judge in dismissing the writ petition with respect to his prayer to quash the letter dated 20.04.2004 rejecting his request for voluntary retirement, the employee preferred Letters Patent Appeal before the Division Bench of the High Court. The Division Bench, by the impugned judgment and order, has allowed the said Letters Patent Appeal and has quashed and set aside the letter dated 20.04.2004 and has directed the employer to release retiral dues of the employee in accordance with Pension Regulations, 1995. 5. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the Division Bench of the High Court, the employer has preferred the present appeal. 6. Shri Ravi Sikri, learned Senior Advocate has appeared on behalf of the employer and Shri Sanjeev Kumar, learned Advocate has appeared on behalf of the employee. 6.1 Shri Ravi Sikri, learned Senior Advocate appearing on behalf of the employer has made the following submissions, assailing the impugned judgment and order passed by the Division Bench: i) that the High Court has not properly appreciated Regulation 29 of the Pension Regulations, 1995 in its true perception; ii) that the High Court has not properly appreciated the fact that as per Regulation 29, a request for voluntary retirement by an employee requires permission/acceptance of the employer concerned; iii) that vide communication dated 20.04.2004, the application of the employee for voluntary retirement was rejected within three months from the date of submitting the voluntary retirement application and therefore there could not be a deemed acceptance of voluntary retirement; that what is relevant is taking the decision within three months and not the service of the decision on the application for voluntary retirement. It is submitted that in the present case, the decision was taken within a period of three months. iv) that the High Court has failed to appreciate that an employee who seeks voluntary retirement is to give three months\u2019 mandatory notice in writing to enable the employer to make necessary arrangements for an alternate hand in place of the employee seeking voluntary retirement. It is submitted that in the present case, three months\u2019 mandatory notice was not given and therefore his application for voluntary retirement was defective to that extent. It is submitted that therefore the employer rightly rejected his application for voluntary retirement which was not in consonance with the Pension Regulations, 1995; v) that the High Court has failed to appreciate that the employee\u2019s offer of surrendering three months salary in lieu of mandatory notice period could not be considered to be a valid application for waiver of the three months\u2019 notice requirement; vi) that the High Court has erred in holding that the employee was, in fact, transferred to the foreign branch and was not sent on deputation. It is submitted that as such the respondent was on deputation at the overseas branch at Colombo at the relevant point of time and therefore as per Regulation 29(1) of the Pension Regulations, 1995, the employee was not eligible to apply for voluntary retirement unless after having been transferred or having returned to India, he has resumed charge of the post in India and has served for a period of not less than one year. It is submitted that therefore the employee did not fulfil the statutory requirement of serving for a period of one year after returning to India, as contemplated under Regulation 29(1); vii) It is submitted that as such after rejection of the application for voluntary retirement, the employer initiated departmental proceedings against the employee for his unauthorised absence from 26.11.2003 to 19.01.2004 and from 22.01.2004 and the disciplinary authority imposed the penalty of compulsory retirement on the employee. It is submitted that therefore the Division Bench of the High Court ought not to have allowed the appeal. Making the above submissions, it is prayed to allow the present appeal and quash and set aside the impugned judgment and order passed by the Division Bench and restore the judgment and order passed by the learned Single Judge and restore the decision of the bank dated 20.04.2004 rejecting the application of the employee for voluntary retirement. 7. Shri Sanjeev Kumar, learned Advocate appearing on behalf of the employee has supported the impugned judgment and order passed by the Division Bench of the High Court. It is submitted that the Division Bench has rightly set aside the communication dated 20.04.2004 by which the application of the employee for voluntary retirement was rejected. It is submitted that the Division Bench of the High Court has rightly interpreted Regulation 29 and has rightly considered that the bar under Regulation 29(1) shall not be applicable insofar as Regulation 29(1) is concerned, as the employee was not on deputation at Colombo Branch but was on transfer. It is submitted that the question is not when the decision was served upon the employee, but the question is whether the rejection of the voluntary retirement application vide communication dated 20.04.2004 was legal, just and proper and was in consonance with Regulation 29 or not. It is submitted that on true interpretation of Regulation 29, the High Court has rightly allowed the appeal and has rightly quashed and set aside the communication dated 20.04.2004. 8. We have heard the learned counsel for the respective parties at length. It is not in dispute that in the present case the employee submitted the voluntary retirement application on 21.01.2004. In the application itself, the employee requested for waiver of three months\u2019 notice and requested to deduct the salary amount of the notice period from out of the amounts payable to him by the employer on retirement. It is not in dispute and it cannot be disputed that the notice of voluntary retirement requires acceptance by the appointing authority. However, as per proviso to Sub\u00adRegulation 2 of Regulation 29, in case the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the notice, the retirement shall become effective from the date of expiry of the said notice period. In the present case, on the 90 th day vide communication dated 20.04.2004 the application of the employee for voluntary retirement was rejected without assigning any specific reasons and by observing that the employee is not eligible for voluntary retirement under Pension Regulations, 1995. The said communication was sent to the employee on the very date, i.e., 20.04.2004, however the same was received by the employee on 23.04.2004. The learned Single Judge dismissed the writ petition so far as challenge to the communication dated 20.04.2004 is concerned. However, on appeal, by the impugned judgment and order, the Division Bench has set aside the communication dated 20.04.2004 by which the request of the employee for voluntary retirement from the service of the employer came to be rejected. Therefore, the short question which is posed for the consideration before this Court is, whether the rejection of the request of the employee for voluntary retirement vide communication dated 20.04.2004 was legal and in consonance with Regulation 29 of the Pension Regulations, 1995 or not. 9. While considering the aforesaid question, Regulation 29 is required to be referred to, which reads as under: \u201c29. Pension on Voluntary Retirement:\u00ad 1) On or after the first day of November, 1993, at any time after an employee has completed twenty years of qualifying service he may, by giving notice of not less than three months in writing to the appointing authority retire from service: Provided that this sub\u00adregulation shall not apply to an employee who is on deputation or on study leave on abroad unless after having been transferred or having returned to India he has resumed charge of the post in India and has served for a period of not less than one year: Provided further that this sub\u00adregulation shall not apply to an employee who seeks retirement from service for being absorbed permanently in an autonomous body or a public sector undertaking or company or institution or body, whether incorporated or not to which he is on deputation at the time of seeking voluntary retirement: Provided that this sub\u00adregulation shall not apply to an employee who is deemed to have retired in accordance with clause (l) of regulation 2. (2) The notice of Voluntary retirement given under sub\u00ad regulation (1) shall require acceptance by the appointing authority: Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period. (3)(a) An employee referred to in sub\u00adregulation (1) may make a request in writing to the appointing authority to accept notice of Voluntary Retirement of less than three months giving reasons thereof; (b) On receipt of a request under clause (a), the appointing authority may, subject to the provisions of sub\u00adregulation (2), consider such request for the curtailment of the period of the notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months on the condition that the employee shall not apply for Commutation of a part of the pension before the expiry of the notice of three months. (4) An employee, who has elected to retire under this regulation and has given necessary notice to that effect to the appointing authority. shall be precluded from withdrawing his notice except with specific approval of such authority; Provided that the request for such withdrawal shall be made before the intended date of his retirement. (5) The qualifying service of an employee retiring voluntarily under this regulation shall be increased by a period not exceeding five years, subject to the condition that the total qualifying service rendered by such employee shall not in any case exceed thirty\u00adthree years and it does not take him beyond the date of superannuation, (6) The pension of an employee retiring under this regulation shall be based on the average emoluments as defined under clause (d) of regulation 2 of these regulations and the increase. not exceeding five years in his qualifying service. shall not entitle him to any notional fixation of pay for the purpose of calculating his pension.\u201d 10. On a fair reading of Regulation 29, it emerges that an employee is entitled to apply for voluntary retirement after he has completed 20 years of qualifying service. He can apply for voluntary retirement by giving notice of not less than three months in writing to the appointing authority (Regulation 29(1)). However, as per proviso to Sub\u00adRegulation (1) of Regulation 29, Sub\u00adRegulation (1) of Regulation 29 shall not apply to an employee who is on deputation or on study leave on abroad unless after having been transferred or having returned to India he has resumed charge of the post in India and has served for a period of not less than one year. The said proviso shall be dealt with and considered hereinbelow. It also appears that as per Sub\u00adRegulation (2) of Regulation 29, the notice of voluntary retirement given under Sub\u00adRegulation (1) shall require acceptance by the appointing authority. However, as per the proviso to Sub\u00adregulation (2), the appointing authority has to take a decision before the expiry of the period specified in the notice. It provides that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the notice, there shall be deemed acceptance of the voluntary retirement application and the retirement shall become effective from the date of expiry of the period mentioned in the notice. However, at the same time, as per Sub\u00adRegulation 3(a), an employee may make a request in writing to the appointing authority for waiver of the three months\u2019 notice and may make a request to accept the notice of voluntary retirement of less than three months giving reasons thereof. Sub\u00adRegulation 3(b) provides that on receipt of a request for waiver of three months\u2019 notice as per Sub\u00adRegulation 3(a), the appointing authority may, subject to the provisions of Sub\u00ad Regulation (2), consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months on the condition that the employee shall not apply for commutation of a part of the pension before the expiry of the notice of three months. In the present case, the application of the employee submitting the voluntary retirement application with a request for curtailment of notice of three months was absolutely in consonance with Regulation 29. The request made by the employee for curtailment of the period of notice of three months was required to be considered by the appointing authority on merits and only in a case where it is found that the curtailment of the period of notice may cause any administrative inconvenience, the request for curtailment of the period of three months\u2019 notice can be rejected. On considering the communication dated 20.04.2004 rejecting the application of the employee for voluntary retirement, it does not reflect any compliance of Sub\u00adRegulation 3(b) of Regulation 29. As such, no reasons whatsoever have been assigned/given except stating that the request is not in accordance with Pension Regulations, 1995. Even otherwise, it is required to be noted that even the communication dated 20.04.2004 was on the last day of the third month, i.e., 90 th day from the date of submitting the voluntary retirement application. Therefore, there was no reason to reject the prayer of curtailment of the period of notice considering the grounds mention in Sub\u00ad Regulation 3(b) of Regulation 29. Be that as it may, the rejection of the application for voluntary retirement was not on the ground that notice of three months is not given. The request made by the employee for curtailment of notice of three months was also not considered on merits. Therefore, as rightly held by the Division Bench of the High Court, the application for voluntary retirement was absolutely in consonance with Regulation 29 and that the rejection was bad in law and contrary to Regulation 29. The Division Bench of the High Court is absolutely justified in quashing and setting aside the communication dated 20.04.2004. We are in complete agreement with the view taken by the Division Bench. 11. Now so far as the submission on behalf of the employer that the employee was not eligible for voluntary retirement in view of proviso to Sub\u00adRegulation (1) of Regulation 29 as after he returned to India from Colombo Branch he did not serve for a period of not less than one year is concerned, there is a specific finding given by the Division Bench that the said proviso shall not be applicable to the facts of the case on hand as in the present case the employee was on transfer to Colombo Branch and was not on deputation. If we look at order dated 19.03.1998, it cannot be said that the employee was sent on deputation as Chief Manager, Colombo Branch. It says that he is posted as Chief Manager, Colombo Branch. Even when he was relieved from Colombo Branch to join at Defence Colony Branch, New Delhi, in the communication dated 25.08.2003 (Annexure P5), it speaks about the transfer order dated 13.05.2003. It is not the order of repatriation. Therefore, proviso to Sub\u00adRegulation (1) to Regulation 29 shall not be applicable. 12. Now so far as the submission on behalf of the employer that the acceptance or non\u00adacceptance of the voluntary retirement application is required to be taken before the expiry of the period specified in the notice, i.e., in the present case three months and the same was taken on the last date of the three months\u2019 period and date of receipt of the decision/communication is not material, it is true that in the present case the decision was taken before the expiry of the period specified in the notice, i.e., on or before three months (last day of the third month), however, as observed hereinabove, the rejection of the application for voluntary retirement itself is found to be illegal and bad in law. Therefore, the aforesaid shall not affect the ultimate conclusion reached by the Division Bench of the High Court. As observed hereinabove, communication dated 20.04.2004 rejecting the voluntary retirement application was bad in law and contrary to Regulation 29. Therefore, the employee shall be entitled to all retiral benefits on the basis of his voluntary retirement. Once, it is held that he is voluntary retired as per his application dated 21.01.2004 and the rejection of the application of voluntary retirement is held to be bad in law, all other subsequent proceedings of departmental enquiry will be null and void and shall be non est, as after the voluntary retirement, there shall not be an employer\u00ademployee relationship. 13. In view of the above and for the reasons stated above, the appeal fails and the same deserves to be dismissed and is accordingly dismissed. However, there shall be no order as to costs. \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. [ASHOK BHUSHAN] \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.J. [R. SUBHASH REDDY] NEW DELHI; \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.J. JANUARY 22, 2021. [M.R. 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{"id": "76640285", "text": "REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 195 OF 2022 (arising out of S.L.P (Crl.) No. 6545 OF 2020) KAHKASHAN KAUSAR @ SONAM & ORS. \u2026 APPELLANT (S) VERSUS STATE OF BIHAR & ORS. \u2026 RESPONDENT(S) JUDGMENT KRISHNA MURARI, J. Leave granted. 2. This appeal is directed against the judgment and order dated 13.11.2019 passed by the High Court of Patna in Criminal Writ Petition No. 1492 of 2019, filed by the Appellants under Section 482 of the Code of Criminal Procedure (hereinafter referred to as \u2018CrPC\u2019) challenging the FIR No. 248/2019 dated 01.04.2019 implicating the Appellants for offences under Sections 341, 323, 379, 354, 498A read with Section 34 of the Indian Penal Code (hereinafter referred to as \u2018IPC\u2019). The High Court vide order impugned herein dismissed the Signature Not Verified Digitally signed by Anita Malhotra Date: 2022.02.08 16:17:30 IST same. Reason: Factual Matrix 3. The Complainant (Respondent No. 5 herein) Tarannum Akhtar @ Soni, was married to Md. Ikram on 18.09.17. The appellants herein are the in-laws of Respondent No. 5. On 11.12.17, the said Respondent initially instituted a criminal complaint against her husband and the appellants before the Court of Chief Judicial Magistrate, Purnea alleging demand for dowry and harassment. Thereafter, when the file was put up before the Sub Divisional Judicial Magistrate Court, Purnea, for passing order at the stage of issuance of summon, the Ld. Magistrate concluded that upon perusal of material evidence no prima-facie case was made against the in-laws and that the allegations levelled against them were not specific in nature. The said court, however, took cognizance for the offence under section 498A, 323 IPC against the husband Md. Ikram, and issued summons. This dispute was eventually resolved and Respondent No. 5 herein came back to the matrimonial home. 4. Subsequently, on 01.04.19, Respondent No. 5 herein, gave another written complaint for registration of FIR under sections 341, 323, 379, 354, 498A read with Section 34 IPC against her husband Md. Ikram and the appellants herein. The complaint inter-alia alleged that all the accused were pressurizing the Respondent wife herein to purchase a car as dowry, and threatened to forcibly terminate her pregnancy if the demands were not met. 5. Aggrieved, the Husband and appellant herein filed a criminal writ petition before the Patna High Court, for quashing of the said FIR dated 01.04.19, which was dismissed vide impugned judgment. The High Court observed that the averments made in the FIR prima-facie disclosed commission of an offence and therefore the matter was required to be investigated by the police. The Appellants herein, being the niece (Respondent No. 1), Mother in-law (Respondent No. 2), Sister in-law (Respondent No. 3), and brother in law (Respondent No. 4) have thereby approached this court by way of the present Special Leave Petition. Contentions made by the Appellants 6. The counsel for the Appellants herein contends, that the Police Officer was duty bound to conduct a preliminary inquiry before registering the FIR as this instant case falls within the categories of cases on which a preliminary enquiry may be made, as mandated by this court in Lalita Kumari Vs. Government of U.P. & Ors.1 . 1. (2014) 2 SCC 1 7. It is also submitted that previously in the year 2017, the Respondent wife had instituted a criminal complaint on similar allegations, whereby the Ld. Judicial Magistrate after considering the evidence issued summons only against the husband, and found that the allegations made against the appellants herein were omnibus in nature. Further, it is submitted that the FIR in question has been made with a revengeful intent, merely to harass the Appellant in-laws herein, and should be dealt with accordingly. Reliance is placed on Social Action Forum for Manav Adhikar & Anr. Vs. Union of India, Ministry of Law And Justice & Ors.2, wherein it was observed:- \u201c4. Regarding the constitutionality of Section 498-A IPC, in Sushil Kumar Sharma v. Union of India and others , it was held by the Supreme Court:- \"Provision of S. 498A of Penal Code is not unconstitutional and ultra vires. Mere possibility of abuse of a provision of law does not per se invalidate a legislation. Hence plea that S. 498A has no legal or constitutional foundation is not tenable. The object of the provisions is prevention of the dowry menace. But many instances have come to light where the complaints are not bona fide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations 2. (2018) 10 SCC 443 can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame-work.\u201d Contention made by Respondent No. 1 \u2013 State of Bihar 8. Respondent No. 1 herein i.e., the State of Bihar, contends that the present FIR pertains to offences committed in the year 2019, after assurance was given by the husband Md. Ikram before the Ld. Principal Judge Purnea, to not harass the Respondent wife for dowry, and treat her properly. However, the husband and appellants, despite the assurances, have continued their demand for dowry and threatened with forcefully terminating the Respondent wife\u2019s pregnancy. These acts constitute a fresh cause of action and therefore the FIR in question herein dated 01.04.19, is distinct and independent, and cannot be termed as a repetition of an earlier FIR dated 11.12.17. Moreover, an investigation was carried out pursuant to the FIR and the case has been found true against all accused persons, therefore Lalita Kumari (Supra) will not apply in the present case. Contentions made by Respondent No 5 \u2013 Complainant Wife 9. Respondent No. 5 contends that of the total seven accused, the FIR in question was challenged by only five accused including her husband. It is argued that the impugned order is evidently accepted by the accused husband Md. Ikram @Sikandar as he has not challenged the impugned High Court judgment. Further, as far as involvement of the four accused Appellant in-laws is concerned, it is not only reflected from the averments made in the FIR, but also corroborated from the oral and documentary evidence collected by the investigating officer during investigation, culminating into filing of charge-sheet against all seven accused including the four Appellants herein. The allegations thus made in the FIR are sufficient to make out a prima facie case, and non- mentioning of pendency of Complaint case of year 2017, at the time of filing the complaint 01.04.19 is not fatal for the case of the prosecution. 10. It is further submitted that the allegations made in the FIR are serious in nature and the Respondent wife has been repeatedly tortured physically and mentally in order to fulfil the demand for dowry. Further, even if the contentions made by the Respondent No. 5 herein are disputed, by the Appellant in-laws, their veracity can be tested in trial before the Trial Court. It is further contended that this court has also taken a consistent view with regard to exercise of power under S. 482 Cr.P.C., in Rajesh Bajaj Vs. State of NCT of Delhi & Ors. 3, wherein it has been clearly held that even if a prima facie case is made out disclosing the ingredients of an offence, Court should not quash the complaint. Therefore, the impugned order can in no way be termed as perverse, cryptic or erroneous and therefore warrant no interference by this Hon\u2019ble Court. Issue Involved 11. Having perused the relevant facts and contentions made by the Appellants and Respondents, in our considered opinion, the foremost issue which requires determination in the instant case is whether allegations made against the in-laws Appellants are in the nature of general omnibus allegations and therefore liable to be quashed? 12. Before we delve into greater detail on the nature and content of allegations made, it becomes pertinent to mention that incorporation of section 498A of IPC was aimed at preventing cruelty committed upon a woman by her husband and her in-laws, by facilitating rapid state intervention. However, it is equally true, that in recent times, matrimonial litigation in the country has also increased significantly and there is a 3. (1999) 3 SCC 259 greater disaffection and friction surrounding the institution of marriage, now, more than ever. This has resulted in an increased tendency to employ provisions such as 498A IPC as instruments to settle personal scores against the husband and his relatives. 13. This Court in its judgment in Rajesh Sharma and Ors. Vs. State of U.P. & Anr.4, has observed:- \u201c14. Section 498-A was inserted in the statute with the laudable object of punishing cruelty at the hands of husband or his relatives against a wife particularly when such cruelty had potential to result in suicide or murder of a woman as mentioned in the statement of Objects and Reasons of the Act 46 of 1983. The expression 'cruelty' in Section 498A covers conduct which may drive the woman to commit suicide or cause grave injury (mental or physical) or danger to life or harassment with a view to coerce her to meet unlawful demand. It is a matter of serious concern that large number of cases continue to be filed under already referred to some of the statistics from the Crime Records Bureau. This Court had earlier noticed the fact that most of such complaints are filed in the heat of the moment over trivial issues. Many of such complaints are not bona fide. At the time of filing of the complaint, implications and consequences are not visualized. At times such complaints lead to uncalled for harassment not only to the accused but also to the complainant. Uncalled for arrest may ruin the chances of settlement.\u201d 4. (2018) 10 SCC 472 14. Previously, in the landmark judgment of this court in Arnesh Kumar Vs. State of Bihar and Anr.5, it was also observed:- \u201c4. There is a phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A IPC is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed- ridden grand- fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested.\u201d 15. Further in Preeti Gupta & Anr. Vs. State of Jharkhand & Anr. 6, it has also been observed:- \u201c32. It is a matter of common experience that most of these complaints under section 498A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern. 33. The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fiber of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their 5. (2014) 8 SCC 273 6. (2010) 7 SCC 667 concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under section 498A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fiber, peace and tranquility of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases. 34. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations. 35. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband's close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. 36. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband's relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful.\u201d 16. In Geeta Mehrotra & Anr. Vs. State of UP & Anr.7, it was observed:- \u201c21. It would be relevant at this stage to take note of an apt observation of this Court recorded in the matter of G.V. Rao vs. L.H.V. Prasad & Ors. reported in (2000) 3 SCC 693 wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that: \u201cthere has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate the disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their \u201cyoung\u201d days in chasing their cases in different courts.\u201d The view taken by the judges in this matter was that the courts would not encourage such disputes.\u201d 17. Recently, in K. Subba Rao v. The State of Telangana 8, it was also observed that:- 7. (2012) 10 SCC 741 8. (2018) 14 SCC 452 \u201c6. The Courts should be careful in proceeding against the distant relatives in crimes pertaining to matrimonial disputes and dowry deaths. The relatives of the husband should not be roped in on the basis of omnibus allegations unless specific instances of their involvement in the crime are made out.\u201d 18. The above-mentioned decisions clearly demonstrate that this court has at numerous instances expressed concern over the misuse of section 498A IPC and the increased tendency of implicating relatives of the husband in matrimonial disputes, without analysing the long term ramifications of a trial on the complainant as well as the accused. It is further manifest from the said judgments that false implication by way of general omnibus allegations made in the course of matrimonial dispute, if left unchecked would result in misuse of the process of law. Therefore, this court by way of its judgments has warned the courts from proceeding against the relatives and in-laws of the husband when no prima facie case is made out against them. 19. Coming to the facts of this case, upon a perusal of the contents of the FIR dated 01.04.19, it is revealed that general allegations are levelled against the Appellants. The complainant alleged that \u2018all accused harassed her mentally and threatened her of terminating her pregnancy\u2019. Furthermore, no specific and distinct allegations have been made against either of the Appellants herein, i.e., none of the Appellants have been attributed any specific role in furtherance of the general allegations made against them. This simply leads to a situation wherein one fails to ascertain the role played by each accused in furtherance of the offence. The allegations are therefore general and omnibus and can at best be said to have been made out on account of small skirmishes. Insofar as husband is concerned, since he has not appealed against the order of the High court, we have not examined the veracity of allegations made against him. However, as far as the Appellants are concerned, the allegations made against them being general and omnibus, do not warrant prosecution. 20. Furthermore, regarding similar allegations of harassment and demand for car as dowry made in a previous FIR. Respondent No. 1 i.e., the State of Bihar, contends that the present FIR pertained to offences committed in the year 2019, after assurance was given by the husband Md. Ikram before the Ld. Principal Judge Purnea, to not harass the Respondent wife herein for dowry, and treat her properly. However, despite the assurances, all accused continued their demands and harassment. It is thereby contended that the acts constitute a fresh cause of action and therefore the FIR in question herein dated 01.04.19, is distinct and independent, and cannot be termed as a repetition of an earlier FIR dated 11.12.17. 21. Here it must be borne in mind that although the two FIRs may constitute two independent instances, based on separate transactions, the present complaint fails to establish specific allegations against the in-laws of the Respondent wife. Allowing prosecution in the absence of clear allegations against the in-laws Appellants would simply result in an abuse of the process of law. 22. Therefore, upon consideration of the relevant circumstances and in the absence of any specific role attributed to the accused appellants, it would be unjust if the Appellants are forced to go through the tribulations of a trial, i.e., general and omnibus allegations cannot manifest in a situation where the relatives of the complainant\u2019s husband are forced to undergo trial. It has been highlighted by this court in varied instances, that a criminal trial leading to an eventual acquittal also inflicts severe scars upon the accused, and such an exercise must therefore be discouraged. 23. In view of the above facts and discussions, the impugned order dated 13.11.2019 passed by the High Court of Patna is set aside. The impugned F.I.R. No. 248 of 2019 against the Appellants under Sections 341, 323, 379, 354, 498A read with Section 34 IPC stands quashed. 24. As a result, appeal stands allowed. ....\u2026..........................J. (S. ABDUL NAZEER) \u2026................................J. 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{"id": "1680408", "text": "CASE NO.: Appeal (civil) 849 of 2007 PETITIONER: State of Manipur & Ors RESPONDENT: Y. Token Singh & Ors DATE OF JUDGMENT: 20/02/2007 BENCH: S.B. Sinha & Markandey Katju JUDGMENT: J U D G M E N T WITH [Arising out of SLP (C) No. 19110-19112 of 2005] CIVIL APPEAL NO.850 OF 2007 [Arising out of SLP (C) No. 19375-19376 of 2005] S.B. SINHA, J : Leave granted. The State of Manipur is in appeal before us questioning the judgment and order dated 29.07.2005 passed by a Division Bench of the Guwahati High Court in WA Nos. 61, 78, 79, 95 and 100 of 1999 upholding a judgment and order of a learned Single Judge of the said Court dated 19.02.1999 in C.R. Nos. 324, 1012, 568, 1022 and 1023 of 1998. One Shri A.J. Tayeng was the Revenue Commissioner of Government of Manipur. The State of Manipur had not framed any recruitment rules for appointment inter alia in the Revenue Department and in particular the field staff thereof. The Commissioner of Revenue Department was conferred with a power of being the cadre controlling authority for non-ministerial post of the Revenue Department. He was also to be the Chairman of the Departmental Promotion Committee for non-ministerial post of the Revenue Department. The Commissioner allegedly made certain appointments in the posts of Mandols, Process-Servers and Zilladars which was not within the knowledge of the State. The said appointments were made on temporary basis. Appointments were made on 11.09.1997, 22.11.1997 and 5.12.1997. A sample copy of the offer of appointment reads as under: \"No. 1/14/97 \u0016 Com (Rev) : On the recommendation of D.P.C. and under the directives issued by the Hon'ble Gauhati High Court, the following persons are hereby appointed as Mandols on temporary basis in the scale of pay of Rs. 950-20-1150-EB-25-1400/- per month with usual allowances against thereto existing clear vacancies of Mandals under Revenue Department from the date of their joining on duties. 2. Further, they are posted at the places indicate against their names:- *** *** *** 3. The expenditure is debitable under Appropriate Heads of Accounts of the Departments/ Offices concerned.\" No record in regard to the said recruitments was maintained. An inquiry was, therefore, made to find out the authority which had issued the said offers of appointments. Shri Tayeng by a UO Note dated 12.01.1998 denied to have made such an appointment stating: \"CONFIDENTIAL U.O. No. 2/15/93-Com (R) Pt. Imphal, the 12th Jan., 1998 Sub: Submission of report. With reference to the U.O. letter No. 2/15/93- Com(R) Pt. Dated 6th January, 1998 regarding the alleged appointment of ad-hoc/ regular appointment to the post of Lambus/ Mandols etc. of the Hon'ble Minister (Revenue), I am to say that I am not all aware of such appointments made by me except for 3 Lambus who were kept in panel for appointment, and accordingly the S.O. (Revenue) Shri Robert Shaiza was instructed to take care. I, therefore, deny making of such appointments. On the other hand, Md. A.R. Khan, Secretary (Revenue) has made many appointments of Mandols/ Process Servers/ Zilladars in the recent months against which I have been complaining that the Secretary (Revenue) has no power or authority to make any appointments of field staff as per Rules provided under M.L.R. Act, 1960. In this regard, I have apprised the matter to the Hon'ble Minister (Revenue) already and also informed the Chief Secretary, Manipur explaining that the Secretary (Revenue) cannot make such appointments of field staffs, even if he wanted to do so, all the relevant files should have been routed through the undersigned so that the same may be brought to the notice of the Hon'ble Minister (Revenue). His action has created lots of misunderstanding and confusion. He has been making false and wrong allegations against the Commissioner (Revenue) and putting him false position. It is for this reason, I have been writing to all the Deputy Commissioners in the Districts even by sending W/T messages clarifying the actual position of making any appointment of Revenue field staff. I still deny that I have made any appointment of field staffs of Revenue Department during the recent months. Submitted for information and consideration. Sd/- 12/1/98 (Annayok J. Tayeng) Commissioner (Revenue) Govt. of Manipur Minister (Revenue)\" In view of the aforementioned stand taken by the said Shri Tayeng, the offers of appointment issued in favour of the Respondents were cancelled by an order dated 17.02.1998. A corrigendum thereto was, however, issued on 21.02.1998 stating: \"No. 2/15/93-Com(Rev) Temp-I: Please read as \"August/97\" in place of \"October/97\" occurring in the 4th line of this Government order No. 2/15/93- Com(Rev) Temp-I dated 17-2-1998.\" In Civil Appeal arising out of SLP (C) No. 19375-19376 of 2005, the respondents were appointed on ad hoc basis for a period of six months. Their appointments were also cancelled on similar grounds. The respondents herein filed writ petitions before the High Court on 4.06.1998 questioning the said order of cancellation of their appointments. The said Shri Tayeng retired on 28.02.1998. Despite the fact that he, in his UO Note dated 12.02.1998 addressed to the Minister of Revenue, denied to have made any appointment, when approached by the writ petitioners \u0016 respondents, he affirmed in their support an affidavit in the High Court stating: \"3. That, while I was functioning as Revenue Commissioner, Manipur, matters relating to appointment on the recommendation of the D.P.C., transfer etc. were put-up to me in files and I used to pass order on the basis of facts presented to me in file. I also issued appointment order under my signature. After my retirement from service I have no access to such files. As stated above, I was transferred and posted to the Manipur Electronics Development Corporation during 1997. 4. That after my retirement, some of the writ petitioners civil Rule No. 568 of 1998, came to me and show copy of the writ petition and the counter affidavit of the respondent No. 1, 2 and 3. I have gone through the copy of the writ petition and the counter-affidavit and annexures thereto. The Xerox copy of the cyclostyled appointment order bearing No. 1/14/97 \u0016 Com (Rev.) dated 11.9.97 (annexure A/1 to the writ petition) appointing 3 persons to the post of Mandol and No. 1/14/97- Com. (Rev.) dated 11.9.97 (Annexure A/2 to the writ petition) appointing 4 persons to the post of Mandol, are perused by me minutely. I submit that these appointment orders (annexures A/1 and A/2) bear my signature (initial) and appear to have been issued under my signature. It appears that the appointment orders were issued after complying the formalities prescribed therefor which can be ascertained from the relevant official file. Since I have retired from service, I have no access to the file and do not know what might have been in the file and where is the file. Verified that the above statements are true to the best of my knowledge and no part of it is false.\" The writ petitions filed by the respondents herein were allowed by a learned Single Judge of the High Court opining: (i) The principles of natural justice having not been complied with, the impugned orders cannot be sustained. (ii) Whereas, in the impugned order, the appointments of the respondents were said to have been passed without the knowledge of the Administrative Department (Revenue Department); in the counter affidavit, it was stated that no records were available in respect thereof and, thus, the said plea being inconsistent with each other, the orders of cancellation of appointment would be bad in law in the light of a decision of this Court in Mohinder Singh Gill and Anr. v. Chief Election Commissioner, Delhi and Ors. [AIR 1978 SC 851]. However, it was observed: \"However, it is further made clear that the State respondent are at liberty to initiate or take up any appropriate legal action in the matter pertaining to their alleged fake appointments in their respective posts in accordance with law and pass necessary order after affording reasonable opportunity of being heard to them.\" (iii) So far as the matter relating to Civil Appeal arising out of SLP (C) No. 19375-19376 of 2005 is concerned, it was directed that as the appointment of the respondents were made for a period of six months, the employees were only entitled to the salary for the said period. The writ appeals preferred thereagainst by the appellants herein were dismissed. Mr. Jaideep Gupta, learned senior counsel appearing on behalf of the appellants, would submit that the High Court went wrong in passing the impugned judgment insofar as it failed to take into consideration that in a case of this nature it was not necessary to comply with the principles of natural justice. Strong reliance in this behalf has been placed on Kendriya Vidyalaya Sangathan and Others v. Ajay Kumar Das and Others [(2002) 4 SCC 503]. It was argued that the question, as to whether appointments were made without the knowledge of the Department or for that matter whether any record was available therefor was of not much significance as in effect and substance they lead to the same inference and in that view of the matter, the decision of this Court in Mohinder Singh Gill (supra) was not attracted. Mr. S.B. Sanyal, learned counsel appearing on behalf of the respondents, on the other hand, would submit that the question as to whether the appointments of the respondents were nullities or not having not been raised before the High Court, this Court should not permit the appellants to raise the said contention at this stage. The learned counsel would submit that even in a case of this nature, it was incumbent upon the appellants to comply with the principles of natural justice. Strong reliance in this behalf has been placed on Parshotam Lal Dhingra v. Union of India [AIR 1958 SC 36], Murugayya Udayar and Another v. Kothampatti Muniyandavar Temple by Trustee Pappathi Ammal [1991 Supp (1) SCC 331] and Kumari Shrilekha Vidyarthi and Others v. State of U.P. and Others [(1991) 1 SCC 212]. The State while offering appointments, having regard to the constitutional scheme adumbrated in Articles 14 and 16 of the Constitution of India, must comply with its constitutional duty, subject to just and proper exceptions, to give an opportunity of being considered for appointment to all persons eligible therefor. The posts of field staffs of the Revenue Department of the State of Manipur were, thus, required to be filled up having regard to the said constitutional scheme. We would proceed on the assumption that the State had not framed any recruitment rules in terms of the proviso appended to Article 309 of the Constitution of India but the same by itself would not clothe the Commissioner of Revenue to make recruitments in violation of the provisions contained in Articles 14 and 16 of the Constitution of India. The offers of appointment issued in favour of the respondents herein were cancelled inter alia on the premise that the same had been done without the knowledge of the Revenue Department of the State. No records therefor were available with the State. As noticed hereinbefore, an inquiry had been made wherein the said Shri Tayeng, the then Commissioner of Revenue stated that no such appointment had been made to his knowledge. The State proceeded on the said basis. The offers of appointment were cancelled not on the ground that some irregularities had been committed in the process of recruitment but on the ground that they had been non-est in the eye of law. The purported appointment letters were fake ones. They were not issued by any authority competent therefor. If the offers of appointments issued in favour of the respondents herein were forged documents, the State could not have been compelled to pay salaries to them from the State exchequer. Any action, which had not been taken by an authority competent therefor and in complete violation of the constitutional and legal framework, would not be binding on the State. In any event, having regard to the fact that the said authority himself had denied to have issued a letter, there was no reason for the State not to act pursuant thereto or in furtherance thereof. The action of the State did not, thus, lack bona fide. Moreover, it was for the respondents who had filed the writ petitions to prove existence of legal right in their favour. They had inter alia prayed for issuance of a writ of or in the nature of mandamus. It was, thus, for them to establish existence of a legal right in their favour and a corresponding legal duty in the respondents to continue to be employed. With a view to establish their legal rights to enable the High Court to issue a writ of mandamus, the respondents were obligated to establish that the appointments had been made upon following the constitutional mandate adumbrated in Articles 14 and 16 of the Constitution of India. They have not been able to show that any advertisement had been issued inviting applications from eligible candidates to fill up the said posts. It has also not been shown that the vacancies had been notified to the employment exchange. The Commissioner furthermore was not the appointing authority. He was only a cadre controlling authority. He was merely put a Chairman of the DPC for non-ministerial post of the Revenue Department. The term \"DPC\" would ordinarily mean the Departmental Promotion Committee. The respondents had not been validly appointed and in that view of the matter, the question of their case being considered for promotion and/ or recruitment by the DPC did not and could not arise. Even assuming that DPC would mean Selection Committee, there is noting on record to show who were its members and how and at whose instance it was constituted. The Commissioner, as noticed hereinbefore, was the Chairman of the DPC. How the matter was referred to the DPC has not been disclosed. Even the affidavit affirmed by Shri Tayeng before the High Court in this behalf is silent. The appointing authority, in absence of any delegation of power having been made in that behalf, was the State Government. The Government Order dated 12.01.1998 did not delegate the power of appointment to the Commissioner. He, therefore, was wholly incompetent to issue the appointment letters. The respondents, therefore, in our opinion, were not entitled to hold the posts. In a case of this nature, where the facts are admitted, the principles of natural justice were not required to be complied with, particularly when the same would result in futility. It is true that where appointments had been made by a competent authority or at least some steps have been taken in that behalf, the principles of natural justice are required to be complied with, in view of the decision of this Court in Murugayya Udayar (supra). We, as noticed hereinbefore, do not know as to under what circumstances the orders of appointments were issued. The said decision is not an authority for the proposition that the principles of natural justice are required to be complied with in all situations. In Kumari Shrilekha Vidyarthi (supra), this Court was dealing with a question in regard to continuance of the Law Officers. The question which arose herein was not raised. It was held: \"34. In our opinion, the wide sweep of Article 14 undoubtedly takes within its fold the impugned circular issued by the State of U.P. in exercise of its executive power, irrespective of the precise nature of appointment of the Government Counsel in the districts and the other rights, contractual or statutory, which the appointees may have. It is for this reason that we base our decision on the ground that independent of any statutory right, available to the appointees, and assuming for the purpose of this case that the rights flow only from the contract of appointment, the impugned circular, issued in exercise of the executive power of the State, must satisfy Article 14 of the Constitution and if it is shown to be arbitrary, it must be struck down. However, we have referred to certain provisions relating to initial appointment, termination or renewal of tenure to indicate that the action is controlled at least by settled guidelines, followed by the State of U.P., for a long time. This too is relevant for deciding the question of arbitrariness alleged in the present case. 35. It is now too well settled that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 of the Constitution and basic to the rule of law, the system which governs us. Arbitrariness is the very negation of the rule of law. Satisfaction of this basic test in every State action is sine qua non to its validity and in this respect, the State cannot claim comparison with a private individual even in the field of contract. This distinction between the State and a private individual in the field of contract has to be borne in the mind.\" We in the facts and circumstances of this case do not see any arbitrariness on the part of the State in its action directing cancellation of appointments. We may, on the other hand, notice that Kumari Shrilekha Vidyarthi (supra) has been distinguished by this Court in State of U.P. and Others v. U.P. State Law Officers Association and Others [(1994) 2 SCC 204] stating: \"\u0005The reliance placed by the respondents in this behalf on Shrilekha Vidyarthi v. State of U.P. is misplaced for the obvious reason that the decision relates to the appointment of the District Government Counsel and the Additional/Assistant District Government Counsel who are the law officers appointed by the State Government to conduct civil, criminal and revenue cases in any court other than the High Court. Their appointments are made through open competition from among those who are eligible for appointment and strictly on the basis of merit as evidenced by the particulars of their practice, opinions of the District Magistrate and the District Judge and also after taking into consideration their character and conduct. Their appointment is in the first instance for one year. It is only after their satisfactory performance during that period that a deed of engagement is given to them, and even then the engagement is to be for a term not exceeding three years. The renewal of their further term again depends upon the quality of work and conduct, capacity as a lawyer, professional conduct, public reputation in general, and character and integrity as certified by the District Magistrate and the District Judge. For the said purpose, the District Magistrate and the District Judge are required to maintain a character roll and a record of the work done by the officer and the capacity displayed by him in discharge of the work. His work is also subject to strict supervision. The shortcomings in the work are required to be brought to the notice of the Legal Remembrancer. It will thus be seen that the appointment of the two sets of officers, viz., the Government Counsel in the High Court with whom we are concerned, and the District Government Counsel with whom the said decision was concerned, are made by dissimilar procedures. The latter are not appointed as a part of the spoils system. Having been selected on merit and for no other consideration, they are entitled to continue in their office for the period of the contract of their engagement and they can be removed only for valid reasons. The people are interested in their continuance for the period of their contracts and in their non-substitution by those who may come in through the spoils system. It is in these circumstances that this Court held that the wholesale termination of their services was arbitrary and violative of Article 14 of the Constitution. The ratio of the said decision can hardly be applied to the appointments of the law officers in the High Court whose appointment itself was arbitrary and was made in disregard of Article 14 of the Constitution as pointed out above\u0005\" [Emphasis added] In Parshotam Lal Dhingra (supra), this Court held that whoever holds civil posts would be entitled to protection of their services in terms of Clause (2) of Article 309 of the Constitution of India in the event any disciplinary action is taken against them stating: \"\u0005The underlying idea obviously is that a provision like this will ensure to them a certain amount of security of tenure. Clause (2) protects government servants against being dismissed or removed or reduced in rank without being given a reasonable opportunity of showing cause against the action proposed to be taken in regard to them. It will be noted that in clause (1) the words dismissed and removed have been used while in clause (2) the words dismissed removed and reduced in rank have been used. The two protections are (1) against being dismissed or removed by an authority subordinate to that by which the appointment had been made, and (2) against being dismissed, removed or reduced in rank without being heard. What, then, is the meaning of those expressions dismissed removed or reduced in rank? It has been said in Jayanti Prasad v. State of Uttar Pradesh that these are technical words used in cases in which a persons services are terminated by way of punishment. Those expressions, it is urged, have been taken from the service rules, where they were used to denote the three major punishments and it is submitted that those expressions should be read and understood in the same sense and treated as words of Art\u0005\" In Dhirender Singh and Others v. State of Haryana and Others [(1997) 2 SCC 712], termination of an order of promotion in favour of the appellant was not interfered with by this Court as the same had not been approved by the DIG, being the competent authority. In M.C. Mehta v. Union of India and Others [(1999) 6 SCC 237], this Court developed the \"useless formality\" theory stating: \"More recently Lord Bingham has deprecated the useless formality theory in R. v. Chief Constable of the Thames Valley Police Forces, ex p Cotton by giving six reasons. (See also his article Should Public Law Remedies be Discretionary? 1991 PL, p. 64.) A detailed and emphatic criticism of the useless formality theory has been made much earlier in Natural Justice, Substance or Shadow by Prof. D.H. Clark of Canada (see 1975 PL, pp. 27- 63) contending that Malloch and Glynn were wrongly decided. Foulkes (Administrative Law, 8th Edn., 1996, p. 323), Craig (Administrative Law, 3rd Edn., p. 596) and others say that the court cannot prejudge what is to be decided by the decision-making authority. de Smith (5th Edn., 1994, paras 10.031 to 10.036) says courts have not yet committed themselves to any one view though discretion is always with the court. Wade (Administrative Law, 5th Edn., 1994, pp. 526-30) says that while futile writs may not be issued, a distinction has to be made according to the nature of the decision. Thus, in relation to cases other than those relating to admitted or indisputable facts, there is a considerable divergence of opinion whether the applicant can be compelled to prove that the outcome will be in his favour or he has to prove a case of substance or if he can prove a real likelihood of success or if he is entitled to relief even if there is some remote chance of success. We may, however, point out that even in cases where the facts are not all admitted or beyond dispute, there is a considerable unanimity that the courts can, in exercise of their discretion, refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed. We may also state that there is yet another line of cases as in State Bank of Patiala v. S.K. Sharma, Rajendra Singh v. State of M.P. that even in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest. In the former case, it can be waived while in the case of the latter, it cannot be waived.\" In Kendriya Vidyalaya Sangathan (supra), it was held: \"\u0005It is clear that if after the termination of services of the said Dr. K.C. Rakesh, the orders of appointment are issued, such orders are not valid. If such appointment orders are a nullity, the question of observance of principles of natural justice would not arise\u0005\" In Bar Council of India v. High Court of Kerala [(2004) 6 SCC 311], it was stated: \"\u0005Principles of natural justice, however, cannot be stretched too far. Their application may be subject to the provisions of a statute or statutory rule.\" In R.S. Garg v. State of U.P. and Others [(2006) 6 SCC 430], it was stated: \"A discretionary power as is well known cannot be exercised in an arbitrary manner. It is necessary to emphasize that the State did not proceed on the basis that the amendment to the Rules was not necessary. The action of a statutory authority, as is well known, must be judged on the basis of the norms set up by it and on the basis of the reasons assigned therefor. The same cannot be supplemented by fresh reasons in the shape of affidavit or otherwise.\" For the reasons aforementioned, the impugned judgments cannot be sustained. They are set aside accordingly. The appeals are allowed. 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{"id": "1405647", "text": "04 07.04.2021 WPA 13806 of 2019 (Via Video Conference) Sonali Hatua Giri Vs. Union of India and others Mr. Sankar Nath Mukherjee, Mr. Niraj Gupta, Mr. Priyabrata Shah, Mr. Aditya Biswas ...for the petitioner Mr. Y. J. DAstoor, Mr. Rudraman Bhattacharya, Mr. Anuran Samanta ...for the Union of India The challenge presently under consideration is to the vires of Clause 5.2.5 of the Guidelines for Disbursement of Central Samman Pensions to be followed by Authorized Public Sector Banks issued by the Ministry of Home Affairs, FFR division. The said Scheme is for disbursement of pension to freedom fighters under the Central Samman Pension Scheme. The guidelines-in-question provide the modalities of such disbursement. The petitioner is the daughter of a deceased freedom fighter, who had been getting pension under the said Scheme for the Swantrata Sainik Samman Pension till his demise on December 4, 2012. The petitioner was married but subsequently got a decree of divorce on March 19, 1999 and has since been 2 residing at her paternal house along with her son and was dependent on her father since she had foregone her right of alimony from her husband. The petitioner submits that after the demise of her father, her widowed mother also applied for grant of such pension in her favour. However, such representation was kept pending for an inordinately long time and ultimately the mother of the petitioner died on February 18, 2019 as well, leaving behind her son and daughter, that is, the writ petitioner. Subsequently, the petitioner also made a representation before respondent no.5 requesting fordisbursal of family pension in her favour as a dependent daughter. However, such request has not yet been considered till date. At the outset, the challenge to the vires of Clause 5.2.5 is required to be considered, since the decision on the same will affect the outcome of the writ petition otherwise. The relevant provision in the Guidelines is found in Clause 5.2 thereof, which deals with transfer of pension to spouse(s)/daughter(s). Clause 5.2.3 stipulates that the spouse/daughter must fulfil the twin conditions of being \"unmarried\" and \"having no independent source of income\". Clause 5.2.5, on the other hand, stipulates that widowed/divorced daughter is not eligible for Samman pension. Learned counsel for the petitioner contends that Clause 5.2.5 excludes widowed/divorced daughters from entitlement, although \"unmarried\" daughters have been included. Such discretion is without any reasonable basis and violates Article 14 as well as Article 39 of the Constitution of India. Learned counsel for respondent no.1 argues that there are intelligible differentia as to why widowed and/or divorced daughters are excluded from the benefit of the Scheme. It is submitted that there is a presumption of constitutionality and the validity of a legislation can only be struck down when the classification is unreasonable and arbitrary. For such proposition, learned counsel relies on Municipal committee, Patiala Vs. Model town Residents Association, reported at (2007) 8 SCC 669, wherein it was held that there is a presumption of constitutionality and in testing the validity of the law, the Court can take into consideration matters of common knowledge and, at the same time, the Court must presume that the legislature understands and correctly appreciates the needs of its own people. While elaborating the intelligible differentia of excluding widowed and/or divorced daughters from the benefit of the Scheme, learned counsel argues that, as far as widows are concerned, under Section 8 of the Hindu Succession Act, 1956, a widow is a Class I heir, including the widow of a pre-deceased son. As such, a widow is entitled to inherit the properties of the husband and/or the father-in-law. In the event the husband does not have any property and the father-in-law is alive and the widow is unable to maintain herself, under Sections 19 of the Hindu Adoption and Maintenance Act, 1956, she is entitled to maintenance as a widowed daughter-in-law. Section 2 of the Act clarifies that this would also cover Buddhists, Jains and Sikhs. As far as a Muslim widow is concerned, she is entitled to dower which is recovered by wife or widow or divorcee or her heirs if she is dead. Under the Indian Succession Act, 1925, Section 32 provides that the property of a husband devolves on the widow. Such provision covers all persons who are not Hindus, Mohammedans, Buddhists, Sikhs or Jains. There is specific provision in Sections 50 and 51 of the said Act regarding property of the deceased devolving on the widow as far as Parsis are concerned. Regarding divorced women, it is submitted that Hindu women are entitled to permanent alimony from the husband under Section 25 of the Hindu Marriage Act, which also include Buddhists, Jains and Sikhs apart from Hindus. Under Section 3(1)(a), read with Section 4, of the Muslim Women (Protection of Rights on Divorce) Act, 1986, a divorced Muslim woman can claim maintenance even after expiry of iddat period. A divorced Parsi woman, it is submitted, is entitled to permanent alimony and maintenance from the husband under Section 40 of the Parsi Marriage and Divorce Act, 1936. A divorced Christian woman, on the other hand, is entitled to permanent alimony and maintenance from the husband under Section 37 of the Indian Divorce Act, 1969. As such, a widowed and a divorcee daughter are entitled to maintain themselves as they have been provided sufficient benefits under various statutes, which are not available to an unmarried daughter. As such, the classification of widowed and divorcee daughters on the one hand and unmarried daughters on the other is reasonable. That apart, it is argued that the object of the pension Scheme is to provide subsistence allowance only to the dependents of the freedom fighters who are otherwise not entitled to get the benefit from any other person. By placing reliance on an unreported Order dated July 29, 2016 passed by the Punjab and Haryana High Court in Letters Patent Appeal No.171 of 2015 (Khajani Devi Vs. Union of India and others), learned counsel submits that the benefit of the Scheme is admissible to a divorced daughter. A two- Judge Bench of the Supreme Court, by an Order dated September 27, 2019 passed in SLP (C) No. 02353 of 2019 (Union of India and others Vs. Khajani Devi) was pleased not to interfere with the same on the view that the order adopts a progressive and socialist constructive approach. However, the Himachal Pradesh High Court had taken a contrary view in an Order dated July 18, 2019 passed in CWP No.1504 of 2019 (Tulsi Devi Vs. Union of India and another). A three-Judge Bench of the Supreme Court, by an Order dated May 28, 2020 passed in an SLP arising out of Diary No.7497 of 2020 (Tulsi Devi Vs. Union of India and another) was pleased to issue a notice in the matter. Such issue is, thus, pending adjudication before the Supreme Court and it is argued that judicial decorum warrants that since the Supreme Court is in seisin of the mater, this Court should not take any view at this stage. Learned counsel for the petitioner contends in reply that in Tulsi Devi (supra), the Himachal Pradesh High Court did not consider the judgment of Khajani Devi (supra) rendered by the Punjab and Haryana High Court, which was upheld by the Supreme Court in a Special Petition, bearing No.17706 of 2017. Thus, it is submitted that the law, as it stands at present, is that divorced daughters are also entitled to the benefit of the scheme. As regards the contention of respondent no.1 that judicial decorum ought to constrain the hands of this Court due to pendency of a similar issue before the Supreme court, such contention is not acceptable, at least in the present case, since mere pendency of challenge in a different case cannot have any direct bearing on the adjudication at hand. That apart, in view of the implicit urgency involved, since the petitioner has no income to sustain herself and her minor son without any income, the matter pertains to her livelihood and cannot be stalled indefinitely for the adjudication of the matter pending before the Supreme Court. Although the dismissal of a Special Leave Petition by the Supreme Court does not tantamount to affirmance of an order on merits, which would lend binding force to such order as the law of the land is declared by the Supreme Court, the Punjab and Haryana High Court had taken a clear view that divorced daughters are also entitled to benefit under the Scheme-in-question. The view taken by the Himachal Pradesh High Court did not lay down any ratio on the vires of Clause 5.2.5 and/or decide the question which has fallen for consideration before this Court. In the said case, being Tulsi Devi (supra), the Himachal Pradesh High Court held that the \"Swantrata Sainik Samman Yojana\" has been launched as a mark of respect to the freedom fighters whereas in the case of armed force personnel or the Central/State Government pensionaries/employees, the pension is not a 'bounty', but a property. Thus, a line of distinction was drawn between such pensions and the pension payable to freedom fighters and their heirs. With utmost respect, even without going into the question of parity with other pension schemes, the view of the Punjab and Haryana High Court is more applicable in the present case. In the said judgment, it was held that it would be a travesty to exclude a divorced daughter when an unmarried daughter finds mention in the list of eligible dependents. It was further held that there would be no rationality to the reason for such distinction, particularly when the divorced daughter is the sole eligible dependent and qualifies for the benefit. It was held that a beneficial scheme such as the one in hand should not be construed on a strict interpretation, which tends to disapprove the claims of the benefit, to result in virtual frustration or negation of the laudable motive of the scheme itself. In my view, the ratio laid down by the Punjab and Haryana High Court in Khajani Devi (supra) is also applicable in the present context and appeals to the judicial conscience on a higher footing than the Himachal Pradesh report. A combined reading of Article 14 of the Constitution of India, which is a fundamental right of equality before the law, and Article 39(a), ensures that the State is to direct its policy towards securing such end. Clause (d) of Article 39 also ensures that there is equal pay for equal work for both men and women. Although Article 39 is a Directive Principle of State Policy, not directly enforceable in law, the fundamental rights of the citizens of India ought to be considered in the context of the directive principles to lend teeth to the intentions of the framers of the Constitution of India. In view of Clause 5.2.3 having conferred eligibility on spouses/daughters who are unmarried and have no independent source of income, Clause 5.2.5 of the guidelines is ex facie irrational, since it excludes widowed/divorced daughters from the eligibility. The scheme was formulated as \"a token of honour by a grateful nation to the honorable freedom fighters and their dependents\" as per its own language. It is not necessary that the term 'dependents' as used in the scheme has to be in consonance with Succession Acts of various religious communities. However, even if we take into consideration the Acts- in-question, no line of distinction has been drawn between divorced and unmarried daughters. For example, if we read Sections 8 and 9, in conjunction with the Class I of the Schedule to the Hindu Succession Act, 1956, it will be evident that the Class I heirs include not only the widow but also the daughter of the deceased. Hence, no line of distinction has been drawn between \"unmarried' and \"divorced\" daughters. A criterion which defies logic cannot be \"intelligible\" in the true sense of the term. A bare perusal of Clause 5.2.3 of the guidelines- in-question indicates that there is already a safeguard against abuse of the provisions of the scheme by including the yardstick, \"having no independent source of income\" as a condition of eligibility. Such qualification circumscribes the eligibility of unmarried daughters. Since, as per the arguments of the respondent no.1, an analogy has been sought to be drawn with the respective Matrimonial Laws of different communities, we ought to look into the efficacy of such remedies on the touchstone of efficacy. All the recourses and legal remedies open to divorced and widowed daughters require long-drawn litigation and mere rights available in the statute books. In order to get the fruit of such litigation, a widowed/divorced daughter has to wait till the end of litigation. The amount actually granted to such daughter by the court of law also acquires relevance vis-\u00e0-vis her subsistence requirements. Legal provisions cannot meet the pangs of hunger and/or urgent necessity of sustenance of human beings. As stipulated in case of unmarried daughters, widowed/divorced daughters also qualify as unmarried but have been excluded from the pension scheme. In the event Clause 5.2.5 was not there, the expression 'unmarried' could very well include within its purview widowed/divorced daughters of the pension holders as well, since their marital status would also be on an equal footing with unmarried daughters. The mere possibility of a legal remedy, or an order of court granting meager amount as maintenance is not adequate to meet the necessities of widowed/divorced daughters but they may also be dependents of their father, being the freedom fighter, in the event they do not/cannot opt for taking recourse to legal remedies and do not have income sufficient to maintain themselves. Since the rider, \"having no independent source of income\" already qualifies unmarried daughters in Clause 5.2.3 of the guidelines, such test acts as a sufficient safeguard to prevent abuse of the pension scheme by widowed/divorced daughters of the freedom fighter who otherwise have an independent source of income, be it from alimony/maintenance or from some other source. On the other hand, it may very well be that a spinster daughter of the freedom fighter has an independent income of her own, even if she does not have legal remedy as available to the widowed/divorced daughters from their matrimonial family. Since the aforesaid safeguard is already existing, the blanket exclusion of widowed/divorced daughters, including even those who do not have any personal income in lieu of maintenance or otherwise, is patently de hors Article 14 of the Constitution of India, which enshrines the guarantee of equality to all citizens. In the present case, the classification is worse than gender bias, since unmarried daughters have been included within the scheme but widowed/divorced daughters who stand on the same footing, having no independent source of income, have been excluded. Even going by the Succession Acts, daughters, irrespective of qualification, are entitled to the property of the deceased as heirs. Hence, the mere existence of a right in a statute book to get maintenance from the matrimonial family is not at all sufficient to meet the financial requirements of those widowed/divorced daughters who do not have any income. Having or not having income is undoubtedly an intelligible differential, which can easily be incorporated if widowed/divorced daughters are also brought within the purview of 'unmarried' daughters. Thus, as in the event an unmarried daughter who has no income is ineligible for the pension, widowed/divorced daughters stand on a similar footing as daughters of the deceased and shall not be eligible anyway if they have any independent source of income, which can very well be alimony or maintenance as well. However, as far as daughters having no independent source of income are concerned, widowed/divorced daughters stand on an equal footing with a spinster daughter as heirs of the deceased freedom fighter. The marital status of all of them is \"unmarried\". Thus, the criterion of exclusion of widowed/divorced daughters, as sought to be projected by respondent no.1, is untenable in the eye of law. As such, Clause 5.2.5 is patently violative of Article 14 of the Constitution of India, which ensures equality among people standing on the same footing, in the absence of reasonable classification or intelligible differentia. In view of the above discussions, the preliminary point is decided by declaring Clause 5.2.5 of the Guidelines for Disbursement of Central Samman Pensions to be followed by Authorized Public Sector Banks, issued by the Ministry of Home Affairs, FFR Division vide Memo No.45/03/2014 - FF(P) ultra vires, being violative of Article 14 of the Constitution of India. The expression \"unmarried\" as used in Clause 5.2.3 of the said Guidelines shall also include widowed/divorced daughters as eligible for the Sainik Samman Scheme-in-question, provided they satisfy the other test of having no independent source of income. Further orders on the merits of the writ petition shall be passed on the next returnable date. 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{"id": "58138931", "text": "$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 31st January, 2020 Date of decision: 19th March, 2020 + CM(M) 1448/2019, CM APPLs. 43987/2019 & 43988/2019 DEV RAJ & ORS ..... Petitioners Through: Mr. B.B. Gupta, Senior Advocate with Mr. Devesh Pratap Singh, Advocate. (M:9999814755) versus SATPAL GULIA ..... Respondent Through: Mr. R.K. Saini, Ms. Bhavana Jain and Ms. Tavishi Vats, Advocates. (M:8447641995) CORAM: JUSTICE PRATHIBA M. SINGH JUDGMENT Prathiba M. Singh, J. 1. The Petitioners - Shri Dev Raj, Shri Shiv Raj and Shri Hans Raj were the Plaintiffs (hereinafter, \"Plaintiff Nos. 1-3\") in a suit for permanent injunction in respect of property bearing No. 223, Village Mangolpur Kalan, Delhi (hereinafter, \"suit property\"). In the said suit, an interim order was passed in the application under Order XXXIX Rules 1 and 2 CPC on 15 th February, 1994 to the following effect: - \"4. I have perused the report of the local commissioner. The local commissioner has categorically stated in his report that he served a notice upon the defendant with regard to his appointment to execute the commission but the defendant deliberately refused to accept the notice. The defendant deliberately and intentionally did not take part in the proceedings held by the local commissioner. It is reported by the local commissioner in his report that the defendant was constructing a wall with the help of the police and the wall was just adjoining the doors of the house of the plaintiffs, which were mostly about to close. After carefully considering the arguments of the plaintiff counsel and in view of the nature of the suit and inasmuch as the documents placed on record by the plaintiff counsel in support of his contention particularly when the plaintiffs claimed themselves to be the owner of the suit property_____house and whereas the defendant has failed to appear despite service and information particularly given by the local commissioner who executed the commission after giving notice to the defendant and since the doors of the house of the plaintiffs are closed on account of raising the wall and whereas it has become difficult for the plaintiffs to enter in the back portion of the house or to open the doors or to tether the cattle. I am of the view that these are the exceptional circumstances where the court must intervene and the Court should not hesitate even to grant the relief which is in the nature of the mandatory form. I accordingly allow the application moved by the plaintiffs as the defendant has not appeared despite knowledge and I order that the walls raised in front of the doors of the house of the plaintiffs be removed in order to facilitate the plaintiffs for their egress and ingress in the premises. In case the hurdle of raising the wall in front of the doors is not removed, the plaintiffs are likely to suffer irreparable loss. The plaintiffs shall remove the wall, raised by the defendant as alleged in front of the doors of the house and if necessity be the plaintiffs shall take the assistance of the local police. The local police is also directed to get this order implemented. I am of the considered view that since the defendant is absent despite knowledge inasmuch as where the process has not been received in the court issued to the defendant in pursuance to order contained in order 39 rule 3 CPC I in the interest of justice once again order that the defendant be again served with the restraint orders on filing of P.F. R.C. etc. for 28.2.94.\" The Court, by way of an interim mandatory order, had thus directed removal of the wall so as to provide access to the Plaintiffs on the basis that the Plaintiffs were the owners of the property. 2. The said suit, however, came to be finally dismissed by the ld. Trial Court vide judgment/decree dated 24th December, 1999, which reads as under: - \"17. In view of the foregoing discussions and facts and circumstances of the case and on perusal of the material placed on record, I am of the view that the plaintiff have totally failed to prove that they are the owners and entitled to possess the suit property, falls in the back portion of their houses and also failed to prove that they are entitled to open the doors towards the suit land i.e. the land pertains to khasra No.70/1/1, 70/34 and 70/32 as shown in the site plan not belonging to them.Whereas the wall which was in existence at the time of filing of the suit was demolished in pursuance of ad interim order dt. 15.2.94, therefore, the suit property be restored to its original condition. 18. In view of the foregoing discussions and facts and circumstances of the case, I accordingly dismiss the suit of the plaintiffs, with cost of Rs.5000/- Decree sheet be prepared accordingly. File be consigned to R/R.\" At the final stage, the trial court came to the conclusion that the Plaintiffs had failed to establish ownership and thus, while dismissing the suit, directed the re- construction of the wall which was demolished and restoration of the same to its original condition. 3. The said judgment/decree was challenged by Plaintiff Nos. 1-3. The first appeal was dismissed on 16th May, 2018 and the second appeal was dismissed on 14th September, 2018. In effect, the original judgment/decree was maintained by both the Appellate Courts. 4. Considering the nature of the judgment/decree which was passed by the Trial Court, the Respondent/Defendant (hereinafter, \"Defendant\") in whose favour a final order of restoration was passed by the Trial Court, sought execution of the judgment/decree. The Executing Court considered the judgment/decree and on 26th April, 2019, dismissed the objections filed by Plaintiff Nos. 1-3 and directed as under: \"20. The suit was filed in year 1993 and JDs got into the illegal possession of the suit property on 30.03.1994 and since then they are in the illegal possession of the suit property. JDs are in the possession of the suit property for the last 25 years and for that period DH has been deprived of the enjoyment of his immovable property. JDs are reaping unjust benefits from the suit property for the last 25 years and on the other hand, DH is being deprived of enjoying the suit property and of profit generated from it. Therefore, equity demands that JDs should pay damages / mesne profits to the DH for the period they were in illegal possession of the suit property and compensate the DH. 21. The photographs filed alongwith the execution petition clearly shows that suit property is used for commercial purpose i.e. as a godown for keeping marble slabs and stones. Judicial notice is taken of the fact that village Mangolpur kalan i.e. the area where the suit property is located is a well known market of marble slabs. Therefore, in the opinion of the Court, the DH is entitled to damages / mesne profit of Rs. 1 lac for each year for which the suit property was in the possession of the JDs. Hence, DH is entitled to damages / mesne profit of Rs. 25 lacs from the JDs. DH is entitled to recover the damages / mesne profit of Rs. 25 lacs only after depositing the requisite Court fee. In case, JDs did not comply with this order then DH can get the order executed through the Court so that the order can be implemented in letter and spirit. Application disposed of accordingly.\" Thus, the executing court came to the conclusion that on the basis of the initial interim injunction which was granted in favour of the Plaintiffs, they continued to enjoy benefit of the order and possession of the property since 1994, while the Defendant was deprived of the enjoyment of the property, though finally the suit was dismissed. Thus, the court observed that the Defendant ought to be compensated for enjoying the property during the said period and directed the payment of damages/mesne profits of Rs. 25 lakhs. In order to implement its order, the Executing Court appointed a bailiff vide a separate order of the same date i.e., 26th April 2019, in the following terms: \"Vide separate order passed today, the objections filed by the Jds has been dismissed and it was held that DH is entitled to erect the western boundary wall upto the height of about Nine feet, in front of four doors as shown A,B,C and D in the site plan Ex. PW 1/A and also entitled to the possession of the suit property and also entitled to have the suit property in the same condition as it was in at the time when the suit was filed and as shown in photographs no. 5 and 6 filed on 24.09.2018. Counsel for DH/defendant submitted that original position of the suit property be restored. Bailiff of this court is directed to restore the original position of the suit property i.e. erecting a wall in front of four doors as shown at A,B, C and D in the site plan attached herewith which was demolished in pursuance of court order dated 15.02.1994 and file report on the next date of hearing. Issue warrants of possession against the JD qua the suit property i.e. House No. 176 having area of 1160 sq. yards approximately in Khasra No. 70/1/1, Khasra No. 70/31, 70/32, Village Mangol Pur Kalan as shown at point ABJI in the site plan Ex. PW 1/A for NDOH on filing of PF. ................ Further permission to break open the lock is also granted if it is required to execute the warrant.\" 5. Plaintiff Nos. 1-3 thereafter preferred an appeal which has been dismissed vide the impugned order dated 16th September, 2019 on the ground that the same is not maintainable. 6. Mr. B.B Gupta, ld. Sr. Counsel appearing for Plaintiff Nos. 1-3 submits that on the issue of maintainability of the appeal, the Appellate Court was completely wrong in law. He submits that even objections under Section 47 CPC have to be treated as those filed under Order XXI Rule 97 CPC as the term \"any person\" in Rule 97 includes the Judgment Debtor. Since the objections under Order XXI Rule 97 CPC have to be decided under Rule 98 and are appealable under Rule 103, the finding of the Appellate Court is erroneous in law and the appeal has to be decided on merits. He relies on the following judgments - i. Murti Bhawani Mata Mandir Represented Through Pujari Ganesh Lal (Dead) Through Legal Representative Kailash v. Ramesh and Others, (2019) 3 SCC 707 ii. Bhanwar Lal v. Satyanarain and Another, (1995) 1 SCC 6 iii. Asgar & Others v Mohan Verma & Others 2019 (3) CLJ 16 (SC) iv Babulal v Raj Kumar & Ors. (1996) 3 SCC 154 7. On the other hand, Mr. R.K. Saini, ld. counsel appearing for the Defendant submits that this is a case of gross abuse by Plaintiff Nos. 1-3 who ensured that they enjoyed the property in question,by way of interim relief in a suit which was finally dismissed. He submits that Plaintiff Nos. 1-3 deliberately delayed the adjudication of the first appeal and have, in effect, enjoyed the property for almost 20 years after the passing of the decree. It was under these circumstances, that the Court has the power of restitution under Section 144 CPC wherein the Court, while ensuring that the benefit of the interim order which was originally passed is no longer enjoyed by Plaintiff Nos. 1-3, directed construction of the wall, as also payment of mesne profits. He submits that such an order would not be appealable, inasmuch as the Judgment Debtor was all along a party to the suit itself, and thus the order passed dismissing the objections by the Judgment Debtor would not be appealable as the same was under Section 47 CPC. 8. In order to decide whether the order dated 26th April, 2019 was an appealable order or not, what is important to be seen is the nature of the order which was passed. The Executing Courtconsidered the entire issue of restitution which was directed by the final judgement and also held that since the Judgment Debtors had come into possession of the property due to the interim/mandatory injunction which was passed by the Court on 15 th February, 1994, and the suit having been dismissed resulting in the said order being vacated, the Court ought to put the Defendant in the same position as it was, prior to the filing of the suit. In the Court\u201fs opinion, restitution was in two forms- \uf0b7 First, by restoring the original position of the property i.e. by erecting a wall which had earlier been demolished pursuant to the interim order and \uf0b7 Secondly, by directing the Judgment Debtors to pay damages for the occupation of the said property from 1994 till 2019 i.e. a period of almost 25 years. 9. The CPC contemplates various orders that can be passed in execution proceedings. Whenever there are questions which arise between the parties to the suit in respect of either the execution, discharge or satisfaction of the decree, the same can be determined by the Executing Court itself under Section 47 CPC. Section 47 reads as under: \"47. Questions to be determined by the Court executing decree. - (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court. [Explanation I. - For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit. Explanation II. - (a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and (b) All questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree with the meaning of this section.]\" 10. There is no dispute as to the legal proposition that if objections are filed in execution proceedings, if the Court is of the opinion that there are any complex facts evolved, evidence would have to be recorded. Bhanwar Lal (supra) cited by the Plaintiffs, holds that under Order XXI Rule 97 CPC the term \u201eany person\u201f would include a Judgment Debtor. However, the nature of the order needs to be considered to see whether an order passed by the executing court is one under Order XXI Rule 97 CPC, where the decree holder faces obstruction or resistance, or is an order which is implementing the decree. The mandatory nature of the injunction which was granted in the final judgment/decree has resulted in warrants of possession being issued by the Executing Court, and rightly so. It is the settled position that dismissal of a suit also constitutes a decree. The dismissal of the suit in the present case is not a mere dismissal, but a dismissal which entailed a final order by the Court, that the Defendant needs to be restored possession of the property, which was occupied by the Plaintiffs due to the operation of an interim order of the Court itself. Such an order, is clearly one that is passed exercising the inherent powers of the Court to restitute a party to the same position as he or she was at the time when the suit was filed when, the status quo had been changed due to an order passed by the Court, and ultimately the Court has dismissed the suit itself. The Executing Court was merely implementing the original judgment/decree. 11. The judgment in Babulal v. Raj Kumar And Others (supra) isclearly distinguishable on facts, inasmuch as in the said case, the party objecting to the execution of the decree was not a party to the original judgment/decree for specific performance. The executing court had not conducted any enquiry into the objections filed by him, and it was in that context that the Supreme Court held that the executing Court ought to have enquired into the matter. The facts in the present case are different, inasmuch as the Plaintiffs who are objecting to the execution of the decree were party to the suit since inception. They enjoyed the interim order which was originally passed by the Court. The judgment/ decree, to which they were a party has attained finality. 12. Even in Asgar & Ors v. Mohan Varma & Ors.(supra)the parties who were objecting to the decree, were not parties to the original judgment and were strangers to the decree. Since the objectors set up an independent claim, the Supreme Court held that the executing court had to decide the issue as to whether the claim was justified or not. The Supreme Court had observed as under: \"The provisions of Order XXI Rules 97 to 103 constitute a complete code and provide the sole remedy both to parties to a suit and to a stranger to a decree. All questions pertaining to the right, title and interest which the appellants claimed had to be urged in the earlier Execution Application and adjudicated therein. To take any other view would only lead to a multiplicity of proceedings and interminably delay the fruits of the decree being realized by the decree holder.\" Thus, the executing court has very vast powers while deciding an execution. The intention of the Code as also the judgements has been to ensure that delays are not caused in execution of decrees and multiplicity of proceedings is avoided, by permitting the executing courts to decide the issues even relating to title if raised. 13. The powers of the Executing Court are quite broad. Under Order XXICPC, the various steps that can be taken by the Executing Court for implementing a decree are stipulated. The same includegranting of set off, sale of the property, auctioning of the property, execution of a document, endorsement of immovable property, taking custody of movable property, directing oral examination of a Judgment Debtor, attachment of agricultural produce, orders against garnishee, attachment of salaries, attachment of partnership property, attachment of immovable property, conduct of sale by public auctioning, etc. In the case of immovable property, if there is any resistance, by any person including the Judgment Debtor, the Decree Holder can approach the Executing Court, which shall then pass orders under Order XXI Rule 98 CPC. Any order passed at the behest of a Decree Holder under Order XXI Rule 97 and 98 CPC would constitute a decree under Order XXI Rule 103 CPC. The same would then be appealable. If a person is wrongly dispossessed, such person can approach the Executing Court under Order XXI Rule 99 CPC for orders to be passed in terms of Order XXI Rule 100 CPC, which would also constitute a decree under Order XXI Rule 103 CPC. 14. The Plaintiffsargue that the orders passed by the Executing Court, first by appointing a bailiff to restore the original position of the suit property, and secondly by directing payment of damages for illegal possession are both orders under Section 47 CPC, and hence no appeal lies to the ADJ from the said order. 15. The scheme of Order XXI Rules 97 to 106 CPC is quite clear. If there is obstruction or resistance by any person, the Decree Holder approaches the Executing Court under Order XXI Rule 97 CPC. If the person in occupation has been wrongly dispossessed, so long as that person is not the Judgment Debtor, the Executing Court can be approached under Order XXI Rule 99 CPC. What happens if the Judgment Debtor who is bound by the decree is dispossessed? Would such dispossession be covered under Order XXI Rule 99 CPC or under Section 47 CPC? This issue needs to be examined. 16. The nature of the order passed in the present case has the following elements: i) the order is against the Judgment Debtors; ii) it is of a mandatory nature i.e., the Judgement Debtors have to restore the property to its original condition. The exact wording of the final decree, while dismissing the suit is as under: \"....Whereas the wall which was in existence at the time of filing of the suit was demolished in pursuance of ad interim order dt. 15.2.94, therefore, the suit property be restored to its original condition.....\" iii) the Plaintiffs did not comply with the same hence the Defendant sought execution; iv) the Judgment Debtors were the Plaintiffs in the original suit and have enjoyed possession; v) the executing court thus directs the bailiff to restore possession from the Judgment Debtors; vi) rightly or wrongly, the Executing Court has directed the Judgment Debtors to pay damages. 17. Clearly, it is the Judgment Debtors who are sought to be dispossessed. By a simple reading of Order XXI Rule 99, it is clear that the impugned order is not an order under the said provision. 18. Further, the order that has been passed by the executing court is not in respect of obstruction or resistance by the Judgment Debtors for which the Decree Holder has approached the Executing Court. The Judgement Debtors have simply failed to comply with a mandatory order or mandatory injunction. Thus, this is not an order under Order XXI Rule 97 either. In the present case, the Decree Holder has sought orders under Order XXI Rule 32 CPC for enforcement of a mandatory injunction which directed restoration of the wall to its original condition. The executing court holds that the said provision does not apply. 19. An order like the impugned order, would, in the opinion of this Court be an order under Section 47 CPC i.e., it would relate to execution, discharge or satisfaction of the decree by the Executing Court. The final decree directing restitution and the same being given effect to by the executing court, would also be an order relating to the implementation of the decree and not one under Order XXI Rule 97 CPC which contemplates resistance or obstruction to the execution of a decree. 20. The ld. ADJ exercising appellate jurisdiction, has also observed that the order passed by the Executing Court is under Section 47 and is not appealable under Order XXI Rule 103. The observations of the ld. ADJ are as under: \"12. Since the maintainability of the appeal has been seriously challenged by learned counsel for the respondent, I am of the view that it will be appropriate to test the maintainability of the appeal before going into merits. 13. The objections which were filed by the appellants before the Ld. Executing Court were titled as \u201eobjections on behalf of judgment debtors/objectors under order XXI R 97 of the Code of Civil Procedure read with all other enabling provisions and also under section 47 of Code of Civil Procedure to the execution petition filed by the alleged decree holder. The executing court while deciding the objections has observed that, \"Vide this order, the court shall decide, the objections filed by the JDs u/sec. 47 of CPC.\" The present appeal has been titled as \"Appeal u/O 21 R 58/97/98/99/100/101/103/104/105 CPC...\" 14. So far as provisions invoked in the present appeal are concerned, most of the provisions do not in any manner provide for any appeal. Only Rule 103 of Order XXI CPC prescribes that any order passed under Rule 98 on an application under rule 97 and rule 100 on an application under rule 99 of order XXI CPC shall be deemed to be a decree which means that such an order is appealable. For the purpose of provisions of Order XXI R 103 CPC, it is to be seen whether the impugned order was actually an order passed under Rule 97 to rule 100 CPC. In this regard, it is found from the record that though the application/objections were titled under order XXI Rule 97 CPC but in fact the said provision was not attracted in the given situation and probably due to this reason only the Ld. Executing Court has treated the objections only under 47 CPC which deals with the questions arising between the parties to the suit in relation to execution, discharge or satisfaction of the decree. 15. Rule 97 of Order XXI CPC deals with a remedy available to the decree holder and a purchaser of the property when there is resistance to execution of warrant of possession etc. The appellant is not a decree holder or purchaser of property in this case; so, there does not arise any question of the appellant availing the abovesaid provision. 16. Similarly, Rule 99 of Order XXI CPC deals with the remedy available to a third person who is dispossessed during execution of a decree. The appellants also do not fall in the category of third person as they were party to the suit and are judgment debtors in the present execution petition. So, this provision is also not available to the appellants. 17. There is an argument on behalf of appellant that the ld. Executing court has taken recourse to section 144 CPC, which deals with restitution, so, by virtue-of the definition of term decree u/sec. 2(2) CPC which includes an order u/sec. 144 CPC, the impugned order is appealable. In this regard, it is to be seen that, order of restitution has already been passed by the Ld. Trial Court vide judgment dated24.12.1999 and it can be taken that the ld. executing court has simply analyzed the same for the purpose of execution in its letter and spirit. The judgment dated. 24.12.1999 has already been challenged by way of first and second appeal and both appeals filed by the appellants have already been dismissed vide judgment dated 16.05|.2018 and 14.09.2018. Without commenting upon the correctness of impugned order. It can be said that the different reliefs have been granted by the ld. executing court to the decree holder while deciding the objections filed by the appellants as a measure to ensure restitution as per the judgment passed by the ld.Trial court and not as an independent measure for restitution. 18. In view of above. It can be said that the objections were treated u/sec. 47 CPC by the ld. Executing Court which deals with questions arising between the parties to the suit relating to the execution, discharge or satisfaction of the decree. It iswell settled that it is the substance and not the nomenclature which is material. So, far as an order passed u/sec. 47 CPC is concerned, the same is not an appealable order as it does, not find mention either in section 104 or in order 43 CPC which prescribe exhaustive list of the appealable orders.' There is also no special provision which makes the order u/sec. 47 CPC an appealable order. An order u/sec. 47 CPC is also not covered by the existing definition of term decreeu/sec. 2(2) of CPC. 19. Considering the above facts and circumstances, I am of the considered view that present appeal is not maintainable in this court and same is accordingly dismissed.\" 21. It is the settled position in law that the nomenclature of an application does not govern the nature of the application, or the order passed in the same. Clearly the order passed by the Executing Court in this case is one under Section 47 CPC and not under Order XXI Rule 97 CPC. The question as to whether the Judgment Debtor is covered under the term \"any person\" in Rule 97 does not even arise in the present petition inasmuch as the said provision has in fact been wrongly invoked in the title of the application. The order passed is one for implementing the mandatory injunction as granted by the original decree dated 24th December, 1999 along with restitution in the form of damages. Such an order cannot constitute an order under Order XXI Rule 97 CPC and is clearly an order under Section 47 CPC. 22. In cases of this nature, if the Judgment Debtor himself is provided repeated remedies for indirectly challenging the judgment/decree which has attained finality, that too by invoking provisions which are not applicable, the same would result in complete injustice. The decree which is sought to be executed in the present case was originally passed in 1999 i.e., two decades ago. The same was upheld in 2018.As per the said decree, the Judgment Debtors had to restore the property to its original condition which they failed to do. The Executing Court has given effect to the said decree. No issues have been raised before the Executing Court, which warrant any enquiry. If such orders are held to be appealable, the same would result in providing repeated remedies to a Judgment Debtor who was a party to the original decree which has attained finality. Any interpretation that delays the execution ought to be avoided. The ADJ -as the Appellate Court was right in the view that was taken. Accordingly, the present petition and all pending applications are dismissed. PRATHIBA M. 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{"id": "108594766", "text": "REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6451 OF 2021 (Arising out of S.L.P. (C.) No. 14558 of 2019) N. JAYASREE & ORS. \u2026APPELLANT(S) VERSUS CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LTD. \u2026RESPONDENT(S) JUDGMENT S. ABDUL NAZEER, J. Leave granted. 2. This appeal is directed against the judgment dated 09.08.2017 passed by the High Court of Kerala at Ernakulam in MACA No. 1560 of 2013. Through the impugned judgment, the High Court scaled down the amount of compensation payable to Signature Not Verified Digitally signed by Anita Malhotra Date: 2021.10.25 17:08:20 IST the present appellants and thereby modified the award dated Reason: 26.04.2013 passed by the Motor Accident Claims Tribunal, Kottayam (for short \u2018MACT\u2019) in OP(MV) No.843 of 2011. 3. The appellants filed the aforesaid claim petition before the MACT seeking compensation on account of the death of N. Venugopalan Nair in a motor vehicle accident which occurred on 20.06.2011. Appellant no.1 is the wife of the deceased, appellant nos. 2 and 3 are his daughters and appellant no.4 is his mother\u00adin\u00adlaw. 4. There is no dispute as to the occurrence of the accident and the liability of the respondent\u00adinsurer to pay the compensation. In view of this admitted position, it is unnecessary to narrate the factual aspects of the accident. 5. The deceased was aged 52 years at the time of the accident. The MACT took the annual salary of the deceased as Rs.8,87,148. To this, the MACT applied a multiplier of \u201811\u2019 and deducted one\u00adfourth (1/4th) of the income towards his personal expenses for the purpose of calculation of the compensation under the head of loss of dependency. A total sum of Rs.73,18,971/\u00ad (Rupees seventy\u00adthree lakhs eighteen thousand nine hundred seventy\u00adone only) was awarded towards loss of dependency. The MACT awarded a total sum of Rs.74,50,971/\u00ad (Rupees seventy\u00adfour lakhs fifty thousand nine hundred seventy\u00adone only) towards compensation with interest @ 7.5 per cent per annum from the date of the claim petition till the date of realization. Thus, the amount awarded to the appellants is as under: S.No. Head of Claim Amount Amount Basis vital details Claimed (in Awarded (in in a nut shell rupees) rupees) 1. Transportation 5,000/\u00ad 4,000/\u00ad In view of the transportation charges 2. Funeral expenses 10,000/\u00ad 7,000/\u00ad Nominal amount 3. Damage to clothings 1,500/\u00ad 1,000/\u00ad \u2026do\u2026\u2026 4. Loss of dependency 1,06,82,100/\u00ad 73,18,971/\u00ad (8,87,148\u00ad 2,21,787)\u00d711 =73,18,971/\u00ad 5. Pain and sufferings 10,000/\u00ad 15,000/\u00ad In view of the pain suffered by the victim before his death 6. Loss of love and 1,00,000/\u00ad 70,000/\u00ad Petitioners 2,3 affection and 4 have lost the love and affection of the victim 7. Loss of consortium 1,00,000/\u00ad 25,000/\u00ad The first petition has lost the companionship of her husband 8. Loss of estate 1,00,000/\u00ad 10,000/\u00ad Nominal amount 9. Loss of expectation of 2,00,000/\u00ad Not allowed Other heads life allowed TOTAL 1,12,08,600/\u00ad 74,50,971/\u00ad \u2026\u2026\u2026\u2026\u2026 6. However, the High Court held that appellant no.4 was not a legal representative of the deceased. Further, the High Court held that the MACT ought to have applied split multiplier for the assessment of the dependency compensation. The High Court fixed monthly income of the deceased as Rs.40,000/\u00ad (Rupees forty thousand only) and deducted one\u00adthird (1/3 rd) of the income towards his personal expenses. It applied multiplier \u20187\u2019 for calculating dependency compensation for the post\u00adretiral period and, for the pre\u00adretirement period, a multiplier of \u20184\u2019 was applied. Accordingly, the High Court awarded compensation of Rs.23,65,728/\u00ad (Rupees twenty\u00adthree lakhs sixty\u00adfive thousand seven hundred twenty\u00adeight only), towards loss of dependency for pre\u00adretiral period and a sum of Rs.22,40,000/\u00ad (Rupees twenty\u00adtwo lakhs forty thousand only) towards loss of dependency for post\u00adretiral period. A sum of Rs.1,00,000/\u00ad (Rupees one lakh only) was awarded towards loss of consortium, Rs.25,000/\u00ad (Rupees twenty\u00adfive thousand only) towards funeral expenses, and Rs.80,000/\u00ad (Rupees eighty thousand only) towards loss of love and affection. In total, a sum of Rs.48,39,728/\u00ad (Rupees forty\u00adeight lakhs thirty\u00adnine thousand seven hundred twenty\u00adeight only) was awarded as compensation by the High Court. 7. We have heard the learned counsel for the parties. Learned counsel for the appellants submits that the High Court was not justified precluding appellant no.4 as legal representative of the deceased. She is the mother\u00adin\u00adlaw of the deceased and was living with the deceased and his family members. Therefore, she was entitled to be treated as a legal representative for the purpose of determination of compensation. Accordingly, 1/4 th of the income of the deceased should have been deducted towards his personal expenses. Further, it was contended that the High Court was not justified in applying a split multiplier having regard to the judgment of this Court in Sarla Verma (Smt.) and Ors. vs. Delhi Transport Corporation and Anr.1 and the subsequent Constitution Bench judgment of this Court in National Insurance Company Limited vs. Pranay Sethi and Ors.2. It was also argued that the deceased was a meritorious person who possessed the qualification of M.Sc. M.Phil. His monthly salary was 1 (2009) 6 SCC 121 2 (2017) 16 SCC 680 Rs.83,831/\u00ad which is evident from the materials on record. The High Court took his monthly income as Rs.40,000/\u00ad for the purpose of calculation of loss of dependency without any justification. In view of the above, the High Court was not justified in scaling down the amount of compensation awarded by the MACT. 8. On the other hand, learned counsel for the respondent submits that the deceased was aged 52 years at the time of the accident. He would not have earned the same monthly income after his retirement. In view of the same, the High Court applied a split multiplier for calculating the loss of dependency. It was also argued that appellant no.4, who is the mother\u00adin\u00adlaw of the deceased, cannot be treated as his legal representative. Further, it was contended that the High Court was justified in taking the monthly salary of the deceased as Rs.40,000/\u00ad and deducting 1/3 rd of the income towards the personal expenses, fair compensation has been awarded towards loss of dependency. 9. In view of the above, the questions for consideration before us are: (I) whether the High Court was justified in precluding the mother\u00adin\u00adlaw of the deceased (appellant no.4) as his legal representative? (II) whether the High Court was justified in applying a split multiplier? (III) based on the findings on the preceding questions, what is the amount of compensation that should be awarded to the appellants? (I) whether the High Court was justified in precluding the mother\u00adin\u00adlaw of the deceased (appellant no.4) as his legal representative? 10. The provisions of the Motor Vehicles Act, 1988 (for short, \u201cMV Act\u201d) gives paramount importance to the concept of \u2018just and fair\u2019 compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section 168 of the MV Act deals with the concept of \u2018just compensation\u2019 which ought to be determined on the foundation of fairness, reasonableness and equitability. Although such determination can never be arithmetically exact or perfect, an endeavor should be made by the Court to award just and fair compensation irrespective of the amount claimed by the applicant/s. In Sarla Verma1, this Court has laid down as under: \u201c16. ...\u201cJust compensation\u201d is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well\u00adsettled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit.\u201d 11. In Sarla Verma1 it was further held that where the deceased was married, the deduction towards personal and living expenses of the deceased should be one\u00adthird (1/3 rd) where the number of dependent family members is between 2 and 3, one\u00adfourth (1/4 th) where the number of dependent family members is between 4 and 6, and one\u00adfifth (1/5th) where the number of dependent family members exceeds six. 12. In the instant case, the appellants have contended that the mother\u00adin\u00adlaw of the deceased was staying with the deceased and his family members since a long time. Taking into consideration the number of dependents of the deceased including his mother\u00adin\u00adlaw (four in number), the MACT had deducted one fourth (1/4th) of the income towards his personal expenses. However, the High Court has held that appellant no.4 being the mother\u00adin\u00adlaw of the deceased, cannot be reckoned as a dependent of the deceased. The High Court, therefore, determined the number of dependents as 3 and accordingly deducted one\u00adthird (1/3 rd) of the income of the deceased towards his personal expenses. 13. Section 166 of the MV Act provides for filing of an application for compensation. The relevant portion of the said Section is as under: \u201c166. Application for compensation. \u2014 (1) An application for compensation arising out of an accident of the nature specified in sub\u00adsection (1) of section 165 may be made\u2014 (a) by the person who has sustained the injury; or (b) by the owner of the property; or (c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or (d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be: Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.\u201d 14. The MV Act does not define the term \u2018legal representative\u2019. Generally, \u2018legal representative\u2019 means a person who in law represents the estate of the deceased person and includes any person or persons in whom legal right to receive compensatory benefit vests. A \u2018legal representative\u2019 may also include any person who intermeddles with the estate of the deceased. Such person does not necessarily have to be a legal heir. Legal heirs are the persons who are entitled to inherit the surviving estate of the deceased. A legal heir may also be a legal representative. 15. Indicatively for the present inquiry, the Kerala Motor Vehicle Rules, 1989, defines the term \u2018legal representative\u2019 as under: \u201cLegal Representative\u201d means a person who in law is entitled to inherit the estate of the deceased if he had left any estate at the time of his death and also includes any legal heir of the deceased and the executor or administrator of the estate of the deceased.\u201d 16. In our view, the term \u2018legal representative\u2019 should be given a wider interpretation for the purpose of Chapter XII of MV Act and it should not be confined only to mean the spouse, parents and children of the deceased. As noticed above, MV Act is a benevolent legislation enacted for the object of providing monetary relief to the victims or their families. Therefore, the MV Act calls for a liberal and wider interpretation to serve the real purpose underlying the enactment and fulfil its legislative intent. We are also of the view that in order to maintain a claim petition, it is sufficient for the claimant to establish his loss of dependency. Section 166 of the MV Act makes it clear that every legal representative who suffers on account of the death of a person in a motor vehicle accident should have a remedy for realization of compensation. 17. It is settled that percentage of deduction for personal expenses cannot be governed by a rigid rule or formula of universal application. It also does not depend upon the basis of relationship of the claimant with the deceased. In some cases, the father may have his own income and thus will not be considered as dependent. Sometimes, brothers and sisters will not be considered as dependents because they may either be independent or earning or married or be dependent on the father. The percentage of deduction for personal expenditure, thus, depends upon the facts and circumstances of each case. 18. In the instant case, the question for consideration is whether the fourth appellant would fall under the expression \u2018legal representative\u2019 for the purpose of claiming compensation. In Gujarat State Road Transport Corporation, Ahmedabad vs. Ramanbhai Prabhatbhai and Anr.3 this Court while considering the entitlement of the brother of a deceased who died in a motor vehicle accident to maintain a claim petition under the provisions of the MV Act, held as under: \u201c13. We feel that the view taken by the Gujarat High Court is in consonance with the principles of justice, equity and good conscience having regard to the conditions of the Indian society. Every legal representative who suffers on account of the death of a person due to a motor vehicle accident should have a remedy for realisation of compensation and that is provided by Sections 110\u00adA to 110\u00adF of the Act. These provisions are in consonance with the principles of law of torts that every injury must have a remedy. It is for the Motor Vehicles Accidents Tribunal to determine the compensation which appears to it to be just as provided in Section 110\u00adB of the Act and to specify the person or persons to whom compensation shall be paid. The determination of the compensation payable and its apportionment as required by Section 110\u00adB of the Act amongst the legal representatives for whose benefit an application may be filed under Section 110\u00adA of the Act have to be done in accordance with well\u00adknown principles of 33 (1987) 3 SCC 234 law. We should remember that in an Indian family brothers, sisters and brothers\u2019 children and sometimes foster children live together and they are dependent upon the bread\u00adwinner of the family and if the bread\u00adwinner is killed on account of a motor vehicle accident, there is no justification to deny them compensation relying upon the provisions of the Fatal Accidents Act, 1855 which as we have already held has been substantially modified by the provisions contained in the Act in relation to cases arising out of motor vehicles accidents. We express our approval of the decision in Megjibhai Khimji Vira v. Chaturbhai Taljabhagujri 4 and hold that the brother of a person who dies in a motor vehicle accident is entitled to maintain a petition under Section 110\u00adA of the Act if he is a legal representative of the deceased.\u201d 19. In Hafizun Begum (Mrs) vs. Mohd. Ikram Heque and Ors.5 it was held that: \u201c7. \u202612. As observed by this Court in Custodian of Branches of Banco National Ultramarino v. Nalini Bai Naique6 the definition contained in Section 2(11) CPC is inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead, it stipulates that a person who may or may not be legal heir, competent to inherit the 4 AIR 1977 Guj 195 5 (2007) 10 SCC 715 6 1989 Supp (2) SCC 275 property of the deceased, can represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression \u2018legal representative\u2019. As observed in Gujarat SRTC v. Ramanbhai Prabhatbhai3 a legal representative is one who suffers on account of death of a person due to a motor vehicle accident and need not necessarily be a wife, husband, parent and child.\u201d 20. In Montford Brothers of St. Gabriel and Anr. vs. United India Insurance and Anr.7 this Court was considering the claim petition of a charitable society for award of compensation on account of the death of its member. The appellant\u00adsociety therein was a registered charitable society and was running various institutions as a constituent unit of Catholic church. Its members, after joining the appellant\u00adsociety, renounced the world and were known as \u2018brother\u2019. In this case, a \u2018brother\u2019 died in a motor vehicle accident. The claim petition filed by the appellant\u00adsociety seeking compensation on account of the death of aforesaid \u2018brother\u2019 was rejected by the High Court on the ground of its maintainability. 7 (2014) 3 SCC 394 This Court after examining various provisions of the MV Act held that the appellant\u00adsociety was the legal representative of the deceased \u2018brother\u2019. While allowing the claim petition it was observed as under: \u201c17. A perusal of the judgment and order of the Tribunal discloses that although Issue 1 was not pressed and hence decided in favour of the appellant claimants, while considering the quantum of compensation for the claimants, the Tribunal adopted a very cautious approach and framed a question for itself as to what should be the criterion for assessing compensation in such case where the deceased was a Roman Catholic and joined the church services after denouncing his family, and as such having no actual dependents or earning? For answering this issue, the Tribunal relied not only upon judgments of American and English Courts but also upon Indian judgments for coming to the conclusion that even a religious order or an organisation may suffer considerable loss due to the death of a voluntary worker. The Tribunal also went on to decide who should be entitled for compensation as legal representative of the deceased and for that purpose it relied upon the Full Bench judgment of Patna High Court in Sudama Devi v. Jogendra Choudhary8, which held that the term \u201clegal representative\u201d is wide enough to include even \u201cintermeddlers\u201d with the estate of a deceased. The Tribunal also referred to some Indian judgments in which it was held that successors to the trusteeship and trust property are legal representatives within the meaning of Section 2(11) of the Code of Civil Procedure.\u201d 21. Coming to the facts of the present case, the fourth appellant was the mother\u00adin\u00adlaw of the deceased. Materials on record clearly establish that she was residing with the deceased and his family members. She was dependent on him for her shelter and maintenance. It is not uncommon in Indian Society for the mother\u00adin\u00adlaw to live with her daughter and son\u00adin\u00adlaw during her old age and be dependent upon her son\u00adin\u00adlaw for her maintenance. Appellant no.4 herein may not be a legal heir of the 8 AIR 1987 Pat 239 deceased, but she certainly suffered on account of his death. Therefore, we have no hesitation to hold that she is a \u201clegal representative\u201d under Section 166 of the MV Act and is entitled to maintain a claim petition. (II) Whether the High Court was justified in applying a split multiplier? 22. The deceased was aged 52 years at the time of the accident. He was working as an Assistant Professor and getting a monthly salary of Rs.83,831/\u00ad (Rupees eighty\u00adthree thousand eight hundred thirty\u00adone only). The evidence on record shows that he was a meritorious man having the qualifications of M.Sc, M.Phil. He was a first\u00adclass holder in M.Sc. He was a Selection Grade Lecturer in Mathematics and was a subject expert. He was also included in the panel of Mahatma Gandhi University and was appointed as Examiner in the Board of Examiners for CBCCSS Programme in Mathematics. Subsequently, he was appointed as Deputy Chairman of the Examiners Board. Evidence on record also shows that there is acute shortage of lecturers in Mathematics for appointment in colleges and retired Mathematics Professors are appointed in so many colleges. It is common knowledge that the teachers, especially Mathematics teachers, are employed even after their retirement in coaching centers. They may also hold private tuition classes. This would increase their income manifold after retirement. 23. In Sarla Verma1, this Court has held that while calculating the compensation, the courts should take into consideration not only the actual income at the time of the death but should also make additions by taking note of future prospects. It was further held that though the evidence may indicate a different percentage of increase, it is necessary to standardize the addition to avoid disparate yardsticks being applied or disparate methods of calculation being adopted. 24. In Reshma Kumari & Ors. vs. Madan Mohan & Anr.9, a three\u00adJudge Bench of this Court has approved the judgment in Sarla Verma1. 9 (2013) 9 SCC 65 25. In Pranay Sethi2, this Court has not only approved the aforesaid observations made in Sarla Verma1 but also held as under: \u201c59.3. While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. 59.4. In case the deceased was self\u00ademployed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.\u201d 26. In K.R. Madhusudhan and Ors. vs. Administrative Officer and Anr.10, this Court was considering a case where the High Court had applied split multiplier for the purpose of calculation of compensation towards loss of dependency and held as under: 10 (2011) 4 SCC 689 \u201c8. In Sarla Verma1 judgment the Court has held that there should be no addition to income for future prospects where the age of the deceased is more than 50 years. The learned Bench called it a rule of thumb and it was developed so as to avoid uncertainties in the outcomes of litigation. However, the Bench held that a departure can be made in rare and exceptional cases involving special circumstances. 9. We are of the opinion that the rule of thumb evolved in Sarla Verma1 is to be applied to those cases where there was no concrete evidence on record of definite rise in income due to future prospects. Obviously, the said rule was based on assumption and to avoid uncertainties and inconsistencies in the interpretation of different courts, and to overcome the same.\u201d 27. In Puttamma and Ors. vs. K.L. Narayana Reddy and Anr.11, this Court was again considering a case where split multiplier for the purpose of calculation of dependency compensation was applied. It was held thus: \u201c32. For determination of compensation in motor accident claims under Section 166 this Court always followed multiplier method. As there were inconsistencies in the selection of a multiplier, this Court in Sarla Verma1 11 (2013) 15 SCC 45 prepared a table for the selection of a multiplier based on the age group of the deceased/victim. The 1988 Act, does not envisage application of a split multiplier. 33. In K.R. Madhusudhan v. Administrative Officer10 this Court held as follows: (SCC p. 692, paras 14\u00ad15) \u201c14. In the appeal which was filed by the appellants before the High Court, the High Court instead of maintaining the amount of compensation granted by the Tribunal, reduced the same. In doing so, the High Court had not given any reason. The High Court introduced the concept of split multiplier and departed from the multiplier used by the Tribunal without disclosing any reason therefor. The High Court has also not considered the clear and corroborative evidence about the prospect of future increment of the deceased. When the age of the deceased is between 51 and 55 years the multiplier is 11, which is specified in the 2nd column in the Second Schedule to the Motor Vehicles Act, and the Tribunal has not committed any error by accepting the said multiplier. This Court also fails to appreciate why the High Court chose to apply the multiplier of 6. 15. We are, thus, of the opinion that the judgment of the High Court deserves to be set aside for it is perverse and clearly contrary to the evidence on record, for having not considered the future prospects of the deceased and also for adopting a split multiplier method. 34. We, therefore, hold that in absence of any specific reason and evidence on record the tribunal or the court should not apply split multiplier in routine course and should apply multiplier as per decision of this Court in Sarla Verma1 as affirmed in Reshma Kumari9.\u201d 28. From the above discussion it is clear that at the time of calculation of the income, the Court has to consider the actual income of the deceased and addition should be made to take into account future prospects. Further, while the evidence in a given case may indicate a different percentage of increase, standardization of the addition for future prospects should be made to avoid different yardsticks being applied or different methods of calculation being adopted. In Pranay Sethi2, the Constitution Bench has directed addition of 15% of the salary in case the deceased was between the age of 50 to 60 years as a thumb rule, where a deceased had a permanent job. In view of the above, the High Court was not justified in applying split multiplier in the instant case. (III) What is the amount of compensation that should be awarded to the appellants? 29. That takes us to the award of compensation. We have already noticed that the deceased was working as Assistant Professor at Devaswom Board Pampa College, Paruamala, and was drawing a monthly income of Rs.83,381/\u00ad which is clear from his salary certificate (Ex.A\u00ad5) issued by the Principal of Devaswom Board Pampa College, Paruamala. The salary slip received by the deceased for the month of May 2011 (Ex.A\u00ad6) also shows that his monthly salary was Rs.83,381/\u00ad. These documents have been marked in evidence through the Principal of the said College who was examined as PW\u00ad1. Thus, annual income of the deceased comes to Rs.10,00,572/\u00ad. This Court in Sarla Verma1 has made it clear that the Annual Income of the deceased minus the income tax should be taken into account at the time of his death for the purpose of calculation of loss of dependency. The deceased had to pay Rs.1,13,424/\u00ad towards income tax per annum. After deducting the said amount the actual income of the deceased comes to Rs.8,87,148/\u00ad. 30. The deceased was aged 52 years at the time of his death and had a permanent job. Having regard to the judgment in Pranay Sethi2, an addition of 15% of his actual salary should be added towards future prospectus. Therefore, 15% of his actual salary comes to Rs.1,33,072/\u00ad 31. Since the deceased was 52 years at the time of his death, the applicable multiplier is \u201811\u2019. As we have held that appellant no.4, the mother\u00adin\u00adlaw of the deceased is also a dependent and a \u201clegal representative\u201d under Section 166 of the MV Act, the total number of dependents left behind by the deceased is four. Hence, 1/4 th of the income (actual salary + future prospects) should be deducted towards his personal expenses. Thus, the total compensation payable towards loss of dependency is as under: (1) (i) Annual Salary Rs.10,00,572 (ii) less Tax Rs.1,13,424 (iii) Actual Salary : Rs.8,87,148 (2) Future Prospects :15% of Rs.1,33,072 Actual Salary (3) Loss of dependency : Rs.84,16,815 (1) 8,87,148 + (2) 1,33,072 \f \u2013 \u00bc i.e. Rs.2,55,055 x 11 32. In Pranay Sethi2, this Court has awarded a total sum of Rs.70,000/\u00ad (Rupees seventy thousand only) under conventional heads, namely, loss of estate, loss of consortium and funeral expenses. It was held that the said sum should be enhanced at the rate of 10% in every three years. It was held thus: \u201c59.8. Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs 15,000, Rs 40,000 and Rs 15,000 respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.\u201d 33. The judgment in Pranay Sethi2 was rendered in the year 2017. Therefore, the claimants are entitled for 10% enhancement. Thus, a sum of Rs.16,500/\u00ad each is awarded towards loss of estate and funeral expenses. 34. A three\u00adJudge Bench of this Court in United India Insurance Co. Ltd. vs. Satinder Kaur @ Satwinder Kaur and Ors12, after considering Pranay Sethi2, has awarded spousal 12 (2020) SCC Online SC 410 : AIR 2020 SC 3076 consortium at the rate of Rs.40,000/\u00ad (Rupees forty thousand only) and towards loss of parental consortium to each child at the rate of Rs.40,000/\u00ad (Rupees forty thousand only). The compensation under these heads also needs to be increased by 10%. Thus, the spousal consortium is awarded at Rs.44,000/\u00ad (Forty\u00adfour thousand only), and towards parental consortium at the rate of Rs.44,000/\u00ad each (Total Rs.88,000/\u00ad) is awarded to the two children. 35. Thus, the appellants are entitled to compensation as under: (i) Towards Loss of Rs.84,16,815/\u00ad dependency (ii) Loss of Estate Rs.16,500/\u00ad (iii) Funeral Expenses Rs.16,500/\u00ad (iv) Spousal Consortium Rs.44,000/\u00ad (v) Parental Consortium Rs.88,000/\u00ad Total Rs.85,81,815/\u00ad 36. The appellants are also entitled to interest on the said amount at the rate of 7.5% per annum from the date of the claim petition till the date of its realization. The respondent is accordingly directed to deposit the above amount with accrued interest thereon at the rate of 7.5% per annum from the date of claim petition till the date of deposit, after deducting amounts, if any, deposited by the respondent, within eight weeks from today. 37. Resultantly, the appeal is allowed in the aforesaid terms. Parties are directed to bear their respective costs. 38. Pending applications, if any, shall also stand disposed of. \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. (S. ABDUL NAZEER) \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. (KRISHNA MURARI) New Delhi; October 25, 2021.", "spans": [{"start": 116, "end": 145, "label": "CASENO"}, {"start": 147, "end": 158, "label": "APP"}, {"start": 187, "end": 200, "label": "RESP"}, {"start": 201, "end": 233, "label": "RESP"}, {"start": 259, "end": 274, "label": "JUDGE"}, {"start": 348, "end": 358, "label": "DATE"}, {"start": 373, "end": 393, "label": "COURT"}, {"start": 410, "end": 431, "label": "CASENO"}, {"start": 468, "end": 478, "label": "COURT"}, {"start": 593, "end": 603, "label": "DATE"}, {"start": 685, "end": 695, "label": "DATE"}, {"start": 710, "end": 750, "label": "AUTH"}, {"start": 763, "end": 767, "label": "AUTH"}, {"start": 773, "end": 794, "label": "CASENO"}, {"start": 860, "end": 864, "label": "AUTH"}, {"start": 979, "end": 989, "label": "DATE"}, {"start": 1414, "end": 1418, "label": "AUTH"}, {"start": 1487, "end": 1491, "label": "AUTH"}, {"start": 1837, "end": 1841, "label": "AUTH"}, {"start": 2954, "end": 2967, "label": "DATE"}, {"start": 3002, "end": 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{"id": "50547742", "text": "-1- F.A. 378.2020 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR FIRST APPEAL NO. 378 OF 2020 APPELLANTS: - 1. Smt. Mangala wd/o Vijay Khandar (Ori. Petitioners) Aged about-43 years Occu. Household. 2. Ku. Pallavi d/o Vijay Khandar, Aged about-22 years, Occu. Student 3. Sagar s/o Vijay Khandar, Aged about-21 years, Occu. Student. 4. Smt. Indubai wd/o Annaji Khandar Aged about-70 years, Occu. Household. All the Appellants No. 1 to 4 are R/o Patansawangi, Tah. Saoner, District- Nagpur. ... Versus ... RESPONDENT: - National Insurance Company Limited, (Ori. Respondent) Through its Manager, Dharampeth Branch, Laxmi Bhavan Square, Dharampeth, Nagpur-440010 --------------------------------------------------------------------------------------------------------------------------------------------------- Shri H.P. Lingayat, Advocate for the Appellants. Shri B.P. Bhatt, Advocate for the Respondent. --------------------------------------------------------------------------------------------------------------------------------------------------- CORAM : S.M. MODAK, J. DATE OF RESERVING THE JUDGMENT : 14/09/2020 DATE OF PRONOUNCING THE JUDGMENT: 29/09/2020 \\ -2- F.A. 378.2020 J U D G M E N T:- The issue involved in this appeal is about liability of insurance company to pay as per clause of ' personal accident cover' in the insurance policy. The issue is about extent of liability of insurance company when the insured/owner of the Jeep was himself the driver-cum-deceased and when no other vehicle is involved. The issue is whether the Motor Accident Claims Tribunal (for short \"M.A.C.T\") has got jurisdiction to decide such claim petition. 02] The learned Member of M.A.C.T. negatived the grievances of the claimants who are legal representatives of the deceased/insured. The legal representatives of the deceased - Vijay Annaji Khandar claimed compensation from the respondent - Insurance Company from the M.A.C.T., Nagpur by invoking the provisions of Section 163-A of the Motor Vehicles Act, 1988 (for short \"M.V. Act\"). 03] Existence of valid insurance policy was not in dispute. Deceased - Vijay Khandar was the owner of the Jeep and a policy holder. On the material date i.e. 16/10/2004 at 17:30, he was driving the Jeep on Saoner, Nagpur Road. The deceased dashed his Jeep to a tree while avoiding a head on collision with a Tata Sumo. The Sumo was coming from opposite direction and the driver take the Sumo on right side. If the deceased could not have taken right turn, further vehicular accident might have happened. -3- F.A. 378.2020 Deceased succumbed to the injuries. 04] The petition was contested by the Insurance Company - respondent. Deceased himself was the owner/insured. The Company denied their liability. The policy does not cover loss occasioned to the insured. Because he is not the third party. There is also emphasis on withdrawal of earlier claim petition filed under Section 166 of M.V. Act and non-maintainability of fresh petition under Section 163-A of M.V. Act. Both have adduced oral and documentary evidence. 05] It is true that issue of negligence is not relevant in an inquiry in a claim petition under Section 163-A of M.V. Act. Trial Court upheld the objection taken on behalf of the insurance company. Trial Court held: \"the owner/insured cannot be said to be a third party and hence exonerated the company\". It is the correctness of this judgment dated 6 th February, 2020 passed in M.A.C.P. No.6 of 2015 is challenged before this Court by the original claimants. 06] Learned Advocate Shri Lingayat and learned Advocate Shri Bhatt argued on behalf of original complainant/appellant and respondent/Company respectively. Both relied upon various judgments. Amongst them, there is unanimity that deceased/owner/insured is not a third party falling under the provisions of Section 147 of M.V. Act. So, the -4- F.A. 378.2020 scope of appeal is narrowed down. The issue is restricted-- 1) whether Insurance Company is liable to reimburse under the caption personal accident of insured? 2) whether the M.A.C.T can award compensation? 07] Both the learned Advocates have relied upon various judgments. One can claim compensation under Section 166 or under Section 163-A of M.V. Act. There can be compensation for the loss caused on account of death or permanent injury. There can be compensation for damage caused to the property. There can be a claim for compensation on account of both the heads. An accident may involve only one vehicle or it may involve more than one vehicle. 08] You may claim compensation from the registered owner only (if vehicle is not insured) or from registered owner and the insurance company. In an accident, there may be loss/damage to the occupants of the vehicle/to the vehicle or there may be loss to persons/property outside the vehicle. Law mandates the owner to obtain insurance policy. It is called as Act Policy. It is a biparty agreement between owner/insured and the company/insurer. So, the insurance company indemnifies the insured to repay if any loss is caused to a third party due to act of insured. Section 146 of M.V. Act mandates the owner to obtain insurance policy before motor vehicle is put to use. Whereas Section 147 of M.V. Act lays down -5- F.A. 378.2020 requirements of policies and limits of liability. So also the insured is free to contract with the insurer to reimburse for the personal loss caused to the occupants of the vehicle. There is a purpose behind mandating to obtain Act Policy. Once you causes an accident thereby causing damage to a third person, the interest of such third person needs to be protected. In this appeal, we are not concerned with liability to reimburse loss of third party. But we are concerned with liability of insurance company to reimburse for the loss caused to the insured as per personal accident coverage. Though, trial Court has not given finding on this issue, both the learned Advocates have consented to this Court to give finding on this issue by this Court. 09] Always, there is a controversy raised who is a 'third party'. It is not defined. In common parlance, a party other than insurer and insured is called third party. Question is always raised whether registered owner can be said to be a 'third party'. This question is no more res-integra. There are numerous judgments apart from the judgments cited before me. Learned Advocate Shri Lingayat cited these judgments because there were directions to pay as per personal accident clause (even though the insured is not treated as a third party). JUDGMENTS RELIED UPON BY THE APPELLANTS \"10.The liability under Section 163-A of the Act is on the owner of the vehicle as a person cannot be both, a claimant as also a recipient. The heirs of Janakraj could -6- F.A. 378.2020 not have maintained a claim in terms of Section 163-A of the Act. For the said purpose only the terms of the contract of insurance could be taken recourse to\". 10] These were the observations of Hon'ble Supreme Court in case of Oriental Insurance Company Limited Vs. Rajni Devi and Ors. reported in (para 10). That was a claim under Section 163-A of M.V. Act and only one vehicle (motorcycle) was involved and one of the rider expired when motorcycle went out of control. Owner paid extra amount of Rs.50/- covering his personal insurance (liability of compensation was quantified to Rs.1,00,000/-). 11] In case of Ningamma and Anr. Vs. United India Insurance Company Limited reported in 2009 (13) SCC 710, it has been held that: \"19. But if it is proved that the driver is the owner of the motor vehicle, in that case the owner could not himself be a recipient of compensation as the liability to pay the same is on him. This proposition is absolutely clear on a reading of Section 163-A of the MV Act. Accordingly, the legal representatives of the deceased who have stepped into the shoes of the owner of the motor vehicle could not have claimed compensation under Section 163-A of the MV Act.\" It has been further held: \"20. When we apply the said principle into the facts of the present case we are of the view that the claimants were not entitled to claim compensation under Section 163-A of the MV Act and to that extent the High Court was justified in coming to the conclusion that the said provision is not applicable to the facts and circumstances of the present case\". -7- F.A. 378.2020 Deceased succumbed to the injuries caused while driving motorcycle. Motorcycle hits a bullock cart (which was proceeding ahead) when the cart stops suddenly. Deceased was not the owner. He borrowed it from the owner. As such, he steps into the shoes of the owner. Claim petition was under Section 163-A of M.V. Act [however the matter was remanded to High Court for considering it under Section 166 of M.V. Act]. 12] Hon'ble Supreme Court had the occasion to decide correctness of the decision of High Court in case of National Insurance Company Limited Vs. Ashalata Bhowmik and Ors. reported in 2018 (9) SCC 801. The insurance company was held responsible to pay to the legal representatives of deceased to driver/owner of vehicle. Hon'ble Supreme Court reiterated the law regarding liability of insurance company in case of death of owner/its own insured. When insured is not liable, question of liability of insurer does not arise (however insurance company was directed to pay Rs.2,00,000/- with interest for personal accident cover). 13] In case of Ramkhiladi and Anr. Vs. The United India Insurance Company and Anr. reported in 2020 (2) SCC 550, Hon'ble Supreme Court dealt a case involving accident of two motorcycles. The driver of one motorcycle expired. His legal representatives decided not to proceed against the owner/insurance company of second motorcycle. They proceeded under Section 163-A of M.V. Act against the owner and insurance company of motorcycle driven by the deceased. -8- F.A. 378.2020 14] Learned Member of M.A.C.T. held company responsible. The deceased was held to be in the employment of the owner. High Court set aside the judgment. F.I.R. was lodged against the driver of another motorcycle and the claimants have not joined the owner and company of that motorcycle. 15] Hon'ble Supreme Court on re-appreciation of evidence held \"deceased was permissible owner and not employee of owner\" (para 5.3). Deceased was not held to be a third party and the parties are governed by the contract of insurance and liability of company would be qua 3 rd party only. The claimants were awarded Rs.1,00,000/- with interest under personal accident claim. JUDGMENTS RELIED UPON ON BEHALF OF INSURANCE COMPANY 16] According to learned Advocate Shri Bhatt in following judgments, the M.A.C.T. is held not competent to award amount as per personal accident clause. They are in case of--- 1. Smt. Sangeetha Subramani and others Vs. Sri Krishna Chari Puttachari delivered by High Court of Karnataka on 24/09/2018 (in M.F.A. No.5337/2011). 2. M/s. The Cholamandalam MS General Insurance Company Limited Vs. Ramesh Babu in C.M.A. No.2434 of 2019 and -9- F.A. 378.2020 C.M.P. No.11121 of 2019 dated 02.09.2020 delivered by High Court of Madras. 17] In case of Smt. Sangeetha Subramani, the issue was \"whether rider of a two wheeler (who is not the owner) can claim compensation as third party for an accident where no other vehicle is involved. After taking overview of the decision of High Court as well as Hon'ble Supreme Court, the issue was answered in the negative. The claimants were held not entitled to claim compensation under Section 163-A or 166 of M.V. Act. Learned Advocate Shri Bhatt stressed more on the observations, when comprehensive policy is there. In that eventuality also, the claimants are entitled not to claim compensation for own damage and premium. 18] Learned Advocate Shri Lingayat politely disagreed with those observations. I have read this judgment minutely. There cannot be a dispute about liability of company to reimburse the loss to the insured himself. The dispute is whether insurance company is also not liable to reimburse to the insured when there is personal accident cover. It will be relevant to consider in what manner, the High Court came to that conclusion. High Court of Karnataka has referred to two judgments of Hon'ble Supreme Court. They are in case of-- 1. Oriental Insurance Company Limited Vs. Rajni Devi and Ors. reported in 2008 (5) SCC 736. -10- F.A. 378.2020 2. National Insurance Company Ltd. Vs. Laxmi Narain Dhut reported in (2007) 3 SCC 700. No doubt, the High Court of Karnataka has considered the observations in case of Rajni Devi pertaining to entitlement of insured. But it is important to note that finally Hon'ble Supreme Court gave directions to pay Rs.1,00,000/- for personal accident cover. In para No. 24 of Smt. Sangeetha's Case, it has been observed: \"24. So far as claims relating to own damage are concerned, the Apex Court, in the case of National Insurance Company Limited Vs. Laxmi Narain Dhut has held that it has to be decided by another forum i.e., forum created under the Consumer Protection Act, 1985. Therefore, even if the policy is a comprehensive policy covering the risk of the insured, a claim seeking compensation for death or permanent injuries suffered by the insured, a claim petition under any of the provisions of MV Act, is not maintainable. On the same principles, if a contract policy covers not only the owner-cum-driver of the vehicle, but also covers \"any other person driving the vehicle\", the claim cannot be maintained before Motor Accidents Claims Tribunal (for short 'MACT'). The remedy lies before the Consumer Redressal Forum\" Probably, High Court of Karnataka has considered these observations even while rejecting the claim under comprehensive policy. According to learned Advocate Shri Lingayat, these observations are obiter dicta and they are not the observations on the issue involved in that case before Hon'ble Supreme Court. According to him, High Court of Karnataka committed error in accepting those observations. -11- F.A. 378.2020 19] In case of M/s. The Cholamandalam, similar issue was involved about liability of insurance company to comply with the promises given as per personal accident coverage clause of package policy. The claim was allowed by M.A.C.T. Number of contentions were raised on behalf of insurance company before the High Court. It includes the jurisdiction of M.A.C.T., entitlement to compensation (more than the maximum limit mentioned in the clause) under the phrase 'just compensation'. All the contentions were answered in favour of the insurance company and the claim petition was dismissed. Learned Advocate Shri Bhatt relied upon paragraph Nos. 28 to 38 and 41. He brought to my notice that the Court was pleased to differentiate with the observations made in case of Bajaj Allianz General Insurance Company Limited Vs. C. Ramesh reported in 2013 (1) TN MAC 325 (relied upon by the appellant). 20] Learned Advocate Shri Lingayat tried to distinguish the fact of that case. According to him, there was an objection to jurisdiction taken at the beginning itself. Whereas, in this case it is not taken. It is true that in the case of M/s. The Cholamandalam, there was jurisdiction objection taken at the beginning. It is also true that it was not decided by the M.A.C.T. 21] I have read the written statement filed on behalf of the insurance company before the trial Court. In para No.17, there was a plea taken that deceased is not third party and hence, claim is not maintainable. There was -12- F.A. 378.2020 also a plea that once earlier petition is dismissed (and restoration petition was not pressed) fresh petition on the same cause of action is not maintainable. CONCLUSION 22] With respect to those observations, I differ with the view taken by High Court of Karnataka and High Court of Madras. The issue involved before Hon'ble Supreme Court in case of Laxmi Narain Dhut is relevant to be considered. OBSERVATION IN CASE OF LAXMI NARAIN DHUT \"21. Where the claim relates to own damage claims, it cannot be adjudicated by the insurance company, but it has to be decided by another forum i.e. forum created under the Consumer Protection Act, 1986 (in short \"the CP Act\"). Before the Tribunal, there were essentially three parties i.e. the insurer, the insured and the claimants. On the contrary, before the Consumer Forums there were two parties i.e. owner of the vehicle and the insurer. The claimant does not come into the picture. Therefore, these are cases where there is no third party involved\". It will also be material to consider the background in which above observations are made. Hon'ble Supreme Court in case of National Insurance Company Limited Vs. Swaran Singh reported in 2004 (3) SCC 297 dealt with the scope of defences available to insurance company while defending the claim petition. Whereas in case of Laxmi Narain Dhut, Hon'ble Supreme Court was posed with a question \"whether the observations in case of -13- F.A. 378.2020 Swaran Singh are applicable when third party claims are not involved. It was held \"decision in Swaran Singh case has no application to cases other than third party risks\". On this background, observation in para 21 are made. So, I agree with learned Advocate Shri Lingayat that High Court of Karnataka ought not to have considered the above observations while deciding the case of Smt. Sangeetha. 23] In case of M/s The Cholamandalam, the High Court of Madras has emphasized on difference between statutory policy and contractual policy. It had also observed about maintainability of claim before M.A.C.T. when issue as to adherence to the promises as per contractual policy is involved. I have minutely read those observations. There is no dispute about difference in between statutory policy and contractual policy. It is also true that the provisions about obtaining statutory policy is recognized in Chapter XI (Insurance of Motor Vehicles Against Third Party Risks) of M.V. Act. It is also true that there is clause as to 'personal accident coverage' in the policy at Exh.37. The policy also includes covering risk of third party. I feel that the High Court in M/s The Cholamandalam's case has taken restricted view while dealing with the issue of jurisdiction of M.A.C.T. I differ with that view. The relevant provisions of M.V. Act need to be considered. RELEVANT PROVISIONS OF M.V. ACT, 1988 24] I do not accept the submission of learned Advocate Shri Lingayat that \"the insurance company can be fastened with the liability under the -14- F.A. 378.2020 provisions of sub-section 5 to Section 147 of M.V. Act\". The reason is simple. That clause will come in picture only when the policy is issued under Chapter XI. So, unless and until the issue of third party risk is involved, that provision cannot be resorted to. 25] The provisions of Section 165 of M.V. Act deal with jurisdiction of M.A.C.T. When certain conditions are fulfilled, it gets jurisdiction. They are--- a) Claim for compensation in respect of accidents. b) Arising out of use of motor vehicle. If these conditions are fulfilled, M.A.C.T gets jurisdiction. The consequences of accident may be death or bodily injury (two persons) or damage to any property of third party. Now, we have to interpret these provisions vis-a-vis the provisions of Section 147 of M.V. Act. The latter section deals with the requirements of policy in case of third party risk. Now, Section 165 of M.V. Act nowhere contemplates dealing with a claim only when policy is obtained under Section 147 of M.V. Act. We have to understand the legislative meaning for not including this requirement in Section 165 of M.V. Act. The reason is simple. There may be a possibility that a person may use a vehicle without obtaining statutory policy or he may not renew the policy. In that eventuality, it will be argued that M.A.C.T. cannot entertain the petition. However, that is not the legislative mandate. So, I am inclined to hold that petition before the M.A.C.T. will be maintainable once the condition under Section 165 of M.V. Act are fulfilled. So, in the given case, there is a clause of -15- F.A. 378.2020 personal accident coverage in case of motor accident, M.A.C.T. can entertain the petition. 26] So also I am fortified by observations of Hon'ble Supreme Court in case of The Chairman, Thiruvalluvar Transport Corporation Vs. The Consumer Protection Council reported in 1995 (2) SCC 479 and High Court of Madras in case of Bajaj Allianz General Insurance Company Limited Vs. C. Ramesh reported in 2013 (1) TN MAC 325. High Court of Madras in case of Bajaj Allianz General Insurance Company Limited has elaborately dealt with the present issue. After considering various reported and unreported judgments, it came to the conclusion that claim under personal accident cover would also lie before M.A.C.T. and there is no need for the injured/legal representative of the deceased to go to Consumer Forum (para 59). At the same time, it will be relevant to see what our Hon'ble Supreme Court has held about the jurisdiction of the Consumer Forum. This situation has arisen in case of Consumer Protection Council as referred above. The complaint was made directly to National Commission by Consumer Protection Council to claim up compensation due to death of a traveler of a bus. It was granted. When the State Transport Corporation have approached the Hon'ble Supreme Court, the decision was set aside. 27] After taking overview of the provisions of Consumer Protection Act and Motor Vehicles Act, it was held that Consumer Court is not having -16- F.A. 378.2020 jurisdiction. The Motor Vehicles Act is a special law dealing with motor accident compensation, whereas Consumer Protection Act is a general law dealing with grievances of consumers. The complaint was scrutinized in the light of the definition of Complaint and Service given in 1986 Act. It was held that failure of the insurance company to accept the claim does not amount to deficiency in service. It was observed \"the complaint, in the instant case, cannot be said to be in relation to any service hired or availed of by the consumer because the injury sustained by the consumer had nothing to do with the service provided or availed of by him but fatal injury was the direct result of the accident. 28] It is pertinent to note that, Hon'ble Supreme Court in the cases referred above i.e. in cases of Rajni Devi, Ashalata Bhowmik and Ramkhiladi was pleased to award compensation as per personal accident cover. FINAL CONCLUSION 29] For the above discussion, I am not inclined to accept the contention of Shri B.P. Bhatt, learned Advocate for the respondent that M.A.C.T. cannot entertain the claim made by the insured/owner under personal accident claim against the insurance company. Dismissal of Petition filed under Section 166 of M.V. Act was not on merits but it was for default. Restoration application was also dismissed for default so, it will also not come in the way of claimants. -17- F.A. 378.2020 FACTUAL ASPECTS 30] Amongst the claimants, claimant - Smt. Mangala Khandar (wife of the deceased) has given evidence. She is not the eye witness. One Purushottam Bonde has given evidence. He was travelling in the Tata Sumo Jeep driven by the deceased. He had seen the accident. In order to avoid collision when the truck coming from the opposite direction, the deceased was compelled to take right turn and the jeep hits the tree. Whereas Nilima Ramesh Godbole is the representative of the insurance company. She had brought on record the certificate of insurance at Exh.37. She admits that as per the personal accident cover risk up to Rs.2,00,000/- is covered. The company has paid Rs.35,000/- towards the damage of the vehicle but she admits that no document to that effect has been filed. 31] I am not inclined to interfere in the findings given by the learned Member of M.A.C.T. on the point of non-applicability of the provisions of Section 163-A of M.V. Act to the present claim. I conquer with him. It is not clear whether the claimants have argued before the learned Member of M.A.C.T. about invocation of personal accident cover or it was argued but not answered by the learned Member of M.A.C.T. Already, the parties have adduced the evidence and they were aware about the contents of the contract. The terms have been reduced in the certificate of insurance. (Though the details of compensation vis-a-vis injuries does not find place in -18- F.A. 378.2020 Exh.37). 32] It is undisputed fact that Rs.100/- was paid towards the premium compulsory personal accident to owner-cum-driver and maximum liability is quantified to Rs.2,00,000/-. I think the appellants are entitled to get Rs.2,00,000/- from the Insurance Company. So, I am inclined to allow the appeal. The appellants are also entitled to get interest @ 6% on this amount from the date of filing of the petition till recovery. Hence, I pass the following order:- ORDER i. The appeal is allowed. ii. The judgment dated 6th February, 2020 delivered in Special Claim Petition No.6/2015 is set aside (only to the extent of not granting compensation under personal accident cover). iii. The claim petition is allowed. iv. The respondent - Insurance Company is directed to pay Rs.2,00,000/- (rupees two lakhs only) to the appellants towards the compensation on account of death of Vijay Khandar along with the interest @ 6% from the date of filing of petition till realization. v. On depositing the amount, the M.A.C.T. is directed to -19- F.A. 378.2020 distribute it as follows:- a) An amount of Rs.25,000/- (rupees twenty five thousand only) be paid to appellant No.4 - Smt. Indubai Khandar. b) An amount of Rs.25,000/- (rupees twenty five thousand only) be kept in fixed deposit with any Nationalized Bank in the name of appellant No.3 - Sagar Vijay Khandar till the time he attains the majority. c) An amount of Rs.1,00,000/- (rupees one lakh only) be paid to appellant No.1 - Smt. Mangala Khandar. d) An amount of Rs.50,000/- (rupees fifty thousand only) be paid to appellant No.2 - Ku. Pallavi Khandar (who must have attained the majority up till now). e) The amount of interest be paid to appellant No.1 - Smt. Managala Khandar only. f) The cost of the main petition and this appeal be paid to the appellants by the respondent. g) The amount to be deposited within 15 days with M.A.C.T., Nagpur. vi. Decree be drawn up. vii. Record and proceedings be sent back. -20- F.A. 378.2020 Civil Application (CAF) No.1123/2020 In view of the disposal of the first appeal, this application praying for dispense with typed copy of handwritten Document/Annexure Nos.6 to 16 and 20 does not survive. It is disposed of accordingly. 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{"id": "1052174", "text": "JUDGMENT J.P. Devadhar, J. 1. This petition was originally filed on 22nd February, 2002 challenging the Circular dated 3rd September, 2001 issued by the Director General of Foreign Trade (DGFT) directing the Licensing Authorities not to issue any duty free advance licence for import of nature rubber until further orders. The petitioner had also challenged the inaction on the part of the State Trading Corporation of India Ltd. (S.T.C.) in refusing to import natural rubber under the advance licence, granted to the petitioner on 8-10-2001. During the pendency of this writ petition, show cause notice dated 29-4-2002 was issued for cancellation of advance licence granted to the petitioner on 8th October, 2001. A public notice dated 20th May, 2002 was also issued by DGFT to amend the Hand Book of procedures for 2002-2007 so as to prohibit duty free import of natural rubber. The petitioner was allowed to amend the petition so as to challenge the validity of the aforesaid show cause notice dated 29th April, 2002 and also challenge the validity of the public notice dated 20th May, 2002. 2. The short question that arises for our consideration in this petition is when the statutory provisions of the import policy specifically permits import of natural rubber duty free under an advance licence, is it open to the implementing agency, namely the DGFT to prohibit/ban import of natural rubber under an advance licence ? 3. Before dealing with the facts of the case, it is necessary to set out the relevant policy provisions. 4. Section 5 of the Foreign Trade (Development and Regulation) Act, 1995 ('Act' for short) empowers the Central Government to announce the export-import policy (EXIM Policy) and also amend that Policy form time to time. Section 6 of the Act empowers the Central Government to appoint any person as DGFT to advice the Government in the formulation of the policy, to carry out the policy and to exercise such powers as is conferred upon him by the Central Government in implementing the EXIM policy. However, Section 6(3) of the said Act provides that the power to amend the policy cannot be delegated to the DGFT and it is the prerogative of the Central Government only, to amend the policy. Section 7 of the said Act provides that no person shall make any import or export except under the importer and exporter code number granted by DGFT or any other officer authorised by him in accordance with the procedure specified in that behalf by the DGFT. 5. In exercise of its powers under Section 5 of the said Act, the Central Government has been announcing and publishing EXIM Policy from time to time and for the period 2002-2007, the EXIM Policy announced by the Central Government came into.force with effect from 1-4-2002 and is valid upto 31-3-2007. The said EXIM policy clearly provides that the right to amend the policy by a notification in the Gazette is vested in the Central Government only. Chapter 2 of the EXIM policy 2002-2007 contains general provisions regarding imports and exports. Para 2.1 of Chapter 2 provides that exports and imports shall be free except in cases where they are regulated by the provisions of the policy. Para 2.4 of Chapter 2 empowers DGFT to specify the procedure to be followed by an exporter or importer or by any licensing authority in implementing the policy and that, such procedure prescribed by the DGFT shall be included in the Hand Book and published by means of a public notice. Under the said para, DGFT is empowered to amend the procedure and publish the same by way of public notice. 6. Chapter 4 of the EXIM policy 2002-2007 provides for grant of advance licence under which duty free import of inputs to be used in the export product ate permitted. Para 4.1.5 of the Chapter 4 provides that the advance licence shall be issued in accordance with the EXIM Policy and the procedure in force on the date of the issue of licence. The procedure for import/export of the items under the policy are contained in the compilation of Hand Book of procedure notified by DGFT in pursuance of the provisions of para 2.4 of the policy. 7. It is not in dispute that under the EXIM policy 2002-2007 as well as earlier EXIM policy for the period 1997-2002 published by the Central Government, the natural rubber could be imported freely in India, either on payment of duty or duty free under an advance licence, as an in put for the export product. 8. Now, turning to the facts of the case, the petitioner who manufactures rubber gaskets and exports the same, was entitled to import natural rubber as an input for using it in the manufacture of the final product namely rubber gasket. The Licensing Authority in accordance with the prevalent EXIM policy had issued an advance licence on 8-10-2001, thereby permitting the petitioner to import 14,230 Kgs. of natural rubber duty free as it was to be used in the manufacture of rubber gaskets (rings) and then exported. Since the imports were to be effected through the S.T.C. (respondent No. 5), the petitioner approached the S.T.C. who by their letter dated 19th December, 2001 (Exhibit-C to the petition) stated that the permissibility of duty free import of natural rubber under the advance licence, is under consideration of the Ministry of Commerce and only on clearance from the said Ministry, the imports can be effected under the advance licence granted to the petitioner. In the meantime, DGFT had issued various circulars, including the circular dated 3-9-2001 (Exhibit-H to the petition) directing all the Licensing Authorities not to issue any advance licence until, further orders. Challenging these actions, as well as the subsequent action of the Jt. DGFT in purporting to cancel the advance licence issued to the petitioner as well as the amendment sought to be made to the Hand book of procedures by the public notice dated 20th May, 2002, the present petition has been filed. 9. Mr. Bharucha, learned Counsel for the petitioner submitted that when the statutory provisions contained in the EXIM policy published under Section 5 of the Act permit import of duty free natural rubber under an advance licence, it is not, open to the implementing agency namely DGFT to lay down procedures contrary to the policy and prohibit import of natural rubber under an advance licence. It was submitted that if for any reason the Central Government thought it fit that in public interest it is necessary to prohibit the duty free import of natural rubber under an advance licence, then it is open to the Central Government to amend the policy to that effect. But in the absence of any amendment to the policy, it is not open to the DGFT to issue public notice to prohibit duty free import of natural rubber under an advance licence. Therefore, the impugned circulars and the public notice issued by the DGFT being in contravention of the policy are liable to be quashed and set aside. It was submitted that once the circulars issued by the DGFT seeking to prohibit the import of duty free natural rubber are quashed, then the show cause notice issued to the petitioner to cancel the advance licence based on the aforesaid circular, is also liable to be quashed, it was submitted that the public notice dated 20th May, 2002 (Exhibit H-6), which purports to amend the Hand Book of procedure by prohibiting import of duty free natural rubber under advance licence is without Jurisdiction, being in contravention of the EXIM policy and hence liable to be quashed and set aside. An alternative submission was made that the procedural amendment effected by public notice dated 20-5-2002 does not have retrospective effect and, therefore, cannot affect import permitted under the advance licence issued to the petitioner on 8-10-2001. 10. Mr. Rana, learned Counsel appearing on behalf of the Revenue, on the other hand submitted that the imports of natural rubber, permitted under the policy is not rendered nugatory by the circulars issued by the DGFT and the amendments effected to the Hand Book of procedures. It was submitted that even after the impugned circulars and amendment to the Hand Book of procedures, the natural rubber can be imported as per the EXIM Policy. It was submitted that it was open to the petitioner to import natural rubber on payment of duty and if the same are used as input in the export products, then on export, of the said goods, the petitioner is entitled to duty drawback and, therefore, the petitioner is not in any way prejudiced by the circulars issued by DGFT it was submitted that over the years there has been considerable decline in the price of natural rubber as a result, the domestic market, which is dominated by the small growers has been badly effected. Under the circumstances, the Government in the past had stepped in with a view to support domestic market and took measures in banning imports of natural rubber against the advance licence with effect from 20th February, 1999 and also took regulatory measures by permitting quantitative import of natural rubber through S.T.C., etc. However, with the lifting of quantitative restrictions with effect from 1-4-2001 under the new policy of the Government, the import of natural rubber have become free. This has led to surge in the imports of natural rubber, which has further depressed the prices of natural rubber in the domestic markets, which in turn has affected the domestic industry. It was submitted that in these circumstances, A.L.C. circulars were issued by the DGFT to defer the issuance of duty free advance licence as the matter was under the active consideration of the Ministry of Commerce. It was submitted that since the advance licence dated 8-10-2001 was issued to the petitioner erroneously and in violation of the A.L.C. circular, the show cause notice dated 29th April, 2002 was issued calling upon the petitioner to show cause as to why the advance licence erroneously issued should not be cancelled. It was submitted that the DGFT is empowered under the policy to amend the Hand Book of procedure and in view of the amendment effected to the Hand Book of procedure by the public notice dated 20th May, 2002, the petitioner cannot import the natural rubber duty free under the advance licence, but is entitled to import on the same payment of duty and it utilised in the manufacture of export product, then on export can claim duty drawback. Accordingly, it was submitted that the petitioner is not entitled to any relief in the present petition. 11. After hearing Counsel on both sides and after perusing the records placed before us, we are of the opinion that the A.L.C. circulars and the public notice dated 20th May, 2002 issued by the DGFT, cannot be sustained as they are wholly inconsistent with the EXIM policy framed by the Central Government and in fact they purport to amend the EXIM Policy provisions which power is exclusively vested in the Central Government and not with the DGFT. It is pertinent to note that the EXIM policy announced by the Central Government in exercise of the powers vested in it under Section 5 of the said Act has statutory force. It is not in dispute that under the EXIM policy prevalent in 1997-2002 as well as 2002-2007, natural rubber could be imported duty free under an advance licence (except for the period when the Central Government had banned import of natural rubber under an advance licence). Under these circumstances, the implementing agency namely, the DGFT who is empowered to prescribe the norms and the procedures for implementing the EXIM policy could not prohibit import of natural rubber under advance licence, when the EXIM policy specifically permits import of natural rubber under an advance licence. The impugned Circulars and the public notice issued by DGFT, in fact, nullify the express provisions of the EXIM Policy framed by the Central Government. Power to amend the policy being within the exclusive domain of the Central Government the said powers cannot be usurped by the DGFT in the guise of laying down regularly measures. By prohibiting import of natural rubber under the advance licence in the Hand Book of procedures, the DGFT has encroached upon the powers of the Central Government and purported to amend the EXIM policy 2002-2007 which power is not conferred upon the DGFT. As stated hereinabove Section 6(3) of the Act expressly prohibits the DGFT from exercising the power of amending the EXIM Policy. Therefore, in the absence of any power under the statute, the A.L.C. circulars and the public notice dated 20th May, 2002 to prohibit import of natural rubber under Advance licence could not be issued by the DGFT. The said circulars and public notice being wholly contrary to the police provisions of the Central Government, cannot be sustained and are liable to be quashed and set aside. 12. The arguments of the revenue that the prohibition of duty free import of natural rubber under advance licence does not affect the right of the petitioner to import natural rubber without the advance licence, is without any merits because, the petitioner, as an exporter has every right under the policy to import inputs such as natural rubber duty free under the advance licence for use in the export product and in the absence of any amendment to the policy, that right of the petitioner cannot be taken away on the pretext of laying down the norms or the procedure in implementing the EXIM Policy. The Hand Book of procedures prescribed by the DGFT must be in consonance with the policy and must aid and advance the policy of the Central Government and not scuttle or defeat the policy. In the instant case, the Hand Book of procedure has been amended by the DGFT to prohibit duty free import of natural rubber under the advance licence when the EXIM Policy expressly permits duty free import of natural rubber under an advance licence. Therefore, the impugned circulars and the public notice are beyond the scope and ambit of the powers vested in DGFT and, therefore, liable to be quashed and set aside. 13. From the affidavit-in-reply filed by Shri Sanjay Lunia, Jt. Director, DGFT on behalf of the revenue, it is seen that in the past whenever deemed fit the Central Government had intervened and in fact prohibited import of natural rubber against advance licence with effect from 20th February, 1999 and even regulated import of natural rubber on quantitative basis through S.T.C. However, with effect from 1st April, 2001, the Central Government lifted the restrictions imposed by it thus making imports/ exports of natural rubber, totally free. From the said affidavit filed on behalf of the Revenue, it is further seen that in view of heavy import of natural rubber during the period in 2001-2002, the Central Government, especially the Ministry of Commerce, took up the issue of grant of duty free advance licence for reconsideration and in the meantime, DGFT issued A.L.C. circulars to withhold the issuance of advance licence pending the final decision by the Ministry of Commerce. Thereafter, on 1st April, 2002 the Central Government announced the EXIM policy 2002-2007 wherein after considering the issue, the Central Government, decided to permit duty free imports of natural rubber under an advance licence. Thus when the Central Government in exercise of its statutory power and on reconsideration of the matter has taken a policy decision to permit duty free import of natural rubber under advance licence as late as on 2-4-2002, it is not open to the implementing agency namely the DGFT to prohibit duty free import of natural rubber under advance licence by issuing circulars or by amending the Hand Book of procedure. Thus, the action on the part of the DGFT in purporting to prohibit duty free import of natural rubber is totally in breach of the policy decision taken by the Central Government and, therefore, the circulars and the public notice issued by the DGFT to prohibit the import of natural Rubber under advance licence must be held to be null and void, without jurisdiction and liable to be quashed and set aside. 14. The Apex Court in the case of University of Kashmir and Ors, v. Mohammad Yasin and Ors., has laid down the following proposition of law :-- \"When a statute creates a body and vests it with authority and circumscribes its powers by specifying limitations, the doctrine of implied engagement de hors the provisions and powers under the Act would be subversive of the statutory scheme regarding appointments of officers and cannot be countenanced by the Court. Power in this case has been vested in the University Council only and the manner of its exercise has been carefully regulated. Therefore, the appointment of the . respondent could be made only by the Council and only in the mode prescribed by the statute.\" Respectfully following the aforesaid ratio of the Apex Court, we hold that the impugned circulars and the public notice amending the Hand Book of Procedures in fact, amount to amend the policy by an authority other than the Central Government which is not permissible in law. Hence the impugned circulars and the public notice issued by the DGFT being without authority of law, are liable to be quashed and set aside. 15. The procedures to be prescribed by an authority in implementing the policy must be in consonance with the policy. If the procedural norms are in conflict with the policy, then the policy will prevail and the procedural norms to the extent they are in conflict with the policy, are liable to be held to be bad in law. In the instant case, since the impugned circulars and the public notice issued by DGFT are in conflict with the policy, the same are liable to be quashed and set aside. 16. In the premise aforesaid, the petition succeeds. The A.L.C. circulars including circular dated 3rd September (Exhibit-H) and the public notice dated 20th May, 2002 (Exhibit-H-6) purporting to prohibit duty free import of natural rubber under advance licence are quashed and set aside. Consequently, the show cause notice dated 29-4-2002 (Exhibit-H-1) issued in the light of circulars of DGFT is also quashed and set aside. Rule is made absolute in the above terms. 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{"id": "1572927", "text": "PETITIONER: RANJIT THAKUR Vs. RESPONDENT: UNION OF INDIA AND ORS. DATE OF JUDGMENT15/10/1987 BENCH: VENKATACHALLIAH, M.N. (J) BENCH: VENKATACHALLIAH, M.N. (J) SEN, A.P. (J) CITATION: 1987 AIR 2386 1988 SCR (1) 512 1987 SCC (4) 611 JT 1987 (4) 93 1987 SCALE (2)773 CITATOR INFO : R 1988 SC1099 (6) D 1991 SC1617 (10,26,33,34) R 1992 SC 188 (5) R 1992 SC 417 (5) ACT: Army Act, 1950/Army Rules, 1954: Sections 41 and 130/Rules 106-133-Court Martial-When proceedings vitiated- Participation of officer who has punished accused-Whether amounts to bias-Soldier-Refusing to eat food-Whether amounts to disobedience of lawful command. Constitution of India, 1950: Articles 32, 136 and 226- Judicial Review-Irrationality and perversity-Extentof. Administrative Law: Natural Justice-Fair Trial-Judgment only after due observance of Judicial Process-Quantum of punishment disproportionate to offence Whether conclusive evidence of bias. Interpretation of Statutes: Procedural safeguards- Statutory Provisions-How to be construed. HEADNOTE: % The appellant, a Signal Man in a Signal Regiment of the Armed Services, while serving out a sentence of 28 days' rigorous imprisonment imposed on him by the Commanding officer of the Regiment respondent No. 4, for violating norms for presenting representations to higher officers, was alleged to have committed another offence by refusing to eat his food on March 29, 1985 when ordered to do so. He was charged under section 41(2) of the Army Act, 1950 for disobeying a lawful command given by his superior officer. A sentence of rigorous imprisonment for one year was imposed by a Summary Court Martial consisting of respondent No. 4 and others. He was removed to the civil prison and he served out the sentence. The appellant's representation to the confirming authority under section 164 of the Act was rejected by the General officer Commanding on May 24,1985. The appellant's writ petition challenging proceedings of the Summary Court-Martial was dismissed in limine by the High Court. 513 In the appeal by special leave, it was contended on behalf of the appellant that the proceedings of the Court- Martial were vitiated (i) by a non-affording of an opportunity to challenge the constitution of the Summary Court-Martial under section 130(1); (ii) by bias on the part of the respondent No. 4 who participated in and dominated the proceedings; (iii) by awarding a punishment so disproportionate to the offence as to amount in itself to conclusive evidence of bias and vindictiveness; and (iv) by ignoring that as the appellant was then serving-out an earlier sentence he could not be need to be in active- service so as to be amenable to disciplinary jurisdiction and that the appellant's refusal, while already serving a sentence, to accept food did not amount to disobedience under section 41, of any lawful command of a Superior officer. Allowing the appeal, ^ HELD: 1.1 The Indian Army Act, 1950 constitutes a special law in force conferring a special jurisdiction on. the Court-Martial prescribing a special procedure for the trial of the offences under the Act. The Act and Rules constitute a self-contained Code specifying offences and the procedure for detention, custody and trial of the offenders by the Court-Martial. [518G-H; 519A] 1.2 The procedural safeguards contemplated in the Act must be considered in the context of and corresponding to the plenitude of the Summary jurisdiction of the Court- Martial and the severity of the consequences that visit the person subject to that jurisdiction. The procedural safeguards should be commensurate with the sweep of the powers. The wider the power, the greater the need for the restraint in its exercise ad correspondingly, more liberal the construction of the procedural safeguards envisaged by the Statute. [519B-C I 1.3 Non-compliance with the mandate of section 130 is an infirmity which goes to the root of jurisdiction and without more, vitiates the proceedings. [519F] Prithvi Pal Singh v. Union of India, AIR 1982 SC 1413 relied on. Vitarelli v. Seaton, 359 U.S. 535 referred to. 514 2.1 It is the essence of a judgment that it is made after due observance of the judicial process; that the Court or Tribunal passing it observes, at least the minimal requirements of natural justice, is composed of impartial persons. acting fairly and without bias and in good faith. A judgment which is the result of bias or want of impartiality is a nullity and the trial 'coram non judice'. [520D-E] Vassiliades v. Vassiliades, AIR 1945 PC 38 referred to. 2.2 As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the Judge is not to look at his own mind and ask himself, however, honestly, \"Am I biased\"? but to look at the mind of the party before him. [520F] Allinson v. General Council of Medical Education and Registration, [1894] 1 Q.B. 750 at 758; Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon, [1969] 1. Q.B. 577 d 599; Public Utilities Commission of the District of Columbia v. Pollack, 343 US 451 at 466 and Regina v. Liverpool City Justices, Ex-parte Topping, [1983] 1 WLR 119 referred to. Having regard to the antecedent events, the participation of respondent No. 4 in the Courts-Martial rendered the proceedings Coram non judice. [522B] 3. The mere circumstance'that the appellant was at the relevant point of time, serving a sentence of imprisonment and could not, therefore, be said to be in 'active service' does not detract from the fact that he was still a person subject to the Act, as is clear from the second clause of section 41(2) which refers to offences committed when not in 'active service', the difference being in the lesser punishment contemplated. [522C-D] 4. Every aspect of life of a soldier is regulated by discipline. Rejection of food might, under circumstances, amount to an indirect expression of remonstrance and resentment against the higher authority. To say that a mere refusal to eat food is an innocent, neutral act might be an over simplification of the matter. Mere in-action need not always necessarily be neutral. Serious acts of calumny could be done in silence. A disregard of a direction to accept food might assume the 515 complexion of disrespect to, and even defiance of authority. But an unduly harsh and cruel reaction to the expression of the injured feelings may he counter-productive and even by itself be subversive of discipline. [522E-F] In the instant case, appellant was perhaps expressing his anguish at, what he considered, an unjust and disproportionate punishment for airing his grievances before his superior officers. [522G] 5. Judicial review generally speaking, is not directed against a decision, but is directed against the \"decision making process\". The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court-Martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court-Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review. All powers have legal limits. [522G-H; 523A-C] Council of Civil Service Unions v. Minister for the Civil Service, [1984] 3 Weekly Law Reports 1174 HL and Bhagat Ram v. State of Himachal Pradesh, A.I.R. 1983 SC 454 referred to. In the instant case, the punishment is so strikingly disproportionate as to call for and justify interference. [523G] The Court order set aside. The writ petition in the High Court allowed, and the impugned proceedings of Summary Court-Martial and the consequent order and sentence quashed. Appellant entitled to be reinstated with all monetary and service benefits. [523H, 524A] (Note: on point 1.3 the finding is to be read with and subject to the subsequent order dated 10.8.88). JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2630 of 1987. From the Judgment and order dated 3.?.1986 of the Patna High Court in C.W.J.C. No. 2823 of 1986. R.N. Sinha, M.M. Prasad Sinha and P.C. Kapur for the Appellant. B. Datta, Additional Solicitor General, M.S. Rao, C. Ramesh and C.V.S. Rao for the Respondents. The Judgment of the Court was delivered by VENKATACHALIAH, J. This appeal, by special leave, preferred against the order dated July 3, 1986, of the Division Bench of the Patna High Court in C.W.J.C. No. 2823 of 1986 raises a substantial question as to the scope and content of the procedural safe-guards in Section 130 of the Indian Army Act, 1950 ('Act') in the conduct of the Courts- Martial. The High Court dismissed, in limine, the appellant's writ petition, under Article 226, challenging the proceedings dated March 30, 1985, of the Summary Court- Martial imposing the punishment of dismissal from service and a sentence of an year's rigorous imprisonment on the appellant. 2. Appellant, Ranjit Thakur, joined the Armed Services on September 7, 1972, and was, at the relevant time, a Signal Man in \"4, Corps operating Signal Regiment.\" Apparently, appellant had not commended himself well to respondent No. 4, who was the commanding officer of the regiment. On March 29, 1985, appellant was already serving- out a sentence of 28 days' rigorous imprisonment imposed on him for violating the norms for presenting representations to higher officers. Appellant is stated to have sent representation complaining of ill-treatment at the hands of Respondent 4 directly to the higher officers. Appellant was punished for that by Respondent 4. Appellant was held in the Quarter-guard Cell in handcuffs to serve that sentence of rigorous imprisonment. 3. While so serving the sentence appellant is stated to have committed another offence on March 29, 1985, for which the punishment now impugned was handed down by Respondent 4. The nature of this offence had better be excerpted from the charge-sheet itself: \"The accused No. 1429055 M Signalman Ranjit Thakur of 4 Corps operating Signal Regiment is charged with- Army Act Section 41(2) Disobeying a lawful command given by his superior officer Section 41(2) In that he at 15.30 hrs. On 29.5.1985 when ordered by JC 10625 lP Sub Ram Singh, the orderly officer of the same Regiment to eat his food, did not do so.\" To try this offence a Summary Court Martial was assembled the very next day i.e. March 30, 1985. Respondent 4 and 2 others were on the Court-Martial. Some witnesses were examined. Appellant is stated to have pleaded guilty. A sentence of rigorous imprisonment for one year was imposed, in pursuance of which appellant was removed immediately to the civil prison at Tejpur to serve out the sentence. Appellant has served out the sentence. He was also dismissed from service, with the added disqualification of being declared unfit for any future civil employment. The representation of the appellant to the confirming-authority under Section 164 of the Act was rejected by General of ficer Commanding on 24.5.1985. The High Court, however, persuaded itself to dismiss, in limine, appellant's writ petition challenging the proceedings of the Summary Court Martial. 4. We have heard learned counsel on both sides. The matter was adjourned on two earlier occasions on the submission of the learned Additional Solicitor General, that the question whether a lesser punishment was warranted was engaging the attention of the appropriate authorities. Apparently, nothing came out of it. F The submissions of Shri Sinha, in support of the appeal, admit of being formulated thus: (a) (i) The proceedings of the Court-Martial are vitiated by non-compliance with the mandate of Section 130(1) of the Act in that the Summary Court Martial did not afford to the appellant an opportunity to challenge its constitution as required by that section; (ii) The proceedings of the Court-Martial were vitiated by bias on the part of Respondent 4 who participated in and dominated the proceedings; H (b) In as much as the appellant was then serving a sentence of rigorous imprisonment, he was not in \"active service\" and that no question of disobeying any lawful command could at all arise; (c) Appellant's refusal, while serving a sentence to accept food did not amount to disobedience, under Section 41, of any lawful command of a superior officer in such manner as to show a wilful defiance of authority; (d) At all events, the punishment handed down is so disproportionate to the offence as to amount, in itself to conclusive evidence of bias and vindictiveness. 5. Re: contention (a): The records of the proceedings of the Special Summary Court Martial do not indicate that the procedural safeguard against bias contained in Section 130 of the Act was complied with. Section 130 provides: \"130(1) At all trials by general district or summary general court-martial, as soon as the court is assembled, the names of the presiding officer and members shall be read over to the accused, who shall thereupon be asked whether he objects to being tried by any officer sitting on the court. (2)If the accused objects to any such officer, his objection, and also the reply thereto of the officer objected to, shall be heard and recorded, and the remaining officers of the Court shall, in the absence of the challenged officer decide on the objection.\" The proceedings do not indicate-this was not disputed at the hearing-that appellant was asked whether he objects to be tried by any officer, sitting at the Court-Martial. This, in our opinion, imparts a basic infirmity to the proceedings and militates against and detracts from the concept of a fair trial. The \"Act\" constitutes a special law in force conferring a special jurisdiction on the Court-Martial prescribing a special procedure for the trial of the offences under the 'Act'. Chapter VI of the 'Act' comprising of sections 34 to 68 specify and define the various offences under the 'Act'. Sections 7] to 89 of Chapter VII specify the various punishments. Rules 106 to 133 of the Army Rules 1954 prescribe the procedure of, and before, the Summary Court- Martial. The Act and A the Rules constitute a self contained Code, specifying offences and the procedure for detention, custody and trial of the offenders by the Courts-Martial. The procedural safe-guards contemplated in the Act must be considered in the context of and corresponding to the plenitude of the Summary jurisdiction of the Court-Martial and the severity of the consequences that visit the person subject to that jurisdiction. The procedural safe-guards should be commensurate with the sweep of the powers. The wider the power, the greater the need for the restraint in its exercise and correspondingly, more liberal the construction of the procedural safeguards envisaged by the Statute. The oft-quoted words of Frankfurter, J. in Vitarelli v. Seaton, 359 U.S.535 are again worth re-calling; \"... if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed .............................................. This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword. E \"The history of liberty\" said the same learned Judge \"has largely been the history of observance of procedural safeguards.\" (318 US 332). We are afraid, the non-compliance of the mandate of section 130 is an infirmity which goes to the root of the jurisdiction and without more, vitiates the proceedings. lndeed it has been so held by this Court in Prithvi Pal Singh v. Union of India, AIR 1982 SC 1413 where Desai, J referring to the purpose of section 130 observed: \"...... .Whenever an objection is taken it has to be recorded. In order to ensure that anyone objected to does not participate in disposing of the objection ......... ........ This is a mandatory requirement because the officer objected to cannot participate in the decision disposing of the objection. H ....... The provision conferring a right on the accused to object to a member of the Court-Martial sitting as a member and participating in the trial ensures that a charge of bias can be made and investigated against individual members composing the Court-Martial. This is pre eminently a rational provision which goes a long way to ensure a fair trial.\" What emerges, therefore, is that in the present case there is a non-compliance with the mandate of section 130 with the attendant consequence that the proceedings of the Summary Court-Martial are rendered infirm in law. This disposes of the first limb of the contention (a). 6. The second limb of the contention is as to the effect of the alleged bias on the part of respondent 4. The test of real likelihood of bias is whether a reasonable person, in possession of relevant information, would have thought that bias was likely and is whether respondent 4 was likely to be disposed to decide the matter only in a particular way. It is the essence of a judgment that it is made after due observance of the judicial process; that the Court or Tribunal passing it observes, at least the minimal requirements of natural justice, is composed of impartial persons acting fairly and without bias and in good faith. A judgment which is the result of bias or want of impartiality is a nullity and the trial \"coram non-judice\". (See Vassiliadas v. Vassiliades-AIR 1945 PC 38). 7. As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the judge is not to look at his own mind and ask himself, however, honestly. \"Am I biased? \"but to look at the mind of the party before him. Lord Esher in Allinson v. General Council of Medical Education and Registration, l 1894] 1 Q.B. 750 at 758 said: \"The question is not, whether in fact he was or was not biased. The Court cannot inquire into that .......... ............. In the administration of justice, whether by a recognised legal court or by persons who, although not a legal public court, are acting in a similar capacity, public policy requires that, in order that there should be no doubt about the purity of the administration any person who is to A take part in it should not be in such a position that he might be suspected of being biased.\" In Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon, [1969] 1 Q.B. 577, at 599, Lord Denning M.R. Observed: B \". .. in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be never- theless if right minded persons would think that in the circumstances there was a real likelihood of bias on his part, then he should not sit ....... \". D Frankfurter J in Public Utilities Commission of the District of Columbia v. Pollack (343 US 451 at 466) said: \"The judicial process demands that a judge move within the frame work of relevant legal rules and the court covenanted modes of thought for ascertaining them. He must think dispassionately and submerge private feeling on every aspect of a case. There is a good deal of shallow talk that the judicial robe does not change the man within it. It does. The fact is that on the whole judges do lay aside private views in discharging their judicial functions. This is achieved through training, professional habits, self-discipline and that fortunate alchemy by which men are loyal to the obligation with which they are interested. But it is also true that reason cannot control the subconscious influence of feelings of which it is unaware. When there is ground for believing that such unconscious feelings may operate in the ultimate judgment or may not unfairly lead others to believe they are operating, judges refuse themselves. They do not sit in judgment .. \". Referring to the proper test, Ackner LJ in Regina v. Liverpool City Justices, Ex-parte Topping [1983] I WLR 119 said: H \"Assuming therefore, that the justices had applied the test advised by Mr. Pearson-Do I feel prejudiced? then they would have applied the wrong test, exercised their discretion on the wrong principle and the same result, namely, the quashing of the conviction would follow.\" Thus tested the conclusion becomes inescapable that, having regard to the antecedent events, the participation of Respondent 4 in the Courts-Martial rendered the proceedings coram non-judice. 7. Re: contention (b): The mere circumstance that the appellant was, at the relevant point of time, serving a sentence of imprisonment and could not therefore, be said to be in 'active service' does not detract from the fact that he was still \"a person subject to this Act.\" This is clear from the second clause of Section 41(2) which refers to offences committed when not in 'active service'. The difference is in the lesser punishment contemplated. We are, therefore, unable to appreciate the appositeness of this contention of Shri Sinha. 8. Re: contention (c): The submission that a disregard of an order to eat food does not by itself amount to a disobedience to a lawful command for purposes of section 41 has to be examined in the context of the imperatives of the high and rigorous discipline to be maintained in the Armed Forces. Every aspect of life of a soldier is regulated by discipline. Rejection of food might, under circumstances, amount to an indirect expression of remonstrance and resentment against the higher authority. To say that, a mere refusal to eat food is an innocent, neutral act might be an over-simplification of the matter. Mere in-action need not always necessarily be neutral. Serious acts of calumny could be done in silence. A disregard of a direction to accept food might assume the complexion of disrespect to, and even defiance of authority. But an unduly harsh and cruel reaction to the expression of the injured feelings may be counter-productive and even by itself be subversive of discipline. Appellant was perhaps expressing his anguish at, what he considered, an unjust and disproportionate punishment for airing his grievances before his superior officers. However, it is not necessary in this case to decide contention (c) in view of our finding on the other contentions. 9. Re: contention (d): Judicial review generally speaking, is not directed against a decision, but is directed against the \"decision making process\". The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court-Martial. But the sentence has to suit the offence and the offender. It should not be A vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court- Martial, if the decision of the Court even as to sentence is an outrageous defiance of B logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review. In Council of Civil Service Unions v. Minister for the Civil Service, [1984] 3 Weekly Law Reports 1174 (HL) Lord Deplock said: \"... Judicial Review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground l would call 'illegality'. the second irrationality' and the third 'procedural impropriety'. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality' which is recognised in the administrative law of several of our fellow members of the European Economic Community ............................ E In BhagatRam v. State of Himachal Pradesh, A.I.R. 1983 SC 454 this Court held: \"It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution. The point to note, and emphasise is that all powers have legal limits. In the present case the punishment is so strikingly disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review. 10. In the result, for the foregoing reasons, the appeal is allowed, the order of the High Court set aside, the writ petition preferred in the High Court allowed and the impugned proceedings of the Summary Court-Martial dated March 30, 1985, and the consequent order and sentence are quashed. The appellant is entitled to and shall be reinstated with all monetary and service benefits. There will, however, be no order as to costs. N.P.V. Appeal allowed.", "spans": [{"start": 12, "end": 25, "label": "APP"}, {"start": 42, "end": 56, "label": "RESP"}, {"start": 82, "end": 92, "label": "DATE"}, {"start": 100, "end": 121, "label": "JUDGE"}, {"start": 133, "end": 154, "label": "JUDGE"}, {"start": 159, "end": 168, "label": "JUDGE"}, {"start": 183, "end": 196, "label": "CASENO"}, {"start": 197, "end": 213, "label": "CASENO"}, {"start": 214, "end": 230, "label": "CASENO"}, {"start": 231, "end": 245, "label": "CASENO"}, {"start": 246, "end": 263, "label": "CASENO"}, {"start": 281, "end": 296, "label": "CASENO"}, {"start": 299, "end": 324, "label": "CASENO"}, {"start": 327, "end": 342, "label": "CASENO"}, {"start": 345, "end": 360, "label": "CASENO"}, {"start": 366, "end": 380, "label": "STAT"}, {"start": 381, "end": 397, "label": "STAT"}, {"start": 628, "end": 655, "label": "STAT"}, {"start": 1390, "end": 1404, "label": "DATE"}, {"start": 1470, "end": 1484, "label": "STAT"}, {"start": 1884, "end": 1896, "label": "DATE"}, {"start": 2011, "end": 2021, "label": "COURT"}, {"start": 2916, "end": 2937, "label": "STAT"}, {"start": 3974, "end": 4027, "label": "PREC"}, {"start": 4039, "end": 4072, "label": "PREC"}, {"start": 4493, "end": 4535, "label": "PREC"}, {"start": 4867, "end": 4932, "label": "PREC"}, {"start": 5129, "end": 5198, "label": "PREC"}, {"start": 7634, "end": 7736, "label": "PREC"}, {"start": 7741, "end": 7800, "label": "PREC"}, {"start": 7984, "end": 7994, "label": "COURT"}, {"start": 8287, "end": 8294, "label": "DATE"}, {"start": 8337, "end": 8366, "label": "CASENO"}, {"start": 8402, "end": 8410, "label": "DATE"}, {"start": 8418, "end": 8434, "label": "COURT"}, {"start": 8447, "end": 8463, "label": "CASENO"}, {"start": 8465, "end": 8475, "label": "A.COUNSEL"}, {"start": 8477, "end": 8494, "label": "A.COUNSEL"}, {"start": 8499, "end": 8509, "label": "A.COUNSEL"}, {"start": 8529, "end": 8537, "label": "R.COUNSEL"}, {"start": 8569, "end": 8577, "label": "R.COUNSEL"}, {"start": 8579, "end": 8588, "label": "R.COUNSEL"}, {"start": 8593, "end": 8603, "label": "R.COUNSEL"}, {"start": 8752, "end": 8764, "label": "DATE"}, {"start": 8795, "end": 8811, "label": "COURT"}, {"start": 8824, "end": 8840, "label": "CASENO"}, {"start": 8951, "end": 8972, "label": "STAT"}, {"start": 9024, "end": 9034, "label": "COURT"}, {"start": 9141, "end": 9155, "label": "DATE"}, {"start": 9363, "end": 9380, "label": "DATE"}, {"start": 9592, "end": 9606, "label": "DATE"}, {"start": 10163, "end": 10177, "label": "DATE"}, {"start": 10559, "end": 10568, "label": "DATE"}, {"start": 10767, "end": 10781, "label": "DATE"}, {"start": 11389, "end": 11398, "label": "DATE"}, {"start": 11404, "end": 11414, "label": "COURT"}, {"start": 11891, "end": 11896, "label": "A.COUNSEL"}, {"start": 15199, "end": 15210, "label": "PREC"}, {"start": 16030, "end": 16083, "label": "PREC"}, {"start": 16090, "end": 16095, "label": "PREC"}, {"start": 17832, "end": 17873, "label": "PREC"}, {"start": 18186, "end": 18196, "label": "PREC"}, {"start": 18200, "end": 18265, "label": "PREC"}, {"start": 18808, "end": 18878, "label": "PREC"}, {"start": 18893, "end": 18905, "label": "PREC"}, {"start": 19549, "end": 19562, "label": "PREC"}, {"start": 19568, "end": 19654, "label": "PREC"}, {"start": 20653, "end": 20662, "label": "PREC"}, {"start": 20818, "end": 20825, "label": "PREC"}, {"start": 21745, "end": 21750, "label": "A.COUNSEL"}, {"start": 24047, "end": 24054, "label": "PREC"}, {"start": 24823, "end": 24881, "label": "PREC"}, {"start": 25455, "end": 25465, "label": "COURT"}, {"start": 25512, "end": 25522, "label": "COURT"}, {"start": 25595, "end": 25609, "label": "DATE"}]}
{"id": "115833707", "text": "IN THE SUPREME COURT OF INDIA INHERENT JURISDICTION REVIEW PETITION (CIVIL) NO.\u2026\u2026\u2026\u2026\u2026/2021 (Diary No. 45777/2018) IN WRIT PETITION (CIVIL) NO. 494 OF 2012 Beghar Foundation through its Secretary and Anr. Petitioner(s) versus Justice K.S. Puttaswamy (Retd.) and Ors. Respondent(s) with REVIEW PETITION (CIVIL) NO. 3948 OF 2018 IN WRIT PETITION (CIVIL) NO. 231 OF 2016 Jairam Ramesh Petitioner(s) versus Union of India and Ors. Respondent(s) with REVIEW PETITION (CIVIL) NO. 22 OF 2019 IN Signature Not Verified Digitally signed by DEEPAK SINGH Date: 2021.01.20 11:30:21 IST Reason: WRIT PETITION (CIVIL) NO. 1014 OF 2017 1 \fM.G. Devasahayam Petitioner(s) versus Union of India and Anr. Respondent(s) with REVIEW PETITION (CIVIL) NO. 31 OF 2019 IN WRIT PETITION (CIVIL) NO. 1058 OF 2017 Mathew Thomas Petitioner(s) versus Union of India and Ors. Respondent(s) with REVIEW PETITION (CIVIL) NO.\u2026\u2026\u2026\u2026\u2026/2021 (Diary No. 48326/2018) IN WRIT PETITION (CIVIL) NO. 494 OF 2012 Imtiyaz Ali Palsaniya Petitioner(s) versus Union of India and Ors. Respondent(s) with REVIEW PETITION (CIVIL) NO. 377 OF 2019 IN WRIT PETITION (CIVIL) NO. 342 OF 2017 2 \fShantha Sinha and Anr. Petitioner(s) versus Union of India and Anr. Respondent(s) with REVIEW PETITION (CIVIL) NO. 924 OF 2019 IN WRIT PETITION (CIVIL) NO. 829 OF 2013 S.G. Vombatkere and Anr. Petitioner(s) versus Union of India and Ors. Respondent(s) ORDER Permission to file Review Petition(s) is granted. Delay condoned. Prayer for open Court/personal hearing of Review Petition(s) is rejected. The present review petitions have been filed against the final judgment and order dated 26.09.2018. We have perused the review petitions as well as the grounds in support thereof. In our opinion, no case for review of judgment and order dated 26.09.2018 is made out. We hasten to add that change in the law or subsequent decision/judgment of a coordinate or larger Bench by itself cannot be regarded as a ground for review. The review petitions are accordingly dismissed. Consequently, prayer for urging additional grounds in Review Petition (Civil) No. 22/2019 stands rejected. \u2026\u2026\u2026\u2026.\u2026...................J. (A.M. Khanwilkar) \u2026\u2026\u2026\u2026.\u2026...................J. (Ashok Bhushan) \u2026\u2026\u2026\u2026.\u2026...................J. (S. Abdul Nazeer) \u2026\u2026\u2026\u2026.\u2026...................J. (B. R. Gavai) New Delhi; January 11, 2021. Reportable IN THE SUPREME COURT OF INDIA CIVIL INHERENT/ APPELLATE JURISDICTION Review Petition (Civil) Diary No. 45777 of 2018 Beghar Foundation & Anr. .... Petitioners Versus Justice K.S. Puttaswamy (Retd.) & Ors. .... Respondents With Review Petition (Civil) No. 3948 of 2018 in Writ Petition (Civil) No. 231 of 2016 With Review Petition (Civil) No. 22 of 2019 in Writ Petition (Civil) No. 1014 of 2017 With Review Petition (Civil) No. 31 of 2019 in Writ Petition (Civil) No. 1058 of 2017 With Diary No. 48326 of 2018 With Review Petition (Civil) No. 377 of 2019 in Writ Petition (Civil) No. 342 of 2017 And With Review Petition (Civil) No. 924 of 2019 in Writ Petition (Civil) No. 829 of 2013 JUDGMENT Dr Dhananjaya Y Chandrachud, J 1 I regret my inability to agree with the decision of the majority in dismissing the present batch of review petitions. 2 This batch of petitions seeks a review of the decision of a Constitution Bench of this Court in Puttaswamy (Aadhaar-5J.) v Union of India1 [\u201cPuttaswamy (Aadhar-5J.\u201d]. Among the issues which arose for decision, the Court had to answer two critical questions: (i) whether the decision of the Speaker of the House of People2 under Article 110(3) of the Constitution, to certify a bill as a \u2018Money Bill\u2019 under Article 110(1) is final and binding, or can be subject to judicial review; and (ii) if the decision is subject to judicial review, whether the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (the \u201cAadhaar Act\u201d) had been correctly certified as a \u2018Money Bill\u2019 under Article 110(1) of the Constitution. 3 On the first question, the majority (speaking through Dr Justice A.K. Sikri) stated that \u201c[j]udicial review [of whether a Bill is a \u2018Money Bill\u2019] would be admissible under certain circumstances having regard to the law laid down by this Court\u201d3. While answering the second question, the majority held that Section 7 of the Aadhaar Act had elements of a \u2018Money Bill\u2019, and the other provisions were incidental to the \u2018core\u2019 of the Aadhaar Act. Hence, the majority held that the Aadhaar Act had been correctly certified as a \u2018Money Bill\u2019 under Article 110(1). 1 (2019) 1 SCC 1 2 \u2018House of People\u2019 interchangeably referred as \u2018Lok Sabha\u2019 3 Id at paras 455-464 4 In his concurring opinion, Justice Ashok Bhushan answered the first question by holding that the decision of the Speaker of the House of People under Article 110(1) could be subject to judicial review when it was in breach of a constitutional provision. Drawing a distinction between an irregularity of procedure and a substantive illegality, Justice Ashok Bhushan held: \u201c901. There is a clear difference between the subject \u201cirregularity of procedure\u201d and \u201csubstantive illegality\u201d. When a Bill does not fulfil the essential constitutional condition under Article 110(1), the said requirement cannot be said to be evaporated only on certification by Speaker. Accepting the submission that certification immunes the challenge on the ground of not fulfilling the constitutional condition, the Court will be permitting constitutional provisions to be ignored and bypassed. We, thus, are of the view that decision of the Speaker certifying the Bill as Money Bill is not only a matter of procedure and in the event, any illegality has occurred in the decision and the decision is clearly in breach of the constitutional provisions, the decision is subject to judicial review.\u201d However, in answering the second question, Justice Bhushan\u2019s concurring opinion agreed with the majority and held that the Aadhaar Act had been correctly certified by the Speaker of the House of People as a \u2018Money Bill\u2019 under Article 110(1). 5 The opinion authored by me, answered the first question by holding that: \u201c1080. The obligation placed on the Speaker of the Lok Sabha to certify whether a Bill is a Money Bill is not a mere matter of \u201cprocedure\u201d contemplated under Article 122. It is a constitutional requirement, which has to be fulfilled according to the norms set out in Article 110. Article 122 will not save the action of the Speaker, if it is contrary to constitutional norms provided under Article 110. The Court, in the exercise of its power of judicial review, can adjudicate upon the validity of the action of the Speaker if it causes constitutional infirmities. Article 122 does not envisage exemption from judicial review, if there has been a constitutional infirmity. The Constitution does not endorse a complete prohibition of judicial review under Article 122. It is only limited to an \u201cirregularity of procedure\u201d.\u201d However, on the second question, my decision dissented with the majority and Justice Ashok Bhushan, and held that the decision of the Speaker of the House of People to certify the Aadhaar Act as a \u2018Money Bill\u2019 under Article 110(1) was unconstitutional. 6 The issue whether judicial review can be exercised over a decision of the Speaker of the House of People under Article 110(3), arose subsequently before another Constitution Bench in Rojer Mathew v South Indian Bank Ltd4 (\u201cRojer Mathew\u201d) This was in the context of whether some of the provisions of the Finance Act, 2017 (relating to appointments to Tribunals and the conditions of service of members) could have been certified as a \u2018Money Bill\u2019 under Article 110. 7 The judgment delivered by the majority (speaking through Chief Justice Ranjan Gogoi) answered this question by referring to the judgment in Puttaswamy (Aadhaar-5J.) in the following terms: \u201c102. A coordinate Bench of this Court in K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India [K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1 SCC 1] , was tasked with a similar question of the certification of \u201cMoney Bill\u201d accorded to the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 by the Speaker of Lok Sabha. The majority opinion after noting the important role of the Rajya Sabha in a bicameral legislative set-up, observed that Article 110 being an exceptional provision, must be interpreted narrowly. Although the majority opinion did not examine the correctness of the decisions in Mohd. Siddiqui [Mohd. Saeed Siddiqui v. State of U.P., (2014) 11 SCC 415] and Yogendra Kumar Jaiswal [Yogendra Kumar Jaiswal v. State of Bihar, (2016) 3 SCC 183 : (2016) 2 SCC (Cri) 1] or conclusively pronounce on the scope of jurisdiction or power 4 (2020) 6 SCC 1 of this Court to judicially review certification by the Speaker under Article 110(3), yet, it independently reached a conclusion that the impugned enactment fell within the four corners of Article 110(1) and hence was a \u201cMoney Bill\u201d. The minority view rendered, however, explicitly overruled both Mohd. Siddiqui [Mohd. Saeed Siddiqui v. State of U.P., (2014) 11 SCC 415] and Yogendra Kumar Jaiswal [Yogendra Kumar Jaiswal v. State of Bihar, (2016) 3 SCC 183 : (2016) 2 SCC (Cri) 1] . 103. The majority opinion in Puttaswamy [K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1 SCC 1] by examining whether or not the impugned enactment was in fact a \u201cMoney Bill\u201d under Article 110 without explicitly dealing with whether or not certification of the Speaker is subject to judicial review, has kept intact the power of judicial review under Article 110(3). It was further held therein that the expression \u201cMoney Bill\u201d cannot be construed in a restrictive sense and that the wisdom of the Speaker of Lok Sabha in this regard must be valued, save where it is blatantly violative of the scheme of the Constitution. We respectfully endorse the view in Puttaswamy [K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1 SCC 1] and are in no doubt that Mohd. Siddiqui [Mohd. Saeed Siddiqui v. State of U.P., (2014) 11 SCC 415] and Yogendra Kumar Jaiswal [Yogendra Kumar Jaiswal v. State of Bihar, (2016) 3 SCC 183 : (2016) 2 SCC (Cri) 1] insofar as they put decisions of the Speaker under Article 110(3) beyond judicial review, cannot be relied upon.\u201d (emphasis supplied) However, the majority opinion noted that the first question was not adequately answered in the above decision in Puttaswamy (Aadhaar-5J.). It also noted its doubts on the determination of the second question: \u201c116. Upon an extensive examination of the matter, we notice that the majority in K.S. Puttaswamy (Aadhaar-5 J.) [K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1 SCC 1] pronounced the nature of the impugned enactment without first delineating the scope of Article 110(1) and principles for interpretation or the repercussions of such process. It is clear to us that the majority dictum in K.S. Puttaswamy (Aadhaar-5 J.) [K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1 SCC 1] did not substantially discuss the effect of the word \u201conly\u201d in Article 110(1) and offers little guidance on the repercussions of a finding when some of the provisions of an enactment passed as a \u201cMoney Bill\u201d do not conform to Articles 110(1)(a) to (g). Its interpretation of the provisions of the Aadhaar Act was arguably liberal and the Court's satisfaction of the said provisions being incidental to Articles 110(1)(a) to (f), it has been argued, is not convincingly reasoned, as might not be in accord with the bicameral parliamentary system envisaged under our constitutional scheme. Without expressing a firm and final opinion, it has to be observed that the analysis in K.S. Puttaswamy (Aadhaar-5 J.) [K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1 SCC 1] makes its application difficult to the present case and raises a potential conflict between the judgments of coordinate Benches. 117. Given the various challenges made to the scope of judicial review and interpretative principles (or lack thereof), as adumbrated by the majority in K.S. Puttaswamy (Aadhaar- 5 J.) [K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1 SCC 1] and the substantial precedential impact of its analysis of the Aadhaar Act, 2016, it becomes essential to determine its correctness. Being a Bench of equal strength as that in K.S. Puttaswamy (Aadhaar-5 J.) [K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1 SCC 1] , we accordingly direct that this batch of matters be placed before the Hon'ble the Chief Justice of India, on the administrative side, for consideration by a larger Bench.\u201d (emphasis supplied) As a consequence, the majority opinion held that \u201c[t]he issue and question of Money Bill, as defined under Article 110(1) of the Constitution, and certification accorded by the Speaker of the Lok Sabha in respect of Part-XIV of the Finance Act, 2017 is referred to a larger Bench\u201d5. 8 In his partly concurring and partly dissenting opinion, Justice Deepak Gupta agreed with the majority opinion in referring the first question of \u2018Money Bill\u2019 to a larger bench thus: 5 Supra at note 3, at para 223.1 \u201c365. I am in total agreement with the Chief Justice inasmuch as he has held that the decision of the Hon'ble Speaker of the House of People under Article 110(3) of the Constitution is not beyond judicial review. I also agree with his views that keeping in view the high office of the Speaker, the scope of judicial review in such matters is extremely restricted. If two views are possible then there can be no manner of doubt that the view of the Speaker must prevail. Keeping in view the lack of clarity as to what constitutes a Money Bill, I agree with the Hon'ble Chief Justice that the issue as to whether Part XIV of the Finance Act, 2017, is a Money Bill or not may be referred to a larger Bench.\u201d Similarly, another partly concurring and partly dissenting opinion, authored by me, held thus: \u201c346. Though the present judgment [referring to the partly concurring and partly dissenting opinion] analyses the ambit of the word \u201conly\u201d in Article 110(1) and the interpretation of sub-clauses (a) to (g) of clause (1) of Article 110 and concludes that Part XIV of the Finance Act, 2017 could not have been validly enacted as a Money Bill, I am in agreement with the reasons which have been set out by the learned Chief Justice of India to refer the aspect of Money Bill to a larger Bench and direct accordingly.\u201d 9 Consequently, the correctness of the judgment in Puttaswamy (Aadhaar- 5J.), in relation to what constitutes a \u2018Money Bill\u2019 under Article 110 of the Constitution, the extent of judicial review over a certification by the Speaker of the House of People and the interpretation which has been placed on the provisions of the Aadhaar Act while holding the enactment to be a \u2018Money Bill\u2019, are issues which will be resolved by a larger bench, which is yet to be constituted. 10 The present batch of review petitions, in challenging the correctness of the judgment in Puttaswamy (Aadhaar-5J.), assails the reasoning in the opinion of the majority on whether the Aadhaar Act was a \u2018Money Bill\u2019 under Article 110. The details of the review petitions, are summarised below: (i) Review Petition (Civil) Diary No. 45777 of 2018 \u2013 This petition was filed on 6 December 2018, and its sub-Ground (e) calls for a review of Puttaswamy (Aadhaar-5J.) in which the majority opinion upheld the certification of the Aadhaar Act as a \u2018Money Bill\u2019, which rests on the erroneous assumption that Section 7 of the Aadhaar Act is its core provision (Grounds XXIII-XXVII). (ii) Review Petition (Civil) No. 3948 of 2018 \u2013 This petition was filed on 23 October 2018, and seeks a review of Puttaswamy (Aadhaar-5J.) in relation to the majority opinion upholding the certification of the Aadhaar Act as a \u2018Money Bill\u2019 within the meaning of Article 110 (Grounds I-VII). (iii) Review Petition (Civil) No. 22 of 2019 \u2013 This petition was filed on 15 December 2018, and seeks a review of Puttaswamy (Aadhaar-5J.) in relation to the majority opinion upholding the certification of the Aadhaar Act as a \u2018Money Bill\u2019, and its consequence on the constitutionality of the enactment (Grounds I-VI). (iv) Review Petition (Civil) No. 31 of 2019 \u2013 This petition was filed on 21 December 2018, and seeks a review of Puttaswamy (Aadhaar-5J.) in relation to the majority opinion holding that the Aadhaar Act was correctly certified as a \u2018Money Bill\u2019 by the Speaker of the House of People by merely relying on Section 7 of the Aadhaar Act (Grounds GG-II). (v) Diary No. 48326 of 2018 \u2013 This petition was filed on 24 December 2018, and seeks a review of Puttaswamy (Aadhaar-5J.) in relation to the majority opinion upholding the Aadhaar Act\u2019s certification as a \u2018Money Bill\u2019, which eliminated the possibility of discussion before the Rajya Sabha (Grounds V-W). (vi) Review Petition (Civil) No. 377 of 2019 \u2013 This petition was filed on 10 January 2019, and seeks a review of Puttaswamy (Aadhaar-5J.) in relation to the majority opinion holding that the Aadhaar Act could have been certified as a \u2018Money Bill\u2019 at the time of its introduction in the Lok Sabha (Ground A). (vii) Review Petition (Civil) No. 924 of 2019 \u2013 This petition was filed on 12 January 2019, and seeks a review of Puttaswamy (Aadhaar-5J.) in relation to the majority opinion upholding the Aadhaar Act\u2019s certification as a \u2018Money Bill\u2019 in terms of Article 110(1) even though it contained provisions which affected the fundamental rights under Part III of the Constitution (Ground A). 11 The analysis of the majority opinion in Puttaswamy (Aadhaar-5J.) in relation to the second question, i.e., whether the Aadhaar Act was a \u2018Money Bill\u2019 under Article 110 has been doubted by a coordinate bench in Rojer Mathew, when the first question was referred to a larger bench. The larger bench has not been constituted, and is yet to make a determination. Dismissing the present batch of review petitions at this stage \u2013 a course of action adopted by the majority \u2013 would place a seal of finality on the issues in the present case, without the Court having the benefit of the larger bench\u2019s consideration of the very issues which arise before us. The correctness of Puttaswamy (Aadhaar-5J.) on issues pertaining to, and arising from, the certification of a Bill as a \u2018Money Bill\u2019 by the Speaker of the House of People has been doubted by a co-ordinate Constitution Bench in Rojer Mathew. With the doubt expressed by another Constitution Bench on the correctness of the very decision which is the subject matter of these review petitions, it is a constitutional error to hold at this stage that no ground exists to review the judgment. The larger bench\u2019s determination would have an undeniable impact on the validity of the reasons expressed in Puttaswamy (Aadhaar-5J.), on the constitutional issues pertaining to and arising out of the certification by the Speaker of the House of People. The failure to re- contextualize the decision of the larger bench with regard to the Aadhaar Act being a \u2018Money Bill\u2019 under Article 110(1) will render it a mere academic exercise. 12 It is important to draw a distinction with a situation where a judgment attains finality and the view propounded by it is disapproved by a larger bench subsequently. In the present case, the above-mentioned review petitions had all been filed before the judgment in Rojer Mathew was delivered on 13 November 2019. The review petitions were pending on the date when a reference was made to a larger bench in Rojer Mathew. These review petitions were previously listed before a five-judge bench headed by Justice Arun Mishra on 25 August 2020, and were not disposed of. Hence, these review petitions have continued to remain pending until now, and there is a strong reason for us not to dismiss them pending the decision of the larger bench, especially in light of the adverse consequences highlighted above. 13 In Kantaru Rajeevaru (Right to Religion, In re-9 J.) (2) v Indian Young Lawyers Assn.6, a nine-judge bench of this Court had to determine whether a reference could be made to a larger bench in a pending review petition. Answering this in the affirmative, the Court held that it need not admit the review petitions before referring the question to a larger bench. Further, the court noted that such a question could also be a pure question of law. In explaining the power of this Court to review its own judgments, Chief Justice S A Bobde, speaking for the Bench, held thus: \u201c29. Order LV Rule 6 makes it crystal clear that the inherent power of this Court to make such orders as may be necessary for the ends of justice shall not be limited by the Rules. In S. Nagaraj v. State of Karnataka [S. Nagaraj v. State of Karnataka, 1993 Supp (4) SCC 595 : 1994 SCC (L&S) 320] , it was observed that even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its orders, the courts culled out such power to avoid abuse of process or miscarriage of justice. It was further held that this Court is not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for the sake of justice. The logical extension to the above is that reference of questions of law can be made in any pending proceeding before this Court, including the instant review proceedings, to meet the ends of justice.\u201d 14 If these review petitions are to be dismissed and the larger bench reference in Rojer Mathew were to disagree with the analysis of the majority opinion in Puttaswamy (Aadhaar-5J.), it would have serious consequences \u2013 not just for judicial discipline, but also for the ends of justice. As such, the present batch of review petitions should be kept pending until the larger bench decides the questions referred to it in Rojer Mathew. In all humility, I conclude that the 6 (2020) 9 SCC 121 constitutional principles of consistency and the rule of law would require that a decision on the Review Petitions should await the reference to the Larger Bench. \u2026\u2026.\u2026\u2026\u2026\u2026.\u2026\u2026\u2026\u2026\u2026\u2026\u2026...........................J. [Dr Dhananjaya Y Chandrachud] New Delhi; January 11, 2021. ITEM NO.1001 SECTION PIL-W S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS REVIEW PETITION (CIVIL) Diary No(s). 45777/2018 (Arising out of impugned final judgment and order dated 26-09-2018 in W.P.(C) No. No. 494/2012 passed by the Supreme Court Of India) BEGHAR FOUNDATION & ANR. Petitioner(s) VERSUS JUSTICE K.S.PUTTASWAMY(RETD) & ORS. Respondent(s) IA No. 11039/2019 - APPLICATION FOR PERMISSION TO FILE REVIEW PETITION IA No. 177563/2018 - CONDONATION OF DELAY IN FILING REVIEW PETITION IA No. 177567/2018 - EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT) WITH R.P.(C) No. 3948/2018 in W.P.(C) No. 231/2016 (PIL-W) (FOR FOR ORAL HEARING [permission to to be heard R.P. in open court] ON IA 182747/2018 IA No. 182747/2018 - ORAL HEARING) R.P.(C) No. 22/2019 in W.P.(C) No. 1014/2017 (PIL-W) (IA FOR EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT ON IA 182749/2018 FOR APPLICATION FOR LISTING REVIEW PETITION IN OPEN COURT ON IA 182750/2018 FOR CONDONATION OF DELAY IN FILING REVIEW PETITION ON IA 182751/2018 FOR PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES ON IA 182753/2018 IA No. 182750/2018 - APPLICATION FOR LISTING REVIEW PETITION IN OPEN COURT IA No. 182751/2018 - CONDONATION OF DELAY IN FILING REVIEW PETITION IA No. 182749/2018 - EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT IA No. 182753/2018 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES) R.P.(C) No. 31/2019 in W.P.(C) No. 1058/2017 (PIL-W) (FOR FOR ORAL HEARING ON IA 185123/2018 FOR CONDONATION OF DELAY IN FILING REVIEW PETITION ON IA 185125/2018 IA No. 185125/2018 - CONDONATION OF DELAY IN FILING REVIEW PETITION IA No. 185123/2018 - ORAL HEARING) Diary No(s). 48326/2018 (PIL-W) ( FOR APPLICATION FOR PERMISSION TO FILE REVIEW PETITION ON IA 186187/2018 FOR CONDONATION OF DELAY IN FILING ON IA 186188/2018 FOR APPLICATION FOR LISTING REVIEW PETITION IN OPEN COURT ON IA 186190/2018 IA No. 186190/2018 - APPLICATION FOR LISTING REVIEW PETITION IN OPEN COURT IA No. 186187/2018 - APPLICATION FOR PERMISSION TO FILE REVIEW PETITION IA No. 186188/2018 - CONDONATION OF DELAY IN FILING) R.P.(C) No. 377/2019 in W.P.(C) No. 342/2017 (PIL-W) (IA FOR PERSONAL HEARING BEFORE THE COURT ON IA 6225/2019 FOR EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT ON IA 6231/2019 IA No. 6231/2019 - EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT IA No. 6225/2019 - PERSONAL HEARING BEFORE THE COURT) R.P.(C) No. 924/2019 in W.P.(C) No. 829/2013 (PIL-W) (FOR FOR CONDONATION OF DELAY IN FILING REVIEW PETITION ON IA 7279/2019 FOR APPROPRIATE ORDERS/DIRECTIONS ON IA 7281/2019 IA No. 7281/2019 - APPROPRIATE ORDERS/DIRECTIONS IA No. 7279/2019 - CONDONATION OF DELAY IN FILING REVIEW PETITION) Date : 11-01-2021 These matters were called on for hearing today. CORAM : HON'BLE MR. JUSTICE A.M. KHANWILKAR HON'BLE DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MR. JUSTICE ASHOK BHUSHAN HON'BLE MR. JUSTICE S. ABDUL NAZEER HON'BLE MR. JUSTICE B.R. GAVAI By Circulation UPON perusing papers the Court made the following O R D E R Hon\u2019ble Mr. Justice A.M. Khanwilkar (on behalf of himself, Hon\u2019ble Mr. Justice Ashok Bhushan, Hon\u2019ble Mr. Justice S. Abdul Nazeer and Hon\u2019ble Mr. Justice B.R. Gavai) passed the order of the Bench comprising His Lordship, Hon\u2019ble Dr. Justice Dhananjaya Y. Chandrachud, Hon\u2019ble Mr. Justice Ashok Bhushan, Hon\u2019ble Mr. Justice S. Abdul Nazeer and Hon\u2019ble Mr. Justice B.R. Gavai. The operative portion of the order is as under: \u201cThe present review petitions have been filed against the final judgment and order dated 26.09.2018. We have perused the review petitions as well as the grounds in support thereof. In our opinion, no case for review of judgment and order dated 26.09.2018 is made out. We hasten to add that change in the law or subsequent decision/judgment of a coordinate or larger Bench by itself cannot be regarded as a ground for review. The review petitions are accordingly dismissed. Consequently, prayer for urging additional grounds in Review Petition (Civil) No. 22/2019 stands rejected.\u201d Hon\u2019ble Dr. Justice Dhananjaya Y. Chandrachud passed a separate dissenting judgment. The operative portion of the judgment is as under: \u201c14. If these review petitions are to be dismissed and the larger bench reference in Rojer Mathew were to disagree with the analysis of the majority opinion in Puttaswamy (Aadhaar- 5J), it would have serious consequences \u2013 not just for judicial discipline, but also for the ends of justice. As such, the present batch of review petitions should be kept pending until the larger bench decides the questions referred to it in Rojer Mathew. In all humility, I conclude that the constitutional principles of consistency and the rule of law would require that a decision on the Review Petitions should await the reference to the Larger Bench.\u201d Pending applications, if any, stand disposed of. 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{"id": "14063857", "text": "HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 71 Case :- WRIT - A No. - 7175 of 2020 Petitioner :- Hriday Narayan Singh Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Rajendra Rai Counsel for Respondent :- C.S.C. Hon'ble Mahesh Chandra Tripathi,J. Heard Shri Rajendra Rai, learned counsel for the petitioner and Shri Devesh Vikram, learned Standing Counsel for State respondents. The petitioner is before this Court with request to issue direction commanding the respondent no.3, Deputy Director of Education (Secondary), Vth Region, Varanasi to sanction the post retiral benefits i.e. gratuity and pension from 1.4.2018 with interest within stipulated time alongwith interest. At the very outset, learned counsel for the petitioner apprises to the Court that the controversy in hand is squarely covered by the judgment of this Court dated 7.3.2018 passed in Writ A No.5737 of 2018 (Ishrat Jahan vs. State of UP and 3 others) and as such, similar indulgence may also be accorded in this writ petition also. For ready reference, the operative portion of the judgment dated 7.3.2018 is quoted as under:- \"9. The appointment of the petitioner was made on ad hoc basis. The institution where the petitioner was appointed as ad hoc teacher is governed by the U.P. Intermediate Education Act, 1921 (in short Act,1921) and Act No. 5 of 1982. In the Act, 1921 the word 'ad hoc' or 'temporary' is not defined. Section 16-E deals with the appointment of teachers in Intermediate Colleges; under Section 16E (11) the temporary appointment were permissible only against a temporary vacancy caused by grant of leave to a incumbent for a period not exceeding six months. Chapter II of the Regulations framed under the Act, 1921 deals with the appointment of Heads of the institution and teachers. Proviso to Regulation-2 sub-clause (1) also permit to make appointment against a temporary vacancy caused by grant of leave for a period not exceeding six months or by death, retirement or by suspension. 10. The State Government amended U.P. Intermediate Education Act, 1921 drastically by U.P. Secondary Education Laws (Amendment) Act, 1975 (U.P. Act No. 26 of 1975). The same difficulties arose due to said amendment and as such, the State Government vide Notification dated 18th August, 1975 issued U.P. Secondary Education (Removal of Difficulties) Order, 1975 in respect of substantive or leave vacancy or any vacancy existing or occurring during the academic session of the head of the institution of teachers. For the first time, the management was empowered to make ad hoc appointment in the manner provided under the said order. The State Government in order to overcome further difficulties which arose, issued Removal of Difficulties Second, Third, Fourth, Fifth, Sixth and Seventh orders between the years 1975 -1977. There is no need to go into details of those orders as it is not relevant for the issue involved in the present case. Suffice would be to say, that for the first time, the concept of ad-hoc appointment was introduced under the U.P. Intermediate Education Act,1921. 11. In the year 1981 the State Government established the U.P. Secondary Education Service Commission and Selection Board vide Ordinance No. 8 of 1981, which was promulgated on 10th July, 1981. The State Government in exercise of power under section 33 of the said ordinance issued Removal of Difficulties Order, 1981 on 31 July, 1981, which was followed by (Removal of Difficulties) (Second) Order, 1982 on 11th September, 1981. Both these orders were issued laying procedure for appointment on ad-hoc basis against the substantive vacancy and short term vacancies. 12. After the enforcement of the U.P. Secondary Education Services Selection Board Act, 1982, the Committee of Management was empowered to make the ad-hoc appointment under Section 18 of the Act. The said section was amended by U.P. Act No. 1 of 1993 and U.P. Act No. 5 of 2001. From the aforesaid statutory provisions it is evident that the ad-hoc appointments were permissible by following statutory provisions which also requires approval of the District Inspector of Schools. The payment of salary of the ad-hoc teachers appointed under the aforementioned statutory provisions are made by the State Fund/Salary Payment Account. 13. Concededly, the petitioner was initially appointed as ad hoc teacher, her appointment was made against the short term vacancy. She worked for more than 25 years and reached her age of superannuation on 1.7.2017 (under sessions benefit upto 31.3.2018). 14. The Civil Service Regulation as applicable in Uttar Pradesh are intended to define the prerequisite conditions for grant of pension in the Government Service/Civil Department. The Article 361 of Chapter XVI of the Civil Service Regulations provides conditions of qualifications for pension. Article 361 reads as under :- \"The service of an officer does not qualify for pension unless it conforms to the following three conditions- a) the service must be under Government, b) the employment must be substantive and permanent and c) the service must be paid by Government.\" 15. Article 424 of Chapter XVIII of the Civil Service Regulations provides the following kinds of pension admissible to a Government servant (a) compensation pension (b) invalid pensions (c) superannuation pensions (d) retiring pensions. 16. The Civil Service Regulation as applicable in Uttar Pradesh is a preconstitutional Rules. The U.P.Fundamental Rules which has been made under section 241 (2) ( b) of the Government of India Act, 1935 came into force with effect from 1st April, 1942. Chapter 9 deals with the compulsory retirement. Fundamental Rule 56 (e) provides for retiring of a Government servant. Clause (e) of Fundamental Rule 56 reads as under: \"(e) A retiring pension shall be payable and other retirement benefits, if any, shall be available in accordance with and subject to the provisions of the relevant rules to every Government servant who retires or is required or allowed to retire under this rule: Provided that where a Government servant who voluntarily retires or is allowed voluntarily to retire under this rule the appointing authority may allow him, for the purposes of pension and gratuity, if any, the benefit of additional service of five years or of such period as he would have served if he had continued till the ordinary date of his superannuation, whichever be less.\" 17. The short question which need determination in this case is whether the petitioner who was appointed on adhoc basis and also superannuated in the same capacity without her regularisation can be held to work on a regular basis. The terms under \"ad hoc\" \"stopgap\" and \"fortuitous\" came to be considered by the Supreme Court in the case of Rudra Kumar Sain v. Union of India, (2000) 8 SCC 25. The Court found that a person, who has a requisite qualification and who is appointed with the approval of the appropriate authority and if he is allowed to continue on the post for a considerable long time then such appointment cannot be held to be stopgap/ fortuitous or purely adhoc appointment. The Supreme Court observed as under :- \"In service jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such an appointment cannot be held to be \"stopgap or fortuitous or purely ad hoc\". 18. The Supreme Court in the case of Ramesh K. Sharma v. Rajasthan Civil Services, (2001) 1 SCC 637, considered the word \"substantive basis\" following the judgment of Baleshwar Dass v. State of U.P. (AIR 1981 SC 41). The Supreme Court held that if an incumbent holds the post for indefinite period then it cannot be said to be adhoc appointment. The Court held as under :- \"If an incumbent is appointed after due process of selection either to a temporary post or a permanent post and such appointment, not being either stopgap or fortuitous, could be held to be on substantive basis. But if the post itself is created only for a limited period to meet a particular contingency, and appointment thereto is made not through any process of selection but on a stopgap basis then such an appointment cannot be held to be on substantive basis. The expression \"substantive basis\" is used in the service jurisprudence in contradistinction with ad hoc or purely stopgap or fortuitous.\" 19. This Court in the case of Dr. Hari Shanker Asopa v. State of U.P. And another, reported (1989) UPLBEC 501, considered the Article 361 and Clause (e) of Rule 56 of Fundamental Rules as applied in Uttar Pradesh and the Civil Service Regulations. Dr. Hari Shanker Asopa was appointed on temporary basis on the post of lecturer in the department of Surgery at S.N.Medical College, Agra on 4th August, 1964. In the year 1969, he was appointed on a substantive post of Reader in Surgery at same College that appointment too was on temporary basis. The term of the appointment was one year or till the candidate selected by the U.P.Public Service Commission was available, whichever was earlier. After three years, he was promoted to the post of Professor in Surgery in Jhansi Medical College. The said appointment was also temporary and it was for a period of one year or till the candidate regularly selected by the U.P.Public Service Commission was available or till the services of Dr. Asopa were needed, whichever was earlier. Dr. Asopa uninterruptedly continued for 18 years as a Lecturer, Reader and Professor on temporary basis. His request for voluntary retirement was allowed by the State Government in the year 1983 with a condition that no pension would be paid to him, as he was not permanent on any post of the Government Service. Dr. Asopa feeling aggrieved by the said order dated 21.2.1983 preferred a writ petition before this Court. 20. In the case of Hans Raj Pandey v. State of U.P. and others, 2007 (3) UPLBEC 2073 (supra) this Court had occasion to consider the provisions of U.P. State Aided Educational Institution Employees Provident Fund, Insurance and Pension Rules, 1964 also. Rule 43 ,44 and 45 of the said Rule has been considered at length by this Court and also the Regulations 465 and 465 A of the U.P.Civil Service Regulations. The Court held as under :- \"In the present case, so far as the condition Nos. A and C are concerned, they are satisfied and the dispute is only with respect to condition No. B i.e., lack of permanent character of service. However, in out view, the aforesaid provisions stand obliterated after the amendment of Fundamental Rule 56 by U.P.Act No. 24 of 1975 which allows retirement of a temporary employees also and provides in clause (e) that a retiring pension is payable and other retiral benefits, if any, shall be available to every Government Servant who retires or is required or allowed to retire under this Rule. Since the aforesaid amendment Rule 56 was made by an Act of Legislature, the provisions contained otherwise under Civil Service Regulations, which are pre-constitutional, would have to give way to the provisions of Fundamental Rule 56. In other words, the provisions of Fundamental Rule 56 shall prevail over the Civil Service Regulations, if they are inconsistent. Condition -B (supra) of Article 361 of Civil Service Regulations are clearly inconsistent with Fundamental Rule 56 and thus is in operative.\" 21. The principle, which can be discerned from the above mentioned judgment, is that if adhoc/stopgap/temporary employee having essential qualification and is appointed in terms of the statutory Rules and he continues for a long time and fulfils the qualifying service, is entitled for pension and other retiral benefits. 22. Having regard to the facts and circumstances of the case, I am of the view that petitioner is entitled for the post retiral benefits as her appointment was made in terms of the statutory Rules and the same was also approved by the District Inspector of Schools by an order dated 8.5.2013. Admittedly, on account of an interim order dated 20.1.2004 passed in Writ Petition No.38769 of 2000, the petitioner continued to work in the institution and finally retired on attaining the age of superannuation on 1.7.2017 (worked under the sessions benefit upto 31.3.2018) and she worked uninterruptedly for more than 25 long years. 23. A direction is issued to the respondents to pay the post retiral benefits to the petitioner in accordance with law as expeditiously as possible preferably within three months from the date of communication of this order. 24. Consequently, the writ petition is allowed. 25. It is made clear that the petitioner is not entitled for the arrears of salary for the period from 3.7.1992 to 7.5.2013. \" Similar controversy was also decided by this Court vide order dated 24.7.2018 passed in Writ A No.14970 of 2018 (Narsingh Rai vs. Deputy Director of Education, Varanasi and 3 others). Relevant paragraph of the said judgment is quoted below:- \"18- The respondents are State within the meaning of Article 12 of the Constitution of India. They are public functionary. As per Constitution, the sovereignty vests in people. Every government functionary including the public authorities are obliged to be people oriented. The public officers are public servants and they have been employed to serve people. They are accountable for their illegal acts and for violating the Constitutional and Statutory provisions. They cannot be a cause for harassment to the people. An ordinary citizen or a common man is hardly equipped to match such might of the officers of the State or instrumentalities of the State-Governments. Harassment of a common man by public authorities is socially abhorring and legally impermissible. 19- No civilized system can permit an executive to play with the people of its country and claim that it is entitled to act in any manner as it is sovereign. The public servants hold their offices in trust and are expected to perform with due diligence particularly so that their action or inaction may not cause any undue hardship and harassment to a common man. Every holder of public office by virtue of which he acts on behalf of the State, or its instrumentalities, is ultimately accountable to the people in whom sovereignty vests. No legal or political system today can place the State above law as it is unjust and unfair for a citizen to be deprived of his property illegally. No public servant can say you may set aside an order on the ground of malafide but you cannot hold me personally liable. No public servant can arrogate to himself the power to act in a manner which is arbitrary. Needs of the State, duty of its officials and right of the citizens are required to be reconciled so that the rule of law in a Welfare State is not shaken. A public functionary if he acts maliciously or oppressively and the exercise of power results in harassment and agony then it is not an exercise of power but its abuse. Harassment of a common man by public authorities is socially abhorring and legally impermissible. In a modern society no authority can arrogate to itself the power to act in a manner which is arbitrary. It is unfortunate that matters which require immediate attention linger on and the man in the street is made to run from one end to other with no result. Even in ordinary matters a common man who has neither the political backing nor the financial strength to match the inaction in public oriented departments gets frustrated and it erodes the credibility in the system. Where the public functionary exercises his discretion capriciously, or for considerations which are malafide or where there is flagrant abuse of power the public functionary himself must shoulder the burden of costs or compensation held as payable. 20- Looking into the facts and circumstances of the case and the principles of law as discussed above, I find it a fit case to impose an exemplary cost. 21- In view of the aforesaid, the impugned order is hereby quashed. Since the relief has now been extended to the petitioner by the authority concerned, therefore, no further order is required to be passed. 22- The writ petition is allowed with cost of Rs. 25,000/- which shall be paid by the State-respondents to the petitioner within four weeks from today. Liberty is granted to the State-Government to recover the aforesaid cost from respondent no.1. Let a copy of this order be sent by the Registrar General of this Court to the Chief Secretary of the Government of Uttar Pradesh for necessary action.\" So far as factual and legal aspect is concerned, the same has not been disputed by learned Standing Counsel. In the facts and circumstances of the case, the writ petition is disposed of with direction to the respondent no.3 to decide the claim of the petitioner in the light of the observations made by this Court in Ishrat Jahan (Supra) and Narsingh Rai (Supra) within two months from the date of receipt of certified copy of the order. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the petitioner alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing. 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{"id": "79816183", "text": "REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1712 OF 2009 Pathan Hussain Basha \u2026 Appellant Versus State of A.P. \u2026 Respondent WITH CRIMINAL APPEAL NO. 1706 OF 2009 J U D G M E N T Swatanter Kumar, J. 1. Accused Pathan Hussain Basha, was married to Pathan Haseena Begum (now deceased) on 23rd June, 2002 at Guntur. It was an arranged marriage. At the time of marriage, it was promised that a dowry of Rs. 25,000/-, besides other formalities, would be paid by the side of the wife to the husband. Out of this amount, a sum of Rs. 15,000/- was paid at that time and it was promised that the balance dowry of Rs. 10,000/- would be paid in the month of October, 2002, upon which the marriage was performed. 2. The father of the bride could not pay the balance amount within time, because he lacked the resources. The accused Pathan Hussain Basha, his father Pathan Khadar Basha, and mother Pathan Nazeer Abi forced her to get the balance amount of dowry. Despite such pressure, she was not able to get that money from her family. It is the case of the prosecution that for non-payment of dowry, the accused persons harassed the deceased and subjected her to cruelty. They even refused to send her to her parental house. This was informed by the deceased to various persons, including her relatives and elders. She was unable to bear the cruelty to which she was subjected, by the accused persons. On 15th February, 2003, at about 11 a.m., the deceased committed suicide by hanging herself in the house of the accused. 3. When Pathan Basheerunnisa, LW3 returned from her work, the accused sent her out giving her money to bring the soaps upon which she went out and when she came back, she found the accused absent and the bride hanging in the house. Subsequently, LW-3 Pathan Basheerunnisa sent her grandson Pathan Inayatullah Khan, LW-4 to the house of the parents of the deceased to inform them about the incident. When the parents of the deceased came to the house of the accused and found the deceased hanging from the beam with a saree, they untied her and took her to the Government General Hospital, Guntur hoping that the deceased may be alive. However, upon medical examination by the doctor, she was declared brought dead. 4. The father of the deceased Pathan Yasin Khan, LW-1 and her mother Pathan Shamshad Begum, LW-2 were present at that time. LW-1, lodged the report, which was registered by Sri K. Srinivasarao, LW-16, the Sub- Inspector of Police. The FIR was registered under Section 304B and Section 498A of the Indian Penal Code, 1860 (for short the \u201cIPC\u201d). Thereafter, investigation was conducted by one Shri P. Devadass, LW-17. He inspected the site from where he recovered and seized the saree that had been used for hanging. This was done in the presence of LW-10 and LW-11, Shaik Ibrahim and Mohd. Ghouse, respectively. Thereupon, the body was sent for post-mortem examination through Constable P. Venkateswara Reddy, LW-15. LW-17, P. Devdass, also took photographs of the scene. LW-13, Dr. M. Madhusudana Reddy conducted autopsy over the body of the deceased and prepared post-mortem certificate giving the cause of death as asphyxia, as a result of hanging. 5. On 16th February, 2003, at about 5 p.m., Investigating Officer arrested all the three accused persons. They faced the trial and were convicted by learned Sixth Additional Munsif Magistrate, Guntur for committing an offence under Sections 498A and 304B IPC. 6. They were committed to the Court of Sessions, Guntur Division, Guntur for such an offence. They faced the trial and the learned Sessions Judge vide its judgment dated 4th October, 2004 found them guilty of the said offences and punished them as follows:- \u201cHence A.1 to A.3 are sentenced to undergo R.I. for THREE YEARS and further sentenced to pay a fine of Rs. 1,000/- each (total fine amount Rs. 3,000/-) offence punishable u/s. 498-A IPC. I.D. of the fine amount of Rs. 1000/- to undergo SI for 9 months. And further A.1 to A.3 are sentenced to undergo imprisonment for LIFE for the offence u/s. 304-B IPC. Both the sentences shall run concurrently. The undergone remand period of A.1 to A.3 shall be set off u/s. 428 Cr.P.C. M.O.1 shall be destroyed after expiry of appeal time. The unmarked property if any shall be destroyed after expiry of appeal time.\u201d 7. The judgment dated 4th October, 2004 passed by the learned Trial Court was challenged in appeal before the High Court. The High Court of Andhra Pradesh, vide its judgment dated 26th October, 2006, while allowing the appeal in part, convicted accused Nos.1 and 2 for the aforementioned offences, however, acquitted accused No. 3, namely, Pathan Khadar Basha. The sentence awarded by the Trial Court was confirmed. This gave rise to filing of the present appeals. 8. First and the foremost, we must consider what is the evidence led by the prosecution to bring home the guilt of accused. Accused were charged with offences under Sections 498A and 304B of the IPC. The FIR in the present case was lodged by LW-1, who is the father of the deceased. According to this witness, on 23rd January, 2002, the marriage of his daughter was solemnised with accused Pathan Hussain Basha and he had accepted to give Rs. 25,000/- in marriage. He had given only Rs. 15,000/- and had agreed to pay Rs. 10,000/-, after four months. This witness has further specifically stated that the said accused treated his daughter in a proper manner for about two months. In the marriage, he had also given a gold chain, a double bed, an iron safe and other items. He had called his son-in-law, accused No. 1, to his house, as per custom, at that point the accused demanded a ceiling fan. A ceiling fan was lying with the witness and he gave that to his son in law, however, he protested the same on the ground that the old fan is not acceptable to him and he would like to have a new fan, which was bought for Rs. 650/- by the witness and given to his son-in-law. When he again invited his son-in-law and the mother-in-law of his daughter, even then he had gifted some presents to them. The accused asked for Rs. 1,000/- with a ring for the deceased. The witness could pay only Rs. 500/- upon which the accused refused to take the deceased to the matrimonial home and went away. Later on, the accused came to fetch deceased. Subsequently, the mother-in-law of the deceased, again, demanded the balance dowry amount of Rs. 10,000/-, which he could not pay. His daughter, after the Ramzan festival, had informed him that the accused persons were harassing her and were even beating and abusing her. All three accused used to beat her for the remaining amount of dowry. On 15th February, 2003, a boy had come to him and told him that his daughter had died by hanging herself, whereupon he went to the house of the accused and found that his daughter was hanged to a wooden beam with a saree and she was dead. The saree was removed, she was taken to the hospital where she was reported to have \u2018brought dead\u2019. The statement of this witness i.e. LW-1 is corroborated by LW-3 and LW-7. 9. It is stated by LW-3 that she knew all the accused persons as she was residing in the house of the accused and the deceased. According to this witness also, in the beginning they were happy, however after some time, she used to hear some quarrel between the deceased and the accused persons. Accused No. 2, Pathan Nazeer Abi had given her some amount and asked her to go and bring the soaps. After bringing the soaps, she went to the house of the accused persons and found that the accused was absent and the deceased was hanging on one side of the room. After seeing this, she raised cries and people came to the scene. LW-4, Pathan Inayatullah Khan, the grandson of LW-3, went to the house of the parents of the deceased and informed them about the unfortunate incident. 10. LW-7 stated on oath that he was present at the time of giving of dowry to the accused by the family of the deceased. He confirmed the fact that Rs. 15,000/- was given at the time of marriage and Rs. 10,000/- was to be given within some time, which the father of the deceased failed to provide. According to him, the accused persons used to harass the deceased primarily for non-payment of the amount of dowry, as a result of which, she was forced to commit suicide. 11. In fact, there is no dispute to the fact that the deceased died of hanging. Dr. M. Madhusudana Reddy, LW-13 who was the Associate Professor in Forensic Medicine at Guntur Medical College, performed the post-mortem over the body of the deceased. In the medical report, LW13, he noticed \u201cOblique ligature mark of 17 x 2.5 cm present over front and left sides of neck\u201d as well as noticed \u201cAbrasion 1.5 x 1 cm present over lower part of middle of chin.\u201d Injuries were found to be antemortem in nature, and the cause of death was stated to be asphyxia, as a result of hanging 12. LW-14 is a witness to the seizure of the body and she noticed injuries on the body of the deceased. From the above evidence, it is clear that the dowry demands were being raised by the accused persons persistently from the family of the deceased and for that they even harassed the deceased, by beating and abusing her. She had informed her parents of the ill-treatment and the cruelty inflicted on her for non- giving of dowry. 13. The period intervening between the marriage and the death of the deceased is very small. They were married in the year 2002 and she committed suicide by hanging on 15th February, 2003. The witnesses, including LW-1 have stated that for the first few months they were happy, but thereafter, there were quarrels between the accused and the deceased. Accused Pathan Hussain Basha, when he had gone to the parental house of the deceased, demanded different items like fan, ring and Rs. 1,000/- in cash, and the balance of the agreed dowry amount. Since, these demands were not satisfied instantaneously, he even left the deceased at her parental house. At this stage, it will be appropriate for us to examine as to what are the ingredients of an offence punishable under Section 304B of the IPC. In the case of Biswajit Halder alias Babu Halder and Others v. State of W.B. [(2008) 1 SCC 202], the Court stated the ingredients of this provision as follows:- \u201c10. The basic ingredients to attract the provisions of Section 304- B are as follows: (1) the death of a woman should be caused by burns or fatal injury or otherwise than under normal circumstances; (2) such death should have occurred within seven years of her marriage; (3) she must have been subjected to cruelty or harassment by her husband or any relative of her husband; and (4) such cruelty or harassment should be for or in connection with demand for dowry. 11. Alongside insertion of Section 304-B in IPC, the legislature also introduced Section 113-B of the Evidence Act, which lays down when the question as to whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death. 12. Explanation appended to Section 113-B lays down that: \u201cFor the purpose of this section, \u2018dowry death\u2019 shall have the same meaning as in Section 304-B of Indian Penal Code.\u201d 13. If Section 304-B IPC is read together with Section 113-B of the Evidence Act, a comprehensive picture emerges that if a married woman dies in unnatural circumstances at her matrimonial home within 7 years from her marriage and there are allegations of cruelty or harassment upon such married woman for or in connection with demand of dowry by the husband or relatives of the husband, the case would squarely come under \u201cdowry death\u201d and there shall be a presumption against the husband and the relatives.\u201d 14. Besides examining the ingredients of the provision, it would also be necessary for us to examine the meaning and connotation of the expressions \u2018dowry death\u2019, \u2018soon before her death\u2019 and \u2018in connection with, any demand for dowry\u2019 as appearing in the said section. Amongst others, lapse of time between the date of marriage and the date of death is also a relevant consideration for the Court while examining whether the essential ingredients of the provision are satisfied or not in a given case. In the case of Ashok Kumar v. State of Haryana [(2010) 12 SCC 350], this Court explained these terms in some elucidation and the effect of the deeming fiction appearing in the section, as follows:- \u201c11. The appellant was charged with an offence under Section 304-B of the Code. This penal section clearly spells out the basic ingredients as well as the matters which are required to be construed strictly and with significance to the cases where death is caused by burns, bodily injury or the death occurring otherwise than under normal circumstances, in any manner, within seven years of a marriage. It is the first criteria which the prosecution must prove. Secondly, that \u201csoon before her death\u201d she had been subjected to cruelty or harassment by the husband or any of the relatives of the husband for, or in connection with, any demand for dowry then such a death shall be called \u201cdowry death\u201d and the husband or the relative, as the case may be, will be deemed to have caused such a death. The Explanation to this section requires that the expression \u201cdowry\u201d shall have the same meaning as in Section 2 of the Act. 12. The definition of \u201cdowry\u201d under Section 2 of the Act reads as under: \u201c2. Definition of dowry.\u2014In this Act, \u2018dowry\u2019 means any property or valuable security given or agreed to be given either directly or indirectly\u2014 (a) by one party to a marriage to the other party to the marriage; or (b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies. * * * Explanation II.\u2014The expression \u2018valuable security\u2019 has the same meaning as in Section 30 of the Penal Code (45 of 1860).\u201d 13. From the above definition it is clear that, \u201cdowry\u201d means any property or valuable security given or agreed to be given either directly or indirectly by one party to another, by parents of either party to each other or any other person at, before, or at any time after the marriage and in connection with the marriage of the said parties but does not include dower or mahr under the Muslim Personal Law. All the expressions used under this section are of a very wide magnitude. 14. The expressions \u201cor any time after marriage\u201d and \u201cin connection with the marriage of the said parties\u201d were introduced by the amending Act 63 of 1984 and Act 43 of 1986 with effect from 2-10- 1985 and 19-11-1986 respectively. These amendments appear to have been made with the intention to cover all demands at the time, before and even after the marriage so far they were in connection with the marriage of the said parties. This clearly shows the intent of the legislature that these expressions are of wide meaning and scope. The expression \u201cin connection with the marriage\u201d cannot be given a restricted or a narrower meaning. The expression \u201cin connection with the marriage\u201d even in common parlance and on its plain language has to be understood generally. The object being that everything, which is offending at any time i.e. at, before or after the marriage, would be covered under this definition, but the demand of dowry has to be \u201cin connection with the marriage\u201d and not so customary that it would not attract, on the face of it, the provisions of this section. 15. At this stage, it will be appropriate to refer to certain examples showing what has and has not been treated by the courts as \u201cdowry\u201d. This Court, in Ran Singh v. State of Haryana, (2008) 4 SCC 700 held that the payments which are customary payments, for example, given at the time of birth of a child or other ceremonies as are prevalent in the society or families to the marriage, would not be covered under the expression \u201cdowry\u201d. 16. Again, in Satvir Singh v. State of Punjab, (2001)8 SCC 633 this Court held that the word \u201cdowry\u201d should be any property or valuable given or agreed to be given in connection with the marriage. The customary payments in connection with birth of a child or other ceremonies are not covered within the ambit of the word \u201cdowry\u201d. 17. This Court, in Madhu Sudan Malhotra v. Kishore Chand Bhandari, 1988 Supp. SCC 424 held that furnishing of a list of ornaments and other household articles such as refrigerator, furniture and electrical appliances, etc. to the parents or guardians of the bride, at the time of settlement of the marriage, prima facie amounts to demand of dowry within the meaning of Section 2 of the Act. The definition of \u201cdowry\u201d is not restricted to agreement or demand for payment of dowry before and at the time of marriage but even include subsequent demands, was the dictum of this Court in State of A.P. v. Raj Gopal Asawa, (2004)4 SCC 470. 18. The courts have also taken the view that where the husband had demanded a specific sum from his father-in-law and upon not being given, harassed and tortured the wife and after some days she died, such cases would clearly fall within the definition of \u201cdowry\u201d under the Act. Section 4 of the Act is the penal section and demanding a \u201cdowry\u201d, as defined under Section 2 of the Act, is punishable under this section. As already noticed, we need not deliberate on this aspect, as the accused before us has neither been charged nor punished for that offence. We have examined the provisions of Section 2 of the Act in a very limited sphere to deal with the contentions raised in regard to the applicability of the provisions of Section 304-B of the Code. 19. We have already referred to the provisions of Section 304-B of the Code and the most significant expression used in the section is \u201csoon before her death\u201d. In our view, the expression \u201csoon before her death\u201d cannot be given a restricted or a narrower meaning. They must be understood in their plain language and with reference to their meaning in common parlance. These are the provisions relating to human behaviour and, therefore, cannot be given such a narrower meaning, which would defeat the very purpose of the provisions of the Act. Of course, these are penal provisions and must receive strict construction. But, even the rule of strict construction requires that the provisions have to be read in conjunction with other relevant provisions and scheme of the Act. Further, the interpretation given should be one which would avoid absurd results on the one hand and would further the object and cause of the law so enacted on the other. 20. We are of the considered view that the concept of reasonable time is the best criteria to be applied for appreciation and examination of such cases. This Court in Tarsem Singh v. State of Punjab, (2008) 16 SCC 155 held that the legislative object in providing such a radius of time by employing the words \u201csoon before her death\u201d is to emphasise the idea that her death should, in all probabilities, has been the aftermath of such cruelty or harassment. In other words, there should be a reasonable, if not direct, nexus between her death and the dowry-related cruelty or harassment inflicted on her. 21. Similar view was expressed by this Court in Yashoda v. State of M.P, (2004)3 SCC 98 where this Court stated that determination of the period would depend on the facts and circumstances of a given case. However, the expression would normally imply that there has to be reasonable time gap between t he cruelty inflicted and the death in question. If this is so, the legislature in its wisdom would have specified any period which would attract the provisions of this section. However, there must be existence of proximate link between the acts of cruelty along with the demand of dowry and the death of the victim. For want of any specific period, the concept of reasonable period would be applicable. Thus, the cruelty, harassment and demand of dowry should not be so ancient, whereafter, the couple and the family members have lived happily and that it would result in abuse of the said protection. Such demand or harassment may not strictly and squarely fall within the scope of these provisions unless definite evidence was led to show to the contrary. These matters, of course, will have to be examined on the facts and circumstances of a given case. 22. The cruelty and harassment by the husband or any relative could be directly relatable to or in connection with, any demand for dowry. The expression \u201cdemand for dowry\u201d will have to be construed ejusdem generis to the word immediately preceding this expression. Similarly, \u201cin connection with the marriage\u201d is an expression which has to be given a wider connotation. It is of some significance that these expressions should be given appropriate meaning to avoid undue harassment or advantage to either of the parties. These are penal provisions but ultimately these are the social legislations, intended to control offences relating to the society as a whole. Dowry is something which existed in our country for a considerable time and the legislature in its wisdom considered it appropriate to enact the law relating to dowry prohibition so as to ensure that any party to the marriage is not harassed or treated with cruelty for satisfaction of demands in consideration and for subsistence of the marriage. 23. The Court cannot ignore one of the cardinal principles of criminal jurisprudence that a suspect in the Indian law is entitled to the protection of Article 20 of the Constitution of India as well as has a presumption of innocence in his favour. In other words, the rule of law requires a person to be innocent till proved guilty. The concept of deeming fiction is hardly applicable to the criminal jurisprudence. In contradistinction to this aspect, the legislature has applied the concept of deeming fiction to the provisions of Section 304-B. Where other ingredients of Section 304- B are satisfied, in that event, the husband or all relatives shall be deemed to have caused her death. In other words, the offence shall be deemed to have been committed by fiction of law. Once the prosecution proves its case with regard to the basic ingredients of Section 304-B, the Court will presume by deemed fiction of law that the husband or the relatives complained of, has caused her death. Such a presumption can be drawn by the Court keeping in view the evidence produced by the prosecution in support of the substantive charge under Section 304-B of the Code. 15. Applying these principles to the facts of the present case, it is clear that the ingredients of Section 304B read with Section 498A IPC are completely satisfied in the present case. By a deeming fiction in law, the onus shifts on to the accused to prove as to how the deceased died. It is for the accused to show that the death of the deceased did not result from any cruelty or demand of dowry by the accused persons. The accused did not care to explain as to how the death of his wife occurred. Denial cannot be treated to be the discharge of onus. Onus has to be discharged by leading proper and cogent evidence. It was expected of the accused to explain as to how and why his wife died, as well as his conduct immediately prior and subsequent to the death of the deceased. Maintaining silence cannot be equated to discharge of onus by the accused. In the present case, the prosecution by reliable and cogent evidence has established the guilt of the accused. There being no rebuttal thereto, there is no occasion to interfere in the judgments of the courts under appeal. 16. The High Court acquitted Pathan Khadar Basha, the father-in-law of the deceased, as there was no direct evidence against him. His acquittal has not been challenged by the State before us, thus, we are not called upon to discuss this aspect of the matter. 17. Accused Pathan Hussain Basha and Pathan Nazeer Abi have rightly been found guilty of the offence by the courts. While we see no reason to differ with the concurrent findings recorded by the trial court and the High Court, we do see some substance in the argument raised on behalf of the appellants that keeping in view the prosecution evidence, the attendant circumstances, the age of the accused and the fact that they have already being in jail for a considerable period, the Court may take lenient view as far as the quantum of sentence is concerned. The offences having been proved against the accused and keeping in view the attendant circumstances, we are of the considered view that ends of justice would be met, if the punishment awarded to the appellants is reduced. 18. Consequently, we award ten years Rigorous Imprisonment to the appellants. The appeals are partially accepted to the extent afore- indicated. \u2026\u2026\u2026...\u2026.\u2026\u2026\u2026\u2026......................J. (Swatanter Kumar) \u2026\u2026\u2026...\u2026.\u2026\u2026\u2026\u2026......................J. (Fakkir Mohamed Ibrahim Kalifulla) New Delhi, August 16, 2012", "spans": [{"start": 106, "end": 126, "label": "APP"}, {"start": 146, "end": 160, "label": "RESP"}, {"start": 227, "end": 242, "label": "JUDGE"}, {"start": 258, "end": 278, "label": "APP"}, {"start": 334, "end": 349, "label": "DATE"}, {"start": 867, "end": 887, "label": "APP"}, {"start": 1442, "end": 1461, "label": "DATE"}, {"start": 1568, "end": 1588, "label": "WIT"}, {"start": 1811, "end": 1831, "label": "WIT"}, {"start": 1850, "end": 1873, "label": "WIT"}, {"start": 2305, "end": 2322, "label": "WIT"}, {"start": 2344, "end": 2365, "label": "WIT"}, {"start": 2452, "end": 2467, "label": "WIT"}, {"start": 2572, "end": 2595, "label": "STAT"}, {"start": 2612, "end": 2615, "label": "STAT"}, {"start": 2840, "end": 2853, "label": "WIT"}, {"start": 2858, "end": 2870, "label": "WIT"}, {"start": 2961, "end": 2982, "label": "WIT"}, {"start": 2998, "end": 3008, "label": "WIT"}, {"start": 3057, "end": 3077, "label": "WIT"}, {"start": 3232, "end": 3251, "label": "DATE"}, {"start": 3481, "end": 3484, "label": "STAT"}, {"start": 3516, "end": 3550, "label": "COURT"}, {"start": 3656, "end": 3673, "label": "DATE"}, {"start": 3926, "end": 3929, "label": "STAT"}, {"start": 4094, "end": 4097, "label": "STAT"}, {"start": 4372, "end": 4389, "label": "DATE"}, {"start": 4460, "end": 4470, "label": "COURT"}, {"start": 4476, "end": 4504, "label": "COURT"}, {"start": 4530, "end": 4548, "label": "DATE"}, {"start": 5010, "end": 5013, "label": "STAT"}, {"start": 5128, "end": 5146, "label": "DATE"}, {"start": 5205, "end": 5225, "label": "APP"}, {"start": 6694, "end": 6713, "label": "DATE"}, {"start": 7734, "end": 7757, "label": "WIT"}, {"start": 8434, "end": 8454, "label": "WIT"}, {"start": 9526, "end": 9545, "label": "DATE"}, {"start": 9718, "end": 9738, "label": "APP"}, {"start": 10149, "end": 10152, "label": "STAT"}, {"start": 10825, "end": 10828, "label": "STAT"}, {"start": 10883, "end": 10895, "label": "STAT"}, {"start": 11425, "end": 11428, "label": "STAT"}, {"start": 11472, "end": 11484, "label": "STAT"}, {"start": 14958, "end": 14968, "label": "DATE"}, {"start": 14973, "end": 14983, "label": "DATE"}, {"start": 15998, "end": 16045, "label": "PREC"}, {"start": 16296, "end": 16344, "label": "PREC"}, {"start": 16631, "end": 16697, "label": "PREC"}, {"start": 17195, "end": 17244, "label": "PREC"}, {"start": 19116, "end": 19166, "label": "PREC"}, {"start": 19601, "end": 19640, "label": "PREC"}, {"start": 23019, "end": 23022, "label": "STAT"}, {"start": 23970, "end": 23980, "label": "COURT"}, {"start": 24233, "end": 24253, "label": "APP"}, {"start": 24435, "end": 24445, "label": "COURT"}, {"start": 25184, "end": 25199, "label": "JUDGE"}, {"start": 25239, "end": 25271, "label": "JUDGE"}, {"start": 25284, "end": 25299, "label": "DATE"}]}
{"id": "756812", "text": "CASE NO.: Appeal (crl.) 1613 of 2005 PETITIONER: APPASAHEB AND ANR. RESPONDENT: STATE OF MAHARASHTRA DATE OF JUDGMENT: 05/01/2007 BENCH: G.P. MATHUR & R.V. RAVEENDRAN JUDGMENT: JUDGMENT G.P. MATHUR, J. : 1. This appeal, by special leave, has been preferred against the judgment and order dated 23.2.2005 of Bombay High Court (Aurangabad Bench), by which the appeal preferred by the appellants was dismissed and their conviction under Section 304-B read with Section 34 IPC and sentence of 7 years RI imposed thereunder by the learned Sessions Judge, Aurangabad, was affirmed. 2. The deceased Bhimabai was daughter of PW.1 Tukaram Eknath Tambe resident of village Sanjkheda and she was married to appellant no. 1 Appasaheb son of Sheshrao Palaskar about two and half years prior to the date of incident which took place on 15.9.1991. The appellant no. 2, Kadubai is the mother of the appellant no. 1 and both the appellants were residing in the same house in village Palshi. According to the case of prosecution, a sum of Rs. 5000 and some gold ornaments had been given at the time of marriage of Bhimabai. For about six months Bhimabai was treated well but thereafter the accused started asking her to bring Rs. 1,000-1,200 from her parents to meet the household expenses and also for purchasing manure. Whenever Bhimabai went to her parental home, she used to tell her parents that her husband and mother-in-law (accused appellants) were harassing her and used to occasionally beat her. Her father PW.1 Tukaram along with some of his relatives went to the house of the accused and tried to persuade them not to ill-treat Bhimabai. Thereafter, the accused treated Bhimabai properly but after about four months they again started harassing her. A few days before Nag Panchami festival Bhimabai came to her parental home and complained that the accused were not giving her proper food, clothings and even footwear. She also told her parents that her husband had asked her to bring an amount of Rs.1,000-1,200 for the purpose of household expenses and manure. The case of the prosecution futher is that in the evening of 15.9.1991 a person came from village Palshi on a motorcycle and informed PW.1 Tukaram that Bhimabai was unwell. PW.1 then immediately went to the house of the accused along with some of his relatives. There he saw that Bhimabai was lying dead and froth was coming out of her mouth which indicated that she had consumed some poisonous substance. The Police Patil of the village PW.3 Sandu Mohanrao Patil lodged an accidental death report at 9.00 p.m. on 15.9.1991 at the police station. On the basis of the said accidental death report, PW.6 Sandeepan Kamble, Police Sub-Inspector, visited the house of the accused, held inquest on the dead body of Bhimabai, and thereafter sent the same for post-mortem examination. PW.1 Tukaram lodged the FIR of the incident at 7.00 p.m. on 16.9.1991 at P.S. Chikalthana, on the basis of which Case Crime No. 144 of 1991 was registered against the appellants under Sections 498-A, 306 and 304-B IPC. 3. After completion of investigation, charge sheet was submitted against the appellants and in due course, the case was committed to the Court of Sessions. The learned Sessions Judge framed charges under Sections 498-A, 304-B read with Section 34 IPC and Section 306 read with Section 34 IPC against both the appellants. The appellants pleaded not guilty and claimed to be tried. The prosecution in order to establish its case examined six wintesses and filed some documentary evidence. The learned Sessions Judge after consideration of the material on record acquitted the appellants of the charges under Sections 498-A and 306 read with Section 34 IPC but convicted them under Section 304-B IPC and imposed a sentence of 7 years RI thereunder. The appeal preferred by the appellants was dismissed by the High Court by the judgment and order dated 23.2.2005. 4. We have heard learned counsel for the appellants, learned counsel for the State of Maharashtra and have perused the records. 5. The post-mortem examination on the body of deceased Bhimabai was conducted by a team of two doctors of Department of Forensic Medicine and Toxicology, Medical College, Aurangabad, namely, Dr. S.M. Jawale and Dr. H.V. Godbole on 16.9.1991. The doctors did not find any sign of external or internal injury on the body of the deceased and in their opinion, the cause of death was insecticide poisoning. The viscera was preserved for chemical analysis. The report of the post-mortem examination was admitted by the defence. 6. The specific case of the prosecution is that Bhimabai ended her life by consuming poison because of harassment caused to her by the appellants for or in connection with demand of dowry. It is, therefore, necessary to briefly examine the evidence of the prosecution witnesses. PW. 1 Tukaram, father of the deceased, has given details of the prosecution version of the incident in his statement in Court. He has deposed that in the marriage he had given Rs. 20,000 as dowry. Initially, Bhimabai was treated well for about six months, but thereafter the appellants started ill-treating her. Whenever Bhimabai came to her parental home, she used to complain that for some domestic reasons she was being harassed. When she had visited her parental home on the last occasion, she had said that her husband Appasaheb had asked her to bring Rs. 1,000-1,200 for domestic expenses and for purchasing manure as he had no sufficient money. Bhimabai had complained to him that she was not being given proper food, clothings and even footwear and occasionally the appellant no. 1 used to beat her. The last time she visited her parental home was during the festival of Nag Panchami and at that time she looked depressed. The witness has further deposed that on the date of incident, a man came from village Palshi on motorcycle and informed that he should immediately go there as Bhimabai was not well. He then went to village Palshi along with other persons of his family where he reached after sun set. He saw that Bhimabai was lying dead and froth was coming out of her mouth which was smelling of Thimet (insecticide). In his cross- examination he has admitted that his statement that he had given Rs.20,000 in dowry at the time of marriage was incorrect and in fact he had given Rs. 5,000 as dowry and the total expenses incurred in the marriage was about Rs. 20,000. He has also deposed that it was after about 1-1/2 years of marriage that Bhimabai first complained to him about the harassment being caused to her. There used to be some bickering in the marital life of Bhimabai and her husband on trifling matters. He has admitted that it was appellant no. 1 who had sent a person on motorcycle who had given information regarding Bhimabai being unwell and that both the appellants were present at the time of her funeral. PW.2 Babaji is real brother of father-in-law of PW.1 Tukaram. He has deposed that on an earlier occasion he had gone along with PW.1 and some others to the house of appellant no.1 to persuade him not to harass Bhimabai and to treat her well. In his cross- examination he has admitted that when he had gone to village Palshi to talk with the appellants regarding the ill-treatment being meted out to Bhimabai, there was no talk regarding monetary giving and taking. He also admitted that he had not gone to attend that funeral of Bhimabai. PW.5 Sumanbai is the mother of the deceased Bhimabai. She has stated in her examination-in-chief that Bhimabai was being ill-treated by the appellants and the reason for ill-treatment was that they were demanding money to be brought from her parental home. The last time Bhimabai visited her parental home was on the occasion of the festival of Nag Panchami and she had complained that she was being ill-treated and was sometimes given beating for bringing money from her parents. She has specifically stated that for a period of six months after the marriage, Bhimabai was treated well and thereafter she had started complaining about the harassment being caused to her. In her cross-examination, PW.5 Sumanbai has stated that after news about the condition of Bhimabai was given by a man from village Palshi, she along with her husband and some other relations went there and noticed that Bhimabai was lying dead in the house and froth was coming out of her mouth. She has further stated that she did not make any enquiry as to how Bhimabai had died. In her statement under Section 161 Cr.P.C. which was recorded very next day of the incident i.e. on 16.9.1991 she did not state that cause of ill-treatment was \"a demand for money and a consequent beating\". When confronted with her aforesaid statement under Section 161 Cr.P.C., she replied that she did not know why there was no mention in the said statement that the cause for ill-treatment was \"a demand for money and a consequent beating\". She further stated that it will be correct to say that her daughter was receiving ill-treatment as a result of \"domestice cause\". The learned trial Judge then sought clarification from the witnessses by putting the following question. :- \"Que:- What do you mean by \"domestic cause\"? Ans.:- What I meant was that there was demand for money for defraying expenses of manure etc. and that was the cause.\" In the very next paragraph she stated as under :- \"It is not true to suggest that in my statement before the police I never said that ill-treatment was as a result of demand for money from us and its fulfillment. I cannot assign any reason why police did not write about it in my statement.\" 7. PW. 3 Sandu, Police Patil of village Palshi has deposed that at about 4.20 p.m. on 15.9.1991, Narayan who is uncle of appellant no.1, Appasaheb, informed him that the wife of Appasaheb had expired. He then went to the house of the appellant and saw Bhimabai lying with froth coming out of her mouth. Thereafter, he gave a report about the incident in writing at the police station. In his cross-examination, he admitted that he did not make detailed enquiries as to what was the cause of death and where the incident had taken place. He has further deposed that Bhimabai had come to his house about six months earlier and had said all was not well between her and her husband, but she had not given any specific details. 8. The main witnesses regarding the alleged demand of money and also harassment and beating to Bhimabai are her father and mother, viz., PW.1 Tukaram and PW.5 Sumanbai. In his examination-in-chief PW.1 has said that whenever his daughter came to her parental home, she used to complain that she was being subjected to harassment by the appellants on account of some \"domestic reasons\" and further that her husband (appellant no.1) had told her that while coming back from her parental home she should bring Rs. 1,000-1,200 for expenses and for manure as he had no sufficient money. PW.5 Sumanbai has deposed that Bhimabai was receiving ill-treatment as a result of \"domestic cause\" and to a specific question put by the Court as to what she meant by \"domestic cause\" she gave a reply that there was a demand for money for defraying expenses of manure etc. It is important to note that in her statement under Section 161 Cr.P.C. which was recorded on the very next day of the death of Bhimabai, this witness did not state that the cause for ill-treatment was \"a demand for money and a consequent beating\". The evidence on record does not indicate that the police had any reason to favour the accused and deliberately omitted to mention about the alleged demand of money while recording the statement of PW.5 Sumanbai under Section 161 Cr. P.C. The evidence shows that the accused come from very humble background and they could not have exerted any kind of influence, financial or otherwise, upon the police so as to manage a statement favourable to them when in the course of investigation the statements of witnesses were being recorded under Section 161 Cr.P.C. Accepting the statements of father and mother on their face value that utmost which can be held is that the appellant no.1 had asked his wife Bhimabai to bring money for meeting domestic expenses and for purchasing manure. 9. Two essential ingredient of Section 304-B IPC, apart from others, are (i) death of women is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, and (ii) women is subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for \"dowry\". The explanation appended to sub-section (1) of Section 304-B IPC says that \"dowry\" shall have the same meaning as in Section 2 of Dowry Prohibition Act, 1961. Section 2 of Dowry Prohibition Act reads as under :- \"2. Definition of \"dowry\" - In this Act \"dowry\" means any property or valuable security given or agreed to be given either directly or indirectly- (a) by one party to a marriage to the other party to the marriage; or (b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dowry or mahr in the case of persons to whom the Muslim Personal Law (shariat) applies. In view of the aforesaid definition of the word \"dowry\" any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. It is well settled principle of interpretation of Statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody coversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning. (See Union of India v. Garware Nylons Ltd., AIR (1996) SC 3509 and Chemicals and Fibres of India v. Union of India, AIR (1997) SC 558). A demand for money on account of some financial stringency or for meeting some urgent domestic expenses of for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. The evidence adduced by the prosecution does not, therefore, show that any demand for \"dowry\" as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of Section 304-B IPC viz. demand for dowry is not established, the conviction of the appellants cannot be sustained. 10. Learned counsel for the appellants has also submitted that there is absolutely no evidence either direct or circumstantial to show that Bhimabai committed suicide. He has submitted that the insecticide Thimet is extensively used by the farmers for preservation of crop and is kept stored in their houses and it could be a case where Thimet accidentially got mixed with some food item and was consumed by Bhaimabai. It has thus been submitted that no offence under Section 306 IPC is made out against the appellants. We do not consider it necesary to examine this question. As already stated, the appellants were also charged under Sections 498-A and 306 read with Section 34 IPC but were acquitted of the said charges by the learned Sessions Judge, which order has attained finality for the reason that the State did not prefer appeal agains the same. The appeal before the High Court and also in this Court has been preferred by the appellants challenging their coviction under section 304-B read with section 34 IPC. It has been held in State of Andhra Pradesh v. Thadi Narayan, AIR (1962) SC 240 that Section 423(1)(b)(i) of Code of Criminal Procedure, 1898 (which corresponds to Section 386(b)(i) of Code of Criminal Procedure, 1973) is clearly confined to cases of appeals preferred against orders of conviction and sentence, the powers conferred by this clause cannot be exercised for the purpose of reversing an order of acquittal passed in favour of a party in respect of an offence charged, in dealing with an appeal preferred by him against the order of conviction in respect of another offence charged and found proved. Therefore, we have refrained from expressing any opinion as to whether the appellants could be held guilty of having committed the offence under Section 498-A or 306 IPC on the basis of evidence available on record as their acquittal under the aforesaid charges has attained finality and cannot be reversed in the appeal filed by the appellants challenging their conviction under Section 304-B IPC. 11. In view of the discussion made above, the appeal is allowed. The judgment and order dated 23.2.2005 of the High Court and the judgment and order dated 4.1.1993 of the learned Sessions Judge convicting the appellants under Section 304-B IPC are set aside and the appellants are acquitted of the said charge. The appellant no.1 is in custody. He shall be released forthwith unless wanted in some other case. The appellant no. 2 is on bail. 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{"id": "75243301", "text": "REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 822 OF 2012 RAJU @ DEVENDRA CHOUBEY \u2026. APPELLANT VERSUS STATE OF CHHATISGARH \u2026. RESPONDENT WITH CRIMINAL APPEAL NO. 867 OF 2013 WITH CRIMINAL APPEAL NO. 589 OF 2014 WITH CRIMINAL APPEAL NO. 1781 OF 2014 [Arising out of SLP (Crl.) No. 3737 OF 2014] 1 JUDGMENT S. A. BOBDE, J. Leave granted in SLP (Crl.) No. 3737/2014. 2 These appeals are preferred by four accused against the common Judgment of the High Court of Chhattisgarh at Bilaspur, confirming the Judgment of the Additional Sessions Judge, Bemetara, District Durg, convicting the appellants under Section 302 read with Sections 34 and 120B of the Indian Penal Code [hereinafter referred to as \u201cIPC\u201d] and sentencing each of them to undergo imprisonment for life with a fine of Rs. 1,000/-, and in default, to undergo additional rigorous imprisonment for three months. These appeals have been taken up for disposal together since they arise from a common judgment of the High Court deciding the appeals of the accused. 3. The appellant - Raju @ Devendra Choubey (accused no. 4) has filed Criminal Appeal No. 822 of 2012. The appellant - Mahesh (accused no. 3) has filed Criminal Appeal No. 867 of 2013. The appellant - Beenu @ Chandra Prakash (accused no. 2) has filed Criminal Appeal No. 589 of 2014. The appellant - Smt. Shashi Tripathi (accused no. 1) has filed Criminal Appeal arising out of Special Leave Petition (Criminal) No. 3737 of 2014. 4. PW-1 \u2013 Dr. Sharda Prasad Tripathi is the husband of accused Shashi Tripathi. On 25.11.2003, when PW-1 \u2013 Dr. Sharda Prasad Tripathi came home from his clinic, found that his daughter-in-law Bhavna Tripathi has been murdered. He lodged a First Information Report (F.I.R.) on 25.11.2003 at about 20:45 hours. The crime was registered. He deposed in court that on 25.11.2003, when he returned home, he found servant Anil Kumar (PW-21) was weeping. When he went inside, he found his daughter-in-law - Bhavna and wife - Shashi lying in the courtyard. Bhavna was dead. Shashi was unconscious. There were numerous injuries, including incised wounds on Bhavna, none on Shashi. 5. After registration of the crime, inquest was conducted over the dead body of Bhavna on 26.11.2003. Post mortem was conducted by Dr. Naresh Tiwari and Dr. M. Deodhar, who gave their report which is marked as Exhibit P/18. Spot map was prepared by the Inquiry Officer (IO); bloodstained cloth of accused Shashi Tripathi was taken into possession along with broken bangles; bloodstained cement mortar and plain cement mortar were also taken into possession. Shashi Tripathi, Mahesh and Binu @ Chandra Prakash were arrested on 29.11.2003. A bloodstained knife was taken into possession. The accused Raju @ Devendra Choubey was taken into custody on 22.12.2003 and a Suzuki motorcycle was also taken into possession. 6. A test identification was conducted by the Executive Magistrate in the Sub Jail, Bemetara on 13.12.2003. A similar identification parade of Raju @ Devendra Choubey was conducted on 26.12.2003 after his arrest. 7. A sealed packet containing hair found in the grip of the deceased and another sealed packet containing bloodstained cloth of the deceased were taken into possession vide Exhibit P/35. 8. After committal, the Trial Court framed charges under Section 302 read with Sections 34 and 120B of the IPC. The prosecution examined 32 witnesses. No defence witness was examined after the statements of the accused were recorded under Section 313 of the Criminal Procedure Code, 1973. 9. According to the prosecution the accused Shashi Tripathi is the step mother-in-law of deceased Bhavna Tripathi. Bhavna was married to her step son \u2013 Jitendra Kumar in July, 2003. Shashi Tripathi used to be annoyed with Bhavna Tripathi on account of some domestic dispute. She engaged the other accused for murdering Bhavna. Bhavna was murdered on 25.11.2003 at about 18:30 hours in the house where she resided with Shashi Tripathi. 10. There is no dispute that Bhavna\u2019s death is homicidal. Dr. M. Deodhar, who conducted the postmortem, opined that cause of her death was neurogenic and hemorrhagic shock. The injuries found on person of the deceased were as follows: \u201cExternal Injuries: (1) incised wound on left scapular region of size 3 cm x 1 cm; (2) incised wound on left scapular region of size 4 cm x 1 \u00bd cm x 1 \u00bd cm; (3) one incised wound on left auxiliary region on the posterior auxiliary region of size 3 cm x 2 cm x 3 cm; (4) incised wound on lower costal region left of size 3 \u00bd cm x 2 cm x 1 cm; (5) incised wound on lower costal region right side on right epigestic region of size 3 \u00bd cm x 3 cm with punctured wound; (6) incised wound over right costal region of size 3 cm x 2 cm x 1 cm; (7) incised wound on right supra mammary region near middle of size 4 cm x 1 cm x 1 \u00bd cm; (8) incised wound on right supra mammary region lateral aspect of size 3 cm x 1 \u00bd cm x 1 \u00bd cm; (9) incised wound on radial aspect of left forearm near wrist joint of size 2 \u00bd cm x \u00bd cm x \u00bd cm; (10) incised wound on forearm left hand radial side dorsal aspect on lower 2/3rd region; (11) incised wound on left forearm middle l/3rd region, radial side and posterior aspect of size 2 \u00bd cm x 1\u00bd cm x 1 cm; (12) incised wound on left hand dorsal aspect on 2nd and 3rd metacarpal region of size 2\u00bd cm x \u00bd cm x 1\u00bd cm; (13) incised wound on ulna region of left hand on lower 1/3rd region of size 1 cm x \u00bd cm x 1 cm; and (14) incised wound over left side of neck, on anterior triangle of size 2 cm x \u00bd cm x 1 \u00bd cm. Internal injuries: Brain membrane pale; lungs, trachea pale, punctured wound on right and left lungs of size 2 cm x 1 cm, 2 \u00bd cm and 1 cm x 3 cm; lobe was cut and there was 3 cm punctured wound. Incised wound was also present on the right lobe of size 3 cm x 1/3 cm x 3\u00bd cm. Liver, kidney and spleen were pale. The deceased was carrying fetus of two months.\u201d 11. The sole eyewitness was a boy of 13 years of age \u2013 Anil Kumar (PW- 21), who worked as a servant with the family. Shashi Tripathi had brought him home from Bilaspur. He participated in the identification parade, which was held in Sub Jail, Bemetara, and identified the accused persons in the court by touching them. 12. We have carefully examined the manner in which the identification parade was conducted and the manner in which the boy \u2013 Anil Kumar (PW-21) identified the accused in Court and we have no reason to doubt the identification of the accused, which assumes importance in this case since the boy did not know the accused before the incident. 13. It is Anil Kumar (PW -21), who first informed the head of the family Dr. Sharda Prasad Tripathi (PW-1), the complainant, about the incident, when he came home after closing his clinic. He deposed before the Court that Shashi Didi (accused) brought him to village \u2013 Jevra from Bilaspur. He lived in the house of Shashi Didi. He ate his food there and studied in a school. He deposed that Doctor Sahab is her husband and Shivendra and Jitendra are her sons. Jitendra is her step-son and the deceased Bhavna is the wife of Jitendra. She resided with Shashi Didi. Jitendra is a doctor, resided and practiced at Khamaria, whereas his wife resided at Jevra. His brother \u2013 Shivendra studies at Calcutta. He referred to Bhavna as Bhabhi. He stated that Shashi Didi and Bhavna sometimes used to quarrel. 14. About the assault, he deposed that Devendra caught Bhavna and Chandra Prakash attacked her with knife 3 to 4 times and she fell down. The incident occurred in the courtyard and Shashi Didi was present in the passage. Mahesh, the fourth accused, was standing outside the house. After the assault, Chandra Prakash went to the TV room where Shashi Didi had kept some money in a rubber band on the table. The accused \u2013 Chandra Prakash had threatened him not to disclose anything about the incident to anyone. Thereafter all the three accused fled from there. He further deposed that Shashi Didi took him upstairs to the terrace and asked him not to disclose the truth to anyone but to say that thieves came into the house and committed the crime. Shashi Didi thereafter started shouting. Then she lay down on the courtyard near Bhavna Bhabhi. 15. This deposition clearly implicates accused Nos. 1, 2 and 4. The picture that emerges is that Shashi Tripathi caused Bhavna to be killed and for this purpose engaged Chandra Prakash (accused No. 2) and Raju @ Devendra Choubey (accused No. 4) by paying them money. She also seems to have had a scuffle with Bhavna, which is apparent from the fact that her hair was found in the grip of the deceased during investigation. It is obvious that accused nos. 2 and 4 did not enter the house to commit a robbery and had a single mission, namely, to kill Bhavana. There is no evidence that they had any previous animosity with the deceased and appeared to have acted as contract killers. 16. The prosecution has found it difficult to pinpoint the motive but Shashi Tripathi\u2019s husband Dr. Sharda Prasad Tripathi (PW-1) deposed before the Court that she tried to create a hindrance in the marriage of his son Jitendra since she wanted her daughter Abhilasha to marry him; however, he went ahead with the marriage of Jitendra to Bhavna, whereupon Shashi Tripathi remained silent. 17. The credibility of the evidence of Anil Kumar (PW-21) was attacked by the learned counsel for the appellants, who submitted that the boy is a tutored witness, who has been influenced by the police with whom he spent a lot of time. In fact, he even came to the Court in the company of a police constable after being served summons at Allahabad. The learned counsel submitted that the evidence of a child witness must be carefully scrutinized before acceptance since a child can be easy prey for tutoring and the court must insist on corroboration from other evidence. 18. On a careful perusal of the deposition of this child witness, we have not found any reason why he would have lied. He was brought to the house by Shashi Tripathi (accused), who apparently took care of him and sent to school and gave him food and residence. He had no grouse against her neither any ulterior motive in identifying the accused, who were not acquainted to him. There was no reason for the sole eye witness - Anil (PW- 21) to implicate anybody falsely. Merely because he has been some time in the company of the police at the police station his testimony cannot be discarded as untrue. The incident occurred within the four walls of the house of the accused - Shashi Tripathi and the only witness was the boy \u2013 Anil (PW-21). His statement that the accused Chandra Prakash attacked the deceased is corroborated by the recovery of knife from Chandra Prakash. It must be remembered that the boy comes from a rural back ground and was 13 years of age when the incident occurred. His presence in the house is entirely natural and we have no reason to discard his testimony. 19. The learned counsel for the appellants forcefully attacked the conviction of the other accused viz. Mahesh, Chandra Prakash and Devendra Kumar, who admittedly were not known to the child witness Anil Kumar. It was submitted that the test identification parade were delayed and the identification of these accused by the witness in Court was not reliable. It is not possible for us to accept this contention. Mahesh and Chandra Prakash were arrested on 29.11.2003, their identification parade was conducted on 13.12.2003 - (within a fortnight or so). The accused Devendra Kumar was arrested on 22.12.2003 and his identification parade was conducted on 26.12.2003- (within four days). There is no evidence on record to show that the child witness had an opportunity to see and study the features of the accused between their arrest and test identification parade to enable a tutored identification. In any case, the period between the arrest and the identification parade was not large enough to constitute inordinate delay. The learned counsel for the appellants relied upon the Judgment of this Court in Budhsen and Anr. Vs. State of U.P. (1970) 2 SCC 128 where this Court made the following observations:- \u201c7. Now, facts which establish the identity of an accused person are relevant under Section 9 of the Indian Evidence Act. As a general rule, the substantive evidence of a witness is a statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the particular accused person and the details of the part which the accused played in the crime in question with reasonable particularity. The purpose of a prior test identification, therefore, seems to be to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceeding. There may, however, be exceptions to this general rule, when for example, the court is impressed by a particular witness, on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the investigation stage. They are generally held during the course of investigation with the primary object of enabling the witnesses to identify persons concerned in the offence, who were not previously known to them. This serves to satisfy the investigating officers of the bona fides of the prosecution witnesses and also to furnish evidence to corroborate their testimony in court. Identification proceedings in their legal effect amount simply to this: that certain persons are brought to jail or some other place and make statements either express or implied that certain individuals whom they point out are persons whom they recognise as having been concerned in the crime. They do not constitute substantive evidence. These parades are of the essentially governed by Section 162, Criminal Procedure Code. It is for this reason that the identification parades in this case seem to have been held under the supervision of a Magistrate. Keeping in view the purpose of identification parades the Magistrates holding them are expected to take all possible precautions to eliminate any suspicion of unfairness and to reduce the chance of testimonial error. They must, therefore, take intelligent interest in the proceedings, bearing in mind two considerations: (i) that the life and liberty of an accused may depend on their vigilance and caution and (ii) that justice should be done in the identification. Those proceeding should not make it impossible for the identifiers who, after all, have, as a rule, only fleeting glimpses of the person they are supposed to identify. Generally speaking, the Magistrate must make a note of every objection raised by an accused at the time of identification and the steps taken by them to ensure fairness to the accused, so that the court which is to judge the value of the identification evidence may take them into consideration in the appreciation of that evidence. The power to identify, it may be kept in view, varies according to the power of observation and memory of the person identifying and each case depends on its own facts, but there are two factors which seem to be of basic importance in the evaluation of identification. The persons required to identify an accused should have had no opportunity of seeing him after the commission of the crime and before identification and secondly that no mistakes are made by them or the mistakes made are negligible. The identification to be of value should also be held without much delay. The number of persons mixed up with the accused should be reasonably large and their bearing and general appearance not glaringly dissimilar. The evidence as to identification deserves, therefore, to be subjected to a close and careful scrutiny by the Court\u2026\u2026.\u201d The observations of this Court undoubtedly lay down the correct law and we have no reason to doubt them. We, however, do not see how the observations help the appellants. In the present case, the child witness has been found to be reliable. His presence is not doubted, since he resided with the family for whom he worked. He had no axe to grind against any of the accused. He became the unfortunate witness of a gruesome murder and fearlessly identified the accused in Court. In his deposition he specified the details of the part which the accused played with reasonable particularity. In such a situation, it is considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witness in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceeding, as observed by this Court in Budhsen\u2019s case (supra). This Court has not laid down the requirement in general that all identification parades must be under the supervision of a Magistrate as in Budhsen\u2019s case (supra). The learned counsel for the appellants also relied upon the Judgments of this Court in Subash and Shiv Kumar Vs. State of U.P. (1987) 3 SCC 331, and Mohd. Abdul Hafeez Vs. State of Andhra Pradesh AIR 1983 SC 367. The facts and circumstances of the cases are however different and it is not necessary to consider those cases in detail while dealing with the present case. Suffice it to say that those cases do not create any doubt as regards the conviction in this case. 20. Mr. P.C. Agrawala, learned senior counsel for the appellant Mahesh (accused no. 3), vehemently submitted that this accused ought not to have been convicted under Section 302 with the aid of Sections 34 and 120 (B) of IPC. In particular it was submitted that the role attributed to the accused was that he merely stood outside the house. He did not even act as a guard because when the witness Anil Kumar (PW-21) came to the house, he was not even stopped by the accused from entering the house. The learned counsel for Mahesh (accused no.3) relied on several decisions of this Court in Suresh Sakharam Nangare Vs. State of Maharashtra (2012) 9 SCC 249, Jai Bhagwan Vs. State of Haryana AIR 1999 SC 1083 and Ramashish Yadav Vs. State of Bihar (1999) 8 SCC 555. 21. It is settled law that common intention and conspiracy are matters of inference and if while drawing an inference any benefit of doubt creeps in, it must go to the accused vide Baliya Vs. State of M.P. (2012) 9 SCC 696. 22. On a careful conspectus of the facts and the law, we are of the view that the prosecution has failed to prove the guilt of Mahesh beyond reasonable doubt. There is no evidence of his having played any part in the crime. He was merely seen by the witness as standing outside the house when the witness came home. Mahesh did not even act as a guard; he did not prevent Anil Kumar (PW-21) from entering the house. There is no evidence of the formation or sharing of any common intention with the other accused. There is no reference to a third person in the FIR; no evidence that he came with the other accused or left with them. No weapon was seized from him, nor was any property connected with the crime, seized. Having regard to the role attributed to him and the absence of incriminating factors we find that it is not safe to convict Mahesh of the offence of murder with the aid of Sections 34 and 120(B). 23. We therefore, hold that the accused Mahesh (accused no. 3) in Criminal Appeal No. 867 of 2013 is innocent and the conviction against him is set aside. His bail bonds stand cancelled and sureties are discharged. 24. In view of the above, Criminal Appeal No. 867 of 2013 is allowed and Criminal Appeal Nos. 822 of 2012, 589 of 2014 and Criminal Appeal arising out of SLP (Criminal) No. 3737 of 2014 are dismissed. \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.\u2026..........\u2026..J. [DIPAK MISRA] .................................\u2026\u2026\u2026J. [S.A. BOBDE] NEW DELHI, AUGUST 21, 2014", "spans": [{"start": 105, "end": 109, "label": "APP"}, {"start": 112, "end": 128, "label": "APP"}, {"start": 149, "end": 169, "label": "RESP"}, {"start": 263, "end": 295, "label": "CASENO"}, {"start": 312, "end": 339, "label": "CASENO"}, {"start": 352, "end": 363, "label": "JUDGE"}, {"start": 396, "end": 409, "label": "CASENO"}, {"start": 492, "end": 502, "label": "COURT"}, {"start": 744, "end": 747, "label": "STAT"}, {"start": 1019, "end": 1029, "label": "COURT"}, {"start": 1093, "end": 1101, "label": "APP"}, {"start": 1136, "end": 1167, "label": "CASENO"}, {"start": 1218, "end": 1249, "label": "CASENO"}, {"start": 1317, "end": 1348, "label": "CASENO"}, {"start": 1444, "end": 1494, "label": "CASENO"}, {"start": 1510, "end": 1532, "label": "WIT"}, {"start": 1579, "end": 1589, "label": "DATE"}, {"start": 1607, "end": 1629, "label": "WIT"}, {"start": 1772, "end": 1782, "label": "DATE"}, {"start": 1859, "end": 1869, "label": "DATE"}, {"start": 1911, "end": 1921, "label": "WIT"}, {"start": 2257, "end": 2267, "label": "DATE"}, {"start": 2693, "end": 2703, "label": "DATE"}, {"start": 2772, "end": 2780, "label": "APP"}, {"start": 2815, "end": 2825, "label": "DATE"}, {"start": 2978, "end": 2988, "label": "DATE"}, {"start": 3032, "end": 3040, "label": "APP"}, {"start": 3066, "end": 3076, "label": "DATE"}, {"start": 3389, "end": 3392, "label": "STAT"}, {"start": 3540, "end": 3569, "label": "STAT"}, {"start": 3921, "end": 3931, "label": "DATE"}, {"start": 5986, "end": 5996, "label": "WIT"}, {"start": 6375, "end": 6385, "label": "WIT"}, {"start": 6600, "end": 6610, "label": "WIT"}, {"start": 6667, "end": 6689, "label": "WIT"}, {"start": 7428, "end": 7436, "label": "APP"}, {"start": 8444, "end": 8452, "label": "APP"}, {"start": 9014, "end": 9036, "label": "WIT"}, {"start": 9342, "end": 9352, "label": "WIT"}, {"start": 10299, "end": 10303, "label": "WIT"}, {"start": 10601, "end": 10605, "label": "WIT"}, {"start": 11091, "end": 11105, "label": "APP"}, {"start": 11158, "end": 11168, "label": "WIT"}, {"start": 11415, "end": 11425, "label": "DATE"}, {"start": 11472, "end": 11482, "label": "DATE"}, {"start": 11525, "end": 11539, "label": "APP"}, {"start": 11556, "end": 11566, "label": "DATE"}, {"start": 11614, "end": 11625, "label": "DATE"}, {"start": 12067, "end": 12118, "label": "PREC"}, {"start": 12271, "end": 12290, "label": "STAT"}, {"start": 14187, "end": 14210, "label": "STAT"}, {"start": 17016, "end": 17023, "label": "PREC"}, {"start": 17180, "end": 17187, "label": "PREC"}, {"start": 17291, "end": 17347, "label": "PREC"}, {"start": 17353, "end": 17415, "label": "PREC"}, {"start": 17682, "end": 17695, "label": "A.COUNSEL"}, {"start": 17895, "end": 17898, "label": "STAT"}, {"start": 18071, "end": 18081, "label": "WIT"}, {"start": 18264, "end": 18329, "label": "PREC"}, {"start": 18331, "end": 18380, "label": "PREC"}, {"start": 18385, "end": 18436, "label": "PREC"}, {"start": 18619, "end": 18660, "label": "PREC"}, {"start": 19033, "end": 19043, "label": "WIT"}, {"start": 19641, "end": 19672, "label": "CASENO"}, {"start": 19816, "end": 19847, "label": "CASENO"}, {"start": 19863, "end": 19895, "label": "CASENO"}, {"start": 19944, "end": 19975, "label": "CASENO"}, {"start": 20073, "end": 20083, "label": "JUDGE"}, {"start": 20096, "end": 20111, "label": "DATE"}]}
{"id": "806212", "text": "REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 5743-5745 OF 2005 Infosys Technologies Ltd. ...... Appellant Vs. Jupiter Infosys Ltd. & Anr. ...... Respondents JUDGMENT R.M. LODHA, J. These three appeals by special leave are directed against the order dated September 9, 2004 passed by Intellectual Property Appellate Board (for short, `IPAB') whereby it ordered the removal of appellant's mark `Infosys' from the register of trade marks in respect of computer stationery, computer manuals, printed matter for computer, instructional and teaching materials, computer hardware and peripherals and machine and machine tools. 2. The appellant is Infosys Technologies Limited. It was incorporated and registered under the Companies Act, 1956 on July 2, 1981 in the name of Infosys Consultants Private Limited. The appellant got the trade mark `Infosys' registered in 1987 in classes 16 and 9 in connection with computer stationery, computer manuals, printed manual for computer instruction and teaching materials; computer hardwares, computer interface, computer peripherals, electronics telex interface and in 1988 in class 7 in connection with machine and machine tools and motors (not for land vehicles). The particulars with reference to the trade mark registered by the appellant are as follows : Date Registration Class Goods No. 15.07.1987 475269 Class 16 Computer Stationery, Computer Manuals, Printed Manuals for Computer Instruction and teaching materials etc. 15.07.1987 475267 Class 09 Computer Hardwares, Computer Interface, Computer Peripherals, Electronics Telex Interface and all goods covered in class 09. 27.01.1988 484837 Class 07 Machine and Machine Tools and Motors (not for land vehicles) included in class 07. 3. On April 21, 1992, the name of the company--Infosys Consultants Pvt. Limited--was changed to Infosys Technologies Pvt. Ltd. and thereafter on June 2, 1992, the name was changed to the present name, i.e. Infosys Technologies Limited. 4. The first respondent is Jupiter Infosys Limited. The first respondent was incorporated and registered in September 1978 under the name of Jupiter Agencies Pvt. Limited. The name of the first respondent was changed to Jupiter Infosys (P) Limited in August, 1995 and now since July, 2003, the name is changed to Jupiter International Limited. 5. On October 11, 1996, the appellant instituted a suit in the Calcutta High Court for perpetual injunction, inter alia, restraining the first respondent from infringing the appellant's mark `Infosys' by using the mark `Infosys' by itself or in combination with other marks in course of its trade. The appellant also prayed for an interim order in the suit. On November 22, 1996, the Calcutta High Court by an ad- interim order restrained the first respondent from using the word `Infosys' in any manner in relation to the goods for the time being. The ad-interim order was confirmed on November 29, 1996. 6. The appellant having come to know of several instances of misuse of mark `Infosys' also filed a writ petition (being writ petition no. 14214 of 2000) before the Calcutta High Court, inter alia, praying that the Registrar of Companies be restrained from registering the companies bearing the name `Infosys'. On September 13, 2000, the Calcutta High Court restrained the Department of Company Affairs and Registrar of Companies from incorporating any company bearing the name `Infosys' without the permission of the appellant. 7. In January 2001, the appellant filed yet another suit before the High Court of Judicature at Madras for permanent injunction restraining the first respondent from offering shares to the public as claimed in the Initial Public Offer (IPO) using `Infosys'. The Single Judge of the Madras High Court passed an interim restraint order on February 1, 2001 against the first respondent. The said order was confirmed on May 22, 2001 to remain operative till disposal of suit. 8. The first respondent then filed three separate applications before the Madras High Court, inter alia, under Sections 46 and 56 of the Trade and Merchandise Marks Act, 1958 (`the 1958 Act'). In O.P. No. 764 of 2001, the first respondent prayed for the removal/rectification of the entry in the register of trade mark in respect of trade mark No. 475269 in Class 16 while in the other two applications being O.P. No. 765 of 2001 and O.P. No. 766 of 2001, the first respondent prayed for removal/rectification of trade mark No. 475267 in Class 9 and trade mark No. 484837 in Class 7 respectively. 9. The appellant opposed these applications on diverse grounds by filing counter affidavits. 10. On August 12, 2003, the Madras High Court framed the following issues: a) Whether the mark applied for registration was used in respect of the goods for which the mark was registered? b) Whether the respondent had a bonafide intention to use the mark applied for under section 18 of the Trade and Merchandise Marks Act? c) Whether the mark registered in favour of the respondent is a service mark? d) Whether there is a non use of registered trade mark by the respondent for a period of over 5 years and 1 month. e) Whether the registered trade mark is disentitled for protection in a Court of Law under Section 11(e) of the Trade and Merchandise Marks Act? f) Whether the registered trade mark has lost its distinctiveness and is liable to be removed under section 32(c)? g) Whether the respondent has committed fraud while obtaining registration of the mark? And h) To what further relief? 11. The 1958 Act was repealed by the Trade Marks Act, 1999 (for short, `the 1999 Act'). In terms of Section 100 of the 1999 Act, the three petitions filed by the first respondent before the Madras High Court for rectification/removal of registered trade mark Nos. 475269, 475267 and 484837 were transferred to the IPAB. 12. Some more facts may be noticed. The appellant filed yet another suit (being suit no. 2115 of 2002) before Delhi High Court for infringement of trade mark and passing off against the first respondent. In that suit, the appellant also made an application for grant of temporary injunction. The vacation Judge of the Delhi High Court, on December 27, 2002 passed an order of temporary injunction against the first respondent as follows: \"Notice for 24th March, 2003 before the Joint Registrar. Heard. Perused the averments made in the suit and application which are duly supported by documents on record. I am of the opinion that in case ex-parte ad-interim orders are not granted, the relief claimed itself may be rendered infructuous. Accordingly it is directed that pending further consideration of the matter after notice for the next date of hearing, the defendants are restrained by themselves, their directors, employees, agents and/or others acting on its behalf, from using the trade mark/corporate name INFOSYS or any other mark/name deceptively similar trade mark or colourable imitation thereof as a mark and/or corporate name or as part of a mark and/or business name, in respect of goods and/or services, for publicity on propaganda, on websites and or in domain names, in any way, whatsoever, thereby causing infringement of the registered trade mark INFOSYS of the plaintiff in isolation or in combination with words/letters/numbers their advertisements as part of their corporate name either in isolation or in goods and services, or in or by way of any advertisement/publicity campaigns etc. Compliance of Order XXXIX Rule 3 CPC within three days.\" The said suit was transferred to the Court of the Additional District Judge, Tis Hazari Court, Delhi. In that suit, an affidavit came to be filed by the first respondent wherein it was stated that the name of the company has been changed from Jupiter Infosys Limited to Jupiter International Limited and a certificate to that effect has been issued by the Registrar of Companies, Kolkata under the Companies Act, 1956 and no dispute remains between the parties under the trade mark. The relevant statement made in the affidavit dated July 14, 2003 (we were informed that the date of the affidavit is July 14, 2004) reads as follows: \"4. That in the meantime the defendant has already changed the Trade Mark namely \"Jupiter International Ltd.\" in place of \"Jupiter Infosys Ltd.\" The copy of the incorporation on change of name which was issued by the registrar of the Companies are being marked and annexed herewith as Annexure A. 5. That now there is no dispute between the plaintiff and defendant under the Trade Mark.\" Based on this affidavit, the suit was partially decreed in favour of the appellant on November 10, 2004. 13. In 2007, however, the first respondent filed a suit in the Court of Additional District Judge, Delhi for setting aside the decree dated November 10, 2004. That suit is said to be pending. 14. The IPAB proceeded with the matter in light of the issues that were already framed by the High Court and heard the parties. The IPAB in the impugned order while dealing with the plea of limitation raised by the appellant held that the first respondent was the appropriate aggrieved party in the matter in view of the fresh cause of action having arisen to the first respondent on filing of Civil Suit No. 71 of 2001 by the appellant before the Madras High Court. The IPAB in the impugned order held that the trade mark Nos. 475269, 475267 and 484837 have not been used by the appellant for more than a period of five years and one month and the appellant also failed to make out that it had been in manufacturing or trading of the goods for which it had taken Registration Nos. 475269, 475267 and 484837. Consequently, the IPAB allowed the applications made by the first respondent purportedly under Section 46(1)(b) of the 1958 Act and directed the Registrar to remove these registrations from the register. 15. We heard Mr. Akhil Sibal, learned counsel for the appellant and Mr. Vaibhav Gaggar, learned counsel for the first respondent at quite some length. 16. Mr. Akhil Sibal, learned counsel for the appellant argued that an application for rectification, whether under Section 46 or Section 56 of the 1958 Act, can only be preferred by a `person aggrieved'; the applicant must not only be a person aggrieved on the date of the application but must continue to remain a person aggrieved until such time as the rectification application is finally decided. He contended that the first respondent is not shown to have ever traded or intended to trade in any goods covered by the appellant's registrations under Classes 7 and 16 and as such the first respondent is not a `person aggrieved' with regard to the appellant's registrations under these two classes. As regards Class 9 he would submit that in view of the affidavit filed by the first respondent on July 14, 2004 in the Court of Additional District Judge, Delhi the first respondent ceases to be an aggrieved person on the date of consideration of the rectification application. Learned counsel heavily relied upon two decisions of this Court: (1) Hardie Trading Ltd. & Anr. v. Addisons Paint & Chemicals Ltd.1 and (2) Kabushiki Kaisha Toshiba v. Tosiba Appliances Company & Ors.2. 17. Assailing the finding of the IPAB as regards non-use by the appellant during the relevant period, learned counsel for the appellant argued that the said finding was erroneous on legal as well as factual premise. He contended that the IPAB erred in holding that software was a `service' and the subject registrations were in relation to goods without considering the wide definition of `goods' provided under Section 2(g) of the 1958 Act. Mr. Akhil Sibal argued that the IPAB committed grave error in relying upon the provisions of the 1999 Act and the Trade Marks Rules, 2002 when these provisions were not applicable as the applications were filed under the 1958 Act. According to him, the IPAB sought to rely upon `computer programming' which is a `service' enumerated in Class 42, without considering the distinction between a `computer programme' and `computer programming' and without noticing the (2003) 11 SCC 92 (2008) 10 SCC 766 entry `computer' under Class 9 which falls within `goods'. Learned counsel would submit that in examining the question of non-use under Section 46(1)(b), the IPAB failed to consider that the requisite use must be `in relation to goods' under registration, which is extensively defined under Section 2(2)(b) of the 1958 Act. 18. Mr. Akhil Sibal, learned counsel also argued that the IPAB failed to have regard to the proviso to Section 46(1), in terms of which it is open to the registered proprietor to rely upon use of the registered trade mark during the relevant period in relation to `goods of the same description', in order to resist an application for rectification. He contended that the IPAB failed to apply proper legal tests for determining `goods of the same description' and had that been done it would be evident that `computer software' amounts to `goods of the same description' as `computer hardware'. In this regard, he relied upon M/s. Eagle Potteries Private Ltd. v. M/s. Eagle Flask Industries Pvt. Ltd.3; Lever Brothers, Port Sunlight Ld. v. Sunniwite Products Ld.4; The Ritz Hotel v. Charles of the Ritz5 and Australian Wine Importers' Trade Mark6. AIR 1993 Bombay 185 (1949) 66 RPC 84 (1989) RPC 333 (1889) 6 RPC 311 19. Learned counsel for the appellant also submitted that in any view of the matter, the IPAB erred in exercising its discretion under Section 46 of the 1958 Act without taking into consideration the aspect of public interest. He argued that the IPAB ought to have considered whether use of mark `Infosys' by the first respondent on computer hardware would create confusion in the mind of the consumers that they might be led to believe that the said hardware is manufactured by the appellant. Learned counsel, thus, submitted that the impugned order is unsustainable and liable to be set aside. 20. On the other hand, an objection is raised in the written submissions on behalf of the first respondent -- and reference was made in support of the objection to seven Judge Bench decision of this Court in L. Chandrakumar v. Union of India & Ors.7 -- that challenge to the order of IPAB directly in the appeal before this Court under Article 136 of the Constitution is barred. 21. In reply to the arguments of learned counsel for the appellant, Mr. Vaibhav Gaggar, learned counsel for the first respondent strenuously urged that the plea of `aggrieved person' is a new plea and raised substantially for the first time before this Court. He argued that the appellant has not taken the plea of the first (1997) 3 SCC 261 respondent not being a `person aggrieved' with respect to filing of the applications for rectification before the IPAB; merely urging the plea that the first respondent has no locus standi in the written submissions before the IPAB is not sufficient. Learned counsel would submit that the appellant has, for the first time, argued before this Court that the first respondent is not a person aggrieved and/or not capable of maintaining the rectification proceedings with respect to each and every good for which the appellant has been registered since the first respondent has not been registered for all the goods. Mr. Vaibhav Gaggar rather asserted that the first respondent is a person aggrieved in view of the fact that various suits for infringement have been filed by the appellant against the first respondent and on the date of the applications for rectification/removal of the subject registrations from the register, the suits were pending. With reference to the affidavit dated July 14, 2004 filed by the first respondent before the Court of Additional District Judge, he submitted that the said affidavit has no relevance in consideration as to whether the first respondent is an aggrieved person as Section 46 (1) of the 1958 Act relates only to the period upto the date of the filing of the rectification application and the rights of the parties crystallized at that stage itself. In this regard, he relied upon a decision of the Madras High Court in Agha Hyder Hussain & Anr. v. Omar Khayyam Wineries (Pvt.) Ltd. & Anr.8 He also placed reliance upon some more decisions viz; Ritz Hotel Ltd.5, Philosophy Di Alberta Ferretti9 ; Keystone Knitting Mills Trade Mark10 and Motor Terms Company Pty. Limited. v. Liberty Insurance Ltd.11. Learned counsel for the first respondent further submitted that the affidavit dated July 14, 2004 was not placed by the appellant before the IPAB nor any reference of the said affidavit has been made in the written submissions before the IPAB and the appellant also did not make any effort to amend the pleadings that the first respondent was not an aggrieved person. It was contended by Mr. Vaibhav Gaggar that even otherwise in view of the fraud perpetrated by the appellant qua the registrations in question, the issue as to whether the first respondent had a dispute with the trade mark or not pales into insignificance as the primary duty of the court is to maintain the `purity of the register'. He argued that in a case such as the present one since the allegations against the appellant relate to trafficking, AIR 1977 Mad 166 2003 R.P.C. 15 1929 (1) Ch.D. 92 1967 116 C.L.R. 177 squatting and non-user, the scope of `person aggrieved' has to be enlarged. Learned counsel submitted that the fact that the appellant continues to allege - and that stance has not changed in the pleadings in SLP as well--that the first respondent is an infringer, pilfriger, defrauder, someone who wants to ride on the goodwill of the appellant or someone who wants to mislead the public at large, there is no question of the first respondent ceasing to be a person aggrieved at any stage. 22. Mr. Vaibhav Gaggar, learned counsel for the first respondent contended that the appellant is registered as a `manufacturer and trader' under Classes 7, 9 and 16 even though, it is a company engaged in software only. Moreover, there is nothing on record to indicate linkage with the manufacturing or marketing of the goods for which the appellant is holding registration of subject trade marks. He vehemently contended that goods in Classes 7, 9 and 16 for which the appellant obtained registration were never used in the manner contemplated by the 1958 Act for almost 30 years and that would show the mala fide intention of the appellant in having the same registered for the purpose of squatting and trafficking. 23. Learned counsel for the first respondent further argued that `Infosys' is not an invented or a coined word; the said word is an abbreviation and combination of the words `information system'; the word `Infosys' has been used by various companies abroad as well as within India prior to incorporation of the appellant itself and hence cannot be called an invented word. In this regard, he relied upon a decision of the Madras High Court in Nestle's Products (India) Ltd. v. P. Thankaraja & Anr.12. He submitted that appellant is primarily in service industry which is unregistrable under the 1958 Act and since the appellant is not trading in the goods in respect of which it is registered, it cannot be said that the mark of the appellant is distinctive of its goods. In any case, learned counsel would submit that the expression `Infosys' is not descriptive expression. 24. Insofar as discretion exercised by IPAB in ordering removal of the appellant's registrations from the register under Section 46(1)(b) of the 1958 Act is concerned, learned counsel for the first respondent submitted that this Court should not overturn the discretion so exercised by the IPAB keeping in view the dishonest and fraudulent conduct of the appellant. Lastly, he submitted that although no cross objections or cross appeal has been filed, the first AIR 1978 Mad 336 respondent has some grievance with regard to the order of the IPAB in not considering the case set up in the rectification/removal applications particularly with regard to Section 56 of the 1958 Act. 25. Having regard to the order that we intend to make, we are not persuaded to accept the objection raised on behalf of the first respondent that present appeal preferred directly before this Court from the impugned order passed by the IPAB is not maintainable and must be dismissed as such. Pertinently, the notice was issued in the petitions for special leave to appeal to the respondents on November 1, 2004. In response to the said notice the first respondent filed counter affidavit before this Court on March 11, 2005 wherein no specific objection about invocation of jurisdiction of this Court directly has been taken. In the counter affidavit a very vague objection in the following terms was raised: \"that the present petition apart from being false and misconceived lacks the necessary jurisdiction, hence deserves outright rejection.\" We are afraid, this is hardly an objection about maintainability. Apart from it, on September 12, 2005 after hearing both parties, special leave was granted by this Court. In the backdrop of these peculiar facts, in our view, it is not appropriate to relegate the appellant at this distance of time to challenge the impugned order passed by the IPAB in writ petition before the High Court. The objection about maintainability of the appeals is, accordingly, overruled. 26. The moot question which has been debated before us is whether or not, the first respondent is an aggrieved person. That the first respondent filed composite applications under Sections 46 and 56 of the 1958 Act for rectification/removal of the trade mark `Infosys' registered in Classes 7, 9 and 16 is not in dispute. Sections 46 and 56 read as follows : \"S. 46. Removal from register and imposition of limitations on ground of non-use.--(1) Subject to the provisions of section 47, a registered trade mark may be taken off the register in respect of any of the goods in respect of which it is registered on application made in the prescribed manner to a High Court or to the Registrar by any person aggrieved on the ground either-- (a) that the trade mark was registered without any bona fide intention on the part of the applicant for registration that it should be used in relation to those goods by him or, in a case to which the provisions of section 45 apply, by the company concerned, and that there has, in fact, been no bona fide use of the trade mark in relation to those goods by any proprietor thereof for the time being up to a date one month before the date of the application; or (b) that up to a date one month before the date of the application, a continuous period of five years or longer had elapsed during which the trade mark was registered and during which there was no bona fide use thereof in relation to those goods by any proprietor thereof for the time being: Provided that, except where the applicant has been permitted under sub-section (3) of section 12 to register an identical or nearly resembling trade mark in respect of the goods in question or where the tribunal is of opinion that he might properly be permitted so to register such a trade mark, the tribunal may refuse an application under clause (a) or clause (b) in relation to any goods, if it is shown that there has been, before the relevant date or during the relevant period, as the case may be, bona fide use of the trade mark by any proprietor thereof for the time being in relation to goods of the same description, being goods in respect of which the trade mark is registered. (2) Where in relation to any goods in respect of which a trade mark is registered-- (a) the circumstances referred to in clause (1) of sub- section (1) are shown to exist so far as regards non- use of the trade mark in relation to goods to be sold, or otherwise traded in, in a particular place in India (otherwise than for export from India), or in relation to goods to be exported to a particular market outside India; and (b) a person has been permitted under sub- section (3) of section 12 to register an identical or nearly resembling trade mark in respect of those goods under a registration extending to use in relation to goods to be so sold, or otherwise traded in, or in relation to goods to be so exported, or the tribunal is of opinion that he might properly be permitted so to register such a trade mark, on application by that person in the prescribed manner to a High Court or to the Registrar, the tribunal may impose on the registration of the first-mentioned trade mark such limitations as it thinks proper for securing that that registration shall cease to extend to such use. (3) An applicant shall not be entitled to rely for the purpose of clause (b) of sub-section (1) or for the purposes of sub-section (2) on any non-use of a trade mark which is shown to have been due to special circumstances in the trade and not to any intention to abandon or not to use the trade mark in relation to the goods to which the application relates.\" \"S. 56. Power to cancel or vary registration and to rectify the register.--(1) On application made in the prescribed manner to a High Court or to the Registrar by any person aggrieved, the tribunal may make such order as it may think fit for cancelling or varying the registration of a trade mark on the ground of any contravention, or failure to observe a condition entered on the register in relation thereto. (2) Any person aggrieved by the absence or omission from the register of any entry, or by any entry made in the register without sufficient cause, or by any entry wrongly remaining on the register, or by any error or defect in any entry in the register, may apply in the prescribed manner to a High Court or to the Registrar, and the tribunal may make such order for making, expunging or varying the entry as it may think fit. (3) The tribunal may in any proceeding under this section decide any question that may be necessary or expedient to decide in connection with the rectification of the register. (4) The tribunal, of its own motion, may, after giving notice in the prescribed manner to the parties concerned and after giving them an opportunity of being heard, make any order referred to in sub-section (1) or sub-section (2). (5) Any order of the High Court rectifying the register shall direct that notice of the rectification shall be served upon the Registrar in the prescribed manner who shall upon receipt of such notice rectify the register accordingly. (6) The power to rectify the register conferred by this section shall include the power to remove a trade mark registered in Part A of the register to Part B of the register.\" 27. The position that emerges from the above provisions is this. Whether the application is under Section 46 or under Section 56 or a composite application under both Sections, it is a pre-requisite that the applicant must be a person aggrieved. Section 46(1) of the 1958 Act enables any person aggrieved to apply for removal of registered trade mark from the register on the ground of non use as stated in Clause (a) and/or Clause (b). To be an aggrieved person under Section 46, he must be one whose interest is affected in some possible way; it must not be a fanciful suggestion of grievance. A likelihood of some injury or damage to the applicant by such trade mark remaining on the register may meet the test of locus standi. In Kerly's Law of Trade Marks and Trade Names (11th edition) at page 166, the legal position with regard to `person aggrieved' has been summarized thus : The persons who are aggrieved are all persons who are in some way or the other substantially interested in having the mark removed - where it is a question of removal - from the register; including all persons who would be substantially damaged if the mark remained, and all trade rivals over whom an advantage was gained by a trader who was getting the benefit of a registered trade mark to which he was not entitled. We accept the above statement of law. 28. Insofar as Section 56 is concerned, it provides for varying situations in which the person aggrieved may apply for rectification of the registered trade mark from the register. Although both Sections, namely, Sections 46 and 56 require `person aggrieved' to apply for removal of the registered trade mark from the register or rectification of a trade mark in the register, the expression `person aggrieved' for the purposes of these two Sections has different connotations. The interpretation of the expression `person aggrieved' occurring in Sections 46 and 56 has come up for consideration before this Court on more than one occasion. In Hardie Trading Ltd.1, this Court stated as follows: \"30. The phrase \"person aggrieved\" is a common enough statutory precondition for a valid complaint or appeal. The phrase has been variously construed depending on the context in which it occurs. Three sections viz. Sections 46, 56 and 69 of the Act contain the phrase. Section 46 deals with the removal of a registered trade mark from the Register on the ground of non-use. This section presupposes that the registration which was validly made is liable to be taken off by subsequent non-user. Section 56 on the other hand deals with situations where the initial registration should not have been or was incorrectly made. The situations covered by this section include: (a) the contravention or failure to observe a condition for registration; (b) the absence of an entry; (c) an entry made without sufficient cause; (d) a wrong entry; and (e) any error or defect in the entry. Such type of actions are commenced for the \"purity of the Register\" which it is in public interest to maintain. Applications under Sections 46 and 56 may be made to the Registrar who is competent to grant the relief. \"Persons aggrieved\" may also apply for cancellation or varying an entry in the Register relating to a certification trade mark to the Central Government in certain circumstances. Since we are not concerned with a certification trade mark, the process for registration of which is entirely different, we may exclude the interpretation of the phrase \"person aggrieved\" occurring in Section 69 from consideration for the purposes of this judgment. 31. In our opinion the phrase \"person aggrieved\" for the purposes of removal on the ground of non-use under Section 46 has a different connotation from the phrase used in Section 56 for cancelling or expunging or varying an entry wrongly made or remaining in the Register. 32. In the latter case the locus standi would be ascertained liberally, since it would not only be against the interest of other persons carrying on the same trade but also in the interest of the public to have such wrongful entry removed. It was in this sense that the House of Lords defined \"person aggrieved\" in the matter of Powell's Trade Mark: \"... although they were no doubt inserted to prevent officious interference by those who had no interest at all in the register being correct, and to exclude a mere common informer, it is undoubtedly of public interest that they should not be unduly limited, inasmuch as it is a public mischief that there should remain upon the register a mark which ought not to be there, and by which many persons may be affected, who, nevertheless, would not be willing to enter upon the risk and expense of litigation. Whenever it can be shown, as here, that the applicant is in the same trade as the person who has registered the trade mark, and wherever the trade mark, if remaining on the register, would, or might, limit the legal rights of the applicant, so that by reason of the existence of the entry on the register he could not lawfully do that which, but for the existence of the mark upon the register, he could lawfully do, it appears to me he has a locus standi to be heard as a person aggrieved.\" 33. But if the ground for rectification is merely based on non- user i.e. under Section 46 of the Act, that is not really on account of any public mischief by way of an incorrect entry. The non-user does not by itself render the entry incorrect but it gives a right to a person whose interest is affected to apply for its removal. An applicant must therefore show that \"in some possible way he may be damaged or injured if the trade mark is allowed to stand; and by `possible' I mean possible in a practical sense, and not merely in a fantastic view.... All cases of this kind, where the original registration is not illegal or improper, ought to be considered as questions of common sense, to a certain extent, at any rate; and I think the applicants ought to show something approaching a sufficient or proper reason for applying to have the trade mark expunged. It certainly is not sufficient reason that they are at loggerheads with the respondents or desire in some way to injure them\". 34. Addisons' application was one under Section 46 and the test to determine whether the applicant was a \"person aggrieved\" within the meaning of that section should have been the one laid down by Romer, J. in Wright case and not the one propounded by the House of Lords in the matter of Powell's Trade Mark. The High Court and the Joint Registrar fell into error in not drawing this distinction. However, it is not necessary to dilate on this aspect of the matter as the appellant has really argued on the second and third aspects of Section 46 viz. the alleged non-use of the trade marks by Hardie and special circumstances\". 29. In the case of Hardie Trading Ltd.1, this Court approved the test applied by Romer, J. in The Royal Baking Powder Company v. Wright, Crossley, and Co.13, which has been reproduced in para 33 of the report. We respectfully agree. 30. Hardie Trading Ltd.1 has been followed by this Court in a recent decision in the case of Kabushiki Kaisha Toshiba2. This Court (1898) 15 RPC 677 stated that Section 46 speaks for private interest while Section 56 speaks of a public interest. 31. It is true that the appellant in opposition to the applications for removal/rectification of trade mark did not specifically challenge in its counter affidavits the locus standi of the first respondent to be heard as a person aggrieved. Obviously, in the absence of any specific objection by the appellant to that effect, no specific issue was framed by the High Court whether the applicant was an aggrieved person. The applications having been transferred to the IPAB in terms of Section 100 of the 1999 Act, the IPAB examined the matter in light of the issues that were framed by the High Court although in the written submissions before it, the objection was raised that the first respondent has ceased to have locus standi in view of the subsequent events, particularly change of the name of the first respondent from Jupiter Infosys Ltd. to Jupiter International Ltd. The question is, whether in these circumstances it was incumbent upon the IPAB to consider and satisfy itself about the locus standi of the first respondent to be heard as a person aggrieved. In our considered view, it was. In the first place, when the first respondent applied for rectification/removal in respect of three registrations in Classes 7, 9 and 16, it must have shown in respect of each of them that it is a `person aggrieved' and the IPAB must have separately considered in respect of each registration the locus standi of the first respondent as the considerations for each entry might not have been common. Secondly, and more importantly, during the pendency of the applications, certain events had taken place which had some bearing on the question of locus standi of the first respondent insofar as invocation of Section 46 (1) of the 1958 Act is concerned. In the affidavit filed by the first respondent on July 14, 2004 before the Court of Additional District Judge, Delhi an unequivocal and categorical statement has been made that now there is no dispute between the plaintiff (appellant herein) and defendant (first respondent herein) under the Trade Mark and that defendant has already changed the Trade Mark namely \"Jupiter International Ltd.\" in place of \"Jupiter Infosys Ltd.\" 32. In terms of Section 46(1), not only that the applicant has to show that he is an aggrieved person as his interest is being affected but the IPAB must also be satisfied, before it directs the removal of registered trade mark, that the applicant is an aggrieved person before it invokes the power in directing the removal of the registered trade mark. This is so because the pre-requisite for exercise of power under Section 46(1) is that the applicant is a person aggrieved. 33. The question then arises, whether it is sufficient for the applicant to show that he is a person aggrieved when he makes his application or he must continue to remain a person aggrieved until such time as the rectification/removal application is finally decided. In our view, the grievance of the applicant when he invokes Section 46(1) must not only be taken to have existed on the date of making application but must continue to exist when such application is decided. If during the pendency of such application, the applicant's cause of complaint does not survive or his grievance does not subsist due to his own action or the applicant has waived his right or he has lost his interest for any other reason, there may not be any justification for rectification as the registered trade mark cannot be said to operate prejudicially to his interest. In re Apollinaris Company's Trade-Marks14, while dealing with this aspect, Kekemich,J. stated : \".....because that is a remedy given to the person aggrieved through the interposition of the Court for the benefit of the (1891) 2 Ch. 186 applicant, and if at the date of the trial he has no cause of complaint it seems to be monstrous to suppose that the Court will rectify the register at his instance when it can do him no good to rectify, and when the retention on the register can do him no harm merely because at the date of his application he may have had some grievance.\" We concur with the above statement. 34. In the circumstances, we are satisfied that the applications made by the first respondent for rectification/removal of the subject trade marks from the register need to be considered afresh by the IPAB in accordance with law and the observations made above. Since the first respondent has also grievance in connection with the impugned order particularly with regard to non- consideration of its case under Section 56 of the 1958 Act, we refrain from going into the merits of the diverse contentions raised before us and leave the parties to agitate these contentions before the IPAB. 35. In view of the above, these appeals are allowed in part and the impugned order dated September 9, 2004 is set aside. The applications being TRA Nos. 25 to 27 of 2003 (OP Nos. 764 to 766 of 2001) are restored to the file of Intellectual Property Appellate Board, Chennai for hearing and disposal afresh in accordance with law. The parties shall bear their own costs. .................... J. (Aftab Alam) .................... J. (R.M. 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{"id": "1389243", "text": "REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 6690 OF 2008 [Arising out of S.L.P. (C) No.21315 of 2006] Mukul Saikia & Ors. ..... Appellants Versus State of Assam & Ors. ..... Respondents JUDGMENT Lokeshwar Singh Panta, J. 1. Leave granted. 2. This appeal is directed against the common judgment and order dated 15.09.2006 passed by a Division Bench of the High Court of Gauhati, dismissing Writ Appeal Nos. 471/2003 and 08/2005 filed by the appellants herein against the common judgment and order dated 14.08.2003 of the learned Single Judge in WP (C) No. 2026/2001, WP (C) No.2036/2001 and WP (C) No.4932/2001 whereby the learned Single Judge has dismissed the said writ petitions. 3. Briefly stated the facts of the case are as follows:- The Assam Public Service Commission (hereinafter referred to as \"APSC\") had issued an advertisement dated 19.08.1997 for filling up 27 posts of Child Development Project Officer (hereinafter referred to as \"CDPOs\"), pursuant whereupon a selection process was held. Finally, a select list dated 17.07.2000 containing the names of 64 candidates far in excess of the notified vacancies was prepared and published by the APSC. The names of the appellants who are 13 in number before this Court appeared in the select list below 27 persons who were appointed on merit by the State Government. 4. The appellants filed two separate writ petitions before the High Court of Gauhati, inter alia, challenging the Cabinet Memorandum dated 16.06.2000 circulated by the Commissioner and Secretary, Government of Assam, Social Welfare Department under Rule 17 of the Assam Rules of Executive Business relating to the regularization of 18 CDPOs/ Probation Officers who were appointed under Regulation 3 (f) of the Assam Public Service Commission (Limitation of Function) Regulation, 1951 (for short \"Regulation 1951\") and praying for a direction to the State- respondent to appoint the appellants in the vacant/newly created posts of CDPOs/ Probation Officers. The appellants also challenged the policy decision taken by the State to regularize the services of the private respondents herein, who were initially appointed temporarily under Regulation 3 (f) of Regulation of 1951 and could not succeed in the selection process conducted by the APSC. The appellants contended before the High Court that giving benefit of regularization of service to the private respondents to the posts of CDPOs was contrary to the recruitment rules and the action of the State Government would amount to giving backdoor entry to the unsuccessful candidates into the State Services. 5. The stand of the respondent-State before the High Court was that 27 advertised vacant posts meant for direct recruitment quota, were filled up by the State Government on merits out of the select list prepared by the APSC dated 17.07.2000. The select list having thus exhausted, the appellants, whose names figured below the 27 selected candidates in the select list, therefore, could not claim to be appointed in excess of the advertised vacancies of CDPOs; and that if any future vacancies which arose after the publication of the advertisement, were to be filled up out of the left out candidates of the select list, the said appointment would amount to depriving other persons who, in the meantime, would have become eligible for selection and appointment. It was also submitted that as soon as the posts advertised were filled up or the validity of the select list expired, whichever event was earlier in point of time, the candidates whose names appeared in the select list could not thereafter claim appointment as the select list got exhausted. It was stated that the appellants have neither challenged the policy decision taken by the Government on the basis of the Cabinet decision nor the Notification issued pursuant thereto by the State Government regularising the service of 18 CDPOs/ Probation Officers. It was also stated that the decision to regularize 18 CDPOs, who were initially appointed under Regulation 3 (f) of Regulation, 1951, was taken by the State in view of the fact that they had already rendered more than four years of service satisfactorily and their continuation in service was necessary to implement the time-bound scheme of the Government of India for which ICDS Project was created in the State of Assam. It was categorically stated that 18 CDPOs were regularized by the State Government to the posts meant for promotees. 6. The stand of the private respondents-appointees was that 27 advertised vacancies were filled up by the State Government on the basis of merit list prepared by the APSC on 17.07.2000 and as soon as those vacancies were filled up against the direct quota, the select list got exhausted. They stated that the appellants could not, as a matter of right, claim that they shall be appointed against the unadvertised future vacancies, merely because their names are found in the select list prepared by APSC. The respondents-appointees submitted that since they were not regularized against the posts advertised by the APSC by means of advertisement dated 19.08.1997, the appellants could not claim that they should be appointed against those posts pursuant to their selection when 18 vacancies in the cadre of CDPOs were meant to be filled up by way of promotion. They submitted that the decision to regularize their services was taken by the State Government by giving relaxation as contemplated under Clause 11 of the Assam Social Welfare (Recruitment and Promotion) Service Order, 1994 (for short \"the Service Order, 1994) and the said decision in fact has not been challenged by the appellants/original writ petitioners either in the writ petitions or in the writ appeals filed by them before the High Court. 7. The learned Single Judge of the High Court dismissed the writ petitions of the appellants, inter alia, holding that no posts beyond 27 advertised vacancies could be filled up from the select list and the appellants had challenged only the Cabinet Memorandum dated 16.06.2000 without challenging the Cabinet decision taken on 13.10.2000 followed by the Notification dated 16.11.2000 issued by the State Government whereby the services of the private respondents came to be regularized. 8. Being aggrieved thereby, the appellants filed the above- said two writ appeals (being WP(C) 471/2003 and WP (C) 08/2005) which have been dismissed by the Division Bench by common judgment and order dated 15.09.2006. Now, all the appellants have preferred this single appeal challenging the impugned order of the High Court. 9. On notice issued by this Court, Shri Joydeep Shukla, Extra Assistant Commissioner, Government of Assam, has filed affidavit stating, inter alia, that the private respondents have rendered highly satisfactory and dedicated service in implementation of time-bound Integrated Child Development Scheme Projects (ICDS) ever since they joined the services and their retention in service would also be highly beneficial to the interest of the Project as well as the public at large. It is stated that at the relevant point of time, there were 18 vacant posts of CDPOs in the promotional category and another 10 additional vacancies meant for the promotees had also arisen thereby making a total number of 28 vacancies meant to be filled up by promoting departmental candidates as per the requirement of Service Order, 1994. It is stated that the private respondents submitted representations to the authorities praying for regularization of their services which was duly considered by the Department of Social Welfare, Government of Assam and taking into consideration the interest of ICDS Projects, it was decided that regular absorption of the private respondents against the promotional posts of CDPOs was in the best interest of the Projects which are funded by the Central Government in the State for the welfare of the general public. It is stated that a Cabinet Memorandum dated 16.06.2000 was circulated under Rule 17 of the Assam Rules of Executive Business, after obtaining the approval of the Personnel (B) Department of the State of Assam for regularizing the services of the private respondents in the exceptional circumstances of the matter against 28 available vacancies meant for promotees by invoking power of Rule 11 of the Service Order, 1994. On the basis of the Cabinet Memorandum dated 16.06.2000, a Cabinet decision was taken on 13.10.2000 granting approval of regularization of services of the respondents. The respondent-State also submitted that the appellants have not challenged the one- time policy decision taken by the Cabinet nor the Notification dated 16.11.2000 issued pursuant to the Cabinet decision regularizing the services of the private respondents have been challenged by the appellants before the learned Single Judge or the Division Bench of the High Court and the High Court has rightly dismissed the writ petition and appeals of the appellants, inter alia, on the grounds that the appellants have no enforceable right to get appointments to the posts of CDPOs against promotional quota merely because their names had figured in the select list prepared by the APSC against the direct quota. 10. The private respondents, in their counter affidavit filed before this Court have stated that total number of notified vacancies of CDPOs were only 27, yet a select list dated 17.07.2000 was published by the APSC wherein as many as 64 candidates were recommended. In order of merit, 27 selectees were appointed out of whom 17 were appointed in the general quota and 10 from the reserved category as per the rules. The names of the appellants appeared below 27 candidates who have been appointed; therefore, the appellants have no legal right to claim appointment against the excess quota of the advertised vacancies. The Secretary to the Government of Assam, Personnel (B) Department by circular bearing No. 98/4 dated 18.12.1998 had requested the APSC to recommend the candidates equal to the number of vacancies notified in the advertisement. The contesting respondents stated that in the year 1996-97, there were total number of 45 vacant posts of CDPOs and allied cadre in the Department of Social Welfare including the backlog vacancies and as per Service Order, 1994, 60 per cent of the vacancies are required to be filled up by way of direct recruitment and the remaining 40 per cent by means of promotion of suitable departmental candidates. Accordingly, only 27 (60 per cent) vacancies of CDPOs were available at the time of issuing the advertisement notice dated 19.08.1997 for which selection was made by the APSC and on the basis of merit, 27 vacancies were filled up by the State Government after complying with the provisions of the rules including the reservation in favour of SCs/STs/OBCs. The remaining 18 vacancies being 40 per cent of total 45 vacancies were to be filled up by eligible departmental candidates. In addition thereto, 10 more vacancies were also available to be filled up by way of promotion thereby making 28 total number of vacancies. The State Government regularized the services of private respondents against 18 vacancies in the cadre of CDPOs which were meant to be filled up by way of promotion from departmental candidates and as such, the appellants who had applied against direct quota have no legitimate right to be selected and appointed against promotees quota. 11. The private respondents also submitted that they have been regularized on the basis of the Cabinet decision dated 13.10.2000 and Notification dated 16.11.2000 in deference to Rule 11 of the Service Order, 1994. They submitted that there was an urgent need on the part of the Department to fill up all the vacant posts for the purpose of proper and effective implementation of the time-bound Projects of the State. It is stated that, in view of the long services rendered by the private respondents and having due regard to their past satisfactory performance and also the service record, they have been regularized against those promotional vacancies, purely in the interest of the public. It is also submitted that subsequently by Notification No. 59 PSC/DR-41/1/2005-06 dated 20.04.2006, the APSC has also conveyed its approval to the regularization of the respondents' services. They have stated that the procedure for regularization of the respondents' services was a one-time measure adopted by the State Government in the special circumstances and their regularization has not, in any manner, caused any prejudice to the interest of the appellants. The respondents also stated that the appellants have not challenged the Cabinet Decision dated 13.10.2000 and subsequent Notification dated 16.11.2000 issued by the State Government in the writ petitions filed by them nor they have challenged the same before the Division Bench of the High Court. In that view of the matter, the private respondents submitted that the appellants had no locus standi to file the writ petitions under Article 226 of the Constitution of India. 12. We have heard learned counsel for the parties. Mr. A.K. Ganguly, learned senior counsel appearing for the appellants, submitted that the private respondents were appointed in the year 1995-96 only for four months on ad hoc basis in terms of Regulation 3(f) of Regulation 1951, or till regular appointments in accordance with the preference and recommendations were made by the APSC under the Service Order, 1994, as such their continuance on ad hoc basis was de hors the rules and they are illegally regularized on 16.11.2000 after they have put in barely four years of service. He submitted that in identical cases, namely, Pranjit Kumar Das v. State of Assam & Ors. (1995) 1 GLR 229 and Dr. Anoop Kumar Das v. Dr. Sanjib Kakati & Ors. (2000) 2 GLR 479, the Gauhati High Court has held that any appointment under Regulation 3 (f) of Regulation 1951 is ad hoc in nature and de hors the rules, and therefore, could not be sustained. He submitted that the Cabinet decision in regard to the regularization of the private respondents was in disregard to the binding law as laid down in the above cited decisions. He submitted that the appellants who were duly selected by the APSC could have been appointed against the vacancies which subsequently arose in excess of 27 advertised posts. In support of this submission, reliance is placed on decisions in Virender Singh Hooda v. State of Haryana and Anr. [1999 (3) SCC 696], Suvidya Yadav & Ors. v. State of Haryana & Ors. [(2002) 10 SCC 299] and Sandeep Singh v. State of Haryana & Anr. [2002 (10) SCC 549]. Lastly, it was contended that the regularization of the service of private respondents to the posts of CDPOs after they remained unsuccessful in the test held by the APSC is in violation of Articles 14 and 16 of the Constitution of India as well as in derogation of the law laid down by a Constitution Bench of this Court in Secretary, State of Karnataka and Ors v. Uma Devi & Ors. [(2006) 4 SCC 1]. 13. While refuting the submissions of the appellants, Mr. P.P. Rao, learned senior counsel for the State, on the other hand, submitted that the posts in which the private respondents were regularized were promotional posts to be filled up by promotion from amongst the persons who have rendered 10 years' continuous service in the feeder cadre and the appellants cannot have any claim to be considered for appointment against promotional quota. He submitted that all the 27 advertised posts have been filled up on the basis of the select list prepared by the APSC and the appellants cannot have any right to claim appointment against the anticipated vacancies which were never advertised and they have a right to be considered along with other eligible candidates as and when posts are advertised for direct recruitment. He then contended that when the regularization of the private respondents took place in the year 2000, the law declared by this Court in State of Haryana v. Piara Singh [(1992) 4 SCC 118], was holding the field, which required the State Government to regularize the services of ad hoc employees who have put in a few years of continuous service. He submitted that the law laid down by a Constitution Bench of this Court in Secretary, State of Karnataka's case (supra) relied upon by the appellants in support of their case will be of no help and assistance to the appellants as in the said decision, this Court has clarified that the regularization, if any, already made, but not sub judice, need not be re-opened on the basis of the judgment. 14. Mr. P.S. Patwalia, learned senior counsel, appearing on behalf of the private respondents in addition to the submission of Mr. P.P. Rao, learned senior counsel, submitted that the appellants have no right that can be enforced in the present proceedings, particularly, in view of the fact that admittedly their names appeared in the select list dated 17.07.2000 below the persons who have been appointed against the 27 vacancies. He submitted that the Rules applicable to the present case do not permit inclusion of more number of candidates in the select list in excess of the notified vacancies. In support of this submission, reference is made to the decisions of this Court in Madan Lal v. State of J & K & Ors. [(1995) 3 SCC 486], Shri Kant Tripathy & Ors. v. State of U.P. & Ors. [(2001) 10 SCC 237], State of U.P. & Ors. v. Raj Kumar Sharma & Ors. [(2006) 3 SCC 330] and Prem Singh v. Haryana State Electricity Board [1996 (4) SCC 319]. He submitted that the appellants have no locus standi to file the writ petition under Article 226 of the Constitution of India before the High Court as the private respondents would stand on a completely different footing as compared to the appellants. It was also submitted that the decision to regularize the services of the private respondents was taken by the Cabinet in its meeting dated 13.10.2000 pursuant whereupon separate Notification dated 16.11.2000 was issued by the State Government regularizing their services in deference to Rule 11 of Service Order, 1994 by relaxing the rules. It was then contended that the Cabinet decision as well as the subsequent Notification of the State Government have not been challenged in the writ proceedings, the High Court has rightly dismissed the writ petition and the appeals of the appellants. 15. At the outset it should be noticed that the select list prepared by APSC could be used to fill the notified vacancies and not future vacancies. If the requisition and advertisement was only for 27 posts, the State cannot appoint more than the number of posts advertised, even though APSC had prepared a select list of 64 candidates. The selection list got exhausted when all the 27 posts were filled. Thereafter, the candidates below the 27 appointed candidates have no right to claim appointment to any vacancy in regard to which selection was not held. The fact that evidently and admittedly the names of the appellants appeared in the select list dated 17.07.2000 below the persons who have been appointed on merit against the said 27 vacancies, and as such they could not have been appointed in excess of the number of posts advertised as the currency of select list had expired as soon as the number of posts advertised are filled up, therefore, appointments beyond the number of posts advertised would amount to filling up future vacancies meant for direct candidates in violation of quota rules. Therefore, the appellants are not entitled to claim any relief for themselves. The question that remains for consideration is whether there is any ground for challenging the regularization of the private respondents. 16. At the time of issuing the advertisement dated 19.08.1997, the total number of vacancies available in the cadre of CDPOs in the year 1996-97 was 45 out of which 27 vacancies, being 60 per cent of the total number of vacancies were available for being filled up by way of direct recruitment as per Service Order, 1994. The Joint Secretary, Personnel (B) Department, circulated the Cabinet Memorandum under Rule 17 of the Assam Rules of Executive Business. It was made clear in the said Cabinet Memorandum that the private respondents could not pass the APSC written examination, but they have gathered sufficient experience under Social Welfare Department and the performance of the officers was also found satisfactory. It was stated that their services were not terminated and they were allowed to continue in their respective posts and in the interest of the public service, the State Government had decided to regularize their services and to absorb them under Social Welfare Department against posts held by them. The Commissioner and Secretary to the Government of Assam, Social Welfare Department on 16.06.2000, concurring with the proposal of Joint Secretary, Personnel (B) Department, as a special case sought the approval of the Cabinet for regularization of appointment of 18 CDPOs/Superintendents/ Home Probation Officers who were appointed in terms of Regulation 3 (f) of APSC and in accordance with the method as provided in Clause 5(c) by invoking discretion of relaxation under Clause 11 of Service Order, 1994. The Cabinet in the meeting held on 13.10.2000, decided to regularize the services of the private respondents in the special circumstances that they have been working against the posts of CDPOs for the last more than four years and their performance was found satisfactory and their continuity in the existing posts was also needed for effective implementation of the time-bound scheme of the Government of India for which ICDS Projects were provided in the State of Assam. Pursuant to the Cabinet decision, Notification No. SWD 34/99/104 dated 16.11.2000 was issued by the Commissioner and Secretary to the Government of Assam, Social Welfare Department by which the services of the appellants were ordered to be regularized with effect from the date of their joining the Social Welfare Department. Indisputably, the appellants have challenged only the Cabinet Memorandum dated 16.06.2000 in the writ petition before the High Court while the Cabinet decision dated 13.10.2000 was taken on the basis of the said Memorandum and the subsequent Notification regularizing the services of the appellants issued by the State Government on 16.11.2000 had remained unchallenged. The Cabinet took the decision dated 13.10.2000 in exercise of the powers under Rule 17 of the Assam Executive Business Rules which was subsequently notified by the State Government on 16.11.2000 as a one-time measure to regularize the services of the private respondents. It appears that the appellants were not serious in regard to challenging the regularization of the private respondents but were only interested in pursuing their own claim for appointment as CDPOs against the vacancies reserved for direct quota. In the circumstances and the facts of the present case, the appellant cannot maintain any claim whatsoever in respect of the 18 vacancies of CDPOs against which the private respondents were regularized. The appellants and the private respondents stand on a completely different footing. The services of the private respondents have been regularized against the vacancies meant for promotees and the source of legal right of the appellants and the private respondents being from two different and distinct sources, their relative rights cannot be compared with each other and, therefore, there cannot be any violation of fundamental rights under Article 14 of the Constitution of India as a consequence of the regularization of the services of the respondents. 17. We have gone through the Service Order, 1994 issued by the Government of Assam, Social Welfare Department dated 01.08.1994. Clause 3 of the Service Order classifies the class and cadre of the services. The post of Child Development Project Officer is in Class II cadre. Clause 5 thereof envisages method of recruitment and promotion. The relevant portion of Clause 5 reads as under:- \"5 Recruitment to the Cadre of the service shall be made in the following manners:- (a) xxx xxx xxx (b) xxx xxx xxx (c) In the order of District SWO/ CDPO/ Special Home/ Principal Balbhawan VTRC/ Probationary Officer/ PWO/ Liaison Officer/ Vice Principal, Jorhat, Blind Institute. The posts shall be filled up by direct recruitment through the Commission as per norms fixed jointly with Ministry of Welfare, Government of India by the Social Welfare Department.\" Clause 11 of the Service Order deals with relaxation. It reads:- \"Where the Governor is satisfied that the operation of any of the provisions of these orders has caused undue hardship in any particular case, he may dispense with or relax the requirement of that provision to such extent and subject to such condition as he may consider necessary for dealing with the case in a just and equitable manner. Provided that the case of any Government servant shall not be dealt with in any manner, less favourable to him than that provided in these orders.\" 18. Annexure-1 attached to Service Order, 1994 contains class of posts, cadre of posts, cadre strength, scale of pay and qualifications & experience for the service. At serial No. 3, in Class II the total cadre strength of CDPOs has been shown as 68 in the pay scale of Rs.1635-3950/-. Column 6 of Annexure I prescribes that 40 per cent of the posts of CDPOs have to be filled up by promotion from amongst the persons who have rendered 10 years of continuous service in the cadre of ACDPOs/Assistant Superintendent Homes and Allied Cadre and 60 per cent by direct recruitment. The private respondents, no doubt, were appointed on ad hoc basis and admittedly they have not completed 10 years of continuous service in the cadre of ACDPOs, but the State of Assam, with the approval of the Cabinet, decided to regularize the services of the appellants as a special case by giving relaxation under para 11 of the Service Order. Therefore, the decision of the Cabinet pursuant whereof the State Government issued Notification cannot be held to be arbitrary and irrational. The appellants fall in different categories and they have no enforceable right to challenge the regularization of the private respondents who have been regularized against the vacancies meant for promotional quota. In their writ petition, they have prayed for their appointment because their names were included in the select list by the APSC against the direct quota. The State Government appointed 27 persons in order of merits out of the select list prepared by the APSC, as such the appellants being selectees cannot claim appointment as a matter of right in excess to the advertised vacancies. It is well settled law that filling up of the vacancies over and above the number of vacancies advertised would be violative of Articles 14 and 16 of the Constitution of India. Mere inclusion of the appellants in the select list of the direct appointees does not confer any right on them to be appointed against the vacancies reserved for promotees. The decision of the Cabinet and the Notification issued by the State Government pursuant thereto in our view, are both in consonance and in conformity with Clause 11 of the Service Order to save the services of the private respondents from being thrown out of the job which otherwise would cause extreme hardship and injury to them and to the members of their families. 19. In the facts and circumstances of the present case, we find that the High Court has rightly held that the appellants do not have any enforceable right of being appointed to the post of CDPOs against the quota meant for promotees and more particularly against the decision of the State Government regularizing the services of the private respondents. The Cabinet decision was taken as a one-time measure having regard to the special circumstances of the case, the satisfactory performance rendered by the private respondents and their past service record which was found to be unblemished by the Government as well as in the exigencies of the Scheme of the Central Government which were to be operationalised in a time-bound manner and also keeping public interest in mind. In these circumstances, the High Court is right in holding that the appellants have no locus standi to challenge the regulation of private respondents against the vacancies meant for the promotional quota the appellants who appeared in the interview held by APSC as direct candidates could not have any grievance against their regularization against 40 per cent promotional posts. 20. In the backdrop of the above stated facts and the relevant provisions of rules, we do not find any error or infirmity in the impugned judgment and order passed by the High Court which would warrant any interference by this Court in this appeal. None of the contentions raised by the appellants merits acceptance. The law laid down by the Constitution Bench of this Court in Uma Devi's case (supra) in the present set of facts and circumstances will be of no help and assistance to the appellants. The decision of the Gauhati High Court in the cases cited at Bar by the learned senior counsel for the appellants will turn on the facts and circumstances of the said cases and the ratio laid down therein cannot be made binding on the peculiar facts of the present case. 21. For the above-stated reasons, the appeal fails and it is accordingly, dismissed. In the facts and circumstances, the parties are left to bear their own costs. ........................................J. (R. V. Raveendran) ........................................J. 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{"id": "118956979", "text": "REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL Nos. 843-844 OF 2021 (Arising out of SLP (C) No. 1531-32/ 2021) BHARAT SANCHAR NIGAM LTD. & ANR. \u2026APPELLANTS Versus M/S NORTEL NETWORKS INDIA PVT. LTD. \u2026RESPONDENT J U D G M E N T INDU MALHOTRA, J. Leave granted. 1. The present Appeals raise two important issues for our consideration : (i) the period of limitation for filing an application under Section 11 of the Arbitration and Conciliation Act, 1996 (\u201cthe 1996 Act\u201d); and (ii) whether the Court may refuse to make the reference under Section 11 where the claims are ex facie time-barred? 2. (a) The factual matrix in which the present issues have arisen for our consideration is the issuance of a tender notification by the Appellant- Company [hereinafter referred to as \u201cBSNL\u201d] inviting bids for planning, engineering, supply, insulation, testing and commissioning of GSM based cellular mobile network in the southern region covering the Kerala, Karnataka, Tamil Nadu, Andhra Pradesh Circles, and the Chennai telephone district. In Signature Not Verified Digitally signed by Nidhi Ahuja Date: 2021.03.10 the tender process, the Respondent-Company [hereinafter referred to as 11:17:39 IST Reason: \u201cNortel\u201d] was awarded the purchase order. On completion of the Works under the purchase order, BSNL deducted / withheld an amount of Rs.99,70,93,031 towards liquidated damages and other levies. (b) Nortel vide communication dated 13.05.2014 raised a claim for payment of the said amount. BSNL vide letter dated 04.08.2014 rejected the claim of Nortel. (c) After a period of over 5 \u00bd years, Nortel vide letter dated 29.04.2020 invoked the arbitration clause, and requested for appointment of an independent arbitrator, wherein it was contended that the dispute of withholding the aforesaid amounts, would fall within the ambit of arbitrable disputes under the agreement. (d) BSNL vide reply dated 09.06.2020 contended that the request for appointment of an arbitrator could not be entertained, since the case had already been closed on 04.08.2014, and as per Section 43 of the 1996 Act, the notice invoking arbitration was time barred. (e) Nortel filed an application under Section 11 of the 1996 Act before the Kerala High Court for appointment of an arbitrator. The High Court vide Order dated 13.10.2020 referred the disputes to arbitration. (f) BSNL filed a review petition before the High Court, which was dismissed vide Order dated 14.01.2021. (g) The present Civil Appeal has been filed by BSNL to challenge the Orders dated 13.10.2020 and 14.01.2021 respectively. (h) This Court appointed Mr. Arvind Datar, Senior Advocate as Amicus Curiae to assist the Court on the legal issues which have arisen for consideration. 3. We have heard Mr. R.D. Agrawala, Senior Advocate for the Appellants, Mr. Neeraj Kumar Jain, Senior Advocate for the Respondent, and the learned Amicus Curiae, Mr. Arvind Datar, Senior Advocate. 4. Submissions on behalf of BSNL BSNL submitted that the cause of action for invoking arbitration arose on 04.08.2014 when the claim made by Nortel was rejected by making deductions from the Final Bill. It was contended that Nortel had slept over its alleged rights for over 5 \u00bd years, before issuing the notice of arbitration on 29.04.2020. From 04.08.2014 till 29.04.2020, Nortel did not take any action whatsoever. Consequently, the notice invoking arbitration had become legally stale, non-arbitrable and unenforceable. The High Court had erroneously proceeded on the premise of mere existence of a valid arbitration agreement, without considering that such an agreement was inextricably connected with the existence of a live dispute. Even though limitation was a mixed question of fact and law, and is ordinarily to be decided by the arbitral tribunal, in cases where the invocation of the arbitration agreement is ex facie time barred, the Court must reject the request for appointment of an arbitrator. The limitation for invoking arbitration, and seeking appointment of an arbitrator is at par with a civil action, and would be covered by Article 137 of the Schedule to the Limitation Act, 1963. An action taken by a claimant must necessarily fall within the statutory period of 3 years from the date on which the right to apply accrues. Section 11(6A) uses the phrase \u201cexamination of the existence of an arbitration agreement\u201d, which would imply that the power conferred upon the Court is not a formal exercise, but requires a certain degree of examination before making the reference. 5. Submissions on behalf of Nortel It was submitted that the amendment to Section 11 by the Arbitration and Conciliation (Amendment) Act, 2015 provides for a limited scope of enquiry at the pre-reference stage which is restricted only to the \u201cexistence\u201d of an arbitration agreement under sub-section (6A) of Section 11. In view of the doctrine of kompetenz-kompetenz, the objection with respect to the claims being allegedly time barred, could be decided by the arbitral tribunal. The High Court rightly limited the enquiry at the pre-reference stage to the \u201cexistence\u201d of the arbitration agreement. The distinction between the limitation for filing an application u/S. 11, and with respect to the underlying claims does not survive post the 2015 Amendment, since the role of the Court is only limited to examine the existence of the arbitration agreement between the parties. The starting point of limitation for initiating a proceeding under Section 11 is the expiry of 30 days\u2019 from the date of issuing notice of arbitration on 29.04.2020. The cause of action was, therefore, a continuing one. The High Court had rightly held that the issue of limitation must be decided by the arbitral tribunal. 6. Discussion on First issue The 1996 Act has been framed for expeditious resolution of disputes, and various provisions have been incorporated in the Act to ensure that the arbitral proceedings are conducted in a time-bound manner. Various time lines have been provided in the 1996 Act such as : (i) Section 8 provides that an application for reference of disputes to arbitration, shall be filed not later than submitting the first statement on the substance of the dispute; (ii) Section 9(2) provides that where a Court passes an order for any interim measure of protection, the arbitral proceedings shall be commenced within a period of 90 days\u2019 from the date of such order; (iii) Section 13 provides that where a challenge is made against an arbitrator, the same must be raised within 15 days\u2019 from the constitution of the tribunal, or after becoming aware of any circumstances mentioned in sub-section (3) of Section 12; (iv) Section 16 (2) provides that a plea that the tribunal does not have jurisdiction, shall be raised not later than the submission of the statement of defence; (v) Section 34(3) provides a maximum period of 120 days\u2019 after the receipt of the signed award, to file objections before the Court 1 7. The 1996 Act was amended by the Arbitration and Conciliation (Amendment) Act, 2015 to incorporate further provisions for expeditious disposal of arbitral proceedings : (i) Section 11 has been amended to insert sub-section (13) which provides that an application made either before the Supreme Court, or the High Court, or person or institution designated by such Court, shall be disposed of as expeditiously as possible, and an endeavour shall be made to dispose of the petition within a period of 60 days\u2019 from the date of service of the notice on the opposite party; (ii) Section 29A mandates that the arbitral proceedings must be completed within a period of 12 months from the date of completion of pleadings; (iii) Section 34 was amended to insert sub-section (6) which provides that an application under Section 34 shall be disposed of expeditiously within a period of 1 year from the date on which the notice of filing objections is served upon the other party. 1 Dakshin Haryana Bijli Vitran Nigam Ltd. v. M/s Navigant Technologies Pvt. Ltd., C.A. No. 791 / 2021 decided on 02.03.2021. Some of these provisions have been held to be mandatory, such as Sections 8 and 34(3); while others like Section 34(6) have been held to be directory2. 8. Contemporaneous with the 2015 amendments to the Arbitration Act 1996, the Commercial Courts Act, 2015 was enacted to provide for speedy disposal of high value commercial disputes, which provided for setting up Commercial Divisions or Commercial Appellate Division in High Courts, and Commercial Courts at the district level. Section 13 of the Commercial Courts Act provides that an appeal under Section 37 of the Arbitration Act, 1996 shall be filed before the Commercial Appellate Court or Commercial Appellate Division, as the case may be within a period of 60 days\u2019 from the date of judgment. Section 14 further provides that the Commercial Appellate Court or Commercial Appellate Division shall endeavour to decide the appeals within a period of 6 months\u2019 from the date of filing of such appeal. 9. To decide the issue of limitation for filing an application under Section 11, we must first examine whether the Arbitration Act, 1996 prescribes any period for the same. Section 11 does not prescribe any time period for filing an application under sub-section (6) for appointment of an arbitrator. Since there is no provision in the 1996 Act specifying the period of limitation for filing an application under Section 11, one would have to take recourse to the Limitation Act, 1963, as per Section 43 of the Arbitration Act, which provides that the Limitation Act shall apply to arbitrations, as it applies to proceedings in Court. \u201c43. \u2013 Limitations 2 State of Bihar & Ors. v. Bihar Rajya Bhumi Vikas Bank Samiti (2018) 9 SCC 472. (1) The Limitation Act, 1963 (36 of 1963) shall apply to arbitrations, as it applies to proceedings in Court.\u201d In Consolidated Engineering v. Principal Secretary, Irrigation,3 this Court held that : \u201c45. Learned counsel for the appellant contended that Section 43 of the AC Act makes applicable the provisions of the Limitation Act only to arbitrations, thereby expressing an intent to exclude the application to any proceedings relating to arbitration in a court. The contention of the appellant ignores and overlooks Section 29(2) of the Limitation Act and Section 43(1) of the AC Act. Sub-section (1) of Section 43 of the Act provides that the Limitation Act shall apply to arbitrations as it applies to proceedings in court. The purpose of Section 43 of the AC Act is not to make the Limitation Act inapplicable to proceedings before court, but on the other hand, make the Limitation Act applicable to arbitrations. As already noticed, the Limitation Act applies only to proceedings in court, and but for the express provision in Section 43, the Limitation Act would not have applied to arbitration, as arbitrators are private tribunals and not courts. Section 43 of the AC Act, apart from making the provisions of the Limitation Act, 1963 applicable to arbitrations, reiterates that the Limitation Act applies to proceedings in court. Therefore, the provisions of the Limitation Act, 1963 apply to all proceedings under the AC Act, both in court and in arbitration, except to the extent expressly excluded by the provisions of the AC Act.\u201d (emphasis supplied) 10. Since none of the Articles in the Schedule to the Limitation Act, 1963 provide a time period for filing an application for appointment of an arbitrator under Section 11, it would be covered by the residual provision Article 137 of the Limitation Act, 1963. Article 137 of the Limitation Act, 1963 provides : THIRD DIVISION \u2013 APPLICATIONS Description of application Period of Time from which period limitation begins to run 137. Any other application for which no Three years When the right to apply period of limitation is provided accrues elsewhere in this division 11. It is now fairly well-settled that the limitation for filing an application under Section 11 would arise upon the failure to make the appointment of the arbitrator within a period of 30 days\u2019 from issuance of the notice invoking arbitration. In other words, an application under Section 11 can be filed only after a notice of arbitration in respect of the particular claim(s) / dispute(s) to 3 (2008) 7 SCC 169. be referred to arbitration [as contemplated by Section 21 of the Act] is made, and there is failure to make the appointment. 12. The period of limitation for filing a petition seeking appointment of an arbitrator/s cannot be confused or conflated with the period of limitation applicable to the substantive claims made in the underlying commercial contract. The period of limitation for such claims is prescribed under various Articles of the Limitation Act, 1963. The limitation for deciding the underlying substantive disputes is necessarily distinct from that of filing an application for appointment of an arbitrator. This position was recognized even under Section 20 of the Arbitration Act 1940. Reference may be made to the judgment of this Court in C. Budhraja v. Chairman, Orissa Mining Corporation Ltd.4 wherein it was held that Section 37(3) of the 1940 Act provides that for the purpose of the Limitation Act, an arbitration is deemed to have commenced when one party to the arbitration agreement serves on the other party, a notice requiring the appointment of an arbitrator. Paragraph 26 of this judgment reads as follows : \u201c26. Section 37(3) of the Act provides that for the purpose of the Limitation Act, an arbitration is deemed to have been commenced when one party to the arbitration agreement serves on the other party thereto, a notice requiring the appointment of an arbitrator. Such a notice having been served on 4-6-1980, it has to be seen whether the claims were in time as on that date. If the claims were barred on 4-6-1980, it follows that the claims had to be rejected by the arbitrator on the ground that the claims were barred by limitation. The said period has nothing to do with the period of limitation for filing a petition under Section 8(2) of the Act. Insofar as a petition under Section 8(2) is concerned, the cause of action would arise when the other party fails to comply with the notice invoking arbitration. Therefore, the period of limitation for filing a petition under Section 8(2) seeking appointment of an arbitrator cannot be confused with the period of limitation for making a claim. The decisions of this Court in Major (Retd.) Inder Singh Rekhi v. DDA [(1988) 2 SCC 338] , Panchu Gopal Bose v. Board of Trustees for Port of Calcutta [(1993) 4 SCC 338] and Utkal Commercial Corpn. v. Central Coal Fields Ltd. [(1999) 2 SCC 571] also make this position clear.\u201d 4 (2008) 2 SCC 444. 13. Various High Courts have taken the view that Article 137 of the Limitation Act would be applicable to an application under Section 11 of the Arbitration Act. The question of the applicability of Article 137 to applications under Section 11 of the 1996 Act came up for consideration before the Bombay High Court in Leaf Biotech v. Municipal Corporation Nashik5 wherein it was held that the period of limitation for an application u/S. 11 would be governed by Article 137 of the Limitation Act. Subsequently, in Deepdharshan Builders Pvt. Ltd. v. Saroj6 the Bombay High Court framed the following issue : \u201c(ii) Whether Article 137 of the Schedule to the Limitation Act, 1963 would apply to the arbitration application filed under Section 11(6) of the Arbitration Act and if applies whether Section 5 of the Limitation Act, 1963 would be applicable to this arbitration application and if Section 5 applies to this arbitration application, whether the applicant has made out a sufficient cause for condonation of delay in filing this arbitration application?\u201d The Bombay High Court held that : \u201c42. In my view, since the proceedings under Section 11(6) of the Arbitration Act are required to be filed before the High Court, Article 137 of the Schedule to the Limitation Act, 1963 would apply to such application filed under Section 11(6) of the Arbitration Act. In my view, since Article 137 of the Schedule to the Limitation Act, 1963 would apply to the arbitration application under Section 11(6) of the Arbitration Act, Section 5 of the Limitation Act, 1963 would also apply to the arbitration application filed under Section 11(6) of Arbitration Act 46. It is not in dispute that under Section 20 of the Arbitration Act, 1940, an application was required for taking the arbitration agreement on record and for appointment of an arbitrator in accordance with the arbitration agreement before a Court. Since the said proceedings under Section 20 were required to be filed before an appropriate Court, the provisions of Article 137 of the Limitation Act, 1963 were applicable to such proceedings filed before such appropriate Court. In my view, since the proceedings under Section 11(6) or Section 11(9) of the Arbitration Act for seeking appointment of arbitral tribunal are also now required to be filed before the High Court or the Hon'ble Supreme Court, as the case may be. Article 137 of the Schedule to the Limitation Act, 1963 would apply. It is not in dispute that no other Article of Schedule to the Limitation Act, 1963 provides for any other period of limitation for filing an arbitration application filed under Section 11(6) or Section 11(9) of the Arbitration Act respectively. 47. It is not in dispute that Article 137 of the Schedule to the Limitation Act, 1963, such application has to be filed within three years from the date when the right to apply accrues. In my view, under Article 137 of the Limitation Act, 1963, application 5 2010 (6) Mh LJ 316. 6 (2019) 1 AIR Bom R 249. for appointment of an arbitrator under Section 11(6) or Section 11(9) of the Arbitration Act before the High Court or the Hon'ble Supreme Court would apply from the date when a notice invoking an arbitration agreement is received by other side and other side refuses to the name suggested by the opponent or refusing to suggest any other name in accordance with the provisions of Section 11 or the agreed procedure prescribed in the arbitration agreement within the time contemplated therein or specifically refuses to appoint any arbitrator in the event of such other party being an appointing authority. 48. In my view, the limitation prescribed under Article 137 of the Schedule to the Limitation Act, 1963 which applies to an application under Section 11(6) or Section 11(9) of the Arbitration Act filed before the High Court or before the Hon'ble Supreme Court cannot be mixed up with the period of limitation applicable to the claims prescribed in various other Articles of the Schedule to the Limitation Act, 1963. Both these periods of limitation i.e. one applicable to the claims being made and another being applicable to the application under Section 11(6) or Section 11(9) of the Arbitration Act to which Article 137 of the Schedule to the Limitation Act, 1963 applies, are two different periods of limitation and cannot be made applicable to each other.\u201d The special leave petition (SLP (C) No. 305 / 2019) against the said Judgment was dismissed vide Order dated 16.02.2019. 14. Other decisions of High Courts on the applicability of Article 137 are Prasar Bharti v. Maa Communication7 and Golden Chariot v. Mukesh Panika8 passed by the Delhi High Court. The SLP filed in the case of Golden Chariot was dismissed vide Order dated 31.01.2019 in SLP(C) No. 3658 / 2019. 15. The reasoning in all these judgments seems to be that since an application under Section 11 is to be filed in a court of law, and since no specific Article of the Limitation Act, 1963 applies, the residual Article would become applicable. The effect being that the period of limitation to file an application under Section 11 is 3 years\u2019 from the date of refusal to appoint the arbitrator, or on expiry of 30 days\u2019, whichever is earlier. 16. In Geo Miller & Co. Pvt. Ltd. v. Chairman, Rajasthan Vidyut Utpadan Nigam Ltd.,9 a three-judge bench held that on a reading of sub-sections (1) 7 2010 (115) DRJ 438 (DB). 8 2018 SCC OnLine Del 10050, SLP (C) No. 40627 / 2018 against this decision was dismissed on 31.01.2019. 9 (2020) 14 SCC 643, 649. and (3) of Section 43 of the 1996 Act, the provisions of the Limitation Act, 1963 would be applicable to the Arbitration Act. Paragraph 14 of this judgment reads as : \u201c14. Sections 43(1) and (3) of the 1996 Act are in pari materia with Sections 37(1) and (4) of the 1940 Act. It is well-settled that by virtue of Article 137 of the First Schedule to the Limitation Act, 1963 the limitation period for reference of a dispute to arbitration or for seeking appointment of an arbitrator before a court under the 1940 Act (see State of Orissa v. Damodar Das [State of Orissa v. Damodar Das, (1996) 2 SCC 216] ) as well as the 1996 Act (see Grasim Industries Ltd. v. State of Kerala [Grasim Industries Ltd. v. State of Kerala, (2018) 14 SCC 265 : (2018) 4 SCC (Civ) 612] ) is three years from the date on which the cause of action or the claim which is sought to be arbitrated first arises.\u201d 17. Given the vacuum in the law to provide a period of limitation under Section 11 of the Arbitration and Conciliation 1996, the Courts have taken recourse to the position that the limitation period would be governed by Article 137, which provides a period of 3 years from the date when the right to apply accrues. However, this is an unduly long period for filing an application u/S. 11, since it would defeat the very object of the Act, which provides for expeditious resolution of commercial disputes within a time bound period. The 1996 Act has been amended twice over in 2015 and 2019, to provide for further time limits to ensure that the arbitration proceedings are conducted and concluded expeditiously. Section 29A mandates that the arbitral tribunal will conclude the proceedings within a period of 18 months. In view of the legislative intent, the period of 3 years for filing an application under Section 11 would run contrary to the scheme of the Act. It would be necessary for Parliament to effect an amendment to Section 11, prescribing a specific period of limitation within which a party may move the court for making an application for appointment of the arbitration under Section 11 of the 1996 Act. 18. Applying the aforesaid law to the facts of the present case, we find that the application under Section 11 was filed within the limitation period prescribed under Article 137 of the Limitation Act. Nortel issued the notice of arbitration vide letter dated 29.04.2020, which was rejected by BSNL vide its reply dated 09.06.2020. The application under Section 11 was filed before the High Court on 24.07.2020 i.e. within the period of 3 years of rejection of the request for appointment of the arbitrator. Discussion on Second issue 19. We will now discuss the second issue which has arisen for consideration i.e. whether the Court while exercising jurisdiction under Section 11 is obligated to appoint an arbitrator even in a case where the claims are ex facie time-barred. To determine this issue, we would have to examine the scope of jurisdiction under Section 11 of the Act. Legislative History of Section 11 Pre-amendment position Under the principal Act, the legislative scheme under Section 11 was that if the parties had agreed on a procedure for appointment of the arbitrator, the appointment had to be made in accordance with that procedure. Absent an agreement between the parties, the default power of appointment in a domestic arbitration would be exercised by the Chief Justice of the High Court, or person, or institution, designated by him. In the case of an international commercial arbitration, the default power would be exercised by the Chief Justice of India, or the person, or institution, designated by him 10. The object of conferring the power of appointment on the highest judicial authority was to give credibility to the procedure of appointment. 20. In SBP & Co. v. Patel Engineering Ltd.,11 a seven-Judge constitution bench of this Court considered the scope of Section 11 of the 1996 Act, and held that the scheme of the Act required the Chief Justice, or his designate, to 10 Section 11(9) of the 1996 Act. 11 (2005) 8 SCC 618. decide whether there is an arbitration agreement in terms of Section 7, before exercising the default power for making the appointment of the arbitrator. The scope of power at the pre-reference stage would be as follows: \u201c33. Section 8 of the Arbitration Act, 1940 enabled the court when approached in that behalf to supply an omission. Section 20 of that Act enabled the court to compel the parties to produce the arbitration agreement and then to appoint an arbitrator for adjudicating on the disputes. It may be possible to say that Section 11(6) of the Act combines both the powers. May be, it is more in consonance with Section 8 of the old Act. But to call the power merely as an administrative one, does not appear to be warranted in the context of the relevant provisions of the Act. First of all, the power is conferred not on an administrative authority, but on a judicial authority, the highest judicial authority in the State or in the country. No doubt, such authorities also perform administrative functions. An appointment of an Arbitral Tribunal in terms of Section 11 of the Act, is based on a power derived from a statute and the statute itself prescribes the conditions that should exist for the exercise of that power. In the process of exercise of that power, obviously the parties would have the right of being heard and when the existence of the conditions for the exercise of the power are found on accepting or overruling the contentions of one of the parties it necessarily amounts to an order, judicial in nature, having finality subject to any available judicial challenge as envisaged by the Act or any other statute or the Constitution. Looked at from that point of view also, it seems to be appropriate to hold that the Chief Justice exercises a judicial power while appointing an arbitrator. .. 39. It is necessary to define what exactly the Chief Justice, approached with an application under Section 11 of the Act, is to decide at that stage. Obviously, he has to decide his own jurisdiction in the sense whether the party making the motion has approached the right High Court. He has to decide whether there is an arbitration agreement, as defined in the Act and whether the person who has made the request before him, is a party to such an agreement. It is necessary to indicate that he can also decide the question whether the claim was a dead one; or a long-barred claim that was sought to be resurrected and whether the parties have concluded the transaction by recording satisfaction of their mutual rights and obligations or by receiving the final payment without objection. It may not be possible at that stage, to decide whether a live claim made, is one which comes within the purview of the arbitration clause. It will be appropriate to leave that question to be decided by the Arbitral Tribunal on taking evidence, along with the merits of the claims involved in the arbitration. The Chief Justice has to decide whether the applicant has satisfied the conditions for appointing an arbitrator under Section 11(6) of the Act. For the purpose of taking a decision on these aspects, the Chief Justice can either proceed on the basis of affidavits and the documents produced or take such evidence or get such evidence recorded, as may be necessary. We think that adoption of this procedure in the context of the Act would best serve the purpose sought to be achieved by the Act of expediting the process of arbitration, without too many approaches to the court at various stages of the proceedings before the Arbitral Tribunal. \u2026 47. (iv) The Chief Justice or the Designated Judge will have the right to decide the preliminary aspects as indicated in the earlier part of this judgment. These will be his own jurisdiction to entertain the request, the existence of a valid arbitration agreement, the existence or otherwise of a live claim, the existence of the condition for the exercise of his power and on the qualifications of the arbitrator or arbitrators.\u201d 21. Subsequently, in National Insurance Co. Ltd. v. Boghara Polyfab Pvt. Ltd.,12 the Court classified the preliminary issues to be decided by the Chief Justice of India, / Chief Justice of a High Court, as the case may be, under Section 11, and those which must be decided by the arbitrator, into three categories : (i) issues which the Chief Justice, or his designate are bound to decide are whether the party making the application has approached the appropriate High Court; whether there is an arbitration agreement; and whether the party who has made the application, is a party to the agreement; (ii) issues which the Chief Justice may decide at the threshold are : as to whether the claim is a dead or long-barred claim, or a live claim; whether the parties have concluded the contract / transaction by recording satisfaction of their mutual rights and obligations, or the party has received the final payment without objection; (iii) issues which must be left to the arbitral tribunal to decide are whether the claim made falls within the arbitration clause (for example, a matter which is reserved for final decision pf a departmental authority, and is \u201cexcepted\u201d or excluded from arbitration); merits of the claims involved. 22. In Union of India & Ors. v. Master Construction Co.13 this Court held that the issue whether a discharge voucher, or no claims certificate, or settlement agreement had been obtained by fraud, coercion, duress, or undue influence, must be determined by the appointing authority at the Section 11 stage, when a prima facie determination as to whether such a dispute was raised bonafide and genuine must be made. If the dispute prima facie appears 12 (2009) 1 SCC 267. 13 (2011) 12 SCC 349. to be lacking in credibility, the matter would not be referred to arbitration. A bald plea of fraud, coercion, duress, or undue influence was not sufficient, unless the party who sets up such a plea was able to prima facie establish it, by placing material on record. 23.Post-amendment position The 1996 Act was amended by the Arbitration and Conciliation (Amendment) Act, 2015 which came into force with effect from 23.10.2015. The said amendment was based on the recommendations of the 246 th Report of the Law Commission of India. The 2015 Amendment Act made three significant changes : (i) It replaced the Chief Justice of the High Court as the appointing authority for exercising the default power of appointment in the case of domestic arbitrations, by the concerned High Court; and, in respect of international commercial arbitrations, the default power would be exercised by the Supreme Court, in place of the Chief Justice of India. (ii) It inserted sub-section (6A) and (6B) in Section 11, which reads as : \u201c11. Appointment of arbitrators.\u2013 \u2026 (6A) The Supreme Court, as the case may be, the High Court, while considering any application under sub-section (4) or sub-section (5) or sub-section (6), shall, notwithstanding any judgment, decree or order of any Court, confine to the examination of the existence of an arbitration agreement. (6B) The designation of any person or institution by the Supreme Court, or, as the case may be, the High Court, for the purposes of this section shall not be regarded as a delegation of judicial power by the Supreme Court or the High Court.\u201d Sub-section (6A) by a non-obstante clause provided that notwithstanding any judgment, decree or order of any court, the scope of examination at the Section 11 stage, would be confined to the existence of the arbitration agreement. The effect of the amendment was that if the existence of the arbitration agreement was not in dispute, all other issues would be left for the arbitral tribunal to decide. This was in reinforcement of the doctrine of kompetenz-kompetenz, which empowers the tribunal to rule on its own jurisdiction, including any objections with respect to the validity of the arbitration agreement; and thereby minimize judicial intervention at the pre-reference stage. (iii) Sub-section (6B) was inserted to provide that the designation of any person or institution, by either the Supreme Court or High Court, as the appointing authority under Section 11, would not be regarded as a delegation of judicial power. The amendments to Section 11 were brought in to legislatively overrule the line of judgments including SBP & Co., Boghara Polyfab, Master Construction, etc., which had enlarged the scope of power of the appointing authority to decide various issues at the pre-reference stage. 24. Sub-section (6A) came up for consideration in the case of Duro Felguera SA v. Gangavaram Port Ltd.14, wherein this Court held that the legislative policy was to minimize judicial intervention at the appointment stage. In an application under Section 11, the Court should only look into the existence of the arbitration agreement, before making the reference. Post the 2015 amendments, all that the courts are required to examine is whether an arbitration agreement is in existence \u2014nothing more, nothing less. \u201c48. Section 11(6-A) added by the 2015 Amendment, reads as follows: \u201c11. (6-A) The Supreme Court or, as the case may be, the High Court, while considering any application under sub-section (4) or sub-section (5) or sub-section (6), shall, notwithstanding any judgment, decree or order of any court, confine to the examination of the existence of an arbitration agreement.\u201d (emphasis supplied) From a reading of Section 11(6-A), the intention of the legislature is crystal clear i.e. the court should and need only look into one aspect\u2014the existence of an arbitration agreement. What are the factors for deciding as to whether there is an arbitration agreement is the next question. The resolution to that is simple\u2014it needs to be seen if 14 (2017) 9 SCC 729. the agreement contains a clause which provides for arbitration pertaining to the disputes which have arisen between the parties to the agreement. \u2026 59. The scope of the power under Section 11(6) of the 1996 Act was considerably wide in view of the decisions in SBP and Co. [SBP and Co. v. Patel Engg. Ltd., (2005) 8 SCC 618] and Boghara Polyfab [National Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd., (2009) 1 SCC 267 : (2009) 1 SCC (Civ) 117] . This position continued till the amendment brought about in 2015. After the amendment, all that the courts need to see is whether an arbitration agreement exists\u2014nothing more, nothing less. The legislative policy and purpose is essentially to minimise the Court's intervention at the stage of appointing the arbitrator and this intention as incorporated in Section 11(6-A) ought to be respected.\u201d 25. In Mayavati Trading Company Private Ltd. v. Pradyut Dev Burman15, a three-judge bench held that the scope of power of the Court under Section 11 (6A) had to be construed in the narrow sense. In paragraph 10, it was opined as under : \u201c10. This being the position, it is clear that the law prior to the 2015 Amendment that has been laid down by this Court, which would have included going into whether accord and satisfaction has taken place, has now been legislatively overruled. This being the position, it is difficult to agree with the reasoning contained in the aforesaid judgment [United India Insurance Co. Ltd. v. Antique Art Exports (P) Ltd., (2019) 5 SCC 362 : (2019) 2 SCC (Civ) 785] , as Section 11(6-A) is confined to the examination of the existence of an arbitration agreement and is to be understood in the narrow sense as has been laid down in the judgment in Duro Felguera, SA [Duro Felguera, SA v. Gangavaram Port Ltd., (2017) 9 SCC 729\u201d 26. In Uttarakhand Purv Sainik Kalyan Nigam v. Northern Coal Field Limited,16 this Court took note of the recommendations of the Law Commission in its 246th Report, the relevant extract of which reads as : \u201c7.6. The Law Commission in the 246th Report [ Amendments to the Arbitration and Conciliation Act, 1996, Report No. 246, Law Commission of India (August 2014), p. 20.] recommended that: \u201c33. \u2026 the Commission has recommended amendments to Sections 8 and 11 of the Arbitration and Conciliation Act, 1996. The scope of the judicial intervention is only restricted to situations where the court/judicial authority finds that the arbitration agreement does not exist or is null and void. Insofar as the nature of intervention is concerned, it is recommended that in the event the court/judicial authority is prima facie satisfied against the argument challenging the arbitration agreement, it shall appoint the arbitrator and/or refer the parties to arbitration, as the case may be. The amendment envisages that the judicial authority shall not refer the parties to arbitration only if it finds that there does not exist an arbitration agreement or that it is null and void. If the judicial authority is of the opinion that prima facie the arbitration agreement exists, then it shall refer the dispute to arbitration, and leave the existence of the arbitration agreement to be finally determined by the Arbitral Tribunal.\u201d 15 (2019) 8 SCC 714. 16 (2020) 2 SCC 455. In view of the legislative mandate contained in the amended Section 11(6A), the Court is now required only to examine the existence of the arbitration agreement. All other preliminary or threshold issues are left to be decided by the arbitrator under Section 16, which enshrines the kompetenz- komptenz principle. The doctrine of kompetenz-komptenz implies that the arbitral tribunal is empowered, and has the competence to rule on its own jurisdiction, including determination of all jurisdictional issues. This was intended to minimise judicial intervention at the pre-reference stage, so that the arbitral process is not thwarted at the threshold when a preliminary objection is raised by the parties. 27.The 2019 Amendment to Section 11 Section 11 has been further amended by the Arbitration and Conciliation (Amendment) Act, 2019 to promote institutionalization of arbitration in India. The 2019 Amendment Act has deleted sub-section (6A) in Section 11. However, the amended to Section 11 is yet to be notified. Consequently, sub-section (6A) continues to remain on the statute book, and governs the scope of power under Section 11 for the present. The notification giving effect to the provisions of the 2019 Amendment Act which have been brought into force, reads as : \u201c MINISTRY OF LAW AND JUSTICE (Department of Legal Affairs) NOTIFICATION New Delhi, the 30th August, 2019 S.O. 3154(E). \u2014 In the exercise of the powers conferred by sub-section (2) of section 1 of the Arbitration and Conciliation (Amendment) Act, 2019 (33 of 2019), the Central Government hereby appoints the 30th August, 2019 as the date on which the provisions of the following sections of the said Act shall come into force:\u2014 (1) section 1; (2) section 4 to section 9 [both inclusive]; (3) section 11 to section 13 [both inclusive]; (4) section 15. [F.No. H-11018/2/2017-Admn.-III(LA)] Dr. RAJIV MANI, Jt. Secy. and Legal Adviser \u201d 28. The reference to \u201cSection 11\u201d in clause (3) of the Notification dated 30.08.2019 pertains to Section 11 of the Amendment Act [and not the principal Act of 1996]. The amendment to Section 11 in the 2019 Amendment Act finds place in Section 3 of the 2019 Amendment Act, which reads as : \u201c 3. Amendment of section 11. \u2013 In section 11 of the principal Act, - (i) \u2026. (ii) \u2026. (iii) \u2026. (iv) \u2026. (v) sub-sections (6A) and (7) shall be omitted \u201d 29. After the amendment by the 2019 Amendment to Section 11 is notified, it will result in the deletion of sub-section (6A), and the default power will be exercised by arbitral institutions designated by the Supreme Court, or the High Court, as the case may be. It is relevant to note that sub-section (6B) in Section 11, has not been amended by the 2019 Amendment Act. Sub-section (6B) provides that the designation of any person, or institution by the Court, shall not be regarded as a delegation of \u201cjudicial power\u201d. Consequently, it would not be open for the person or institution designated by the Court to exercise any judicial power, and adjudicate on any issue, including the issue of validity of the agreement, or the arbitrability of disputes. The amendment to sub-section (8) of Section 11 by the 2019 Amendment [which is also yet to be notified], provides that the arbitral institution will be empowered to : (a) seek a disclosure in writing from the prospective arbitrator in terms of sub-section (1) of Section 12, to secure the appointment of an independent and impartial arbitrator; and (b) ensure that the arbitrator has the qualifications required by the arbitration agreement. 30.Issue of Limitation Limitation is normally a mixed question of fact and law, and would lie within the domain of the arbitral tribunal. There is, however, a distinction between jurisdictional and admissibility issues. An issue of \u2018jurisdiction\u2019 pertains to the power and authority of the arbitrators to hear and decide a case. Jurisdictional issues include objections to the competence of the arbitrator or tribunal to hear a dispute, such as lack of consent, or a dispute falling outside the scope of the arbitration agreement. Issues with respect to the existence, scope and validity of the arbitration agreement are invariably regarded as jurisdictional issues, since these issues pertain to the jurisdiction of the tribunal. 31. Admissibility issues however relate to procedural requirements, such as a breach of pre-arbitration requirements, for instance, a mandatory requirement for mediation before the commencement of arbitration, or a challenge to a claim or a part of the claim being either time-barred, or prohibited, until some pre-condition has been fulfilled. Admissibility relates to the nature of the claim or the circumstances connected therewith. An admissibility issue is not a challenge to the jurisdiction of the arbitrator to decide the claim. 32. The issue of limitation, in essence, goes to the maintainability or admissibility of the claim, which is to be decided by the arbitral tribunal. For instance, a challenge that a claim is time-barred, or prohibited until some pre- condition is fulfilled, is a challenge to the admissibility of that claim, and not a challenge to the jurisdiction of the arbitrator to decide the claim itself. 33. In Swisbourgh Diamond Mines (Pty) Ltd. & Ors. v. Kingdom of Lesotho17, the Singapore Court of Appeal distinguished between \u201cjurisdiction\u201d and \u201cadmissibility\u201d in paragraphs 207 and 208, which read as : \u201c207. Jurisdiction is commonly defined to refer to the \u201cpower of the tribunal to hear a case\u201d, whereas admissibility refers to \u201cwhether it is appropriate for the tribunal to hear it\u201d : Waste Management, Inc. v. United Mexican States ICSID Case No. ARB (AF) / 98 / 2, Dissenting Opinion of Keith Highet ( 8 May 2000) at [58]. To this, Zachary Douglas adds 17 [2019] 1 SLR 263. clarity to this discussion by referring to \u201cjurisdiction\u201d as a concept that deals with \u201cthe existence of [the] adjudicative power\u201d of an arbitral tribunal, and to \u201cadmissibility\u201d as a concept dealing with \u201cthe exercise of that power\u201d and the suitability of the claim brought pursuant to that power for adjudication:[Zachary Douglas, The Press, 2009] at paras 291 and 310. 208. The conceptual distinction between jurisdiction and admissibility is not merely an exercise in linguistic hygiene pursuant to a pedantic hair-spitting endeavour. This distinction has significant practical import in investment treaty arbitration because a decision of the tribunal in respect of jurisdiction is reviewable by the supervisory courts at the seat of the arbitration (for non-ICSID arbitrations) or before an ICSID ad hoc committee pursuant to Art 52 of the ICSID Convention (for ICSID arbitrations,) whereas a decision of the tribunal on admissibility is not reviewable : see Jan Paulsson, \u201cJurisdiction and Admissibility\u201d in Global Reflections on International Law, Commerce and Dispute Resolution, Liber Amicorum in honour of Robert Briner (Gerald Aksen et al, eds) (ICC Publishing, 2005) at p 601, Douglas at para 307, Waibel at p 1277, paras 257 and 257 and 258, Hanno Wehland, \u201cJurisdiction and Admissibility in Proceedings under the ICSID Convention and the ICSID Additional Facility Rules\u201d in ICSID Convention after 50 Tears : Unsettled Issues (Crina Baltag, ed) (Kluwer Law International, 2016) at pp 233-234, and Chin Leng at p 124.\u201d 34. The judgment in Lesotho (supra) was followed by in BBA & Ors. v. BAZ & Anr.,18 wherein the Court of Appeal held that statutory time bars go towards admissibility. The Court held that the \u201ctribunal versus claim\u201d test should be applied for purposes of distinguishing whether an issue goes towards jurisdiction or admissibility. The \u201ctribunal versus claim\u201d test asks whether the objection is targeted at the tribunal (in the sense that the claim should not be arbitrated due to a defect in or omission to consent to arbitration), or at the claim (in that the claim itself is defective and should not be raised at all). Applying the \u201ctribunal versus claim\u201d test, a plea of statutory time bar goes towards admissibility as it attacks the claim. It makes no difference whether the applicable statute of limitations is classified as substantive (extinguishing the claim) or procedural (barring the remedy) in the private international law sense. 35. The issue of limitation which concerns the \u201cadmissibility\u201d of the claim, must be decided by the arbitral tribunal either as a preliminary issue, or at the final stage after evidence is led by the parties. 18 [2020] SGCA 53. 36. In a recent judgment delivered by a three-judge bench in Vidya Drolia v. Durga Trading Corporation19, on the scope of power under Sections 8 and 11, it has been held that the Court must undertake a primary first review to weed out \u201cmanifestly ex facie non-existent and invalid arbitration agreements, or non-arbitrable disputes.\u201d The prima facie review at the reference stage is to cut the deadwood, where dismissal is bare faced and pellucid, and when on the facts and law, the litigation must stop at the first stage. Only when the Court is certain that no valid arbitration agreement exists, or that the subject matter is not arbitrable, that reference may be refused. In paragraph 144, the Court observed that the judgment in Mayavati Trading had rightly held that the judgment in Patel Engineering had been legislatively overruled. Paragraph 144 reads as : \u201c144. As observed earlier, Patel Engg. Ltd. explains and holds that Sections 8 and 11 are complementary in nature as both relate to reference to arbitration. Section 8 applies when judicial proceeding is pending and an application is filed for stay of judicial proceeding and for reference to arbitration. Amendments to Section 8 vide Act 3 of 2016 have not been omitted. Section 11 covers the situation where the parties approach a court for appointment of an arbitrator. Mayavati Trading (P) Ltd., in our humble opinion, rightly holds that Patel Engg. Ltd. has been legislatively overruled and hence would not apply even post omission of sub-section (6-A) to Section 11 of the Arbitration Act. Mayavati Trading (P) Ltd. has elaborated upon the object and purposes and history of the amendment to Section 11, with reference to sub-section (6-A) to elucidate that the section, as originally enacted, was facsimile with Article 11 of the Uncitral Model of law of arbitration on which the Arbitration Act was drafted and enacted.\u201d (emphasis supplied) While exercising jurisdiction under Section 11 as the judicial forum, the court may exercise the prima facie test to screen and knockdown ex facie meritless, frivolous, and dishonest litigation. Limited jurisdiction of the Courts would ensure expeditious and efficient disposal at the referral stage. At the referral stage, the Court can interfere \u201conly\u201d when it is \u201cmanifest\u201d that the claims are ex facie time barred and dead, or there is no subsisting dispute. Paragraph 148 of the judgment reads as follows : 19 (2021) 2 SCC 1. \u201c148. Section 43(1) of the Arbitration Act states that the Limitation Act, 1963 shall apply to arbitrations as it applies to court proceedings. Sub-section (2) states that for the purposes of the Arbitration Act and Limitation Act, arbitration shall be deemed to have commenced on the date referred to in Section 21. Limitation law is procedural and normally disputes, being factual, would be for the arbitrator to decide guided by the facts found and the law applicable. The court at the referral stage can interfere only when it is manifest that the claims are ex facie time-barred and dead, or there is no subsisting dispute. All other cases should be referred to the Arbitral Tribunal for decision on merits. Similar would be the position in case of disputed \u201cno-claim certificate\u201d or defence on the plea of novation and \u201caccord and satisfaction\u201d. As observed in Premium Nafta Products Ltd. [Fili Shipping Co. Ltd. v. Premium Nafta Products Ltd., 2007 UKHL 40 : 2007 Bus LR 1719 (HL)] , it is not to be expected that commercial men while entering transactions inter se would knowingly create a system which would require that the court should first decide whether the contract should be rectified or avoided or rescinded, as the case may be, and then if the contract is held to be valid, it would require the arbitrator to resolve the issues that have arisen.\u201d In paragraph 154.4, it has been concluded that : \u201c154.4. Rarely as a demurrer the court may interfere at Section 8 or 11 stage when it is manifestly and ex facie certain that the arbitration agreement is non-existent, invalid or the disputes are non-arbitrable, though the nature and facet of non-arbitrability would, to some extent, determine the level and nature of judicial scrutiny. The restricted and limited review is to check and protect parties from being forced to arbitrate when the matter is demonstrably \u201cnon-arbitrable\u201d and to cut off the deadwood. The court by default would refer the matter when contentions relating to non-arbitrability are plainly arguable; when consideration in summary proceedings would be insufficient and inconclusive; when facts are contested; when the party opposing arbitration adopts delaying tactics or impairs conduct of arbitration proceedings. This is not the stage for the court to enter into a mini trial or elaborate review so as to usurp the jurisdiction of the Arbitral Tribunal but to affirm and uphold integrity and efficacy of arbitration as an alternative dispute resolution mechanism.\u201d (emphasis supplied) In paragraph 244.4 it was concluded that : \u201c244.4. The court should refer a matter if the validity of the arbitration agreement cannot be determined on a prima facie basis, as laid down above i.e. \u201cwhen in doubt, do refer\u201d. 37. The upshot of the judgment in Vidya Drolia is affirmation of the position of law expounded in Duro Felguera and Mayavati Trading, which continue to hold the field. It must be understood clearly that Vidya Drolia has not re- surrected the pre-amendment position on the scope of power as held in SBP & Co. v. Patel Engineering (supra). It is only in the very limited category of cases, where there is not even a vestige of doubt that the claim is ex facie time-barred, or that the dispute is non-arbitrable, that the court may decline to make the reference. However, if there is even the slightest doubt, the rule is to refer the disputes to arbitration, otherwise it would encroach upon what is essentially a matter to be determined by the tribunal. 38. Applying the law to the facts of the present case, it is clear that this is a case where the claims are ex facie time barred by over 5 \u00bd years, since Nortel did not take any action whatsoever after the rejection of its claim by BSNL on 04.08.2014. The notice of arbitration was invoked on 29.04.2020. There is not even an averment either in the notice of arbitration, or the petition filed under Section 11, or before this Court, of any intervening facts which may have occurred, which would extend the period of limitation falling within Sections 5 to 20 of the Limitation Act. Unless, there is a pleaded case specifically adverting to the applicable Section, and how it extends the limitation from the date on which the cause of action originally arose, there can be no basis to save the time of limitation. 39. The present case is a case of deadwood / no subsisting dispute since the cause of action arose on 04.08.2014, when the claims made by Nortel were rejected by BSNL. The Respondent has not stated any event which would extend the period of limitation, which commenced as per Article 55 of the Schedule of the Limitation Act (which provides the limitation for cases pertaining to breach of contract) immediately after the rejection of the Final Bill by making deductions. In the notice invoking arbitration dated 29.04.2020, it has been averred that: \u201c Various communications have been exchanged between the Petitioner and the Respondents ever since and a dispute has arisen between the Petitioner and the Respondents, regarding non payment of the amounts due under the Tender Document.\u201d The period of limitation for issuing notice of arbitration would not get extended by mere exchange of letters, 20 or mere settlement discussions, where a final bill is rejected by making deductions or otherwise. Sections 5 to 20 of the Limitation Act do not exclude the time taken on account of settlement discussions. Section 9 of the Limitation Act makes it clear that : \u201cwhere once the time has begun to run, no subsequent disability or inability to institute a suit or make an application stops it.\u201d There must be a clear notice invoking arbitration setting out the \u201cparticular dispute\u201d 21 (including claims / amounts) which must be received by the other party within a period of 3 years from the rejection of a final bill, failing which, the time bar would prevail. In the present case, the notice invoking arbitration was issued 5 \u00bd years after rejection of the claims on 04.08.2014. Consequently, the notice invoking arbitration is ex facie time barred, and the disputes between the parties cannot be referred to arbitration in the facts of this case. 40.Conclusion Accordingly, we hold that : (i) The period of limitation for filing an application under Section 11 would be governed by Article 137 of the First Schedule of the Limitation Act, 1963. The period of limitation will begin to run from the date when there is failure to appoint the arbitrator; It has been suggested that the Parliament may consider amending Section 11 of the 1996 Act to provide a period of limitation for filing an 20 S.S.Rathore v. State of Madhya Pradesh (1989) 4 SCC 582. Union of India & Ors. v. Har Dayal (2010) 1 SCC 394. CLP India Private Limited v. Gujarat Urja Vikas Nigam Limited & Anr. (2020) 5 SCC 185. 21 Section 21 of the Arbitration and Conciliation Act, 1996. application under this provision, which is in consonance with the object of expeditious disposal of arbitration proceedings; (ii) In rare and exceptional cases, where the claims are ex facie time- barred, and it is manifest that there is no subsisting dispute, the Court may refuse to make the reference. 41. In view of the aforesaid, the present Civil Appeals are allowed, and the impugned orders dated 13.10.2020 and 14.01.2021 passed by the High Court are set aside. The application filed under Section 11 by the Respondent before the High Court is consequently dismissed. We record our appreciation and gratitude to Mr. Arvind Datar, Senior Advocate, for having rendered his valuable assistance as Amicus at short notice. ................................................J. (Indu Malhotra) .............................................J. 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{"id": "445635", "text": "PETITIONER: BASAVARAJ R. PATIL AND OTHERS Vs. RESPONDENT: STATE OF KARNATAKA AND OTHERS DATE OF JUDGMENT: 11/10/2000 BENCH: S.N.Variava, K.T.Thomas JUDGMENT: L.....I.........T.......T.......T.......T.......T.......T..J J U D G M E N T THOMAS, J. Leave granted. When a criminal court completes prosecution evidence (other than in summons cases) is it indispensably mandatory that the accused himself should be questioned? Can not the court allow the advocate to answer such questions on behalf of the accused at least in some exigent conditions? A two Judge Bench of this Court has held in Usha K. Pillai vs. Raj K. Srinivas & ors. {1993(3) SCR 467} that there is no alternative to it permissible under law. When such an issue arose in this case before this Court, a Bench of two Judges made a reference to a larger Bench for reconsideration of the legal position stated in Usha K. Pillai (supra). The aforesaid question arose in this case from the following factual background: First appellant a software engineer (now stationed in USA) is the husband of second respondent Ms. Arundathi. Their marriage was solemnised in November 1992 and a female child was born to them. But eventually their connubial life passed through bad weather and the situation reached a stage when Arundathi moved a Judicial Magistrate of First Class for maintenance allowance from her husband. An order in her favour was passed by the said magistrate under Section 125 of the Code of Criminal Procedure (for short the Code). On 10.3.1993, Arundathi lodged a complaint with the police alleging, inter alia, that her husband and his sister (Kumari Jaya second appellant) and their parents had ill-treated Arundathi for not bringing more dowry; and that she was pestered with persistent demand for more amount of dowry. The police conducted investigation on the said complaint and laid a charge-sheet against both the appellants and their parents. The trial court discharged the mother of the appellants at the initial stage itself and framed a charge against the appellants and their father for offences under Section 3 and 4 of the Dowry Prohibition Act and also under Section 498-A of the Indian Penal Code. Prosecution examined five witnesses and closed the evidence. When the next stage for examination of the accused under Section 313 of the Code reached the trial court passed the following proceedings: Evidence closed and statement under Sec/313 Cr.P.C. was kept ready to give opportunity to the accused as prescribed under Sec.313 Cr.P.C. Statement of A-2 father recorded who denied every circumstance, but did not add any further statement. The counsel for the accused filed application for dispensing with the questioning of A-1 & A-4. As A-1 is in America and A-4 is a student studying in Gadag, the counsel has endorsed on their statement that A-1 and A-4 have nothing to say by way of their statements. Considering the reality, A-1 has to come from America the case will unnecessarily be delayed. Hence, on the said endorsement the counsel for the accused was given the opportunity to make statement for A-1 and A-4 and their physical presence is dispensed with. The case is posted for argument. The trial magistrate thereafter proceeded to hear the arguments and finally passed a judgment acquitting all the accused of the offences charged. Arundathi then filed a revision before the High Court challenging the aforesaid order of the acquittal. A Single Judge of the High Court heard the revision and learned Judge found that as per the decision of this Court in Usha K. Pillai (1993 (3) SCR 467), trial court has no other alternative and has no discretion to dispense with the examination of the accused personally under Section 313 of the Code. Hence the learned Single Judge set aside the order of acquittal passed by the trial court and remitted the case to the trial court with a direction to dispose it of afresh after examining the three accused under Section 313 of the Code. The father of the appellants passed away in the meanwhile. Hence this appeal was filed by the remaining accused who are the husband and sister-in-law of Arundathi. One of the contentions raised by the appellants is that if the court did not put questions under Section 313 of the Code there is no reason for the complainant to be aggrieved thereof because the prejudice can be caused only to the accused due to non-compliance with the said provision. Next contention is more important and that was pressed into service here, that no criminal court can be rendered absolutely powerless to deal with a situation like this, i.e. if the accused is in such a far away country and when he has to incur a whopping expenditure and undertake a tedious long distance journey solely for the purpose of answering the court questions he himself pleaded that his counsel may be allowed to answer such questions on his behalf. We are not inclined to deal with the first contention in this case because the High Court interfered with the order in exercise of its revisional jurisdiction. Such jurisdiction can be invoked even suo motu and therefore it is immaterial whether the power of the High Court was exercised on a motion made by the complainant. Now, for dealing with the second contention we may extract Section 313 of the Code: 313. Power to examine the accused.- (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court- (a) may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary; (b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case: Provided that in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may dispense with his examination under clause (b). (2) No oath shall be administered to the accused when he is examined under sub- section (1). (3) The accused shall not render himself liable to punishment by refusing to answer such question, or by giving false answers to them. (4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed. The forerunner of the said provision in the Code of Criminal Procedure 1898 (for short the old Code) was Section 342 therein. It was worded thus: 342. (1) For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any inquiry or trial, without previously warning the accused, put such questions to him as the Court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence. (2) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them; but the Court and the jury (if any) may draw such inference from such refusal or answers as it thinks just. (3) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed. (4) No oath shall be administered to the accused when he is examined under sub- section (1). Dealing with the position as the Section remained in the original form under the old Code, a three Judge Bench of this Court (Fazal Ali, Mahajan and Bose, JJ) interpreted the section in Hate Singh Bhagat Singh vs. State of Madhya Bharat (AIR 1953 SC 468) that the statements of the accused recorded by committal magistrate and the Sessions Judge are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness box; they have to be received in evidence and treated as evidence and be duly considered at the trial. Parliament, thereafter, introduced Section 342A in the old Code (which corresponds to Section 315 of the present Code) by which permission is given to an accused to offer himself to be examined as a witness if he so chose. In Bibhuti Bhusan Das Gupta & anr. vs. State of West Bengal {1969(2) SCR 104}, another three Judge Bench (Sikri, Bachawat and Hegde, JJ) dealing with the combined operation of Section 342 and 342A of the old Code made the following observations: Under Section 342A only the accused can give evidence in person and his pleaders evidence cannot be treated as his. The answers of the accused under s.342 is intended to be a substitute for the evidence which he can give as a witness under sec. 342A . The privilege and the duty of answering questions under sec. 342 can not be delegated to a pleader. No doubt the form of the summons show that the pleader may answer the charges against the accused, but in so answering the charges, he cannot do what only the accused can do personally. The pleader may be permitted to represent the accused while the prosecution evidence is being taken. But at the close of the prosecution evidence the accused must be questioned and his pleader cannot be examined in his place. The Law Commission in its 41st Report considered the aforesaid decisions and also various other points of view highlighted by legal men and then made the report after reaching the conclusion that- (i) in summons cases where the personal attendance of the accused has been dispensed with, either under section 205 or under section 540A, the court should have a power to dispense with his examination; and (ii) In other cases, even where his personal attendance has been dispensed with, the accused should be examined personally. The said recommendation has been followed up by the Parliament and Section 313 of the Code, as is presently worded, is the result of it. It would appear prima facie that the court has discretion to dispense with the physical presence of an accused during such questioning only in summons cases and in all other cases it is incumbent on the Court to question the accused personally after closing prosecution evidence. Nonetheless, the Law Commission was conscious that the rule may have to be relaxed eventually, particularly when there is improvement in literacy and legal aid facilities in the country. This thinking can be discerned from the following suggestion made by the Law Commission in the same Report: We have, after considering the various aspects of the matter as summarized above, come to the conclusion that section 342 should not be deleted. In our opinion, the stage has not yet come for its being removed from the statute book. With further increase in literacy and with better facilities for legal aid, it may be possible to take that step in the future. The position has to be considered in the present set up, particularly after the lapse of more than a quarter of a century through which period revolutionary changes in the technology of communication and transmission have taken place, thanks to the advent of computerisation. There is marked improvement in the facilities for legal aid in the country during the preceding twenty-five years. Hence a fresh look can be made now. We are mindful of the fact that a two Judge Bench in Usha K. Pillai (supra) has found that the examination of an accused personally can be dispensed with only in summons case. Their Lordships were considering a case where the offence involved was Section 363 of the IPC. The two Judge Bench held thus: A warrant case is defined as one relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. Since an offence under section 363 IPC is punishable with imprisonment for a term exceeding two years it is a warrant-case and not a summons-case. Therefore, even in cases where the court has dispensed with the personal attendance of the accused under section 205(1) or section 317 of the Code, the court cannot dispense with the examination of the accused under clause (b) of section 313 of the Code because such examination is mandatory. Contextually we cannot bypass the decision of a three Judge Bench of this Court in Shivaji Sahabrao Bobade & anr. vs. State of Maharashtra & anr. {1973(2) SCC 793} as the Bench has widened the sweep of the provision concerning examination of the accused after closing prosecution evidence. Learned Judges in that case were considering the fallout of omission to put to the accused a question on a vital circumstance appearing against him in the prosecution evidence. The three Judge Bench made the following observations therein: It is trite law, nevertheless fundamental, that the prisoners attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the Court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable explanation of such circumstances, the court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for its conviction. The above approach shows that some dilution of the rigor of the provision can be made even in the light of a contention raised by the accused that non questioning him on a vital circumstance by the trial court has caused prejudice to him. The explanation offered by the counsel of the accused at the appellate stage was held to be a sufficient substitute for the answers given by the accused himself. What is the object of examination of an accused under Section 313 of the Code? The section itself declares the object in explicit language that it is for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him. In Jai Dev vs. State of Punjab (AIR 1963 SC 612) Gajendragadkar, J. (as he then was) speaking for a three Judge Bench has focussed on the ultimate test in determining whether the provision has been fairly complied with. He observed thus: The ultimate test in determining whether or not the accused has been fairly examined under section 342 would be to enquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity. Thus it is well settled that the provision is mainly intended to benefit the accused and as its corollary to benefit the court in reaching the final conclusion. At the same time it should be borne in mind that the provision is not intended to nail him to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim audi alteram partem. The word may in clause (a) of sub-section (1) in Section 313 of the Code indicates, without any doubt, that even if the court does not put any question under that clause the accused cannot raise any grievance of it. But if the court fails to put the needed question under clause (b) of the sub-section it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him. But the situation to be considered now is whether, with the revolutionary change in technology of communication and transmission and the marked improvement in facilities for legal aid in the country, is it necessary that in all cases the accused must answer by personally remaining present in Court. We clarify that this is the requirement and would be the general rule. However, if remaining present involves undue hardship and large expense, could the Court not alleviate the difficulties. If the court holds the view that the situation in which he made such a plea is genuine, should the court say that he has no escape but he must undergo all the tribulations and hardships and answer such questions personally presenting himself in court. If there are other accused in the same case, and the court has already completed their questioning, should they too wait for long without their case reaching finality, or without registering further progress of their trial until their co-accused is able to attend the court personally and answer the court questions? Why should a criminal court be rendered helpless in such a situation? The one category of offences which is specifically exempted from the rigour of Section 313(1)(b) of the Code is Summons cases. It must be remembered that every case in which the offence triable is punishable with imprisonment for a term not exceeding two years is a summons case. Thus, all other offences generally belong to a different category altogether among which are included offences punishable with varying sentences from imprisonment for three years up to imprisonment for life and even right up to death penalty. Hence there are several offences in that category which are far less serious in gravity compared with grave and very grave offences. Even in cases involving less serious offences, can not the court extend a helping hand to an accused who is placed in a predicament deserving such a help? Section 243(1) of the Code enables the accused, who is involved in the trial of warrant case instituted on police report, to put in any written statement. When any such statement is filed the Court is obliged to make it part of the record of the case. Even if such case is not instituted on police report the accused has the same right (vide Section 247). Even the accused involved in offences exclusively triable by the Court of sessions can also exercise such a right to put in written statements [Section 233(2) of the Code]. It is common knowledge that most of such written statements, if not all, are prepared by the counsel of the accused. If such written statements can be treated as statements directly emanating from the accused, hook, line and sinker, why not the answers given by him in the manner set out hereinafter, in special contingencies, be afforded the same worth. We think that a pragmatic and humanistic approach is warranted in regard to such special exigencies. The word shall in clause (b) to Section 313(1) of the Code is to be interpreted as obligatory on the Court and it should be complied with when it is for the benefit of the accused. But if it works to his great prejudice and disadvantage the Court should, in appropriate cases, e.g., if the accused satisfies the court that he is unable to reach the venue of the court, except by bearing huge expenditure or that he is unable to travel the long journey due to physical incapacity or some such other hardship relieve him of such hardship and at the same time adopt a measure to comply with the requirements in Section 313 of the Code in a substantial manner. How this could be achieved? If the accused (who is already exempted from personally appearing in the Court) makes an application to the court praying that he may be allowed to answer the questions without making his physical presence in court on account of justifying exigency the court can pass appropriate orders thereon, provided such application is accompanied by an affidavit sworn to by the accused himself containing the following matters: (a) A narration of facts to satisfy the court of his real difficulties to be physically present in court for giving such answers. (b) An assurance that no prejudice would be caused to him, in any manner, by dispensing with his personal presence during such questioning. (c) An undertaking that he would not raise any grievance on that score at any stage of the case. If the court is satisfied of the genuineness of the statements made by the accused in the said application and affidavit it is open to the court to supply the questionnaire to his advocate (containing the questions which the court might put to him under Section 313 of the Code) and fix the time within which the same has to be returned duly answered by the accused together with a properly authenticated affidavit that those answers were given by the accused himself. He should affix his signature on all the sheets of the answered questionnaire. However, if he does not wish to give any answer to any of the questions he is free to indicate that fact at the appropriate place in the questionnaire [as a matter of precaution the Court may keep photocopy or carbon copy of the questionnaire before it is supplied to the accused for answers]. If the accused fails to return the questionnaire duly answered as aforesaid within the time or extended time granted by the court, he shall forfeit his right to seek personal exemption from court during such questioning. In our opinion, if the above course is adopted in exceptional exigency it would not violate the legislative intent envisaged in Section 313 of the Code. In the present case the trial court can pass appropriate orders if an application is made by the accused relating to the examination under Section 313 of the Code, in the light of the legal principles stated above. This criminal appeal is disposed of accordingly.", "spans": [{"start": 12, "end": 30, "label": "APP"}, {"start": 58, "end": 76, "label": "RESP"}, {"start": 106, "end": 116, "label": "DATE"}, {"start": 124, "end": 135, "label": "JUDGE"}, {"start": 137, "end": 147, "label": "JUDGE"}, {"start": 235, "end": 241, "label": "JUDGE"}, {"start": 589, "end": 648, "label": "PREC"}, {"start": 873, "end": 887, "label": "PREC"}, {"start": 1077, "end": 1086, "label": "RESP"}, {"start": 1274, "end": 1283, "label": "RESP"}, {"start": 1453, "end": 1479, "label": "STAT"}, {"start": 1505, "end": 1514, "label": "DATE"}, {"start": 1516, "end": 1525, "label": "RESP"}, {"start": 1616, "end": 1627, "label": "APP"}, {"start": 1680, "end": 1689, "label": "RESP"}, {"start": 2108, "end": 2129, "label": "STAT"}, {"start": 2166, "end": 2183, "label": "STAT"}, {"start": 2429, "end": 2435, "label": "APP"}, {"start": 2515, "end": 2521, "label": "APP"}, {"start": 3331, "end": 3340, "label": "RESP"}, {"start": 3374, "end": 3384, "label": "COURT"}, {"start": 3457, "end": 3467, "label": "COURT"}, {"start": 3553, "end": 3567, "label": "PREC"}, {"start": 4127, "end": 4136, "label": "RESP"}, {"start": 4965, "end": 4975, "label": "COURT"}, {"start": 5149, "end": 5159, "label": "COURT"}, {"start": 6446, "end": 6477, "label": "STAT"}, {"start": 7704, "end": 7713, "label": "JUDGE"}, {"start": 7715, "end": 7722, "label": "JUDGE"}, {"start": 7727, "end": 7731, "label": "JUDGE"}, {"start": 7764, "end": 7832, "label": "PREC"}, {"start": 7909, "end": 7923, "label": "AUTH"}, {"start": 8383, "end": 8457, "label": "PREC"}, {"start": 8486, "end": 8491, "label": "JUDGE"}, {"start": 8493, "end": 8501, "label": "JUDGE"}, {"start": 8506, "end": 8511, "label": "JUDGE"}, {"start": 9394, "end": 9408, "label": "AUTH"}, {"start": 10352, "end": 10366, "label": "AUTH"}, {"start": 10595, "end": 10609, "label": "AUTH"}, {"start": 11471, "end": 11485, "label": "PREC"}, {"start": 11684, "end": 11687, "label": "STAT"}, {"start": 11904, "end": 11907, "label": "STAT"}, {"start": 12392, "end": 12472, "label": "PREC"}, {"start": 14744, "end": 14789, "label": "PREC"}, {"start": 14790, "end": 14804, "label": "JUDGE"}, {"start": 18752, "end": 18769, "label": "COURT"}]}
{"id": "87753577", "text": "REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5102 OF 2006 Gurudassing Nawoosing Panjwani Appellant(s) versus The State of Maharashtra and others Respondent(s) J U D G M E N T | | |M.Y. Eqbal, J.: | This appeal by special leave is directed against order dated 13.7.2005 passed by the Division Bench of the Bombay High Court. Dismissing Letter Patents Appeal preferred by the appellant against the order of the learned Single Judge who dismissed his writ petition and confirmed the orders passed by the State Minister for Revenue in the proceeding R.T.S.3402/ Pra.kra.309/L-6 dated 18th October, 2002. 2. It is the appellant\u2019s case that his father Shri Nawoosingh Panjumal Panjwani was a displaced person who migrated from Pakistan to India during the period of partition and the appellant\u2019s family while in Pakistan was having agricultural land over there admeasuring 4 acres 10 gunthas. After migration, the family took shelter at Refugee Camp of Pimpri, Pune in Maharashtra. In view of enactment of Displaced Persons (Compensation and Rehabilitation) Act, 1954 by the Union of India, the immovable properties left behind by Muslims who had migrated to Pakistan were acquired and the same was distributed to displaced persons as a \u201ccompensation pool\u201d. Accordingly, father of the appellant was allotted a land admeasuring 2 acres 5 gunthas bearing Revenue Survey Nos.351 and 118/2 situated at Village Lonavala, Taluka Maval, District Pune. It has been pleaded by the appellant that Survey No.118/1 and 118/2 are one and the same thing. 3. The facts in brief, as narrated in the impugned order, are that Survey Nos.118, 328 and 351 of Lonavala were originally owned by one Haji Habib Tar Mohammed Janu. The said Haji Habib Tar Mohammed Janu migrated to Pakistan and while going to Pakistan, he sold his property to one Smt. Hajrabi Haji Yusuf on 4.6.1949. However, this transaction was cancelled by the Collector and Custodian of Evacuee Property on 17.4.1949 as per Section 8(i) of the Evacuee Properties Act and these lands were accordingly entered as Evacuee Property by the Tahsildar, Maval on 26.10.1949. It appears that these survey numbers were also given C.T.S.No. 129, 130-A, 130-B and 133. It appears that in CTS No.129, 130-A, 130-B and 133, apart from vacant land there is a bungalow No.52- Habib Villa. It appears that the Regional Settlement Commissioner placed this property for auction through Government Auctioner and one Gulabbai Desaipurchased the said property in auction for a consideration of Rs.16,750/- on 17.5.1956 and, accordingly, sale certificate was issued by the Regional Settlement Commissioner, Bombay on behalf of the Government. In the said sale certificate the C.T.S. No 129, 130-A, 130-B and 133 of Village Lonavala were mentioned. The area of this CTS Nos. were as under: 129 - 55.16 sq.mts. 130A - 1651.1 sq.mts. 130B - 2934.02 sq.mts 133 - 3237.00 sq.mts ______________ Total 7897.21 sq.mts. ------------------ 4. On the basis of the said sale certificate the mutation Entry No.1836 was effected in the village record in favour of Gulabai Desai, and thereby her name was entered in Survey Nos.118/1B and 328 of village Lonavala to the extent of 29.30 Ares and 70 Ares respectively. Thereafter, Gulabai sold CTS No.133 admeasuring 33 Gunthas on 24.4.1977 to Respondent No.3 Genu Kadu. The said Gulabai also gifted her remaining area from this Survey numbers to her grandson Anil Gajanan Desai on 15.1.1979, who in turn has sold his properties to Respondent no.2 - Prem Hasmatraj Lalwani in the year 1980. 5. The Survey Nos.118/2 and 351, being Evacuee Properties, were allotted to the Appellant in the year 1956. Later on, it was found that the Appellant is in possession of more area and, therefore, the said order was modified on 6.5.1982 and excess area was granted to the Appellant on payment of Rs.31,360/-, which Appellant had paid on 17.5.1982 in Government Treasury and thereby the Deputy Collector and Assistant Settlement Commissioner, Pune granted the excess land to the Appellant, and thereafter the dispute started between the parties. 6. In the impugned order, Division Bench made it clear that since the dispute between the parties was in respect of the area, as to what has been purchased in auction sale by Gulabai Desai and what is the area allotted to the Appellant by the orders of the Deputy Collector and Deputy Custodian of Evacuee Properties, the Appellant requested the Bench not to enter into the merits on this question in this LPA since the parties may prosecute their remedies in the Civil Court for such adjudication, and therefore, that aspect was not considered by the High Court. However, in the facts of the conflicting claims, the Appellant made grievance to the Deputy Collector and the Deputy Custodian of Evacuee Properties in respect of the Mutation made in favour of the Respondent Gulabai and other Respondents and, therefore, by order dated 18.9.1984 the Deputy Collector and Deputy Custodian of Evacuee Properties, Pune, directed the Sub-Divisional Officer, Haveli Sub Division to take up the case in revision under Section 257 of Maharashtra Land Revenue Code and pass necessary orders. In view of these directions, the Sub-Divisional Officer, Haveli, Sub Division, Pune, initiated proceeding RTS Revision 14 of 1984 and by order dated 30.7.1985 cancelled the mutation Entry No.1836 which comprises land admeasuring 7897 sq. yards and directed necessary corrections in the record as per the observations made in the order. 7. It appears that the said order was taken in appeal by the respondent and the matter was remanded to the Sub Divisional Officer. After remand, the Sub Divisional Officer, conducted inquiry and again passed an order on 29.10.1987 and confirmed the earlier order. Therefore, the RTS Appeal No.128 of 1987 was preferred before the Collector, which was disposed off by the Additional Collector on 13.7.1993. By the said order, the Order of the third Sub-Divisional Officer was maintained. However, further inquiry as directed by the SDO was to be conducted. Since the mutation Entry No.1836 was cancelled by above order, the Talathi gave effect to these orders and effected the mutation Entry No.2176 and showed the disputed properties in the name of the Collector and Deputy Custodian of Evacuee Properties. The directions were issued by the Collector to the Tahsildar to place the appellant in possession of the property as per the orders of the Deputy Collector and the Deputy Custodian of Evacuee Properties. However, instead of giving effect to those orders, it appears that the Revenue Officers at Tahsil level effected two mutations, viz, Mutation No.2377 and 2394. By mutation entry No.2377 the name of respondent was again mutated in the record and by the mutation Entry No.2394 the name of Genu Kadu was mutated in the record. Since the Collector noticed on complaint that the orders of the Collector has been bypassed or surpassed by the Subordinate Revenue Officers, the Collector by order dated 12.7.1999 directed the SDO to take these mutations namely mutation Entry No.2377 and 2394 in revision and therefore the Sub-Divisional Officer, Maval Division has taken these mutations in revision bearing RTS Revision No.12 of 1999. The said revision was decided by the Sub Divisional officer at Maval on 28.1.2000 and those mutations were cancelled. 8. Being aggrieved by the order passed in the said revision, Respondent No.2 Lalwani preferred RTS Appeal No.81 of 2000 and the Respondent No.3 Genu Kadu preferred RTS Appeal No.114 of 2000. Both these RTS Appeals were heard by the Additional Collector, Pune and by order dated 28.5.2001 the Addl. Collector, Pune dismissed the said appeals and confirmed the order of the Sub Divisional Officer, Maval. Aggrieved by the said order of the Additional Collector, Respondent No.2 preferred RTS Revision No.330 of 2001 under Section 257 of Maharashtra Land Revenue Code, 1966 before the Additional Commissioner, Pune Division, Pune. The said revision was decided by the Additional Commissioner, Pune by order dated 22.11.2001 and the said revision was dismissed. 9. Respondent No.2 challenged this order of the Additional Commissioner by filing the proceeding RTS 3402/Pra.kra.309/L-6 by way of second revision before the Revenue Minister for State and the said proceeding was decided by the Minister for State on 18.10.2002. The Revenue Minister allowed the said proceeding and set aside the orders passed by the Sub Divisional Officer, Maval dated 28.1.2000, order dated 28.5.2001 of Additional Collector, Pune and of Additional Commissioner dated 22.11.2001, and thus, restored the position as reflected by the Mutation Entries Nos.1836 and 2377 and 2394. Thus, all the entries in favour of the Respondents were protected and maintained by the order of the State Minister for Revenue. 10. Appellant challenged the order dated 19.10.2002 passed by the Minister by filing a writ petition, which was dismissed by learned Single Judge of the Bombay High Court. Thereafter, the appellant filed Letters Patent Appeal, which was also dismissed by the Division Bench holding that when the State Minister for Revenue entertained the matter, he was possessed of jurisdiction under Section 257 of the Maharashtra Land Revenue Code and, therefore, the order passed by him under the said authority is within his jurisdiction, power and competence. The Division Bench observed thus: \u201c\u2026We record our finding that under Section 257 of the Maharashtra Land Revenue Code more than one revision is possible. Now coming to the facts of the present case, the mutation Entry No.1836 was in fact certified. However, the Sub-Divisional Officer has taken the said mutation in revision in RTS Revision No.14 of 1984 and has set aside the mutation by order dated 30.7.1985. There was appeal as against that order which was remanded. It was again decided by the Sub Divisional Officer on 29.10.1987 and the said mutation was set aside. There was RTS Appeal No.128 of 1987 which was decided on 13.7.1993. In view of these orders the mutation entry No.1836 was cancelled and Mutation Entry No.2176 was effected whereby the name of the Collector and the Deputy Collector of the Evacuee Property was entered into 7 X 12 extracts. It is further found that when the orders of the Collector directing to put the petitioner into possession were not obeyed by the subordinate Revenue Officers and the Revenue Officers effected the mutation entry No.2377 in favour of the Respondent Nos.3 Gulabai Desai and Mutation Entry No.2394 in favour of the Respondent No.5 Genu Kadu and thereafter for second time the special Divisional Officer, Maval, has exercised the revisional powers under Section 257 and initiated proceeding RTS Revision 12 of 1999 in respect of the mutation entry No.2377 and 2394. The RTS Revision 12/99 was allowed on 28.1.2000 as against that two RTS appeals namely, RTS Appeal No.81 of 2000 and RTS Appeal No.114 of 2000 were preferred by the Respondent. They were decided on 28.5.2001. As against that the RTS Revision No.330 of 2001 was preferred. The same was dismissed. As against that the RTS proceeding bearing No.3402 /Pra.Kra.309/L-6 was preferred before the Minister for State. All these proceedings will show that twice the Sub-Divisional Officer has exercised the revisional power under Section 257 at the directions of the Collector, namely the RTS Revision No.14 of 1984 and RTS Revision No.12 of 1999. It will further reveal that the appeals as against the RTS Revision No.14 of 1984 was preferred by the parties in view of the provisions of Section 247 and 249 sub-section 2. It will equally appear that when the orders were passed in Revision Application No.12 of 1999 before the Sub Divisional Officer in exercise of the powers under Section 257 the parties have preferred two RTS appeals in view of the provisions of Section 247 and 249 sub-section 2. Not only that, thereafter the RTS Revision Application No.330 of 2001 was also preferred before the Commissioner and if the view is taken that the second revision is not tenable then in that circumstances since the first order passed in RTS Revision No.12 of 1999 is a revisional order, this second revision before the Commissioner being RTS Revision No.330 of 2001 would not have been tenable. However, said revision RTS 330 of 2001 is tenable since the appeals as provided under Section 247 and 249 intervene in between the revisional orders passed by the Sub-Divisional officer and the Commissioner. Thus, in short, we find that the scheme under Maharashtra Land Revenue Code is quite different scheme and it permits more than one revision. Thus, viewed from any angle, we find that the State Minister for Revenue when he entertained the matter, State Minister for revenue was possessed of jurisdiction under Section 257 of the Maharashtra Land Revenue Code and therefore the order passed by him under the said authority is within his jurisdiction, power and competence.\u201d 11. Hence, the present appeal by special leave. 12. Mr. Huzefa Ahmadi, learned senior counsel appearing for the appellant, mainly attacked the revisional power exercised by the Minister concerned in purported exercise of jurisdiction under Section 257 of the Maharashtra Land Revenue Code. In the alternative, learned Senior counsel submitted that even if it were to be admitted without prejudice that second revision is maintainable, the Minister being the revisional authority should not have interfered with the findings recorded by all the six Revenue Authorities. Referring the decision of the Bombay High Court in the case of Sambappa vs. State of Maharashtra [(2002) SCC on line, Bombay 1222], learned counsel submitted that when the Sub-Divisional Officer, Additional Collector and Additional Commissioner had concurrently recorded finding in favour of the appellant by observing that the revenue record is not in consonance with the factual aspect and they have directed to correct the revenue entries, in such a case, the second revisional authority exceeded its jurisdiction in entertaining the said application and interfering with the finding of fact. Section 257 makes it clear that a revisional authority has to consider only the legality and propriety of the decision. Learned counsel referring the revisional jurisdiction of the High Court under Section 115 of the Code of Civil Procedure tried to impress us that when the power of revision is given to the District Judge, then the High Court cannot entertain second revision petition under Section 115 of the Code. Learned counsel relied upon the decision of this Court in the case of State of Kerala vs. K.M. Charia Abdulla & Co., AIR 1965 SC 1585 and Hari Shankar vs. Rao Girdhari Lal Chowdhury, AIR 1963 SC 698. 13. Mr. Ahmadi, learned senior counsel further submitted that a request was made to the High Court not to enter into the merit of the case, and to confine itself to the question whether a second revision was at all maintainable, in the light of the ratio in Harishankar\u2019s case (supra), (1962) Suppl.(1) SCR 933, Hiralal Kapur vs. Prabhu Choudhury, (1988) 2 SCC 172 and Helper Girdharbhai vs. Saiyed Mohmad Mirasaheb Kadri and others, (1987) 3 SCC 538. Learned counsel also drew our attention to the decision of this Court in Dharampal vs. Ramshri, (1993) 1 SCC 435 where this Court held that a second revision to the High Court under Section 482 of the Cr.P.C. was not permitted. 14. Lastly, Mr. Ahmadi submitted that the second revision would not lie under Section 257 of the Revenue Code since Section 259 of the Code provides an opportunity to the State Government to only correct any \u201cFinal Order\u201d while exercising power under the provisions of Section 257 i.e. with regard to its legality and propriety. 15. Mr. Ravindra Srivastava, learned senior counsel appearing for the respondent\u2013State, at the very outset submitted that the appellant conceded before the High Court not to decide the merit of the case. The only point raised before the High Court was with regard to the maintainability of second revision before the State Government under Section 257 of the Revenue Code. Learned counsel submitted that Section 257 expressly confers power of revision on the State Government which power is coupled with power of control and superintendence. Learned counsel submitted that the Commissioner or the Additional Commissioner is not equal in a rank but subordinate to the State Government. Learned counsel submitted that the State Government is the supreme revenue authority and existence of more than one appeal or revision to an aggrieved party is not per se abhorrent to any legal principle; depends upon the Statute. Mr. Srivastava then contended that the High Court correctly analysed and appreciated the scheme of the Code vis a vis judicial review in revenue matters. Learned counsel put heavy reliance on the decision of this Court in the case of Ishwar Singh vs. State of Rajasthan and others, (2005) 2 SCC 334 for the proposition that there can be a second revision under the same provision of the Statute. 16. The only question that falls for consideration is as to whether a second revision under Section 257 is maintainable and that whether the State Government exceeds its jurisdiction in entertaining the second revision? 17. Before we proceed to decide the aforesaid question, we would like to refer the relevant provisions of the Maharashtra Land Revenue Code 1966. 18. Section 2(31) defines the Revenue Officer as under:- \u201c2 (31)\" revenue officer\" means every officer of any rank whatsoever appointed under any of the provisions of this Code, and employed in or about the business of the land revenue or of the surveys, assessment, accounts, or records connected therewith ;\u201d 19. Chapter II deals with the Revenue Officers, their powers and duties. Sections 5, 6 and 7 reads as under:- \u201c5. Chief Controlling authority in revenue matters. The chief controlling authority in all matters connected with the land revenue in his division shall vest in the Commissioner, subject to the superintendence, direction and control of the State Government. 6.Revenue Officers in division. The State Government shall appoint a Commissioner of each division; and may appoint in a division an Additional Commissioner and so many Assistant Commissioners as may be expedient, to assist the Commissioner: Provided that, nothing in this section shall preclude the appointment of the same officer as Commissioner for two or more divisions. 7.Revenue officers in district. (1)The State Government shall appoint a Collector for each district (including the City of Bombay who shall be in charge of the revenue administration there of ; and a Tahsildar for each taluka who shall be the chief officer entrusted with the local revenue administration of a taluka. (2)The State Government may appoint one or more Additional Collectors and in each district (including the City of Bombay and so many Assistant Collectors and Deputy Collectors (with such designations such as \"First\", \"Second\", Super numerary\", etc. Assistants as may be expressed in the order of their appointment), one or more Naib-Tahsildars in a taluka, and one or more Additional Tahsidars or Naib-Tahsildars therein and such other persons (having such designations) to assist the revenue officers as it may deem expedient. (3)Subject to the general orders of the State Government, the Collector may place any Assistant or Deputy Collector in charge of one more sub-divisions of a district, or may himself retain charge thereof. Such Assistant or Deputy Collector may also be called a Sub-Divisional Officer. (4) The Collector may appoint to each district as many persons as he thinks fit to be Circle Officers and Circle Inspectors to be in charge of a Circle, and one or more Talathis for a saza, and one or more Kotwals or other village servants for each village or group of villages, as he may deem fit.\u201d 20. Section 11 of the Code is worth to be quoted herein below:- \u201c11.Subordination of officers. (1)All revenue officers shall be subordinate to the State Government. (2)Unless the State Government directs otherwise, all revenue officers in a division shall be subordinate to the Commissioner, and all revenue Officers 2[in a district (including the City of Bombay)] shall be subordinate to the Collector. 3)Unless the State Government directs otherwise, all other Revenue Officers Including survey officers shall be subordinated, the one to the other, in such order as the State Government may direct.\u201d 21. Sections 13 and 14 deal with the powers and duties of all Revenue Officers. 22. From reading of the aforesaid provisions, it is manifest that the State Government makes appointment of the Revenue Officers including the Commissioner and the Chief Controlling Authorities in the revenue matters. Section 5 makes it clear that the Chief Controlling Authority in all matters connected with the land revenue in his Division shall vest with the Commissioner, subject to superintendence, directions and control of the State Government. Section 11 provides that all Revenue Officers shall be subordinate to the State Government. It is, therefore, clear that in revenue matters the State Government is the Supreme Revenue Authority. 23. In the present case, we noticed the scheme of the Code in the matters of hearing and disposal of appeals, revision and review. Section 247 deals with the appeal and appellate authorities, which reads as under:- \u201c247.Appeal and appellate authorities. (1)In the absence of any express provisions of this Code, or of any law for the time being in force to the contrary, an appeal shall lie from any decision or order passed by a revenue or survey officer specified in column 1 of the Schedule E under this Code or any other law for the time being in force to the officer specified in column 2 of that Schedule whether or not such decision or order may itself have been passed on appeal from the decision of order of the officer specified in column 1 of the said Schedule. Provided that, in no case the number of appeals shall exceed two. (2)When on account of promotion of change of designation, an appeal against any decision or order lies under this section to the same officer who has passed the decision or order appealed against, the appeal shall lie to such other officer competent to decide the appeal to whom it may be transferred under the provisions of this Code.\u201d 24. Section 248 is also relevant which provides the forum of appeal to the State Government. Similarly, Section 249 makes provision of appeal against the review or revision. 25. The schedule preferred to in Section 227 mentions the Authorities before whom appeal would lie. The Schedule appended to the Code is as follows:- Schedule E (See section 247) | |REVENUE OFFICER |APPELLATE AUTHORITY | |1. |1., All Officers in a |Sub-divisional Officer | | |Sub-Division, sub-ordinate to|or such Assistant or | | |the Sub-division Off |Deputy Collector as may| | | |be specified by the | | | |Collector in this | | | |behalf. | |2. |Sub-Divisional Officer, |Collector or such | | |Assistant or Deputy |Assistant or Deputy | | |Collector. |Collector who may be | | | |invested with powers of| | | |the Collector by the | | | |State Government in | | | |this behalf | |3. |Collector 1 (including the |Divisional | | |Collector of Bombay) or |Commissioner. | | |Assistant/Deputy Collector | | | |invested with the appellate | | | |power of the Collector., | | |4. |A person exercising powers |Such officer as may be | | |conferred by section 2 (15).,|specified by the State | | | |Government in this | | | |behalf. | | |Survey Officer |Appellate Authority | |1. |District Inspector of Land |Superintendent of Land | | |Records, Survey Tahsildar and|Records or such Officers| | |other Officer not above the |of equal ranks as may be| | |rank of District Inspector of|specified by the State | | |Land Records., |Government in this | | | |behalf. | |2. |Superintendent of Land |Director of Land Records| | |Records and other Officer of |or the Deputy Director | | |equal ranks.,. |of Land Records, who may| | | |be invested with the | | | |powers of Director of | | | |Land Records by the | | | |State Government in this| | | |behalf. | 26. Section 257 is the relevant provision which deals with the power of State Government and of certain revenue and survey officers to call for and examine the records and proceedings of Subordinate Officers. Section 257 reads as under:- \u201c257. Power of State Government and of certain revenue and survey officers to call for and examine records and proceedings of subordinate officers. (1) The State Government and any revenue of survey officer, not inferior in rank to an Assistant or Deputy Collector or a Superintendent of Land Records, in their respective departments, may call for and examine the record of any inquiry or the proceedings of any subordinate revenue or survey officer, for the purpose of satisfying itself or himself, as the case may be, as to the legality or propriety of any decision or order passed, and as to the regularity of the proceedings of such officer. (2) A Tahsildar, a Naib-Tahsildar, and a District Inspector of Land Records may in the same manner call for and examine the proceedings of any officer subordinate to them in any matter in which neither a formal nor a summary inquiry has been held. (3)If in any case, it shall appear to the State Government, or any officer referred to in sub-section (1) or sub-section (2) that any decision or order or proceedings so called for should be modified, annulled or reversed, it or he may pass such order thereon as it or he deems fit. Provided that, the State Government or such officer shall not vary or reverse any order affecting any question of right between private persons without having to the parties interested notice to appear and to be heard in support of such order. Provided further that, an Assistant of Deputy Collector shall not himself pass such order in any matter in which a formal inquiry has been held, but shall submit the record with his opinion to the Collector, who shall pall such order thereon as he may deem fit.\u201d 27. A bare reading of the aforesaid provision would show that the provision uses the word \u2018and\u2019 for State Government but for other Revenue officers it uses the word \u2018or\u2019. The language and the words used in the said provision suggest that jurisdiction of the State Government is concurrent with the jurisdiction of other Revenue officers in deciding the revision. Hence, even if one party goes to the Commissioner in revision, the State Government can still be approached under Section 257 for revision. The power of revision exercised by any Revenue officer including the Commissioner is a proceeding by a subordinate officer and the State Government can satisfy itself as to the legality and propriety of any decision including the order passed in revision by the Revenue officers. 28. Further, in view of the fact that State Government itself appoints the Revenue officers including the Commissioner under the scheme of the Code and all Revenue officers are subordinate to the State Government as per Section 11 of the Act, and even the Chief Controlling Authority in all matters connected with the land revenue in his Division is vested with the Commissioner, they are subject to the superintendence, direction and control of the State Government as provided under Section 5 of the Code. The power of the State Government has further been widened by Section 259 of the Code, which reads as under:- \u201c259. Rules as to decisions or orders expressly made final Whenever in this Code, it is provided that a decision or order shall be final or conclusive, such provision shall mean that no appeal lies from any such decision or order; but it shall be lawful to the State Government alone to modify, annul or reverse any such decision or order under the provision of Section 257.\u201d 29. The aforesaid provision makes it clear that even if the decision is considered to be final, the State Government\u2019s power to call for and examine the record and proceedings of subordinate officers is saved. In other words, the State Government in exercise of its revisional as well as general power of superintendence and control can call for any record of proceedings and consider the legality and propriety of the orders passed by the Revenue officers under Section 247 or 257 of the Code. 30. From perusal of the entire scheme of the Code including Section 257, it is manifest that the revisional powers are not only exercisable by the State Government but also by certain other Revenue officers. There is nothing in the Code to suggest that if these revisional powers are exercised by a Revenue officer who has jurisdiction, it cannot be further exercised by a superior Revenue officer or by the State Government. A fair reading of Sections 257 and 259 suggests that if revisional powers are exercised by a Revenue officer having jurisdiction to do so, further revisional power can be exercised by the superior officer or by the State Government. 31. A similar question came for consideration before this Court in the case of Ishwar Singh vs. State of Rajasthan and Others, (2005) 2 SCC 334 under the Rajasthan Cooperative Societies Act, 1965. In that Ac,t by Section 128 power was conferred upon the State Government and the Registrar to call for and examine the records of any enquiry or proceedings of any other matter, of any officer subordinate to them, for the purpose of satisfying themselves as to the legality or propriety of any decision or order passed by such officer. It was submitted by the counsel that Section 128 related to two authorities i.e. the State Government and the Registrar. In fact the two authorities are interchangeable. If one authority exercises revisional power, the other authority logically cannot have exercised such power. Hence, it was argued that second revision was not maintainable. Rejecting the submission this Court held:- \u201c20. Sub-section (2) of Section 124 provides that if the decision or order is made by the Registrar, appeal lies to the Government and if the decision or order is made by any other person, or a cooperative society, the appeal lies to the Registrar. Therefore, under Chapter XIII a clear distinction is made between the State Government and the Registrar. The test is whether the two authorities with concurrent revisional jurisdiction are equal in rank. It is, therefore, not correct as contended by learned counsel for the appellant that the two authorities i.e. the State Government and the Registrar are interchangeable. The power of the Government and the Registrar in terms of Section 128 excludes matters which are covered by Section 125 i.e. revision by the Tribunal.\u201d 32. Considering the entire scheme of the Code, and the provisions contained in Sections 257 and 259, we are of the definite opinion that the Minister concerned of the State Government can entertain second revision to satisfy the legality and propriety of the order passed by the Revenue Officer. The Division Bench of the Bombay High Court has elaborately discussed the question and passed the impugned order holding that Section 257 confers jurisdiction to the State Government to entertain its revision against the order passed by any Revenue Officer either in appeal or in revision. We find no infirmity in the impugned order passed by the High Court. Hence, this appeal has no merit which is accordingly dismissed. 33. Before parting with the order, we must make it clear that in view of the request made by the appellant before the High Court not to enter into the merit of the case since the party may prosecute their remedies in the Civil Court for adjudication, we have not expressed any opinion with regard to the merit of the case of the parties. The parties may prosecute their remedies in Civil Court in accordance with law. \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.J. (M.Y. Eqbal) \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.J. (C. 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{"id": "1661941", "text": "PETITIONER: GUJARAT ELECTRICITY BOARD & ANR. Vs. RESPONDENT: ATMARAM SUNGOMAL POSHANI DATE OF JUDGMENT31/03/1989 BENCH: SINGH, K.N. (J) BENCH: SINGH, K.N. (J) VENKATARAMIAH, E.S. (J) CITATION: 1989 AIR 1433 1989 SCR (2) 357 1989 SCC (2) 602 JT 1989 (3) 20 1989 SCALE (1)907 ACT: CIVIL SERVICES: Transfer--An incident of service-No employee has legal right to be posted at any particular place--Transfer--Necessary in public interest and efficiency of administration--No employee has right to be absent from duty without sanction of leave. PRACTICE AND PROCEDURE: Supreme Court--Transfer of case from one Bench to another--Entitlement too-Only when Bench is biased or there are other reasonable grounds--Not when a Judge expresses opinion on merits of case on conclusion of hearing. Indian Evidence Act, 1872: Section 114(e)--Registered cover sent to addressee presumption of service----When arises. HEADNOTE: The respondent joined service as technical assistant with the Gujarat State Electricity Board and was later promoted to the post of Deputy Engineer. While he was posted at Surat he was transferred to Ukai Sub-division under the order of the Superintending Engineer dated 29th March, 1974 and he was relieved from his duties at Surat on 30th March, 1974. He made representation to the Addl. Chief Engineer for cancelling his transfer order which was rejected and he was directed to join at Ukai but he did not do so and continued to be absent without sanction of any leave and instead he filed a civil suit challenging validity of the order of transfer. The Superintending Engineer by his letter dated 18th April, 1974 directed the respondent to show cause as to why action should not be taken against him for disobeying the order of transfer and also for unauthorised absence from duty in breach of service Regulation No. 113. The respondent failed to join his duty even after a warning. Thereafter the Superintending Engineer sent a letter dated 24th April, 1974 by registered cover which contained a warning but the same was returned back by the postal authorities with an endorse- ment that the addressee refused to accept the same. Meanwhile, the Chief Engineer by his order dated 27th May, 358 1974 discharged the respondent from service in accordance with service Regulation No. 113 as he had continued to remain absent from duty since 30th March, 1974. The respondent filed a writ petition before the High Court challenging the validity of the order of his discharge from service. A learned Single Judge of the High Court quashed the order of discharge but looking to the attitude of the respondent and continued conduct of disobedience of the orders of his superior he was not granted consequential reliefs. The respondent as well as the appellant-Board preferred Letter Patent Appeals. A Division Bench of the High Court dismissed the appeal of the appellant-Board and allowed the respondent's appeal upholding the order of discharge as illegal and void and directed the appellants to reinstate the respondent, to treat him in service, and to grant him benefits of incre- ments, seniority, and promotion. The Division Bench, howev- er, did not grant full back-wages but directed the Board to pay the respondent 50 per cent of back-wages. Against the order of the Division Bench of the High Court the appellants preferred an appeal to this Court by special leave. The appeal came up for hearing and advocates for both the parties were fully heard. Being satisfied that the Single Judge as well as Division Bench of the High Court committed error in allowing the writ petition of the re- spondent, this Court suggested to the counsel for the re- spondent that if he agreed the original writ petition of the respondent could be dismissed without directing him to refund the amount which he had already been paid by the appellants in pursuance to the orders of the High Court and of this Court. The bearing was adjourned to enable counsel to obtain instructions from the respondent. On the next hearing another counsel appeared on behalf of the respondent to argue on merits. The Court refused to hear fresh argu- ments as the hearing had already been completed. Thereupon, the respondent appeared in person to make his submissions which the Court refused as oral. hearing has already been completed. However, in the interest of justice the respond- ent was permitted to file written submissions. No written submissions were filed, instead the respondent adopted an unusual course by sending an application by post expressing his no confidence in the Bench of this Court with a prayer to transfer the case to some other Bench. The Court ignored the request of the respondent as it was unusual, uncalled for, and unjustified. 359 Allowing the appeal by special leave, this Court, HELD: No party is entitled to get a case transferred from one Bench to the other, unless the Bench is biased or there are some reasonable grounds for the same. but no right to get a case transferred to any other Bench, can legiti- mately be claimed merely because the Judges express opinion on the merits of the case on the conclusion of hearing. [362E] Transfer of a Government servant appointed to a particu- lar cadre of transferable posts from one place to other is an incident of service. No Government servant or employee of public undertaking has legal right for being posted at any particular place. Transfer from one place to other is gener- ally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the Public Administra- tion. [362H; 363A] Whenever, a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representa- tion to the competent authority for stay, modification, or cancellation of the transfer order. If the order of transfer is not stayed, modified, or cancelled the concerned public servant must carry out the order of transfer. [363B] If he fails to proceed on transfer in compliance to the transfer order, he would expose himself to disciplinary action under the relevant Rules, as has happened in the instant case. The respondent lost his service as he refused to comply with the order of his transfer from one place to the other. [363C] No Government servant or employee of any public under- taking has a right to be absent from duty without sanction of leave, merely on account of pendency of representation against the order of transfer. [366B] There is presumption of service of a letter sent under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the Court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on 360 the party, challenging the factum of service. [368B-C] In the instant case, the respondent's failure to join his duties at Ukai resulted in unauthorised absence and his failure to join his duties in spite of repeated reminders and letters issued to him constituted sufficient valid ground for taking action under Regulation No 113. Before issuing the order of discharge the respondent was not only warned but he was also afforded an opportunity to explain as to why disciplinary action should not be taken against him. The respondent acted in an irresponsible manner in. not complying with the order of transfer which led to his dis- charge from service in accordance with the Service Regula- tion No. 113. The Single Judge as well as the Division Bench both therefore erred. in law in setting aside the order of discharge. [368E-G] JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3561 of 1986. From the Judgment and Order dated 28.2.1986 of the Gujarat High Court in SCA No. 1176 of 1974. B .K. Mehta, Shishir Sharma and P.H. Parekh for the Appel- lants. Respondent-in-person. (N.P.) The Judgment of the Court was delivered by SINGH, J. This appeal is directed against the judgment and order of the High Court of Gujarat dated 28.2.1986 allowing the respondent's writ petition and quashing order of discharge from service and directing his reinstatement in service. The respondent joined service as technical assistant with the Gujarat State Electricity Board (hereinafter re- fened to as the Board). He was promoted to the post of Deputy Engineer. While he was posted at Surat as Deputy Engineer he was transferred to Ukai subdivision under the order of the Superintending Engineer dated 29th March, 1974. Pursuant to the order of transfer he was relieved from his duties at Surat on 30th March, 1974 to enable him to join at Ukai. He made representation to the Additional Chief Engi- neer for cancelling his transfer order on the ground that his mother aged 70 years was ailing and it would cause great inconvenience to him if he was required to join at Ukai. His representation was rejected and he was directed to join at Ukai but he did not do so instead he filed a civil suit at Baroda challenging validity of the order of trans- fer. Meanwhile, the Chief Engineer by his order dated 27th May, 1974 discharged the respondent from service with effect from 31st March, 1974 in accordance with service Regulation No. 113. The respondent challenged the validity of the order of his discharge from service by means of a writ petition under Article 226 of the Constitution before the High Court of Gujarat. A learned Single Judge of the High Court quashed the order of termination on the findings that the order of discharge was issued m violation of the basic principles of natural justice as no opportunity was afforded to the re- spondent before discharging him from services under Regula- tion No. 113. The learned Single Judge granted a declaration in respondent's favour holding the order void and illegal but having regard to recalcitrant attitude of the appellant and his continued conduct of disobedience of the orders of his superior authorities, he refused to grant consequential reliefs regarding reinstatement or payment of back-wages. The respondent as well as the appellant-board, both pre- ferred Letters Patent appeals against the order of learned Single Judge. A Division Bench of the High Court dismissed the appeal preferred by the Appellants but it allowed the respondent's appeal. The Division Bench upheld the order of the learned Single Judge holding the order of discharge illegal and void but it set aside the order of the learned Single Judge refusing to grant consequential relief instead it directed the appellants to reinstate the respondent, and to treat him in service without any break in service and to grant him benefits of increments, seniority, and promotion to which he may be entitled under the rules. The Bench, however, did not grant full back-wages to the respondent instead it directed the Board to pay him 50 per cent of back-wages. Aggrieved, the appellant has preferred the instant appeal after obtaining special leave of this Court. This appeal came up for hearing before us on 28th Janu- ary, 1988 and on that day Sh. B.K. Mehta, Advocate appearing for the appellants and Sh. Vimal Dave, Advocate, appearing for the respondent were fully heard. After hearing learned counsel for the parties we were satisfied that the learned Single Judge as well as the Division Bench both had commit- ted error in allowing the writ petition and granting relief to the respondent. We expressed our view in the Court and suggested to Mr. Vimal Dave, counsel for the respondent, that if he agreed the original writ petition of the respond- ent could be dismissed without directing him to refund the amount which he had already been paid by the appellants in pursuance to the orders of the High Court and of this Court as during the pendency of the appeal, the appellants were directed by means of interim order of this Court to continue to pay salary to the respondent which was being paid to him regularly. The hearing was adjourned to enable Sh. Vimal Dave, to obtain instructions from the respondent. The appeal came up for hearing before us on 16.2.1988 when another counsel appeared to argue the appeal on behalf of the respondent on merits. We refused to hear the counsel as we had already completed hearing. Thereupon, the respondent himself appeared in person and sought permission to make his submissions personally. We refused to accede to his request as oral heating had already been completed and the matter had been adjourned only to enable the respondent's counsel to obtain instructions. However, in the interest of justice we permitted the respondent to file written submissions. if any, in support of his case. Thereafter, the case was listed several times but no written submissions were filed instead the respondent adopted an unusual course by sending an application by post expressing his no confidence in us with a prayer to transfer the case to some other Bench. Since this was unusual, uncalled for and unjustified request we ignored the same and reserved the order. We are constrained to note that instead of utilising the opportunity granted to him for filing written submissions the respondent has mis- used adjournments for the purposes of raising frivolous objections for getting the case transferred to some other Bench. No party is entitled to get a case transferred from one Bench to the other, unless the Bench is biased or there are some reasonable grounds for the same, but no right to get a case transferred to any other Bench, can legitimately be claimed merely because the judges express opinion on the merits of the case on the conclusion of hearing. In the instant case on the conclusion of the oral hearing we had expressed our opinion on 28.1.1988 in the open court, that we were inclined to allow the appeal and set aside the order of the High Court and dismiss the writ petition but taking a sympathetic view we requested Sh. Vimal Dave, learned coun- sel appearing for the respondent to obtain instructions as aforesaid. The opportunity granted to the respondent has, however, been misused by raising mischievous and frivolous objections instead of filing written submissions. The re- spondent's prayer is accordingly rejected and since oral hearing has already been completed, and in spite of several adjournments respondent failed to appear before the Court or to file the written submissions we proceed to decide the case on merits. Transfer of a Government servant appointed to a particu- lar cadre of transferable posts from one place to the other is an incident of service. No Government servant or employee of Public Undertaking has legal tight for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficien- cy in the Public administration. Whenever, a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay, modification or cancellation of the transfer order. If the order of transfer is not stayed, modified or cancelled the concerned public servant must carry out the order of transfer. In the absence of any stay of the transfer order a public servant has no justification to avoid or evade the transfer order merely on the ground of having made a repre- sentation, or on the ground of his difficulty in moving from one place to the other. If he fails to proceed on transfer in compliance to the transfer order, he would expose himself to disciplinary action under the relevant Rules, as has happened in the instant case. The respondent lost his serv- ice as he refused to comply with the order of his transfer from one place to the other. There is no dispute that the respondent was holding a transferable post and under the conditions of service ap- plicable to him he was liable to be transferred and posted at any place within the State of Gujarat. The respondent had no legal or statutory right to insist for being posted at one particular place. In fact, during the tenure of his service in the Board the respondent had been transferred from one place to an other place several times. In March, 1974 he was transferred . from Surat to Ukai. The distance between the two places as was stated before us during the hearing of the case is less than 50 kms. He was relieved from his duties at Surat on 30th March, 1974 but he did not join at Ukai till the impugned order of discharge was issued on May 27, 1974. The Chief Engineer who discharged the respondent's services exercised his power under Service Regulation No. 113, which runs as under: \"113. The continued absence from duty or overstay, m spite of warning, to return to duty shall render the employee liable to summarily discharge from service without the necessity of proceedings under the Gujarat Electricity Board, Conduct, Discipline and Appeal Procedure.\" The above Rule provides that if an employee of the Gujarat Electricity Board continues to remain absent from duty or overstays the period of sanctioned leave and in spite of warning, he fails to return to duty, he renders himself liable to be discharged summarily from service without complying with the procedure prescribed for taking discipli- nary action, under the Gujarat Electricity Board, Conduct, Discipline and Appeal Procedure. Regulation 113 confers wide powers on the authorities to summarily discharge an employee from service, if he continues to be absent from duty in an unauthorised manner and refuses to join his duty even after warning. Under the disciplinary rules detailed procedure is required to be followed for removing an employee from serv- ice but Regulation 113 provides for summary discharge from service. Before this power is exercised, two conditions must be satisfied; Firstly, the employee must be found to be absent from duty without leave or overstaying the period of sanctioned leave, and secondly, he failed to join his duty even after a warning. The object and purpose of giving warning is to remind the delinquent employee that if he continues to be absent from duty he would be liable to action under Regulation 113 and to afford him an opportunity to make amends by joining his duty. If even thereafter he fails to join duty, his services are liable to be terminated by an order of discharge. It is noteworthy that the validity of Regulation 113 was not challenged before the High Court and the parties proceeded on the assumption that Regulation 113 was valid and applicable to the respondent's service. The Chief Engineer discharged the respondent from service as he had continued to remain absent from duty w.e.f. March 30, 1974 to May 27, 1974. The Division Bench of the High Court held that no warning as contemplated by service Regulation No. 113 had been issued to the respondent nor he had been afforded any opportunity of showing cause before the im- pugned order of discharge was passed and consequently, the order of discharge was null and void being contrary to service Regulation No. 113 itself. On perusal of the materi- al on record we are of the opinion that the view taken by the High Court is not sustainable as there is sufficient material on record which shows that warning had been issued to the respondent before the order of discharge was issued. In determining the question whether any warning was given to the respondent it is necessary to refer to the sequence of events and the correspondence which ensued between the appellants and the respondent. On March 29, 1974 the Superintending Engineer of the Board issued the order, transferring the respondent from Surat to Ukai, on 30.3.1974 the respondent was relieved from Surat and directed to join his duty at Ukai, but the respondent did not join his duty at the new place of posting. Instead he made a representa- tion to the Additional Chief Engineer on 8.4.1974 after the transfer order. The Transfer order was not stayed and as the respondent did not join his duties, he continued to be absent without sanction of any leave. In this situation the Superintending Engineer by his letter dated 18th April, 1974 directed the respondent to show cause as to why action should not be taken against him for disobeying the order of transfer and also for unautho- rised absence from duty in breach of service Regulation No. 113. The letter is as under: \"GUJARAT ELECTRICITY BOARD O & M DIVISION Nana Varchha Road Surat. Dated 18th April, 1974 To Shri A.S. Pohani Junior Engineer, Ukai 37, Gurunagar Society Near Jakat Naka, Surat-3. Sub: Transfer from Surat to Ukai. You have been relieved on 30.3.1974 A.N. on account of your transfer from Surat to Ukai, but you have not reported to Ukai till today and remained on unauthorised absence on re- lief, which is breach of S.R. No. 112 and 113. Please submit your explanation as to why action should not be taken against you for disobeying order of superior and breach of S.R. No. 112 and 113 within 7 days from re- ceipt of this letter. Sd/-Execut ive Engineer (O & M) Surat Copy f.w.c.s. to Superintending Engineer, GEB, Utran.\" There is no dispute that the respondent received the afore- said letter as he sent a reply to the Superintending Engi- neer on April 20, 1974, a copy of which was annexed as Annexure 'J' by the petitioner, to his petition before the High Court. By that letter respondent stated that he was waiting for the decision of his represen- tation made for reconsideration of his transfer from Surat to Ukai and therefore, the question of his remaining on unauthorised leave was misconceived. Since the respondent had not obtained any sanctioned leave for his absence his absence from duty was unauthorised. No Government servant or employee of any public undertaking has a right to be absent from duty without sanction of leave, merely on account of pendency of representation against the order of transfer. Since the respondent continued to be absent from duty the Superintending Engineer by a registered post acknowledgment due letter dated April 24, 1974 informed the respondent that his request to postpone his transfer was rejected and he was directed to join his duty at Ukai and on his failure to do so disciplinary action would be taken against him. The Establishment Officer (P) of the Board, also informed the respondent by his letter dated May 6, 1974 that his repre- sentation against the order of transfer was not accepted and he was directed to obey the order of transfer. A copy of the letter filed by the petitioner himself as Annexure 'K' to the writ petition in the High Court. But even thereafter, the respondent did not join his duties. Ultimately, the Chief Engineer of the Board took action against the respond- ent and discharged him from service with effect from 31.3.1974 by his letter dated May 27, 1974. The sequence of events and the correspondence which ensued between the officers of the Board and the respondent clearly show that the respondent disobeyed the order of transfer and he re- mained absent from duty in an unauthorised manner without obtaining sanction of leave. The aforesaid documents leave no room for any doubt that the respondent was reminded of his failure to join his duties at Ukai and he was further reminded that his unauthorised absence had exposed him to disciplinary action. In fact, the Superintending Engineer had by his letter dated 18th April, 1974 clearly reminded the respondent that his unauthorised absence was in breach of Service Regulation No. 113 and called upon to show cause why action should not be taken against him but in spite of these letters the respondent failed to join his duties. The Division Bench of the High Court has held that since no warning was issued to the respondent action taken under Service Regulation No. 113 was not in accordance with law. This finding is wholly misconceived. A warning need not be in any particular form. The object and purpose of the warn- ing as contemplated by the Regulation,. is to remind the delinquent employee that his continued unauthorised absence from duties was liable to result in discharge of his serv- ice. The substance of the Superintending Engineer's letter dated 18th April, 1974 which was admittedly served on the respondent, contained warning to the respondent, which fully met the requirement of Regulation No. 113. Before the High Court a controversy was raised as to whether the registered letter dated 24.4.1974 addressed by the Superintending Engineer to the respondent was received by him or not. The registered cover, containing the letter dated 24.4.1974 was returned back by the postal authorities with an endorsement that the addressee refused to accept the same. The respondent's case was that no such registered letter was tendered to him by the postman nor he ever re- fused to accept the same. The Division Bench held that letter dated 24.4.1974 which contained a warning had not been served on the respondent and since the Board had failed to raise the question before the learned Single Judge it could not do so in the letters patent appeal. The Division Bench further held that since the letter dated 24.4.1974 was not served on the respondent, there was no material to show that any warning had been issued to the respondent before he was discharged from service. We do not agree with the view taken by the Division Bench. Firstly, even if the letter dated 24.4.1974 was not served on the respondent there is no dispute that the Superintending Engineer's letter dated 18th April, 1974 had been served on him. By that letter warning as contemplated by Regulation No. 113 had been issued to the respondent. Therefore even if the letter dated 24.4.1974 was not served on the respondent the order of discharge as contemplated by Regulation No. 113 is sustainable in law. But even otherwise, the Division Bench committed error in holding that the Board had raised the question of service of the letter dated 24.4.1974 for the first time before the Division Bench in the letters patent appeal. Perusal of the averments made in paragraphs 17, 18, 23 and 25 (2)(ii) of the counter-affidavit filed in reply to the petitioner's writ petition before the learned Single Judge shows that the Board had categorically pleaded that the respondent was informed by letter dated 24.4.1974 that his representation to postpone his transfer was rejected and he should obey the order of transfer. It was further pleaded that the respond- ent had refused to accept the registered letter and the same had been returned back by the postal authorities with an endorsement that the addressee refused to accept the same. In his rejoinder affidavit the respondent denied the afore- said allegations and asserted that the letter was not ten- dered to him and he never refused to accept the registered cover and the postal endorsement was wrong and incorrect. Apart from denying the postal endorsement, the respondent placed no material before the Court in support of his plead- ing. In this view, we are of the opinion that the Division Bench was totally wrong in holding that no opportunity was afforded to the respondent to meet the case set up by the Board that the letter dated 24.4.1974 was served on the respondent. No new plea had been raised by the Board before the Division Bench instead the plea relating to service of the aforesaid letter had already been before the learned Single Judge. There is presumption of service of a letter sent under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the Court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on the party, challenging the factum of service. In the instant case the respondent failed to dis- charge this burden as he failed to place material before the Court to show that the endorsement made by the postal au- thorities was wrong and incorrect. Mere denial made by ,the respondent in the circumstances of the case was not suffi- cient to rebut the presumption relating to service of the registered cover. We are, therefore, of the opinion that the letter dated 24.4.1974 was served on the respondent and he refused to accept the same. Consequently,the service was complete and the view taken by the High Court is incorrect. In view of the above discussion, we therefore hold that the respondent's failure to join his duties at Ukai resulted in unauthorised absence and his failure to join his duties in spite of the repeated reminders and letters issued to him constituted sufficient valid ground for taking action under Regulation No. 113. We further hold that before issuing the order of discharge the respondent was not only warned but he was also afforded an opportunity to explain as to why disci- plinary action should not be taken against him. The respond- ent acted in an irresponsible manner in not complying with the order of transfer which led to his discharge from serv- ice in accordance with the Service Regulation No. 113. The learned Single Judge as well as the Division Bench both erred in law in setting aside the order of discharge. We, accordingly, allow the appeal, set aside the order of the Single Judge as well as Division Bench and dismiss the respondent's petition. There would be no order as to costs. The respondent has been paid a sum of Rs. 1,04,170 towards salary under the interim orders of this Court. Now, since the order of discharge is held to be valid the amount paid to the re- spondent is liable to be recovered from him, but having regard to the facts and circumstances of the case and the hardship which could be caused to the respondent, we direct the appellant not to recover the amount already paid to the respondent. S.K.A. 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{"id": "1622258", "text": "PETITIONER: LAKSHMANA NADAR AND OTHERS Vs. RESPONDENT: R. RAMIER. DATE OF JUDGMENT: 14/04/1953 BENCH: MAHAJAN, MEHR CHAND BENCH: MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN CITATION: 1953 AIR 304 1953 SCR 848 ACT: Hindu law-Will--Bequest to wife for her lifetime and to daughter absolutely after wife's lifetime-Estate taken by wife-Whether ordinary life estate or Hindu widow's estate -Daughter's estate-Whether vested-Death of daughter before widow, effect of -Construction of Hindu will-Guiding principles. HEADNOTE: A Hindu Brahmin governed by the Mitakshara law made a will in which he gave the following directions: \" After my life- time, you, the aforesaid Ranganayaki Ammal, my wife, shall till your lifetime enjoy the aforesaid entire properties ... After your lifetime, Ramalakshmi Ammal, our daughter and her heirs shall enjoy them with absolute rights and powers of alienation such as gift, exchange and sale from son to grandson and so on for generations. As regards the payment of maintenance to be made to C, wife of my late son, H, my wife Ranganayaki Ammal shall pay the same as she pleases and obtain a release deed.\" After the death of the testator his wife entered into possession of his properties but before the death of his wife, his daughter and all her children died: Held, (i) that on a proper construction of the will in the light of surrounding circumstances, the testator bad conferred on his 849 wife only an ordinary life estate, and alienations made by her would not endure beyond her lifetime ; (ii) that the testator's daughter obtained under the will a vested interest in the properties after the lifetime of the widow, to which her husband succeeded on her death. The rule of construction by analogy is a dangerous one to follow in construing wills differently worded, and executed in different surroundings. Ram Bahadur v. Joger Nath Prasad (3 Pat. L.J. 199), Pavani Subbamma v. Arumala Rama Naidu ([1937] 1 M.L.J. 268), Nathu Rain Mahajan v. Ganga Bai ([1938] 2 M.L.J. 562), Vasanta Rao Ammennamma v. Venkata Kodanda Rao ([1940] 1 M.L.J. 188), Maharaja of Kolhapur v. Sundaram Iyer (I.L.R. 48 Mad. 1), Mahoned Shumsool v. Shewakram (2 I.A. 7), Ratna Chetty v. Narayana swami Chetty (26 M.L.J. 616), Mst. Bhagwati Devi v. Choudry Bholonath Thakur (2 I.A. 256) and Lallu v. Jagmohan (I.L.R. 22 Bom. 409) referred to. Judgment of the Madras High Court affirmed. JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 95 of 1952. Appeal from the judgment and decree dated the 27th February, 1950, of the High Court of Judicature at Madras (Rao and Ayyar JJ.) in Appeal No. 635 of 1946 arising, out of judgment and decree dated the 13th August, 1946, of the Court of the Subordinate Judge of Tinnevelly in Original Suit No. 50 of 1945. K. S. Krishnaswamy Iyengar (S. Ramachandra with him) for the appellants. K. Rajah Iyer (R. Ganapathy Iyer, with him) for the respondent. 1953. April 14. The Judgment of the Court was delivered by MAHAJAN J.-- One Lakshminarayana Iyer, a Hindu Brahmin, who owned considerable properties in the Tirunelveli district, died on 13th December, 1924, leaving him surviving a widow Ranganayaki, and a married daughter Ramalakshmi. Ramalakshmi had married the plaintiff and had a number of children from him. They were all alive in December, 1924, when Lakshminarayana died, Before his death he executed a will on 16th November, 1924, the construction of which is in controversy in this appeal. By this will he gave the following directions -- \"After my lifetime, you, the aforesaid Ranganayaki Amminal, my wife, shall till your lifetime, enjoy the aforesaid entire properties, the outstandings due to me, the debts payable by me, and the chit amounts payable by me. After your lifetime Ramalakshmi Ammal, our daughter and wife of Rama Ayyar Avergal of Melagaram village, and her heirs shall enjoy them with absolute rights and powers of alienation such as gift, exchange, and sale from son to grandson and so on for generations. As regards the payment of maintenance to be made to Chinnanmal alias Lakshmi Ammal, wife of my late son Hariharamayyan, my wife Ranganayaki Ammal shall pay the same as she pleases, and obtain a release deed\". Ranganayaki entered into possession of the properties on the death of her husband. On 21st February, 1928, she settled the maintenance claim of Lakshmi Ammal and obtained a deed of release from her by paying her a sum of Rs. 3,350 in cash and by executing in her favour an agreement stipulating to pay her a sum of Rs. 240 per annum. Ramalakshmi died on 25th April, 1938 during the lifetime of the widow. None of her children survived her. On the 24th July, 1945, the widow describing herself as an absolute owner of the properties of her husband sold one of the items of the property to the 2nd defendant for Rs. 500. On the 18th September, 1945, the suit out of which this appeal arises was instituted by the plaintiff, the husband and the sole heir of Ramalakshmi, for a declaration that the said sale would not be binding on him beyond the lifetime of the widow. A prayer was made that the widow be restrained from alienating the other properties in her possession. On the 19th September, 1945, an ad interim injunction was issued by the High Court restraining the widow from alienating the properties in her possession and forming part of her husband's estate, In spite of this injunction, on the 27th September, 1945, she executed two deeds of settlement in favour of the other defendants comprising a number of properties. The plaintiff was allowed to amend his plaint and include therein a prayer for a declaration in respect of the invalidity of these alienations as well. It was averred in the plaint that Ramalakshmi obtained a vested interest in the suit -properties under the will of her father and plaintiff was thus entitled to maintain the suit. The defendants pleaded that the plaintiff had no title to maintain the suit, that the widow was entitled under the will to an absolute estate or at least to an estate analogous to and not less than a widow's estate, that the estate given to Ramalakshmi under the will was but a contingent one and she having predeceased the widow, no interest in the suit properties devolved on the plaintiff. The main issue in the suit was whether- the widow took under the will an absolute estate or an estate like the Hindu widow's estate and whether the daughter's interest therein was in the nature of a contingent remainder, or whether she got in the properties a vested interest. The subordinate judge held that the widow took under the will a limited life, interest, and not an absolute estate or even a widow's estate under Hindu law, and that the daughter got thereunder a vested interest in the properties to which the plaintiff succeeded on her death. In view of this finding he granted the plaintiff a declaratory decree to the effect that the first defendant had only an estate for life in the suit properties and that the alienations made by her would not enure beyond her lifetime. The question as to the validity of the alienations was left undetermined. The unsuccessful defendants preferred an appeal against this decree to the High Court of Judicature at Madras. During the pendency of the appeal the widow died on 14th February, 1948. The High Court by its judgment under appeal affirmed the decision of the trial judge and maintained his view on the construction of the will. Leave to appeal to the Supreme Court was granted and the appeal was admitted on the 27th November, 1951. The substantial question to decide in the appeal is whether the estate granted by the testator to his widow was a fall woman's estate under Hindu law or merely a limited life estate in the English sense of that expression. It was not contested before us that a Hindu can by will create a life estate, or successive life estates, or any other estate for a limited term, provided the donee or the persons taking under it are capable of taking under a deed or will. The decision of the appeal thus turns upon the question whether the testator's intention was to give to his widow ail ordinary life, estate or an estate analogous to that of a Hindu widow. At one time it was a moot point whether a Hindu widow's estate could be created by will, it being an estate created by law, but it is now settled that a Hindu can confer by means of a will oil his widow the same estate which she would get by inheritance. The widow in such a case takes as a demisee and not as an heir. The court's primary duty in such cases is to ascertain from the language employed by the testator \"what were his intentions\", keeping in view the surrounding circumstances, his ordinary notions as a Hindu in respect to devolution of his property, his family relationships etc.; in other words, to ascertain his wishes by putting itself, so to say, in his armchair. Considering the will in the light of these principles,it seems to us that Lakshminarayan Iyer intended by his will to direct that his entire properties should be enjoyed by his widow during her lifetime but her interest in these properties should come to an end on her death, that all these properties in their entirety should thereafter be enjoyed as absolute owners by his daughter and her heirs with powers of alienation, gift, exchange and sale from generation to generation. He wished to make his daughter a fresh stock of descent so that her issue, male or female, may have the benefit of his property. They were the real persons whom he earmarked with certainty as the ultimate recipients of his bounty. In express terms he conferred on his daughter powers of alienation byway of gift, exchange, sale, but in sharp contrast to this, on his widow he conferred no such powers. The direction to her was that she should enjoy the entire properties including the outstandings etc. and these shall thereafter pass to her daughters. Though no restraint in express terms was put on her powers of alienation in case of necessity, even that limited power was not given to her in express terms. If the testator had before his mind's eye his daughter and her heirs as the ultimate beneficiaries of his bounty, that intention could only be achieved by giving to the widow a limited estate, because by conferring a full Hindu widow's estate on her the daughter will, only have a mere spes successions under the Hindu law which may or may not mature and under the will her interest would Only be a contingent one in what was left indisposed of by the widow. It is significant that the testator did not say in the will that the daughter will enjoy only the properties left indisposed of by the widow. The extent of the grant, so far as the properties mentioned in the schedule are concerned, to the daughter and the widow is the same. Just as the widow was directed to enjoy tile entire properties mentioned in the schedule during her lifetime in like manner the daughter and her heirs were also directed to enjoy the same properties with absolute rights from generation to generation. They could not enjoy the same properties in the manner directed if the widow had a full Hindu widow's estate and had the power for any purpose to dispose of them and did so. If that was the intention, the testator would clearly have said that the daughter would only take the properties remaining after the death of the widow. The widow cannot be held to have been given a full Hindu widow's estate under the will unless it can be said that under its terms she was given the power of alienation for necessary purposes, whether in express terms or by necessary implication. As above pointed out, admittedly power of alienation in express terms was not conferred on her. It was argued that such a power was implicit within the acts she was authorized to do, that is to say, when she was directed to pay the debts and settle the maintenance of Ramalakshmi it was implicit within these directions that for these purposes, if necessity arose, she could alienate the properties. This suggestion in the surrounding circumstances attending the execution of this will cannot be sustained. The properties disposed of by the will and mentioned in the schedule were considerable in extent and it seems that they fetched sufficient income to enable the widow to fulfil the obligations under the will. Indeed we find that within four years of the death of the testator the widow was able to pay a lump sum of Rs. 3,350 in cash to the daughter-in-law without alienating any part of the immovable properties and presumably by this time she had discharged all the debts. It is not shown that she alienated a single item of immovable property till the year 1945, a period of over 21 years after the death of her husband, excepting one, which she alienated in the year 1937 to raise a sum of Rs. 1,000 in order to buy some land. By this transaction she substituted one property by another. For the purpose of her maintenance, for payment of debts etc., and for settling the claim of the daughter-in-law she does not appear to have felt any necessity to make any alienation of any part of the estate mentioned in the schedule and the testator in all likelihood knew that she could fulfil these obligations without having recourse to alienations and hence he did not give her any power to do so. In this situation the inference that the testator must have of necessity intended to confer on the widow power of alienation for those limited purposes cannot be raised. In our opinion, even if that suggestion is accepted that for the limited purposes mentioned in the will the widow could alienate, this power would fall far short of the powers that a Hindu widow enjoys under Hindu law. Under that law she has the power to alienate the estate for the benefit of the soul of the husband, for pilgrimage and for the benefit of the estate and for other authorized purposes. It cannot be said that a Hindu widow can only alienate her husband's estate for payment of debts, to meet maintenance charges and for her own maintenance. She represents the estate in all respects and enjoys very wide power except that she cannot alienate except for necessity and her necessities have to be judged on a variety of considerations. We therefore hold that the estate conferred on Ranganayaki Ammal was more like the limited estate in the English sense of the term than like a full Hindu widow's estate in spite of the directions above- mentioned. She had complete control over the income of the property during her lifetime but she had no power to deal with the corpus of the estate and it had to be kept intact for the enjoyment of the daughter. Though the daughter was not entitled to immediate possession of the property it was indicated with certainty that she should get the entire estate at the proper time and she thus got an interest in it on the testator's death. She was given a present right of future enjoyment in the property. According to Jarman (Jarman on Wills), the law leans in favour of vesting of estates and the property disposed of belongs to the object of the gift when the will takes effect and we think the daughter got under this will a vested interest in the testator's properties on his death. It was strenuously argued by Mr. K. S. Krishnaswami Iyengar that Lakshminarayana Iyer was a Brahmin gentleman presumably versed in the sastras, living in a village in the southernmost part of the Madras State, that his idea of a restricted estate was more likely to be one analogous to a Hindu woman's estate than a life estate a,-, understood in English law wherein the estate is measured by use and not by duration, and that if this will was construed in the light of the notions of Lakshminarayana Iyer it should be held that the widow got under it a Hindu widow's estate and the daughter got under it a contingent remainder in the nature of spes and on her death there was nothing which could devolve on the plaintiff and he thus had no locus standi to question the alienations made by the widow, The learned counsel in support of his contention drew our attention to a number of decisions of different High Courts and contended that the words of this will should be construed in the manner as more or less similar words were construed by the courts in the wills dealt with in those decisions. This rule of construction by analogy is a dangerous one to follow in construing wills differently worded and executed in different surroundings. [Vide Sasiman v. Shib Narain (1)]. However, out of respect for learned counsel on both sides who adopted the same method of approach we proceed to examine some of the important cases referred to by them. Mr. Krishnaswami Iyengar sought to derive the greatest support for his contention from the decision in Ram Bahadur v. Jager Nath Prasad (2 ). The will there recited that if a daughter or son was born to the testator during his lifetime, such son or daughter would be the owner of all his properties but if there was no son or daughter, his niece S. would get a bequest of a lakh of rupees, and the rest of the movable and immovable properties would remain in possession of his wife until her death, and after her these would remain in possession of his niece. The remainder was disposed of in the following words: - \"If on the death of my wife and my niece there be living a son and a daughter born of the womb of my said brother's daughter, then two-thirds of the movable property will belong to the son and one-third to the daughter. But as regards the immovable property none shall have the lest right of alienation. They will of course be entitled to enjoy the balance left after payment of rent\". This will was construed as conveying an absolute estate to the son and the daughter of the niece. It was remarked that in spite of an. express restriction against alienation, the estate taken by S. (the niece) was an estate such as a woman ordinarily acquires by inheritance under the Hindu law which she holds in a completely representative character but is unable to (1) 491. A. 2 5. (2) 3 Pat. L. J. 199. alienate except in case of legal necessity and that such a construction was in accordance with the ordinary notions that a Hindu has in regard to devolution of his property. The provisions contained in this will bear no analogy to those we have to construe. The restraint against alienation was repugnant to both a life estate and a widow',-, estate and was not, therefore, taken into account. But there were other indications in that will showing that a widow's estate had been given. The fact that the gift over was a contin- gent bequest was by itself taken as a sure indication that the preceding bequest was that of a widow's estate. There is no such indication in the will before us. Reliance was next placed on the decision in Pavani Subbamma v. Ammala Rama Naidu (1). Under the will there dealt with, the widow S, was to enjoy the properties and after her lifetime the properties were to be taken in the ratio of three to five by the son's daughter and the daughter's son respectively. A suit was instituted by the son's daughter for the recovery of possession of her share in one item of property forming, part of the estate which had been sold by S. The question for decision in that case was whether S. was at all entitled to sell anything more than her life interest even for purposes of meeting a necessity binding upon the estate. Varadachari J. held that since in the will the gift over to the grand-children was of the entire Properties, and not a mere gift by way of defeasance, it had to be held that it indicated that the prior gift in favour of the widow was only of a limited interest. This decision therefore goes against the contention of the learned counsel but he placed reliance on the observations made in the judgment when the learned Judge proceeded to say \" In deference to the view taken in Maharaja of Kolhapur v. sundaram Iyer (2), it may be possible to create an interest analogous to a woman's estate in Hindu law notwithstanding the addition of a gift over and that the estate taken by S. need not necessarily be only a life estate in the English law (1) (1937) 1 M.L.J. 268. (2) (1925) I.L.R. 48 Mad. 1. sense of the term.\" We do not understand how such passing observations can be helpful in deciding the present case. Assuming that it is possible to create a Hindu woman's estate not with standing the addition of a gift over, the question nevertheless whether that had been done in a given case must depend on the terms of the particular instrument under consideration. The following remarks in the Privy Council decision in Nathu, Ram Mahajan v. Gangayabai(1) were next cited:-- As the will gave her the right to 'enjoy' the income of the estate during her lifetime, it was evidently contemplated that she should, as provided by -the Hindu law in the case of a widow, be in possession of the estate.\" Such casual observation made in respect of a will couched in entirely different terms cannot afford much assistance in the decision of the case. In Vasantharao Ammannamma v. Venkata Kodanda Rao Pantalu(2), the next case cited, a Hindu testator who was a retired subordinate judge provided by his will as follows:---- \"Out, of the aforestated ancestral lands, the oneninth share to which I am entitled shall be enjoyed after my death by my wife till her death, and after her death it shall pass to S. son of my second elder brother deceased. My self-acquired properties shall on my death be enjoyed by my wife till her death and after her death they shall pass to my daughter. Thereafter they shall pass to my grandson through my daughter\". The will was construed as giving the self-acquired properties ultimately to the grandsons, and the estate of the daughter was likened to an estate which she would take- under the law of inheritance, that is a limited estate analogous to a widow's estate. At page 193 of the report it was observed as follows :---- \"The question therefore arises, did he intend to confer only a life estate or a daughter's estate ? It seems (1) (1938) 2 M.L.J. 562. (2) (1940) M.L.J. 188, to us that he meant to give a daughter's estate rather than a life estate. He omits the words 'during her life' with reference to the disposition in favour of the daughter. The words 'pass to my daughter' would rather indicate that in the ordinary course of devolution the estate should pass to her, that is, the daughter and then to the grandsons. The words used in favour of the grandsons seem to indicate that the estate conferred on the daughter was not a life estate because there is no direct gift in favour of the grandsons, but on the other hand, what he says is that through his daughter the estate shall pass to his grandsons. Either he must have intended that the daughter should convey the property either by will or inter vivos to the grandsons or she having taken the estate, through her it should pass to the grandsons in the ordinary course of devolution. If it was the daughter's estate that was intended to be conferred, there can be no question that the estate taken by the grandsons is not a vested interest\". This line of reasoning which appealed to the learned judges is not of much he]-) to us here as the language hi this will is quite different. If the same line of reasoning is adopted here, the decision of the case would go against the client of Mr. K. S. K. Iyengar because in the will in this case the widow's estate is delimited by the words \" till your lifetime.\" Reliance was next placed on Maharaja of Kolhapur v. Sundaram Iyer (1). That was a case of a government grant on the special terms set out therein and the question arose as to the nature of the grant. There it was said that \" the widows of Sivaji Raja got the gift of a life estate very much resembling the ordinary estate of a Hindu widow and with all the incidents of a widow's estate except the liability to be divested, but nevertheless a life estate rather than an estate of inheritance.\" These remarks do not throw much light on the point before us. The last decision referred to was the decision of the Privy Council in Mahomed Shumsool v. Shewukram(2) There a Hindu inhabitant of Bihar by a document of (1) (1925) I.L.R. 48 Mad. 1. (2) (1874-75) 2 I.A. 7. a testamentary character declared his daughter who had two daughters, as his heir, and after her two daughters together with their children were declared heirs and malik. One daughter of the daughter predeceased the testator without issue and the other daughter died after the death of the testator leaving an only son, the respondent in that case. In a suit by the respondent against his grandmother the daughter of the 'testator for a declaratory order preserving unmolested his future right and title to the said lands, it was held that the daughter took an estate subject to her daughters succeeding her. In this judgment the following observations were emphasized as relevant to this enquiry :- \" It has been contended that these latter expressions qualify the generality of the former expressions, and that the will, taken as a whole, must be construed as intimating the intention of the testator that Mst. Rani Dhun Kaur should not take an absolute estate, but that she should be succeeded in her estate by her two daughters. In other words, that she should take an estate very much like the ordinary estate of a Hindu widow. In construing the will of a Hindu it is not improper to take into consideration what are known to be the ordinary notions and wishes of Hindus with respect to the devolution of property. It may be assumed that a Hindu generally desires that an estate, especially an ancestral estate, shall be retained in his family; and it may be assumed that a Hindu knows that, as a general rule, at all events, women do not take absolute estates of inheritance which they are enabled to alienate.\" These observations are unexceptionable but it may also be pointed out that it is open to a Hindu to confer a limited life estate on his widow or even a larger estate than a widow takes as an heir and that in every case he may not confer upon her by will a Hindu widow's estate which she would otherwise get by inheritance. Generally speaking, there will be no point in making a will if what is to be given to a widow is what she would get on intestacy and cases do arise where a Hindu wishes to give to his widow a more restricted estate than she would get on intestacy or a much larger estate than that. The question in every case cannot be determined merely on the theory that every Hindu thinks only about a Hindu widow's estate and no more. What is given must be gathered from the language of the will in the light of the surrounding circumstances. The learned counsel for the respondent followed the line adopted by Mr. Krishnaswami Iyengar. He also on the analogy of other wills and the decisions given on their terms wanted a decision on the construction of this will in his favour. In the first instance, he placed reliance on a decision of the Madras High Court in Ratna Chetty v. Narayana swami Chetty(1). There the testator made a will in favour of his wife providing, inter alia, \"all my properties shall after my death be in possession of my wife herself and she herself should be heir to everything and Mutha Arunachala Chetty (nephew) and my wife, should live together amicably as of one family. If the two could not agree and live together amicably, my wife would pay Rs. 4,000 and separate him and then my wife would enjoy all the remaining properties with absolute rights. If both of them would live together amicably, Muthu Arunachala Chetty himself would enjoy the properties which remain after the death of the widow.\" It was held upon the construction of the will that the nephew, who lived amicably with the widow till his death, had a vested interest at testator's death which could not be defeated by a testamentary disposition by the widow in favour of a stranger. This decision only decides that case and is not very relevant in this enquiry. Reference was also made to the decision of their Lordships of the Privy Council in Mst. Bhagwati Devi v. Chowdry Bholonath Thakur(2). This was a case of a gift inter vivos. The gift to Mst. Chunderbutti, his wife, was in these terms (1) (19I4) 26 M.L.J. 616. (2) (1874-75) 2 I.A 256. \"the remaining 'milkiut' and 'minhai ' 'estates, together with the amount of ready money, articles, slaves, and all household furniture I have placed in the possession of Mst. Chunderbutti Thakurain, my wife, to be enjoyed during her lifetime, in order that she may hold possession of all the properties and milkiut possessed by me, the declarant, during her lifetime, and by the payment of Government revenue, appropriate the profits derived therefrom, but that she should not by any means transfer the milkiut estates and the slaves; that after the death of my aforesaid wife the milkiut and household furniture shall devolve on Girdhari Thakur, my karta (adopted son).\" The subordinate judge held that Chunderbutti got an estate for life with the power to appropriate profits and Girdhari got a vested remainder on her death. The High Court took a different view and held that Chunderbutti took the estate in her character as a Hindu widow. The Privy Council on this will held as follows \" Their Lordships do not feel justified, upon mere conjecture of what might probably have been intended, in so interpreting it as materially to change the nature of the estate taken by Chunderbutti. If she took the estate only of a Hindu widow, one consequence, no doubt, would be that she would be unable to alienate the profits, or that at all events, whatever she purchased out of them would be an increment to her husband's estate, and the plaintiffs would be entitled to recover possession of all such property, real and personal. But, on the other hand, she would have certain rights as a Hindu widow; for example, she would have the right under certain circumstances, if the estate were insufficient to defray the funeral expenses or her maintenance, to alienate it altogether. She certainly would have the power of selling her own estate; and it would further follow that Girdhari would not be possessed in any sense of a vested remainder, but merely of a contingent one. It would also follow that she would completely represent the estate, and under certain circumstances the statute of limitations might run against the heirs to the estate, whoever they might be. Their Lordships see no sufficient reason for importing into this document words which would carry with them all these consequences, and they agree with the subordinate judge in construing it according to its plain meaning.\" These observations have to a certain extent relevance to the present case but on the facts this case is also distinguishable. This will was couched in different language than the will in the present case. There was a clear prohibition, forbidding the widow to make any transfers of the milkiuit estates and the slaves. Reference was also made to a decision of the Bombay High Court in Lallu v. Jagmohan(1). The will there ran as follows:- \" When I die, my wife named Suraj' is owner of that property. And my wife has powers to do in the same way as I have absolute powers to do when I am present, and in case of my wife's death, my daughter Mahalaxmi is owner of the said property after that.\" It was held that Suraj took only a life estate under the will, with remainder over to Mahalaxmi after her death and the bequest to Mahalaxmi was not contingent on her surviving Suraj, but that she took a vested remainder which upon her death passed to her heirs. After considering the rival contentions of the parties, we are of the opinion that no sufficient grounds have been made out for disturbing the unanimous opinion of the two courts below on the construction of this will. Both the learned counsel eventually conceded that the language used in the will was consistent with the testator's intention of conferring a life estate in the English sense as well as with the intention of conferring a Hindu widow's estate. It was, however, urged by Mr. Rajah Iyer that as no express or implied power of alienation for purposes of all legal necessities was conferred on the widow, that circumstance (1) (1898) I.L.R. 22 Bom. 409. negatived the view that the testator intended to confer upon his widow a Hindu widow's estate as she would get in case of intestacy. He also emphasized that the words of the gift over to the daughter as supporting his construction which was further reinforced by the words of the will limiting the widow's estate \" till your lifetime \" and of the omission from therein of words such as nialik etc., while describing the widow's estate. Mr. Krisbnaswami lyengar, on the other hand, contended that the absence of any words in the will restricting her powers of alienation and putting a restraint on them, suggested a contrary intention and that the daughter's estate was described as coming into being after the estate of the widow and was not conferred on her simultaneously with the widow, and this connoted according to the notions of Hindus a full Hindu widow's estate. In our judgment, there is force in the contention of Mr. Rajah Iyer for reasons already stated and in the result, therefore, we dismiss this appeal with costs. Appeal dismissed. Agent for the appellant: M. S. K. Aiyangar. 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{"id": "14560127", "text": "REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 7220-7221 OF 2011 BELI RAM \u2026Appellant Versus RAJINDER KUMAR & ANR. \u2026Respondents JUDGMENT SANJAY KISHAN KAUL, J. 1. The sole question of law for consideration in the present appeals is whether in case of a valid driving licence, if the licence has expired, the insured is absolved of its liability. 2. The facts are in a very narrow compass. The first respondent herein, met with an accident on 20.5.1999 while driving a truck owned Signature Not Verified by the appellant herein, under whom he was gainfully employed. The Digitally signed by Anita Malhotra Date: 2020.09.23 consequence for the first respondent was 20 per cent permanent 18:45:29 IST Reason: disability. The first respondent herein filed a petition under the Workmen\u2019s Compensation Act, 1923 (hereinafter referred to as \u2018the Compensation Act\u2019) before the Commissioner, Sadar, Bilaspur on 17.2.1999 seeking compensation of an amount of Rs.5,00,000/-, impleading the appellant and second respondent herein \u2013 the insurance company which had insured the vehicle. These proceedings resulted in an award by the Commissioner on 8.12.2004 granting Rs. 94,464/- for the injuries suffered and Rs.67,313/- towards medical expenses of the first respondent. The amounts awarded were to carry interest @ 9 per cent per annum from the date of filing of the application till the date of payment. The compensation amount was mulled on to the second respondent as insurer, while the interest was directed to be paid by the appellant herein. 3. The parties to the proceedings all filed appeals aggrieved by different aspects of the award. An intrinsic part of the consideration by the High Court was the issue raised about the validity of the driving licence of the first respondent at the time of the accident. The driving licence was endorsed by the Superintendent of R&LA Office, Udaipur but the licence expired on 6.9.1996 and there was no endorsement for renewal thereafter. Thus, the first respondent was driving the vehicle as the driver of the appellant herein for almost three years without the licence being renewed. 4. The aforesaid aspect of the non-validity of the driving licence weighed with the High Court while passing the impugned judgment dated 3.3.2009, absolving the insurance company of any liability and fastening the same upon the appellant herein on account of there being a material breach of the insurance policy. 5. The High Court, after the aforesaid finding took note of Section 4 of the Compensation Act, more specifically the following aspect: \u201c4. Amount of compensation \u2013 (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:- (a) Where death results from the An amount equal to fifty per cent injury of the monthly wages of the deceased workman multiplied by the relevant factor; or An amount of eighty thousand, whichever is more; (b) Where permanent total An amount equal to sixty per cent disability results from the injury of the monthly wages of the injured workman multiplied by the relevant factor, or An amount of ninety thousand rupees, whichever is more. Explanation I.-- For the purposes of clause (a) and clause (b),\" relevant factor\", in relation to a workman means the factor specified in the second column of Schedule IV against the entry in the first column of that Schedule specifying the number of years which are the same as the completed years of the age of the workman on his last birthday immediately preceding the date on which the compensation fell due.\u201d 6. On consideration of the aforesaid provision, the High Court opined that there was no provision under the Compensation Act for payment of medical expenditure incurred by the claimant for treatment. The accident having taken place in the year 1999, the monthly wages stated to be Rs.4,500/-, it was found that the maximum amount of wages permissible under the Compensation Act for determining the compensation could be Rs.2,000/-. Compensation was liable to be paid within thirty (30) days of the accident and the owner could have recovered the amount from the insurer if ultimately it was established that the insurer was liable to have indemnified the insured. The appellant was found to be in breach of the statutory duty of a benevolent legislation, i.e., the Compensation Act and, thus, the appellant was burdened to pay interest as also maximum penalty of 50 per cent. The amount of compensation was thus quantified as under: \u201c1. Amount of compensation = Rs. 83,968/- 2. Penalty @ 50% on the amount of compensation = Rs. 41,984/- 3. Interest w.e.f. 20.6.1999 to 3.3.2009 (9 years & 257 days) on the amount of compensation = Rs. 73,335/-\u201d 7. The result was that the appeals of the insurer and the claimant were allowed. The endeavour to seek review of the judgment on the basis of pronouncement of this Court in National Insurance Co. Ltd. v. Swaran Singh and Ors.1 failed and the application was dismissed on 8.7.2009. 8. The only question which has been debated before us, is as set out at the inception of the judgment. The appellant sought to rely upon the 1 (2004) 3 SCC 297 recent judgment of this Court, Nirmala Kothari v. United India Insurance Company Limited.2 The question of law examined in this judgment was as to what is the extent of care/diligence expected of the employer/insured while employing a driver. The legal position regarding the liability of the insurance company when the driver of the offending vehicle possessed an invalid/fake driver\u2019s licence was adverted to for answering this question, by referring to earlier judicial pronouncements and the same was culled out in para 12 as under: \u201c12. While hiring a driver the employer is expected to verify if the driver has a driving licence. If the driver produces a licence which on the face of it looks genuine, the employer is not expected to further investigate into the authenticity of the licence unless there is cause to believe otherwise. If the employer finds the driver to be competent to drive the vehicle and has satisfied himself that the driver has a driving licence there would be no breach of Section 149(2)(a)(ii) and the insurance company would be liable under the policy. It would be unreasonable to place such a high onus on the insured to make enquiries with RTOs all over the country to ascertain the veracity of the driving licence. However, if the insurance company is able to prove that the owner/insured was aware or had notice that the licence was fake or invalid and still permitted the person to drive, the insurance company would no longer continue to be liable.\u201d 9. We have heard learned counsel for the parties and on a query being 2 (2020) 4 SCC 49 (authored by one of us, Krishna Murari, J.) raised, whether there is a view taken on the question as to what would be the consequence of a valid driving licence having expired both the learned counsel for the appellant and learned counsel for respondent No.2 insurance company stated that there was no direct view on this point. We even posed a question qua any judicial view of the High Courts in this behalf, but the answer to the same was also in the negative. We reserved the orders because we wanted to satisfy ourselves over this aspect. 10. We have not been able to trace out any judgments of this Court but there are judicial pronouncements of the High Courts dealing with the issue. 11. We consider it appropriate to first commence with the view of this Court in the Swaran Singh.3 case, which examined the meaning of the expression \u201cduly licensed\u201d, as used in Section 149(2)(a)(ii) of the Motor Vehicles Act, 1988 (hereinafter referred to as the \u2018MV Act\u2019). The factual matrix dealt with the claim of a third party and the different eventualities considered were: (a) licence not held; (b) fake licence held; (c) licence held but validity whereof has expired; (d) licence not held for type of 3 (supra) vehicle being driven; and (e) learner\u2019s licence held. We may note here that the facts of the present case relate to eventuality (c) above. A liberal view was taken considering the intent of the legislation in question and that it was a case of a third party claim. In an endeavour of the insurance company to absolve itself of liability the following observations were made: \u201c41. However, clause (a) opens with the words \"that there has been a breach of a specified condition of the policy\", implying that the insurer's defence of the action would depend upon the terms of the policy. The said sub-clause contains three conditions of disjunctive character, namely, the insurer can get away from the liability when (a) a named person drives the vehicle; (b) it was being driven by a person who did not have a duly granted licence; and (c) driver is a person disqualified for holding or obtaining a driving licence. 42. We may also take note of the fact that whereas in Section 3 the words used are 'effective licence', it has been differently worded in Section 149(2) i.e. 'duly licensed'. If a person does not hold an effective licence as on the date of the accident, he may be liable for prosecution in terms of Section 141 of the Act but Section 149 pertains to insurance as regard third party risks. 43. A provision of a statute which is penal in nature vis-a-vis a provision which is beneficent to a third party must be interpreted differently. It is also well known that the provisions contained in different expressions are ordinarily construed differently. 44. The words \u201ceffective licence\u201d used in Section 3, therefore, in our opinion cannot be imported for sub-section (2) of Section 149 of the Motor Vehicles Act. We must also notice that the words 'duly licensed' used in sub-section (2) of Section 149 are used in past tense. 45. Thus, a person whose licence is ordinarily renewed in terms of the Motor Vehicles Act and the rules framed thereunder despite the fact that during the interregnum period, namely, when the accident took place and the date of expiry of the licence, he did not have a valid licence, he could during the prescribed period apply for renewal thereof and could obtain the same automatically without undergoing any further test or without having been declared unqualified therefor. Proviso appended to Section 14 in unequivocal term states that the licence remains valid for a period of thirty days from the day of its expiry.\u201d \u2026. \u2026. \u2026. \u2026. \u2026. \u2026. \u201c48. Furthermore, the insurance company with a view to avoid its liabilities is not only required to show that the conditions laid down under Section 149(2)(a) or (b) are satisfied but is further required to establish that there has been a breach on the part of the insured. By reason of the provisions contained in the 1988 Act, a more extensive remedy has been conferred upon those who have obtained judgment against the user of a vehicle and after a certificate of insurance is delivered in terms of Section 147(3) a third party has obtained a judgment against any person insured by the policy in respect of a liability required to be covered by Section 145, the same must be satisfied by the insurer, notwithstanding that the insurer may be entitled to avoid or to cancel the policy or may in fact have done so. The same obligation applies in respect of a judgment against a person not insured by the policy in respect of such a liability, but who would have been covered if the policy had covered the liability of all persons, except that in respect of liability for death or bodily injury.\u201d 12. We may next advert to the judgment in the Nirmala Kothari4 case. The judgment was sought to be canvassed in support of the proposition by learned counsel for the appellant and we reproduce the relevant paragraphs in addition to the one reproduced above, as under: \u201c10. While the insurer can certainly take the defence that the licence of the driver of the car at the time of accident was invalid/fake however the onus of proving that the insured did not take adequate care and caution to verify the genuineness of the licence or was guilty of willful breach of the conditions of the insurance policy or the contract of insurance lies on the insurer. 11. The view taken by the National Commission that the law as settled in the PEPSU case is not applicable in the present matter as it related to third-party claim is erroneous. It has been categorically held in the case of National Insurance Co. Ltd. vs. Swaran Singh & Ors. (SCC p.341, para 110) that, \u201c110. (iii)\u2026Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licenced 4 (supra) driver or one who was not disqualified to drive at the relevant time.\u201d 13. The submission, thus, was that the appellant as insured had taken adequate care by verifying the licence of the driver/first respondent at the time of employment and the liability could have been mulled on the appellant only if he was aware or had notice that the licence was fake or invalid and still permitted the person to drive. This was stated not to be the factual position in the present case as the issuance of the licence has not been doubted, but rather that it was not subsequently renewed which was pleaded to be the responsibility of the first respondent. 14. We did point out at that stage itself by raising a query as to how this judgment would help in the case of the appellant since it was not a case of a fake or invalid licence. If the appellant was required to take adequate care and caution to verify the driving licence at the threshold, thereafter, the burden shifted on the insurance company to prove that such due care was not taken, could it be said that having, at the first blush verified the driving licence, the appellant was absolved of the responsibility of verifying whether the driving licence was kept renewed? 15. We are of the view that once the basic care of verifying the driving licence has to be taken by the employer, though a detailed enquiry may not be necessary, the owner of the vehicle would know the validity of the driving licence as is set out in the licence itself. It cannot be said that thereafter he can wash his hands off the responsibility of not checking up whether the driver has renewed the licence. It is not a case where a licence has not been renewed for a short period of time, say a month, as was considered in the case of Swaran Singh5 where the benefit was given to a third party by burdening the insurance company. The licence in the instant case, has not been renewed for a period of three years and that too in respect of commercial vehicle like a truck. The appellant showed gross negligence in verifying the same. 16. We are conscious of the fact that in the present case the beneficiary is the driver himself who was negligent but then we are not dealing with a claim under the MV Act but under the Compensation Act, which provides for immediate succor, not really based on a fault theory with a limited compensation as specified being paid. We are, thus, in the present proceedings not required to decide the share of the burden 5 (supra) between the appellant as the owner and the first respondent as the driver as may happen in a proceeding under the MV Act. 17. We now turn to the views of some of the High Courts, which have come to our notice on our own research! 18. The Delhi High Court in Tata AIG General Insurance Co. Ltd. v. Akansha & Ors.6 found that the driving licence having expired led to the natural finding that there was no valid driving licence on the date of the accident. The initial onus was discharged by the insurance company in view of the licence not being valid on the date of the accident. The onus, thereafter, shifted to the owner/insured to prove that he had taken sufficient steps to ensure that there was no breach of the terms and conditions of the insurance policy. Since no evidence had been led in this behalf, a presumption was drawn that there was willful and conscious breach of the terms and conditions of the insurance policy. 19. The Allahabad High Court in The Oriental Insurance Co. Ltd. v. 6 2015 SCC OnLine 6758 : (2015) 2 TAC 52 Manoj Kumar & Ors.7 again dealt with the case of an expired driving licence. The endeavour to rely on the principle set forth in a fake licence case was held not applicable in the case of an expired licence since the owner was supposed to be aware that the driving licence of the driver had expired and, thus, it was held that it was the duty of the owner to have ensured that the driver gets the licence renewed within time. In the absence of a valid driving licence, the vehicle was being driven in breach of the condition of the policy, requiring the vehicle to be driven by a person who is duly licensed, and thus, there was breach of Section 149(2) (a)(ii) of the MV Act, the consequence being that the insurance company could not he held liable. 20. The last judgment is of the Himachal Pradesh High Court in National Insurance Co. Ltd. v. Hem Raj & Ors. 8 This was, once again, a case of an originally valid licence, which had expired, there was no question of a fake licence. It was opined that the conclusions to be drawn from the observations of the judgment in the Swaran Singh9 case of this Court, were that the insurance company can defend an action on the 7 (2015) 111 ALR 275 (authored by Krishna Murari, J., as he then was) 8 : 2012 ACJ 1891 (authored by Deepak Gupta, J., as he then was) 9 (supra) ground that the driver was not duly licensed on the date of the accident, i.e., an expired licence having not been renewed within thirty (30) days of the expiry of the licence as provided in Sections 14 & 15 of the MV Act. In this context it was observed that the Swaran Singh.10 case did not deal with the consequences if the licence is not renewed within the period of thirty (30) days. If the driving licence is not renewed within thirty (30) days, it was held, the driver neither had an effective driving licence nor can he said to be duly licenced. The conclusion, thus, was that the driver, who permits his licence to expire and does not get it renewed till after the accident, cannot claim that it should be deemed that the licence is renewed retrospectively. 21. The learned Judge debated the question of the consequences of the MV Act being a beneficial piece of legislation. Thus, if two interpretations were possible, it was opined that the one which is in favour of the claimants should be given, but violence should not be done to the clear and plain language of the statute. Thus, while protecting the rights of the claimants by asking the insurance company to deposit the amount, the recovery of the same from the insured would follow as the 10 (supra) sympathy can only be for the victim of the accident. The right which has to be protected, is of the victim and not the owner of the vehicle. It was, thus, observed in para 18 as under: \u201c18. When an employer employees a driver, it is his duty to check that the driver is duly licensed to drive the vehicle. Section- 5 of the Motor Vehicles Act provides that no owner or person incharge of a motor vehicle shall cause or permit any person to drive the vehicle if he does not fulfil the requirements of Sections 3 and 4 of the Motor Vehicles Act. The owner must show that he has verified the licence. He must also take reasonable care to see that his employee gets his licence renewed within time. In my opinion, it is no defence for the owner to plead that he forgot that the driving licence of his employee had to be renewed. A person when he hands his motor vehicle to a driver owes some responsibility to society at large. Lives of innocent people are put to risk in case the vehicle is handed over to a person not duly licensed. Therefore, there must be some evidence to show that the owner had either checked the driving licence or had given instructions to his driver to get his driving licence renewed on expiry thereof. In the present case, no such evidence has been led. In view of the above discussion, I am clearly of the view that there was a breach of the terms of the policy and the Insurance Company could not have been held liable to satisfy the claim.\u201d 22. We have reproduced the aforesaid observations as it is our view that it sets forth lucidly the correct legal position and we are in complete agreement with the views taken in all the three judgments of three different High Courts with the culmination being the elucidation of the correct legal principle in the judgment in the Hem Raj11 case. 23. When we turn to the facts of the present case there is almost an identical situation where the appellant has permitted to let the first respondent driver drive the truck with an expired licence for almost three (3) years. It is clearly a case of lack of reasonable care to see that the employee gets his licence renewed, further, if the original licence is verified, certainly the employer would know when the licence expires. And here it was a commercial vehicle being a truck. The appellant has to, thus, bear responsibility and consequent liability of permitting the driver to drive with an expired licence over a period of three (3) years. The only thing we note is that fortunately there has been no accident with a third party claimant but the person who has caused the sufferance and sufferer are one and the same person, i.e., the first respondent driver. We are, however, dealing with the determination under the Compensation Act and those provisions are for the benefit of the workmen like the first respondent, even though he may be at fault, by determining a small amount payable to provide succor at the relevant stage when the larger 11 (supra) issues could be debated in other proceedings. The only exception is in the provisos to Section 3 of the Compensation Act, which is not the factual situation in the present case. The relevant provision reads as under: \u201c3. Employer' s liability for compensation.- (1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter: Provided that the employer shall not be so liable-- (a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding [four] days; (b) in respect of any [injury, not resulting in death, caused by] an accident which is directly attributable to-- (i) the workman having been at the time thereof under the influence of drink or drugs, or (ii) the wilful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen, or (iii) the wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workmen.\u201d We are not aware whether any other proceedings have been initiated or not, at least, none that have been brought to our notice. The aforesaid findings of the initial lack of care by the first respondent in not renewing the driving licence would be present, but the lack of care of the appellant as the employer would also arise. We have penned down the aforesaid views as such a situation is quite likely to arise in proceedings under the MV Act where a third party is claiming the amount. Proceedings here being under the Compensation Act, the consequences are not flowing to the first respondent as the initial negligent person. 24. In view of the aforesaid, the appeals are dismissed by settling the aforesaid question of law and leaving the parties to bear their own costs. ...\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. [Sanjay Kishan Kaul] ...\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. [Aniruddha Bose) ...\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. [Krishna Murari) New Delhi. September 23, 2020.", "spans": [{"start": 18, "end": 40, "label": "COURT"}, {"start": 133, "end": 148, "label": "RESP"}, {"start": 482, "end": 491, "label": "DATE"}, {"start": 651, "end": 661, "label": "DATE"}, {"start": 823, "end": 845, "label": "STAT"}, {"start": 879, "end": 895, "label": "STAT"}, {"start": 942, "end": 951, "label": "DATE"}, {"start": 1175, "end": 1184, "label": "DATE"}, {"start": 1720, "end": 1730, "label": "COURT"}, {"start": 1953, "end": 1961, "label": "DATE"}, {"start": 2246, "end": 2256, "label": "COURT"}, {"start": 2299, "end": 2307, "label": "DATE"}, {"start": 2483, "end": 2493, "label": "COURT"}, {"start": 2553, "end": 2569, "label": "STAT"}, {"start": 3645, "end": 3655, "label": "COURT"}, {"start": 3701, "end": 3717, "label": "STAT"}, {"start": 3954, "end": 3970, "label": "STAT"}, {"start": 4358, "end": 4374, "label": "STAT"}, {"start": 4649, "end": 4658, "label": "DATE"}, {"start": 4662, "end": 4670, "label": "DATE"}, {"start": 4942, "end": 4954, "label": "PREC"}, {"start": 5009, "end": 5017, "label": "DATE"}, {"start": 5210, "end": 5267, "label": "PREC"}, {"start": 6748, "end": 6754, "label": "CASENO"}, {"start": 6779, "end": 6793, "label": "JUDGE"}, {"start": 7138, "end": 7149, "label": "COURT"}, {"start": 7411, "end": 7422, "label": "COURT"}, {"start": 7531, "end": 7543, "label": "PREC"}, {"start": 7654, "end": 7678, "label": "STAT"}, {"start": 7712, "end": 7718, "label": "STAT"}, {"start": 11590, "end": 11605, "label": "PREC"}, {"start": 12224, "end": 12243, "label": "AUTH"}, {"start": 12275, "end": 12280, "label": "PREC"}, {"start": 12421, "end": 12472, "label": "PREC"}, {"start": 14755, "end": 14767, "label": "PREC"}, {"start": 15218, "end": 15224, "label": "STAT"}, {"start": 15239, "end": 15255, "label": "STAT"}, {"start": 15594, "end": 15600, "label": "STAT"}, {"start": 15646, "end": 15657, "label": "COURT"}, {"start": 15718, "end": 15734, "label": "COURT"}, {"start": 15738, "end": 15791, "label": "PREC"}, {"start": 16419, "end": 16439, "label": "COURT"}, {"start": 17188, "end": 17194, "label": "STAT"}, {"start": 17303, "end": 17330, "label": "PREC"}, {"start": 17334, "end": 17379, "label": "PREC"}, {"start": 17595, "end": 17607, "label": "PREC"}, {"start": 17723, "end": 17737, "label": "JUDGE"}, {"start": 17763, "end": 17776, "label": "CASENO"}, {"start": 17790, "end": 17802, "label": "JUDGE"}, {"start": 18049, "end": 18055, "label": "STAT"}, {"start": 18098, "end": 18110, "label": "PREC"}, {"start": 18671, "end": 18677, "label": "STAT"}, {"start": 20792, "end": 20803, "label": "COURT"}, {"start": 21843, "end": 21859, "label": "STAT"}, {"start": 22184, "end": 22200, "label": "STAT"}, {"start": 23720, "end": 23726, "label": "STAT"}, {"start": 23804, "end": 23820, "label": "STAT"}, {"start": 24077, "end": 24095, "label": "JUDGE"}, {"start": 24115, "end": 24129, "label": "JUDGE"}, {"start": 24149, "end": 24163, "label": "JUDGE"}, {"start": 24176, "end": 24194, "label": "DATE"}]}
{"id": "13618343", "text": "$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on:-24.02.2020 Date of Decision:- 18.03.2020 + O.M.P. (COMM) 399/2019 & IA No.13333/2019 (stay) UNION OF INDIA ..... Petitioner Through: Ms. Pinky Anand, ASG with Mr.Bhagwan Swarup Shukla, Mr. Rajesh Ranjan, Mr. Joel, Mr. Hemant Arya, Ms. Kirti Dua, Mr. Sumit Teterwal, Ms.Rinky, Mr.Sharvan Kumar & Mr.Gokul Sharma, Advs. versus BHARAT BIOTECH INTERNATIONAL LTD. .... Respondent Through: Mr.Sandeep Sethi, Sr. Adv. with Mr.Vipin Nair, Mr.P.B. Suresh, Mr.Karthik Jayashankar, Mr.Sughosh Subramanyam Neergundh, Advs. + O.M.P. (COMM) 407/2019 & IA Nos.13543/2019 (stay) UNION OF INDIA ..... Petitioner Through: Ms. Pinky Anand, ASG with Mr.Bhagwan Swarup Shukla, Mr. Rajesh Ranjan, Mr. Joel, Mr. Hemant Arya, Ms. Kirti Dua, Mr. Sumit Teterwal, Ms.Rinky, Mr.Sharvan Kumar & Mr.Gokul Sharma, Advs. versus SERUM INSTITUTE OF INDIA LIMITED ..... Respondent Through: Mr. Abhinav Vasisht, Sr. Adv. with Mr. Vikram Dhokalia, Adv. + O.M.P. (COMM) 408/2019 & IA Nos.13546/2019 (stay) UNION OF INDIA ..... Petitioner Through: Ms. Pinky Anand, ASG with Mr.Bhagwan Swarup Shukla, Mr. Rajesh Signature Not Verified OMP(COMM) 399/2019 & connected Page 1 of 16 DigitallySigned By:MANJU BHATT Signing Date:18.03.2020 16:52:44 Ranjan, Mr. Joel, Mr. Hemant Arya, Ms. Kirti Dua, Mr. Sumit Teterwal, Ms.Rinky, Mr.Sharvan Kumar & Mr.Gokul Sharma, Advs. versus PANACEA BIOTECH LIMITED ..... Respondent Through: Mr. Sudhir Nandrajog, Sr. Adv. with Mr. Kawal Nain, Ms.Kavita & Mr.Rohit Dadwal, Advs. CORAM: HON'BLE MS. JUSTICE REKHA PALLI JUDGMENT REKHA PALLI, J I.A. 13334/2019 (delay of 50 days in re-filing) in O.M.P. (COMM) 399/2019 I.A. No.13544/2019 (delay of 55 days in re-filing) in O.M.P. (COMM) 407/2019 I.A. No.13547/2019 (delay of 50 days in re-filing) in O.M.P. (COMM) 408/2019 1. The present decision disposes of similar applications filed by the Union of India seeking condonation of delay in re-filing the three petitions preferred under Section 34 of the Arbitration and Conciliation Act ('the Act'), in each of which a challenge has been laid to three different arbitral awards all dated 14.03.2019. 2. Although all the three applications are based on identical facts, the delay in question is slightly different. The delay of which condonation is sought is 50 days each in O.M.P. (COMM) 399/2019 and O.M.P. (COMM) 408/2019, while it is 55 days in O.M.P. (COMM) 407/2019. 3. In each of these petitions, condonation of delay in re-filing is sought primarily on the ground that a duly signed petition along with the affidavit, the statement of truth and Vakalatnama was filed on 31.05.2019 Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:18.03.2020 16:52:44 before the statutory period of limitation of 90 days as prescribed under Section 34(3) of the Act had expired. On the other hand, the respondents have vehemently opposed these applications primarily on the ground that these petitions, when originally filed within the statutory period of limitation, were merely a 'bunch of papers' and could not be treated as being valid in the eyes of law. It is contended that a complete and valid petition was filed only on 18.09.2019 by which date the limitation period of 3 months and 30 days as prescribed under Section 34 (3) of the Act had already expired. 4. In view of the preliminary objections raised by the respondents, the learned senior counsel for the parties have been heard at length on the aspect of condonation of delay in re-filing of the petition. 5. Before referring to the grounds on which condonation is sought, the factual matrix surrounding the delay caused in these matters may be noted. For the sake of convenience, only the facts of OMP(COMM.) 399/2019 are being referred to. 6. The impugned award was passed by the learned Arbitral Tribunal on 14.03.2019 and the petition under Section 34 of the Act assailing the same came to be filed by the petitioner on 31.05.2019. The petition as filed comprised of 83 pages and admittedly neither included a copy of the impugned Award nor was accompanied by any application seeking exemption from filing the same. The Registry raised 25 objections on this filing, which are reflected in the log information dated 04.06.2019. On 01.07.2019, when the courts re-opened after summer vacations, the petition was returned under objections, which was subsequently re-filed on 11.07.2019 without any corrections. When the petition was again returned under objections, it was re-filed on 31.07.2019 with some drastic alterations and was, at this point, running into 430 pages. Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:18.03.2020 16:52:44 7. Upon further defects being pointed out, the petition was re-filed on 12.09.2019 whereupon the Registry raised further objections and the petition was finally re-filed for the fifth time on 18.09.2019, by which date the petition had increased to 441 pages, along with an application for condonation of delay in re-filing the petition, which as noted hereinabove is the subject matter of the present controversy. 8. This application which barely runs into four paragraphs gives the reasons for delay in paragraph 3, the contents whereof read as under:- \"3. It is respectfully submitted on account of several defects point out by registry in voluminous appeal filed it took long time to came the defect and some extra days wore in getting file approved for Union of India. One of the defects pointed out by registry was to give email address the respondents which against took same extra days to objection removed.\" 9. Though the petitioner subsequently filed an additional affidavit on 05.11.2019 in an effort to explain the reasons for delay, but the same merely recounted the particulars of the re-filings. 10. In support of the application, Ms. Pinky Anand, learned ASG appearing on behalf of the petitioner submits that the petition was filed within the prescribed statutory period of 90 days as the award dated 14.03.2019 had been assailed by way of the present petition on 31.05.2019, therefore the delay was only occasioned in re-filing the petition which ought to be condoned in view of the reasons stated in the application and the additional affidavit. She submits that the initially filed copy of the petition was complete and was not only duly signed in accordance with law but was also supported by an affidavit, a statement of truth and a duly executed vakalatnama; therefore, merely because the Registry kept raising defects thereon from time to time, which the petitioner diligently removed, the same neither renders the filing non est, Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:18.03.2020 16:52:44 nor indicates any negligence on the petitioner's part in filing the petition nor render the petition as being barred by limitation. 11. She further submits that the failure to file a copy of the impugned award along with the petition was also not fatal. In support of this contention, she places reliance on Chapter IV of the Delhi High Court (Original Side) Rules, 1967 issued by this Court in pursuance to the Indian Arbitration Act, 1940 to contend that it was never the intention of the legislature to insist on a copy of the arbitral award at the very first instance. She submits that even the Delhi High Court (Original Side) Rules, 2018 do not mandate the same but, instead, adopt the existing practice directions with respect to arbitration, as contained in the Arbitration and Conciliation Act, 1996 which also do not necessitate appending the copy of the arbitral award to the Section 34 petition. Rather, the practice directions enjoin the arbitral tribunal to transmit the arbitral record, including the award, to the Court once notice is issued in a Section 34 petition. She, therefore contends that on a combined reading of the practice directions issued on 30.08.2010 and 16.01.2015 also do not require the impugned award to be filed along with a Section 34 petition, therefore the non-filing of the impugned award in the present case, alongwith the original petition filed on 31.05.2019, is inconsequential. 12. She finally submits that the parameters for condonation of delay in re-filing the petition are very different from those applicable for condonation of delay in filing the petition. She submits that once the filing of a petition is within time, the Court ought to apply a liberal yardstick while considering the prayer for condoning the delay in re-filing the same. Any said delay ought to be condoned by the Court, provided that the applicant shows sufficient cause for the same, which duty has Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:18.03.2020 16:52:44 duly discharged by the petitioner in the present case. In support of this contention, she places reliance on Northern Railway vs. Pioneer Publicity Corporation Private Limited (2017) 11 SCC 234, M/s. Himachal Futuristic vs. I.T.I. Limited 2017 SCC OnLine Del 8522 and Indian Statistical Institute vs. M/s Associated Builders and Others (1978) 1 SCC 483. 13. On the other hand, Mr. Sandeep Sethi, learned senior counsel for the respondent while opposing the application, submits that the Section 34 petition as originally filed on 31.05.2019 could, at the most, be considered as a 'bunch of papers' as it suffered from critical deficiencies which cannot be disregarded by this Court; a copy of the arbitral award which the petition sought to impugn was absent; the petition failed to bear the requisite signatures on each page therein, as mandatorily required; the affidavit accompanying the petition refers to documents at serial nos. 3 (a) to (w) which were never annexed; the petition was filed without any court fees, to name a few. To make matters worse, the vakalatnama annexed to the initially filed petition on 31.05.2019 was undated and could not, therefore, be treated as a valid vakalatnama. He submits that even the statement of truth accompanying the petition bore incomplete information. This is revealing of the petitioner's intent from the very beginning, as paragraphs 3 and 6 of the aforesaid statement of truth were intentionally left blank by the petitioner with the possible hope of changing the basic structure of the originally filed petition. Lastly, the petition, as filed on 31.05.2019, comprised of 83 pages which were subsequently increased to 441 pages which, he contends virtually amounted to altering the entire petition which is not permissible in law. 14. Mr. Sethi thus contends that the initial filing by the petitioner on 31.05.2019 was merely a dummy filing, which bore references to Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:18.03.2020 16:52:44 documents which are completely alien to the present disputes. Similarly, the second filing on 11.07.2019 was also a dummy filing as at that instance, the petitioner had merely proceeded to re-file the entire petition without curing a single defect raised by the Registry on 04.06.2019, all of which were blatant attempts to defeat the rights accruing to the respondent in the interregnum. He further submits that the third re-filing on 31.07.2019, notwithstanding the increase in the number of pages of the petition to 430, was defective as it neither adhered to the statutorily prescribed period of limitation of 3 months and 30 days nor addressed the objections raised by the Registry. The fourth and fifth re-filings were effected on 12.09.2019 and 18.09.2019 respectively, this time with 441 pages, and led to the petition being listed for hearing before this Court on 24.09.2019. By placing reliance on the decisions of this Court in Delhi Development Authority v. Durga Construction Co. 2013(139)DRJ 133(DB), Oriental Insurance Co. Ltd. Vs. Air India Ltd. 2019 SCC OnLine Del 11634 and Oil and Natural Gas Corporation Ltd. v. Joint Venture 2019 SCC OnLine Del 10456, he contends that the initially filed petition, being a mere skeletal filing, could not be treated as a valid filing in the eyes of law. It is his case that the first instance of valid filing in the present case, could only be considered as having been effected on 12.09.2019. He thus, contends that the delay of which condonation is sought is masked as a delay in re-filing, but in reality ought to be treated as a delay in filing the petition beyond the period of 3 months and 30 days as prescribed under the express provisions of Section 34(3) of the Act and cannot be condoned. 15. Mr.Abhinav Vashisth and Mr. Sudhir Nandrajog, learned senior counsel who appear for the respondents in the connected petitions oppose the applications as well and, besides adopting the arguments of Mr.Sethi, Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:18.03.2020 16:52:44 submit that the reasons given in these applications as also the additional affidavit filed by the petitioner are extremely vague and cannot be treated as a sufficient ground to condone the delay. They further submit that the petitioner's alteration of the final page of the originally filed petition and act of filling in blanks in the statement of truth as also the vakalatnama, as originally filed, reveal their attempt to falsify the record which cannot be permitted, for which they relied on the decision of this Court in Sravanthi Infratech Private Limited vs. Greens Power Equipment (China) Co. Ltd., 2016 SCC Online Del. 5645. 16. I have heard the learned ASG and learned senior counsel for the respondents and with their assistance, perused the record. The primary contention raised by the learned ASG, by relying on the decisions in Pioneer Publicity Corporation Private Limited (supra), M/s. Himachal Futuristic (supra) and M/s Associated Builders (supra), is that the parameters to be applied for condoning delay in re-filing are different from those applicable to delay in filing. There cannot be any quarrel with this proposition of law. However, in view of the respondent's plea that the original filing on 31.05.2019 was non est and the petition has to be treated as being validly filed only on 31.07.2019, i.e., the date on which the impugned award was placed on record and therefore, what the petitioner is actually seeking is not a condonation of delay in re-filing but condonation of delay in filing. To determine this issue, the foremost question which needs to be considered by this Court is whether the original filing was non est and a mere bunch of papers, or whether the same was filed in compliance with all legal requirements. If the Court finds that the initial petition was hopelessly inadequate or insufficient or contained defects which are fundamental to the very filing of the petition, then the filing has to be treated as non est, and the date of filing has to be Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:18.03.2020 16:52:44 treated as the date on which the petitioner re-filed the petition after annexing all the necessary documents and removing objections raised by the Registry. On the other hand, if the initial filing is found to be valid, then the petition would have to be treated as having been filed within time and the question then would be whether the delay in re-filing, after curing of defects, ought to be condoned. 17. To determine whether the originally filed petition should be treated as valid or non est, this Court may be guided by the principles laid down by a Division Bench of this Court in DDA vs. Durga Construction Co., 2013 (139) DRJ 133(DB) wherein it was held as under:- \"17. The cases of delay in re-filing are different from cases of delay in filing inasmuch as, in such cases the party has already evinced its intention to take recourse to the remedies available in courts and has also taken steps in this regard. It cannot be, thus, assumed that the party has given up his rights to avail legal remedies. However, in certain cases where the petitions or applications filed by a party are so hopelessly inadequate and insufficient or contain defects which are fundamental to the institution of the proceedings, then in such cases the filing done by the party would be considered non est and of no consequence. In such cases, the party cannot be given the benefit of the initial filing and the date on which the defects are cured, would have to be considered as the date of the initial filing. A similar view in the context of Rules 1 & 2 of Chapter IV of the Delhi High Court (Original Side) Rules, 1967 was expressed in Ashok Kumar Parmar v. D.C. Sankhla: 1995 RLR 85, whereby a Single Judge of this Court held as under:- \"Looking to the language of the Rules framed by Delhi High Court, it appears that the emphasis is on the nature of defects found in the plaint. If the defects are of such character as would render a plaint, a non-plaint in the eye of law, then the date of presentation would be the date of re-filing after removal of defects. If the defects are formal or ancillary in nature not effecting the validity of the plaint, the date of presentation would be the date of original presentation for the purpose of calculating the limitation for filing the suit.\" Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:18.03.2020 16:52:44 A Division Bench of this Court upheld the aforesaid view in D.C. Sankhla v. Ashok Kumar Parmar: 1995 (1) AD (Delhi) 753 and while dismissing the appeal preferred against decision of the Single Judge observed as under:- \"5. ...... In fact, that is so elementary to admit of any doubt. Rules 1 and 2 of (O.S.) Rules,1967, extracted above, do not even remotely suggest that the re-filing of the plaint after removal of the defects as the effective date of the filing of the plaint for purposes of limitation. The date on which the plaint is presented, even with defects, would, therefore, have to be the date for the purpose of the limitation act.\" 18. In several cases, the defects may only be perfunctory and not affecting the substance of the application. For example, an application may be complete in all respects, however, certain documents may not be clear and may require to be retyped. It is possible that in such cases where the initial filing is within the specified period of 120 days (3 months and 30 days) as specified in section 34(3) of the Act, however, the re-filing may be beyond this period. We do not think that in such a situation the court lacks the jurisdiction to condone the delay in re-filing. As stated earlier, section 34(3) of the Act only prescribes limitation with regard to filing of an application to challenge an award. In the event that application is filed within the prescribed period, section 34(3) of the Act would have no further application. The question whether the Court should, in a given circumstance, exercise its discretion to condone the delay in re-filing would depend on the facts of each case and whether sufficient cause has been shown which prevent re-filing the petition/application within time.\" 18. The aforestated principles, when applied to the facts of the present case, would provide an answer to the first question arising for my consideration - should the petition, as filed on 31.05.2019, be regarded as a 'valid' filing or as non est? It remains undisputed inter alia that the impugned award was not placed on record till 31.07.2019, by which date the extended period of limitation had already expired and that the petition, as originally filed, had been substantially altered at the time of re-filing. In fact at the time of re-filing, not only were documents spanning over 350 pages added to the petition, but even the framework of Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:18.03.2020 16:52:44 the petition was changed, yet the last page of the re-filed petition continued to reflect the date of filing as 31.05.2019; which is patently untrue, in the light of the petitioner's admission that it had made changes in the body of the petition at the time of re-filing. This, in my considered opinion, is an entirely unacceptable practice. Even the fact that when the petition was initially filed no court fees was affixed, the vakalatnama was undated, the accompanying statement of truth was incomplete and lacked critical information, and the supporting affidavit made reference to documents which were not even annexed to the petition remains undisputed. However, the most glaring defect at the time of the initial filing as also the only re-filing done prior to 14.07.2019 was that even a copy of the award which the petitioner sought to assail, was not annexed with the petition. I am unable to comprehend as to how a petition seeking to assail an order, an award in this case, without even annexing a copy thereof can be claimed as a valid filing and that too without even moving an application seeking exemption from filing a copy of the impugned award. 19. It is obvious that the original petition, as filed on 31.05.2019, and only running into 83 pages was a careless and deliberate attempt on the petitioner's part to somehow stop the clock on limitation amounting to a clever manoeuvre to buy time. In fact even after the original petition was received back by the petitioner's counsel on 01.07.2019 with defects being pointed by the Registry, the petitioner did not take any steps to file a copy of the impugned award while re-filing the petition on 11.07.2019, i.e., within the extended period of limitation of 3 months and 30 days which expired on 14.07.2019. In fact, even as per the petitioner's admission, the impugned award was filed for the first time, belatedly, on 31.07.2019. I am of the view that the petitioner's failure to file the Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:18.03.2020 16:52:44 impugned award along with the petition at the time of filing on 31.05.2019 or at the time of its re-filing on 11.07.2019, both falling within the period of limitation, cannot be underplayed as a 'trivial' defect but is a defect of such gravity that it would render the original filing as a mere dummy filing. 20. Though the learned ASG has vehemently urged that neither under the Original Side Rules nor the practice directions require the arbitral award to be filed along with the Section 34 petition and that in fact the award along with the entire arbitral record were required to be summoned by this Court as a matter of practice, I am unable to accept this contention. A bare perusal of the practice directions issued on 30.08.2010, which are relevant herein and reproduced below, do not support this contention. Further, on perusing the 2018 Original Sides Rules I find that Chapter XXVIII Rule 1, being the applicable provision, also merely states that the existing practice directions in relation to the proceedings under the Act shall stand incorporated by inclusion in these Rules. The same, however, do not, in any manner, either deal with or dispense with the requirement of annexing a copy of the impugned award in a Section 34 petition. CHAPTER XXVIII ALTERNATIVE DISPUTE RESOLUTION, ARBITRATION AND MEDIATION 1. Extant rule (s), notification (s), scheme (s) and Practice Directions in relation to proceedings under the Arbitration and Conciliation Act, 1996, as amended from time to time, shall stand incorporated by inclusion in these Rules. PRACTICE DIRECTION Hon\u201fble the Chief Justice has been pleased to issue the following practice direction:- Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:18.03.2020 16:52:44 As soon as notice is issued in the petitions filed under Section 34 of the Arbitration & Conciliation Act, 1996, the Registry shall send a letter of request to the Arbitrator to transmit the record of arbitral proceedings as well as award to this Court after the conclusion of arbitration. This practice direction will come into force immediately. (Rakesh Kapoor) Registrar General 21. In fact, a similar plea regarding the effect of non-filing of the award has already been considered by a Division Bench in Executive Engineer vs. Shree Ram Construction Co. (2010) 120 DRJ 615 (DB) as also a co-ordinate Bench of this Court in SKS Power Generation (Chhattisgarh) Ltd. vs. ISC Projects Private Limited 2019 SCC OnLine Del 8006 holding that non-filing of the impugned award would be fatal. In my considered view, filing a copy of the impugned award would be a sine qua non in every petition laying a challenge thereon. On a combined consideration of the significant deficiencies in the original petition filed on 31.05.2019, especially the non-filing of a copy of the award, with the principles enunciated in Durga Construction (supra), I am compelled to hold that, notwithstanding the fact that it bore the requisite signatures, albeit not on every page, and was accompanied by the statement of truth, affidavit and the vakalatnama, the initial filing was non est in the eyes of law and is inconsequential. Therefore, in the present case I have no hesitation in holding that a valid petition can, at the earliest, be treated as having been filed on 31.07.2019, when for the first time a copy of the impugned award came to be annexed to the petition, even though the other objections which were equally important were removed only on 18.09.2019. 22. For the aforesaid reasons the petition, being re-filed after 14.07.2019, i.e., the date on which the extended period of limitation of 3 Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:18.03.2020 16:52:44 months and 30 days stood expired, has to be treated as being barred by limitation. Now these applications in question, though styled as applications seeking condonation of delay in re-filing, have to necessarily be treated as applications seeking condonation of delay in filing the petition beyond the statutorily prescribed period. As is settled, this Court does not have the power to condone any delay caused beyond 30 days after the expiry of the limitation period of three months, which in the present case expired on 14.07.2019. In this regard, reference may be made to the decision in Union of India vs. Popular Construction Co. (2001) 8 SCC 470 wherein the Supreme Court held that the Court cannot entertain an application to set aside the award beyond the extended period under proviso to Section 34 (3) of the Act, thus clearly laying down that a challenge to an award filed after 3 months and 30 days of receipt of the arbitral award by the aggrieved party has to be rejected. 23. Thus, I have no hesitation in holding that these applications are seeking condonation of delay in filing, which is not permissible considering the delay in question was beyond the extended period of limitation and cannot, therefore, be condoned by this Court. 24. In the light of my aforesaid conclusion, while there is no doubt that the applications have to be treated as seeking condonation of delay in filing but even if the petitioner's plea were accepted that the delay ought to be treated as a 'delay in re-filing', it was still incumbent upon the petitioner to provide cogent and substantive reasons for the delay of 50/55 days occasioned in filing these petitions. Undoubtedly as a matter of general practice, the standards applicable while considering a prayer for condonation of delay in 're-filing' are less rigid than those applicable for condoning delay in filing, but I cannot lose sight of the fact that these applications pertain to petitions under Section 34 of the Act where the Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:18.03.2020 16:52:44 approach, even while dealing with a prayer for condonation of delay in re-filing, cannot be too liberal. 25. In this regard, reference may be made to the decision in Durga Construction (supra), wherein a Division Bench of this Court, while dealing with an application for condonation of delay in re-filing of a petition beyond the time prescribed under Section 34(3) of the Act, held that though the Court is empowered to condone delay beyond the extended period of limitation of 3 months and 30 days, it is requisite for the party seeking the condonation to show that despite his diligence, the rectification of defects and re-filing could not be carried out within the limitation period, for bonafide reasons beyond his control. At the time of considering applications of like nature, it is important for the Court to bear in mind the legislative intent for prescribing a statutory period of limitation under Section 34(3) of the Act viz. ensuring expeditious disposal of arbitration and preventing delay in implementation of an award by parties who would malafidely challenge the same. Ultimately, the Act sought to breathe life into a much needed alternate system of dispute resolution and lend greater credence to it, by removing any unwarranted obstacles to its smooth functioning. A liberal approach while dealing with an application for condonation of delay in challenging the award would only endanger and frustrate the purpose for which the Act was enacted. 26. Returning to the facts of the present petition, I find that regrettably, the petitioner has failed to provide any justifiable reason, much less a sufficient reason to seek condonation of delay. The petitioner's explanation in the application as also the additional affidavit is wholly perfunctory, vague and demonstrate the alarmingly lackadaisical approach of the petitioner in complying with general filing practice and Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:18.03.2020 16:52:44 the statutory requirements under Section 34 of the Act. In fact the petitioner has merely made a bald averment that the delay had been caused due to repeated objections being raised on the petition by the Registry, which took time to cure. On the contrary the logbook maintained by the Registry shows that most of the defects raised by the Registry at the very first instance of fling on 04.06.2019 were not rectified till as late as 18.09.2019, which indicates that the petitioner was at fault for not removing the objections in a timely manner and the reasons sought to be advanced by it are not at all bonafide. Thus, even if the delay in question were to be treated as a 'delay in re-filing', the petitioner's explanation for the delay being vague, unsubstantiated, insufficient and contrary to the record is liable to be rejected. 27. For the aforesaid reasons, when looked at from any angle, these applications cannot succeed and are accordingly dismissed. O.M.P. (COMM) 399/2019 & IA No.13333/2019 (stay) O.M.P. (COMM) 407/2019 & IA Nos.13543/2019 (stay) O.M.P. (COMM) 408/2019 & IA Nos.13546/2019 (stay) 28. Since the applications seeking condonation of delay in filing/re- filing the petitions have been dismissed, the petitions are also dismissed. 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{"id": "16052757", "text": "[REPORTABLE] IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.1713-1714 OF 2022 (@ SLP (c) Nos.30487-30488 OF 2017) RAMA NEGI APPELLANT(S) VERSUS UNION OF INDIA & ORS. RESPONDENT(S) WITH CIVIL APPEAL NOS.1715-1716 OF 2022 (@ SLP (c) Nos.10513-10514 OF 2018) J U D G M E N T Hrishikesh Roy, J. 1. Signature Not Verified Digitally signed by Leave granted. The challenge in these two appeals Nidhi Ahuja Date: 2022.03.02 17:53:15 IST is to the judgment dated 22.9.2017 in the Special Reason: Appeal Nos.87 and 88 of 2014, filed by Appellant Rama Negi and Special Appeal Nos. 96 of 2014 and 97 of 2014, filed by the Cantonment Board, Ranikhet. The Division Bench of the Uttarakhand High Court under the impugned judgment dismissed the Appeals and upheld the judgment of the learned Single Judge whereby the appellant Rama Negi\u2019s promotion to the post of Office Superintendent in the Cantonment Board was quashed and the Writ Petitions of the respondent no.3, Gopal Ram Arya were allowed. 2. Heard Mr. P.S. Patwalia, learned senior counsel appearing for the appellant. The Cantonment Board, Ranikhet is represented by Mr. Jayant Bhushan, learned senior counsel. Also heard the learned counsel appearing for the Respondent no.3. 3. As the contentions of the learned counsel are based on the inter se seniority of the two contesting parties, their service details in the Cantonment Board, Ranikhet are reproduced, in the following chart. S.No. Gopal Ram Arya (R-3/WP in Rama Negi (appellant) \f HC) Date Description Date Description 1. 16.07.199 Appointed as 01.09.199 Appointed as 0 Typist/Junior 5 Steno Typist Clerk on ad-hoc equivalent to basis. Senior Clerk Promoted to Senior Clerk 09.07.199 2. 01.09.200 Promoted to 01.10.200 Promoted to the 5 Revenue 9 post of Superintendent Accountant (feeder cadre) (feeder cadre) (as SC category) 3. 28.11.201 Charge sheet 1 for dereliction of duty, negligence 4. 01.02.201 Officiating 2 charge as Office Superintendent. 25.3.2013 Retrospectively promoted to Office Superintendent w.e.f. 1.2.2012 5. 17.8.2016 Penalty of recovery of Rs. 10,000/- on DP by Board (R2) 4. As can be seen from above, the appellant initially joined service in the Cantonment Board, as a Steno Typist (equivalent to Senior Clerk), on 1.9.1995. The respondent no.3 after entering service initially as a Junior Clerk on 16.7.1990, was promoted to the Post of Steno Typist/Senior Clerk on 9.7.1997, around 22 months after the appellant directly joined service in the higher post. Thereafter, the respondent no.3 though junior, was promoted to the post of Revenue Superintendent on 1.9.2005 by giving him the benefit of reservation as a Scheduled Caste person. The appellant was subsequently promoted to the equivalent post of Accountant on 1.10.2009. Since promotion to the respondent no.3 was by conferring reservation benefit, appellant being subsequently promoted to the said cadre on 1.10.2009, she expected restoration of her seniority. 5. The promotion for the next post of Office Superintendent is governed by Rule 5-B (8) of the Cantonment Fund Servant Rules, 1937 (\u201cthe Rules\u201d for short), and the same reads as under: \u201cRule 5-B(8) - Appointments to promotion posts shall be made [by the appointing authority] on the basis of seniority lists maintained for this purpose by the Board, subject to rejection of those considered unfit: Provided that promotion of selection posts shall be made on the basis of seniority-cum-merit.\u201d 6. Under Annexure E of the Rules, the post of Office Superintendent together with other posts of Accountant, Toll Superintendent and Revenue Superintendent in the Cantonment Board of Ranikhet, is included in the category of \u201cselection posts\u201d and the relevant portion reads as under: \u201cANNEXURE \u2018E\u2019 1. Post declared as Selection posts under Cantonment Boards in Central Command. Authority: GOC-in-C, Central Command, Lucknow Letter No., 82562/Classification/LC6 dated 12.1.77 and [dated 25.4.1980] **** **** **** **** **** **** **** **** 24.Ranikhet Office Supdt. Accountant, Toll Supdt. Rev. Supdt. Forest Ranger, Jamadar (PWD) Sanitary Jamadar, Head Mali and Toll Moharrir (Non- Matric).\u201d The Rules above specify, the post of Office Superintendent as a \u201cselection post\u201d and under Rule 5B(8), promotion to the post is to be considered on the criterion of seniority cum merit. 7. The Cantonment Board in its meeting held on 11.1.2012 considered the candidature of the persons serving in the feeder cadre and it was resolved to recommend the appellant for promotion to the \u201cselection post\u201d of Office Superintendent, overlooking the respondent no.3. The appellant was held to be senior as per the rule. The decision was taken after due consideration of the relevant materials, including the fact that the respondent no.3 was drawing a lower pay scale than the appellant, in the feeder cadre. The Board also took into account that the Office Superintendent position required a service record without misconduct. Respondent no.3, it was noted, was a charge sheeted person, who had accepted the charges levelled against him. To determine the appellant to be senior to the respondent no.3 in the feeder cadre, the Board relied upon the criterion that \u201cPersons in the feeder grades given the same grading, those in higher scales of pay will rank senior to those in the lower scale of pay\u201d. It was noted that the pay scale of the appellant Rama Negi was Rs.9300-34800 with grade pay of Rs.4200 whereas, the pay scale of respondent no.3 Gopal Ram Arya was Rs.5200-20200 with grade pay of Rs.2800 and accordingly the inter se seniority of the appellant was found above the respondent no.3, in the feeder cadre. 8. Following the above Resolution on 11.1.2012 for appointment to the post of Office Superintendent, the Cantonment Board sought the advice of the Central Command, Lucknow furnishing the details of those under consideration. Since nothing happened thereafter for several months, the appellant filed the W.P (C) No.1465 of 2012 before the Uttarakhand High Court. Parallelly, the respondent no.3 filed the W.P (C) No.1645 of 2012 before the same High Court, challenging the Cantonment Board\u2019s Resolution No.28 dated 11.1.2012 in favour of the appellant. At that stage, the Central Command, Lucknow with its letter dated 23.11.2012 informed that the issue of promotion to the post of Office Superintendent falls entirely within the purview of the Cantonment Board, under Rule 7(1) of the Rules. 9. Prompted by the above clarification, the Cantonment Board in its meeting held on 25.3.2013 passed the Resolution No.8 where, after having examined the rule position, it was recorded that the appellant \u201cSmt. Rama Negi is the best, suitable and fit candidate for the post of Office Superintendent. Hence she is promoted from the post of Accountant to Office Superintendent w.e.f. the date of her taking charge as an Officiating Office Superintendent i.e. Feb 1st, 2012 as per rules mentioned in the agenda side.\u201d The Board relied upon the legal advice tendered to it on the basis of the O.M. dated 12.12.1988 issued by the Ministry of Personnel, Public Grievances and Pensions, which stated \u201cthat among the persons in the feeder grades given the same grading, those in the higher scales of pay will rank senior to those in the lower scale of pay.\u201d 10. Aggrieved by the above Resolution No.8 favouring the appellant, the respondent no.3 filed W.P (C) No.352 of 2013. In the meantime, the W.P (C) No.1465 of 2012 filed by the appellant for her promotion was dismissed as infructuous on 4.4.2013, by the High Court. 11. The two Writ Petitions filed by the respondent no.3 were analogously considered and the learned Single Judge in his judgment dated 25.2.2014 concluded that the respondent no.3/writ petitioner is senior and rejected the contention that the appellant is to be considered senior above the respondent no.3, by virtue of her higher pay scale in the post of Accountant in the feeder cadre. Insofar as the disciplinary proceeding pending against the respondent no.3, the learned Single Judge observed that the charge sheet was deliberately issued on 28.11.2011 to keep out the respondent no.3 from the zone of consideration. Such inference was drawn since no decision was taken on the charges by the authorities which according to the learned judge, demonstrate malice on their part. The chargesheet itself was brushed aside by saying that it was a minor irregularity not involving moral turpitude. Therefore, the respondent no.3 by virtue of his accelerated earlier promotion in the year 2005 in the feeder cadre and the 2009 promotion of the appellant, the appellant\u2019s promotion was found to be unmerited. On this basis, the respondent no.3 was asked to officiate as the Office Superintendent, replacing the appellant who hitherto was discharging such responsibility. The Court also directed the Cantonment Board to expeditiously conclude the departmental proceeding against the respondent no.3 within 3 months and if the same is not concluded, the learned Judge declared that the chargesheet shall be deemed to have been revoked, and thereafter denovo exercise for promotion to the post of Office Superintendent should be undertaken. With this, both writ petitions filed by the respondent no.3 were allowed by the learned Judge, under his judgment dated 25.2.2014. 12. Aggrieved by the judgment favouring the respondent no.3 in his two writ petitions, the appellant Rama Negi and the Cantonment Board filed their respective Special Appeal Nos.87 & 88 of 2014 and Special Appeal Nos.96 & 97 of 2014. While the Special Appeals were pending consideration before the Division Bench, the disciplinary proceeding was concluded with the report of the inquiry officer against the delinquent, and it was found that the Board incurred a loss of Rs.3,50,000/- on account of dereliction of duty by the respondent no.3 and accordingly the penalty of recovery of Rs.10,000/- from the delinquent\u2019s salary was ordered by the disciplinary authority, on 17.8.2016. 13. The Division Bench considered the basis for declaring the appellant to be senior to the respondent no.3 by virtue of her higher pay scale in the feeder cadre, and by adverting to the wrong O.M. dated 10.09.1985 (Incorrectly mentioned as 1995) conclusion was reached that the said O.M. does not provide for declaration of seniority, on the basis of higher pay scale. It was further held that the date of appointment in the feeder cadre should be the basis for considering inter se seniority for the purpose of promotion to the post of Office Superintendent. The disciplinary proceeding against the respondent no.3 was brushed aside in a summary manner by declaring that the same was initiated for the fault committed by the subordinate staff of the delinquent officer to deny him the benefit of promotion. With such finding the Special Appeals filed by the appellant and the Cantonment Board were dismissed, and the judgment rendered by the learned Single Judge favouring the respondent no.3 was affirmed by the Division Bench by their judgment dated 22.09.2017. 14. Taking exception to the above judgment, the present appeals are filed. We have heard the learned counsel for the parties and also read the relevant materials on record. 15. On the issue of inter se seniority, it is necessary to bear in mind that the respondent no.3 entered service earlier on 16.7.1990 but in the lower grade and was promoted to the post of Senior Clerk, only on 9.7.1997. In contrast, the appellant entered service on 1.9.1995 in the higher grade as a Steno-Typist (equivalent to Senior Clerk). Thus, she was senior to the respondent no.3 in the post, just below the feeder cadre. Overlooking the inter-se seniority position of the two, the respondent no.3 as a Scheduled Caste person was granted accelerated promotion on 1.9.2005, to the post of Revenue Superintendent. 16. Besides, the appellant by virtue of her higher pay scale in the post of Accountant in the feeder cadre, also deserves seniority above the respondent no.3 with his lower pay scale, on account of the provision made in the O.M. dated 12.12.1988. 17. The Rule 5-B (8) read with Annexure \u2018E\u2019 of the Rules makes it clear that the post of Office Superintendent is a \u201cselection post\u201d and the criterion for promotion is seniority-cum-merit. The parameters for determining promotion based on such criterion are well established by this Court. Justice S.C. Agrawal in B.V. Sivaiah v. K. Addanki Babu1, speaking for a three Judges Bench, held that, \u201c10. On the other hand, as between the two principles of seniority and merit, the criterion of \u201cseniority-cum-merit\u201d lays greater emphasis on seniority. In State of Mysore v. Syed Mahmood [AIR 1968 SC 1113 : (1968) 3 SCR 363 : (1970) 1 LLJ 370] while considering Rule 4(3)(b) of the Mysore State Civil Services General Recruitment Rules, 1957 which required promotion to be made by selection on the basis of seniority-cum-merit, this Court has observed that the Rule required promotion to be made by selection on the basis of \u201cseniority subject to the fitness of the candidate to discharge the duties of the post from among persons eligible for promotion\u201d. It was pointed out that where the promotion is based on seniority-cum-merit, the officer cannot claim promotion as a matter of right by virtue of his seniority alone and if he is found unfit to discharge the duties of the higher post, he may be passed over and an officer junior to him may be promoted. 11. In State of Kerala v. N.M. Thomas [(1976) 2 SCC 310 : 1976 SCC (L&S) 227] A.N. Ray, C.J. has thus explained the criterion of \u201cseniority-cum- merit\u201d: (SCC p. 335, para 38) \u201cWith regard to promotion the normal principles are either merit-cum-seniority or seniority-cum- merit. Seniority-cum-merit means that given the minimum necessary merit requisite for efficiency 1 (1998) 6 SCC 720 of administration, the senior though the less meritorious shall have priority. 17. ... While applying the principle of seniority- cum-merit for the purpose of promotion, what is required to be considered is the inter se seniority of the employees who are eligible for consideration. Such seniority is normally determined on the basis of length of service, but as between employees appointed on the same date and having the same length of service, it is generally determined on the basis of placement in the select list for appointment. ... 18. We thus arrive at the conclusion that the criterion of \u201cseniority-cum-merit\u201d in the matter of promotion postulates that given the minimum necessary merit requisite for efficiency of administration, the senior, even though less meritorious, shall have priority and a comparative assessment of merit is not required to be made. For assessing the minimum necessary merit, the competent authority can lay down the minimum standard that is required and also prescribe the mode of assessment of merit of the employee who is eligible for consideration for promotion. Such assessment can be made by assigning marks on the basis of appraisal of performance on the basis of service record and interview and prescribing the minimum marks which would entitle a person to be promoted on the basis of seniority-cum-merit. \u201d Justice Arijit Pasayat, speaking for a Division Bench in K. Samantaray v. National Insurance Co. Ltd.2, noted the following distinction, \u201c7. The principles of seniority-cum-merit and merit-cum-seniority are conceptually different. For the former, greater emphasis is laid on seniority, though it is not the determinative 2 (2004) 9 SCC 286 factor, while in the latter, merit is the determinative factor.\u201d 18. The appraisal of the facts before us reveals that the respondent no.3 faced a disciplinary proceeding following the chargesheet issued against him on 28.11.2011. But the High Court questioned the timing of the disciplinary action and observed that the same was issued to deny promotion to the respondent no.3. On this, the inquiry report finding (17.8.2016) is important, which indicates that the Cantonment Board suffered a pecuniary loss of Rs.3,50,000/- due to dereliction of duty by the delinquent. Significantly, the respondent no.3 accepted the charge and the disciplinary authority imposed the penalty of Rs.10,000/- recoverable from his salary. 19. It was a \u201cselection post\u201d and the appellant contrastingly had an unblemished service record all throughout her career. Moreover, she was found to be senior by the Board on 11.1.2012 and for this reason was recommended for promotion, in preference to the respondent no. 3. Adverting to the role of promotion committees, Justice P.B. Sawant, speaking for a three Judges bench in Union of India & Ors. vs. K.V. Jankiraman & Ors.3 has emphasized the necessity to consider the entire service record of the candidates in line for promotion, \u201c29. \u2026In fact, while considering an employee for promotion his whole record has to be taken into consideration and if a promotion committee takes the penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified. If, further, the promoting authority can take into consideration the penalty or penalties awarded to an employee in the past while considering his promotion and deny him promotion on that ground, it will be irrational to hold that it cannot take the penalty into consideration when it is imposed at a later date because of the pendency of the proceedings, although it is for conduct prior to the date the authority considers the promotion. \u2026\u201d 20. On the same aspect, Justice Kuldip Singh, also held for a Division Bench in Jagathigowda C.N. v. Chairman, Cauvery Gramina Bank & Ors.4,that the totality of the circumstances factor as a pivotal consideration with respect to seniority cum merit, 3 (1991) 4 SCC 109 4 (1996) 9 SCC 677 \u201c8. ... It is settled proposition of law that even while making promotions on the basis of seniority-cum-merit the totality of the service record of the officer concerned has to be taken into consideration. The performance appraisal forms are maintained primarily for the purpose that the same are taken into consideration when the person concerned is considered for promotion to the higher rank. ...\u201d (emphasis added) For a Division Bench in Haryana State Electronics Development Corporation Limited & Ors. Vs. Seema Sharma & Ors.5, Justice A.K. Ganguly also reiterated the distinguishable features for the criterion of seniority cum merit, and the requirement to consider the entirety of the candidate\u2019s service record, \u201c8. The principle of merit-cum-seniority puts greater emphasis on merit and ability and where promotion is governed by this principle seniority plays a less significant role. However, seniority is to be given weightage when merit and ability more or less are equal among the candidates who are to be promoted. 9. On the other hand, insofar as the principle of seniority-cum-merit is concerned it gives greater importance to seniority and promotion to a senior person cannot be denied unless the person concerned is found totally unfit on merit to discharge the duties of the higher post. The totality of the service of the employee has to be considered for promotion on the basis of seniority-cum-merit (see Jagathigowda, C.N. v. 5 (2009) 7 SCC 311 Cauvery Gramina Bank [(1996) 9 SCC 677: 1996 SCC (L&S) 1310: AIR 1996 SC 2733] ).\u201d (emphasis added) 21. While rejecting the appellant\u2019s seniority claim in the feeder cadre by virtue of her higher salary vis-\u00e0- vis the respondent no.3, the Division Bench, unfortunately, referred to the incorrect O.M. (dated 10.9.1985), overlooking the applicable O.M. (dated 12.12.1988) of the Ministry of Personnel. In this O.M., as noted earlier, it was clearly stated that the persons in the feeder cadre drawing higher scale will rank senior to those drawing lesser pay scale. Admittedly, the pay scale drawn by the appellant as an Accountant in the feeder cadre was higher than the respondent no.3 and therefore the benefit of O.M. (dated 12.12.1988) would surely accrue to the appellant, in the determination of her inter se seniority. However, the learned Division Bench by adverting to the incorrect O.M., wrongly rejected the contention that the higher pay scale can be the basis for claiming the seniority in the feeder cadre in the circumstances referred to in the O.M. dated 12.12.1988. 22. In the present case, the Cantonment Board in their deliberations made on 11.1.2012 not only considered the appellant to be senior to the respondent no.3 but also considered her to be more deserving for promotion as the best, suitable and fit candidate, for the responsible post. The respondent no.3 was penalized pursuant to the disciplinary proceeding for dereliction of duty and misconduct and he suffered the penalty of recovery of Rs.10,000/- from his salary. Seen in this context, the appellant was more deserving. That apart, the disciplinary action was not challenged by the respondent no.3. He cannot therefore set up a better claim for promotion, to a selection category post. 23. Insofar as the contention of the respondent no.3 that the issue of selection category post was not argued before the High Court, it is necessary to bear in mind that arguments based on the Rules were advanced by all the contesting parties before the High Court. Therefore, the status of the promotion post and the criterion for promotion specified in the Rules, must in our opinion, receive due consideration. 24. As far as the issue of higher pay scale being the basis for seniority in the feeder cadre, the same is clearly provided in the O.M. dated 12.12.1988. The issue received due consideration by the Cantonment Board and was answered in favour of the appellant. But this aspect was held against both the appellant and the Board, due to an inadvertent reference to the wrong Office Memorandum dated 10.09.1985 by the High Court. Having regard to the manner in which the issue was examined and decided by the Board, we deem it appropriate to endorse the Board\u2019s declaration of seniority in favour of the appellant, based on the reasoning contained in the Board\u2019s Resolution dated 25.3.2013. 25. This Court must also be mindful of the fact that the Cantonment Board applied the criterion of seniority-cum-merit and treated the post to be of the \u201cselection category\u201d. Moreover, the unblemished service record of the appellant vis-\u00e0-vis the pending disciplinary proceedings against the respondent no.3, (eventually resulting in penalty), were taken into account. All these circumstances in our opinion, weigh in favour of the appellant Rama Negi. Her Suitability for the selection post was attributable to two factors i.e. merit of the candidate and the inter-se seniority. Despite the difficulty in encapsulating the parameters for \u2018merit\u2019, a significant marker can be found in the unblemished record of the employee. A marred service record, though not an insurmountable bar, must carry some consequences, and it could be a comparative disadvantage in promotion for a selection post. The employer\u2019s preference for a person with a clean service record can be well appreciated. 26. Moreover, the higher pay in the same grade as per the applicable O.M., is a reliable indicator for determining inter-se seniority. In this Court\u2019s perception, the decision to prefer the appellant over the respondent no.3 for promotion is in tune with the applicable parameters. As such the contrary opinion by the High Court does not merit our approval. Accordingly, the Appeals stand allowed by setting aside the impugned judgment. The parties to bear their own cost. \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. [K.M. JOSEPH] \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. 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{"id": "83742049", "text": "IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MRS.JUSTICE S.SUJATHA WRIT PETITION No.13810/2018 (T - CUS) BETWEEN: M/s APPLE INDIA PRIVATE LIMITED, A COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT 19TH FLOOR, CONCORDE TOWER C, UB CITY, NO.24, VITTAL MALLYA ROAD BENGALURU-560001 REP BY ITS MANAGER TRADE COMPLIANCE, SRI RAGHUNATH LAKSHMANAN ... PETITIONER [BY SRI S.S.NAGANAND, SENIOR COUNSEL FOR SRI SRIRANGA S., ADV.] AND: 1. UNION OF INDIA DEPARTMENT OF REVENUE MINISTRY OF FINANCE GOVERNMENT OF INDIA NORTH BLOCK, NEW DELHI-110000 THROUGH THE SECRETARY 2. THE ADDITIONAL COMMISSIONER OF CUSTOMS AIR CARGO COMPLEX MENZIES AVIATION BOBBA CORGO TERMINAL, DEVANAHALLI, BENGALURU-560300 3. THE PRINCIPAL COMMISSIONER OF CUSTOMS AIR CARGO COMPLEX -2- MENZIES AVIATION BOBBA CORGO TERMINAL, DEVANAHALLI, BENGALURU-560300 ...RESPONDENTS [BY SRI JEEVAN J. NEERALAGI, ADV. FOR R-1; SRI K.M.SHIVAYOGISWAMY, ADV. FOR R-2 & R-3.] THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE SHOW CAUSE NOTICE BEARING C.NO.VIII/10/14/2015 BACC SIIB DATED 27.06.2017 VIDE ANNEXURE-N ISSUED BY R-2. THIS PETITION HAVING BEEN HEARD AND RESERVED, IS COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT PASSED THE FOLLOWING: ORDER The petitioner has challenged the show cause notice dated 27.06.2017 issued by the 2nd respondent under Section 28 of the Customs Act, 1962. 2. The petitioner is engaged in the business of (a) Import and trading of finished goods such as Mobile Phones, Computers, iPods (i.e., music system), Apple Watch, iPads and accessories and (b) after-sales services for the products mentioned at (a) above. The after-sales services is referred to as \"Apple Care\" within the Apple world. It is submitted that the petitioner has no facilities to repair the products (other than computers) for its customers in India as an after-sales activity. Even as per the Foreign Trade Policy, the petitioner is not allowed to import refurbished products. As such, the petitioner imported new units to replace the repaired or malfunctioning units. It is contended that the petitioner was paying Additional Duty of Customs (Countervailing Duty) under Section 3 of the Customs Tariff Act, 1975 on the transaction value of the petitioner's goods imported under the Apple Care brand of services. The Customs Department at the Air Cargo Complex disputed the valuation methodology adopted by the petitioner on the subject goods on the premise that the Retail Sales Price (RSP)/Maximum Retail Price (MRP) has to be applied, not the Transaction Value. 3. It is submitted that on 14.12.2012, a representation was given by the petitioner company to the second respondent to provide an opportunity to put- forth the explanation inasmuch as the countervailing duty paid on the transaction value and not on MRP. On such opportunity provided, the second respondent on consideration of all the information provided by the petitioner regarding adoption of transaction value, issued a letter dated 27.02.2013 inter alia directing the petitioner to pay countervailing duty on all goods of Apple Care [warranty and out of warranty] as per Section 4A of the Act 1994. On further clarification sought by the petitioner, it was communicated that extension up to 30.04.2014 is granted for provisional assessment; there shall be no more extensions; the importer shall take all the steps to clear the warranty goods under Section 4A of the Act wherever the said provisions are applicable. On the request made by the petitioner seeking for final assessment of provisionally assessed goods, the Deputy Commissioner of Customs called for certain documents. 4. It is submitted that the petitioner was shocked to receive a show cause notice dated 27.06.2017 by the second respondent under Section 28 of the Act calling upon the petitioner to show cause as to why: [i] The goods imported as warranty replacement goods but a small portion of them subsequently sold for out of warranty valued at Rs.8,65,68,087/- should not be confiscated under Section 111[m] of the Customs Act, 1962. [ii] The differential duty of Rs.9,70,981/- should not be demanded and recovered from them under the provisions of Section 28[4] of the Customs Act, 1962. [iii] Interest under Section 28AA of the Customs Act, 1961 should not be levied and demanded from them. [iv] Penalty under Section 112 and 114A of the Customs Act, 1962 should not be imposed on them. Being aggrieved by the same, the petitioner is before this Court. 5. Learned Senior Counsel Sri.S.S.Naganand, representing the learned counsel for the petitioner would submit that the impugned show cause notice suffers from the vice of arbitrariness and lacks jurisdiction. The existence of an alternative remedy is not a bar to invoke the writ jurisdiction, as the impugned show cause notice has been issued invoking the extended period of limitation on the basis of unsubstantiated allegation of suppression with an intention to evade payment of customs duty. Limitation being a question of jurisdiction, the writ petition requires to be adjudicated on merits. 6. Learned senior counsel submitted that as per Section 28[1] of the Act, 1962, the extended period of limitation may be invoked only if there is [i] collusion, [ii] any willful mis-statement; [iii] suppression of facts. A mere bald allegation of suppression of facts has been made in the impugned show cause notice without any specific reference to any Act or omission on the part of the petitioner. The executive order dated 27.02.2013 states that all the goods under the Apple Care umbrella of services were to be assessed to customs duty under the RSP Valuation. It was argued that the impugned show cause notice is in complete contradiction to the circular dated 10.03.2017 issued by the Central Board of Excise and Customs. 7. The learned counsel for the revenue has filed statement of objections. It is contended that the writ petition is not maintainable before this court by-passing the efficacious alternative remedy provided under the Act. It was submitted that to meet the principles of natural justice, personal hearing was fixed on 30.1.2018 and the same has been adjourned at the request of the petitioner from time to time. The petitioner without attending before the original authority has rushed to this court. 8. It was argued that only during the queries raised on the petitioner while answering to question No.4 to the statement dated 28.6.2017, the petitioner admitted the fact that in very small percentage of cases, if the damage is not covered under warranty, they support the customer with a replacement item for exchange price. Further to query No.6 it was answered that the petitioner sell their products which is not covered under warranty. These material facts were placed before the original Authority vide their letter 20.6.2017. Till 19.6.2017, in all the correspondence with the department, the petitioner has stated that apple care products have been imported for warranty replacements. The said fact was suppressed by the petitioner with an intent to evade payment of differential duty arising out of such sale and hence the department invoking the extended period has issued the show cause notice. 9. Adverting to the rival submissions made by the learned counsel appearing for the parties, it is evident that the petitioner has invoked the writ jurisdiction without appearing before the statutory Authority. It is well settled law that there is no bar to entertain the writ petition if the impugned notice issued is without jurisdiction. To examine this aspect, it is apt to refer to the judgments referred to by the learned Senior counsel. 10. In the case of Calcutta Discount Co. Limited Vs. Income Tax Officer, Companies District I, Calcutta and another reported in AIR 1961 S.C. 372 the Hon'ble Apex Court has observed thus: \"Does the duty however extend beyond the full and truthful disclosure of all primary facts ? In our opinion, the answer to this question must be in the negative. Once all the primary facts are before the assessing authority, he requires no further assistance by way of disclosure. It is for - 10 - him to decide what inferences of facts can be reasonably drawn and what legal inferences have ultimately to be drawn. It is not for somebody else-far less the assessee--to tell the assessing authority what inferences-whether of facts or law should be drawn. Indeed, when it is remembered that people often differ as regards what inferences should be drawn from given facts, it will be meaningless to demand that the assessee must disclose what inferences-whether of facts or law-he would draw from the primary facts.\" This judgment was rendered in the context of interpreting the phrase \"Reason to believe\" under Section 34 of the Indian Income Tax Act, 1922. 11. In Uniworth Textiles Limited Vs. Commissioner of Central Excise, Raipur reported in (2013)9 SCC 753 the Hon'ble Apex Court has observed as under: \"12. We have heard both sides, Mr. R.P. Bhatt, learned senior counsel, appearing on behalf of the appellant, and Mr. Mukul Gupta, learned senior counsel appearing on behalf of the Revenue. We are not convinced by the reasoning of the - 11 - Tribunal. The conclusion that mere non-payment of duties is equivalent to collusion or willful misstatement or suppression of facts is, in our opinion, untenable. If that were to be true, we fail to understand which form of non-payment would amount to ordinary default? Construing mere non-payment as any of the three categories contemplated by the proviso would leave no situation for which, a limitation period of six months may apply. In our opinion, the main body of the Section, in fact, contemplates ordinary default in payment of duties and leaves cases of collusion or willful misstatement or suppression of facts, a smaller, specific and more serious niche, to the proviso. Therefore, something more must be shown to construe the acts of the appellant as fit for the applicability of the proviso. 19. Thus, Section 28 of the Act clearly contemplates two situations, viz. inadvertent non- payment and deliberate default. The former is canvassed in the main body of Section 28 of the Act and is met with a limitation period of six months, whereas the latter, finds abode in the proviso to the section and faces a limitation period of five years. For the operation of the - 12 - proviso, the intention to deliberately default is a mandatory prerequisite. 20. This Court in Aban Loyd Chiles Offshore Limited and Ors. Vs. Commissioner of Customs, observed:- \"20. The proviso to Section 28(1)can be invoked where the payment of duty has escaped by reason of collusion or any willful misstatement or suppression of facts. So far as \"misstatement or suppression of facts\" are concerned, they are qualified by the word \"wilful\". The word \"wilful\" preceding the words \"misstatement or suppression of facts\" clearly spells out that there has to be an intention on the part of the assessee to evade the duty.\" 21. The Revenue contended that of the three categories, the conduct of the appellant falls under the case of \"willful misstatement\" and pointed to the use of the word \"misutilizing\" in the following statement found in the order of the Commissioner of Customs, Raipur in furtherance of its claim: \"The noticee procured 742.51 kl of furnace oil valued at Rs. 54,57,357/- without payment of - 13 - customs duty by misutilizing the facility available to them under Notification No. 53/97-Cus. dt. 3.6.1997\" 22. We are not persuaded to agree that this observation by the Commissioner, unfounded on any material fact or evidence, points to a finding of collusion or suppression or misstatement. The use of the word \"willful\" introduces a mental element and hence, requires looking into the mind of the appellant by gauging its actions, which is an indication of one's state of mind. Black's Law Dictionary, Sixth Edition (pp 1599) defines \"willful\" in the following manner: - \"Willful -. Proceeding from a conscious motion of the will; voluntary; knowingly; deliberate. Intending the result which actually comes to pass... An act or omission is \"willfully\" done, if done voluntarily and intentionally and with the specific intent to do something the law forbids, or with the specific intent to fail to do something the law requires to be done...\" 23. In the present case, from the evidence adduced by the appellant, one will draw an - 14 - inference of bona fide conduct in favour of the appellant. The appellant laboured under the very doubt which forms the basis of the issue before us and hence, decided to address it to the concerned authority, the Development Commissioner, thus, in a sense offering its activities to assessment. The Development Commissioner answered in favour of the appellant and in its reply, even quoted a letter by the Ministry of Commerce in favour of an exemption the appellant was seeking, which anybody would have found satisfactory. Only on receiving this satisfactory reply did the appellant decide to claim exemption. Even if one were to accept the argument that the Development Commissioner was perhaps not the most suitable repository of the answers to the queries that the appellant laboured under, it does not take away from the bona fide conduct of the appellant. It still reflects the fact that the appellant made efforts in pursuit of adherence to the law rather than its breach. 24. Further, we are not convinced with the finding of the Tribunal which placed the onus of providing evidence in support of bona fide conduct, by observing that \"the appellants had not brought - 15 - anything on record\" to prove their claim of bona fide conduct, on the appellant. It is a cardinal postulate of law that the burden of proving any form of mala fide lies on the shoulders of the one alleging it. This Court observed in Union of India Vs. Ashok Kumar that: \"21......it cannot be overlooked that burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demand proof of a high order of credibility.\" 25. Moreover, this Court, through a catena of decisions, has held that the proviso to Section 28 of the Act finds application only when specific and explicit averments challenging the fides of the conduct of the assessee are made in the show cause notice, a requirement that the show cause notice in the present case fails to meet. In Aban Loyd Chiles Offshore Limited and Ors. (supra), this Court made the following observations: \"21. This Court while interpreting Section 11-A of the Central Excise Act in Collector of Central Excise v. H.M.M. Ltd. (supra) has - 16 - observed that in order to attract the proviso to Section 11-A(1) it must be shown that the excise duty escaped by reason of fraud, collusion or willful misstatement of suppression of fact with intent to evade the payment of duty. It has been observed: '2...Therefore, in order to attract the proviso to Section 11- A(1) it must be alleged in the show- cause notice that the duty of excise had not been levied or paid by reason of fraud, collusion or willful misstatement or suppression of fact on the part of the assessee or by reason of contravention of any of the provisions of the Act or of the Rules made thereunder with intent to evade payment of duties by such person or his agent. There is no such averment to be found in the show cause notice. There is no averment that the duty of excise had been intentionally evaded or that fraud or collusion had been practiced or that the assessee was guilty of wilful misstatement or suppression of fact. In the absence of any such averments in the show-cause notice it is difficult to understand how the Revenue could sustain the notice under the proviso to Section 11-A(1) of the Act\" - 17 - 22. It was held that the show cause notice must put the assessee to notice which of the various omissions or commissions stated in the proviso is committed to extend the period from six months to five years. That unless the assessee is put to notice the assessee would have no opportunity to meet the case of the Department. It was held: \"2....There is considerable force in this contention. If the department proposes to invoke the proviso to Section 11-A(1) , the show-cause notice must put the assessee to notice which of the various commissions or omissions stated in the proviso is committed to extend the period from six months to 5 years. Unless the assessee is put to notice, the assessee would have no opportunity to meet the case of the department. The defaults enumerated in the proviso to the said sub-section are more than one and if the Excise Department places reliance on the proviso it must be specifically stated in the show-cause notice which is the allegation against the assessee falling within the four corners of the said proviso....\" (Emphasis supplied) - 18 - 12. In Siemens India Limited Vs. State of Maharashtra and others reported in (2006)12 SCC 33 it is observed thus: \"Although ordinarily a writ court may not exercise its discretionary jurisdiction in entertaining a writ petition questioning a notice to show cause unless the same inter alia appears to have been without jurisdiction as has been held by this Court in some decisions including State of Uttar Pradesh v. Brahm Datt Sharma and Anr. AIR 1987 SC 943, Special Director and Another v. Mohd. Ghulam Ghouse and Another, (2004) 3 SCC 440 and Union of India and Another v. Kunisetty Satyanarayana, 2006 (12) SCALE 262], but the question herein has to be considered from a different angle, viz, when a notice is issued with pre-meditation, a writ petition would be maintainable. In such an event, even if the courts directs the statutory authority to hear the matter afresh, ordinarily such hearing would not yield any fruitful purpose [See K.I. Shephard and Others v. Union of India and Others (1987) 4 SCC 431 : AIR 1988 SC 686]. It is evident in the instant case that the respondent has clearly made up its mind. It explicitly said so both in the - 19 - counter affidavit as also in its purported show cause notice. In the said case, indeed a demand was made terming the same as a show-cause notice. The Hon'ble Apex Court has observed that the Statutory Authority has already applied his mind and has formed an opinion as regards the liability or otherwise of the appellant therein. 13. In the case of Uniworth Textiles, supra, the Hon'ble Apex Court was construing whether mere non payment of duty would come within the ambit of three categories contemplated by the proviso for which the extended period under the proviso to section 28 (1) of the Act could be invoked. In the said case the matter was carried before the Appellate Authorities as well as the Tribunal. The Appellate Authorities and the Tribunal indeed had given a finding in the matter. In that context, the Hon'ble Apex Court has observed that - 20 - in the absence of specific averments find in the show cause notice which is a mandatory requirement for commencement of action under the said proviso, and that nothing on record disclose a willful default on the part of the assessee, invoking the extended period of limitation under the said provision is held to be unjustifiable. 14. In the case of Collector of Central Excise, Indore Vs. Indore Bottling Company, Indore reported in (2003)11 SCC 438, supra, the Hon'ble Apex Court considering the finding of the Tribunal that the assessee had already informed collecting of the said charges in March 1994 as such issuing a show cause notice on 6.6.97 by the department relating to the period from1.3.1994 to 30.11.1996 is not a case to invoke section 11A of the Central Excise Act, 1944. 15. In the case of ACC Limited Vs. Union of India the assessee was before this court challenging - 21 - the issuance of third show cause notice after the proceedings were adjudicated on more than two occasions. In that context it was held that it is not permissible to reopen the issue, which stands concluded on the spacious ground that the company had made mis-statements, the third show cause notice is based on unsustainable grounds. 16. In the case of Union of India Vs. I.T.C. Limited and another reported in 1985 ECR 2013(Kar), this court after examining the show cause notice extensively, issued by the superintendent recorded that the said authority was trying to get round the order of the appellate collector and to undo the same. Accordingly, the reasoning and conclusion of the learned Judge on this aspect is held to be unexceptionable. 17. In the case of Godrej Food Limited and another Vs. Union of India and others reported in - 22 - 1993 SCC Online MP 66 the Hon'ble Madhya Pradesh High Court has observed that a mere mechanical repetition of the language of the provision in the show cause notice would not confer jurisdiction on the collector of the Central Excise to issue show cause notice under Section 11A of the Act beyond period of six months taking advantage of the proviso to that section. During the period of notice, no other material was shown to contend that there was any fraud played upon the department. The matter was relating to classification of the product. In the said case the impugned show cause notice was not the first of its kind to start a controversy. On the earlier show cause notice issued, an order has already been passed against the assessee and the Appellate Authority had confirmed the same. The order being passed on the earlier show cause notice and the assessee had approached the Appellate Authority, it was argued that appellate remedy under the Act is not an equally efficacious remedy. - 23 - Thus, the aforesaid judgments are held in a different context as discussed above and are not applicable to the facts of the present case. 18. It is true that the extended period of limitation under Section 28[1] of the Act can be invoked only in the following circumstances: [i] Collusion or [ii] any willful mis-statement or [iii] suppression of facts. It is the contention of the Revenue that during the period from January 2010 to July 2012, the petitioner has paid the duty on MRP value in respect of warranty replacements but for the period July 2012 to November 2012 customs duty was paid on Transaction Value and were clearing the warranty replacement goods on provisional assessment basis paying customs duty on MRP of the finished goods for the period December 2012 onwards. It is asserted by the petitioner that in - 24 - respect of the said periods, the petitioner has erroneously valued the products imported for replacements at the maximum retail price at the products sold in retail. These are all vexed questions which requires to be examined by the authorities. 19. Clauses 3.2 and 3.6 of the Circular dated 10.03.2017 issued by the Central Board of Excise and Customs reads thus: \"3.2 Ingredients for extended period: Extended period can be invoked only when there are ingredients necessary to justify the demand for the extended period in a case leading to short payment or non- payment of tax. The onus of establishing that these ingredients are present in a given case is on revenue and these ingredients need to be clearly brought out in the Show Cause Notice alongwith evidence thereof. The active element of intent to evade duty by action or inaction needs to be present for invoking extended period. 3.6 Power to invoke extended period is conditional: Power to issue notice for extended period is restricted by presence of active ingredients which indicate an intent to evade duty as explained above. Indiscriminate use of such restricted powers - 25 - leads to fruitless adjudications, appeals and reviews, inflates the figures of outstanding demands and above all causes unnecessary harassment of the assesses. Therefore, before invoking extended period, it must be ensured that the necessary and sufficient conditions to invoke extended period exists.\" 20. The relevant paragraphs of the Show Cause Notice dated 27.06.2017 impugned are quoted for ready reference: \"7. Whereas, letter dated 03.06.2017 was sent to the importer seeking details of imports of Applecare products i.e., warranty replacement units of IPods, Ipads, Iphones for the period 01.07.2012 to 09.12.2012. As, the importer has not furnished the details even after repeated reminder letters, a summons dated 14.06.2017 was sent under Section 108 of the Customs Act, 1962. The statement of Shri Raghunath Lakshmanan, working as Manager-Trade Compliance with the importer and authorized by the importer appeared before the Superintendent to render statement, which was recorded on 20.06.2017 [enclosed as Annexure-C]. Shri Raghunath Lakshmanan, had inter alia stated that the goods imported in general [referred to as finished goods by him] were imported for retail sale and sold to their distributors for further distribution in the channel, while in the case of Apple Care products [i.e., i-phone, i-pod & i-pad], they were imported to support their customers - 26 - during the warranty period. However he stated that a very small percentage of cases if found for any reason that the damage is not covered under warranty, they support the customers with a replacement for exchange price. 8. Further, the importer vide their letter dated 20.06.2017 furnished details for the period from 01.07.2012 to 09.12.2012, of the goods imported and sold out of warranty. 9. From the foregoing paras, it appears that the importer has contravened the provisions under Section 14 of the Customs Act, 1962, in as much as, they have not furnished the correct retail sales price [RSP] of the goods as envisaged under these provisions. The said issue of valuation of goods for Warranty replacements and applicability of MRP based assessment is dealt in the case of Bharti Telemedia Limited, Vs Commissioner of Customs [Import] Nava Sheva, vide case law 2016 [331] ELT 138 Tri Mumbai, where is held that where set top boxes brought for warrant and sold as replacement box to subscriber, CVD payable under Section 4A of Central Excise Act. Taking into cognizance the Retail Sale Price declared for clearance of i-phone, i-pod & i- pad, at about the same time, the differential duty liability on account of such incorrect RSP on the goods imported for warranty purpose, but sold out of warranty works out to Rs.9,70,981/- [Rupees Nine Lakhs Seventy Thousand Nine Hundred and Eighty One only], for the period from 01.07.2012 to - 27 - 09.12.2012, the details of which is enclosed as Annexure-D to this notice. 10. In view of above suppression of facts of RSP, it appears that the customs duty short paid is required to be recovered from them in terms of the provisions contained under Section 28[4] of the Customs Act, 1962 and interest under Section 28AA of the said Act. The goods imported as Warranty replacement goods but a small portion of them subsequently sold for out of warranty as explained in the foregoing paras are liable for confiscation under Section 111 [m] of Customs Act, 1962.\" 21. The reference made to the circular instructions issued by the Central Board of Excise and Customs inasmuch as clauses 3.2 and 3.6 no doubt deals with the ingredients for extended period, but on the examination of the show cause notice impugned it cannot be held that such ingredients are not present. In such circumstances, the show cause notice issued to submit a written explanation cannot be held to be ill founded. Writ petition is premature and deserves to be rejected. - 28 - I.A.No.1/19 has been filed by the petitioner submitting that the respondent has issued the notice dated 14.10.2019 calling upon the petitioner for personal hearing. The petitioner is at liberty to put forth the reply/explanation before the respondent No.2. The respondent No.2 shall consider the submissions/reply of the petitioner and shall take a decision in accordance with law without being influenced by any of the observations made herein above, after providing reasonable opportunity of hearing to the petitioner. All rights and contentions of the parties are left open. With the aforesaid observations and directions, writ petition as well as pending I.As stand disposed of. 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{"id": "1601209", "text": "Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1696 OF 2010 [Arising out of SLP (CRL.) No.4624 of 2010] Main Pal ... Appellant Vs. State of Haryana ... Respondent JUDGMENT R. V. RAVEENDRAN J., Leave granted. 2. An FIR was registered on 23.3.1996 on the statement of one Prakashi Devi. She stated that on the night of 22/23.3.1996, while she and her daughter-in-law Sheela Devi were sleeping in her house, around 11.30 PM, the appellant jumped over the front wall of her house and broke the bulbs and ran away; that at that time, no male member was present in the house except the children; that around 00.30 AM the appellant again came into her house and touched her daughter-in-law Sheela Devi who woke up and raised an alarm; and that the appellant immediately ran away. The police investigated into the said complaint and submitted a report under Section 173 of the Code of Criminal Procedure (for short `the Code'). On that basis, the following charge was framed by the Judicial Magistrate, First Class, Karnal, against the appellant - \"That on 23.3.1996, after having made preparation for causing hurt or assault, you committed house trespass into the house of Smt. Prakashi Devi, and thereby committed an offence punishable under section 452 IPC within my cognizance. Secondly on the same date, time and place, you assaulted and used criminal force against abovenamed Prakashi Devi with intent to outrage her modesty and thereby committed an offence punishable under section 354 IPC and within my cognizance. And I hereby direct that you be tried on the above said charge by this court.\" (emphasis supplied) When the said charged was read over and explained to the appellant, he pleaded not guilty to the said charge and claimed trial. 3. Prakashi Devi was examined as PW-1. She reiterated what was recorded in the FIR, that the appellant came into the house around 11.30 PM and broke the bulbs, that he came again around 00.30 AM and touched her daughter-in-law (Sheela Devi) and when her daughter-in-law woke up and raised an alarm, the appellant ran away. In her cross-examination, Prakashi Devi stated that she has five sons; that only her husband and one son named Mahavir were staying with her; that the other four sons were married and were not staying with her; that on that night, her husband was away in the fields and her son Mahavir was also not present in the house. However, when confronted with her statement recorded in the FIR, she admitted having stated that when the appellant had come first time at around 11.30 PM and broke the outside bulbs, her son woke up and went out of the house. She also admitted that the appellant did not touch her nor teased her nor abused her. Her daughter-in-law Sheela Devi gave evidence as PW-2 and stated that she was married to one Jaibir who worked in the military services; that at 11 to 11.30 PM the accused scaled the door and broke the bulbs in the verandah of her house; that when she identified the accused and raised an alarm the accused ran away; that again he came around 00.30 AM by scaling the door and caught her hand; and that when she raised an alarm and when her mother-in-law woke up, he ran away. It was elicited in her cross-examination that the accused did not go towards her mother-in-law nor say anything to her mother-in-law; that she used to come to the village where her in-laws were residing, only when her husband came home; and that the house of her father-in-law was surrounded by the houses of his brothers and their sons. Both PW1 and PW2 stated that the house of the accused was at a distance of 15-16 houses from the house of Prakashi Devi; that the accused had never come into their house earlier; that their family and the accused were not on visiting terms with each other even during functions, marriages or death, though they were on visiting terms with others in the village. PW 2 also stated that she did not know the particulars of the dispute between the accused and her in-laws. The investigating officer was examined as PW-3. The accused examined a witness Ex-Sarpanch of the village as DW-1 and he stated that there was a quarrel between the accused and complainant's son Surinder about a water course and subsequently he came to know that the quarrel was converted into a false case against the accused by registering a false allegation that the accused had outraged the modesty of a woman. 4. The learned Magistrate by judgment dated 2.2.2001, held the accused guilty of offences under sections 452 and 354 Cr.PC and sentenced him for rigorous imprisonment for six months and a fine of Rs.1,000/- in default thereof simple imprisonment for one month. The appeal filed by the accused was dismissed by the Addl. Sessions Judge on 20.2.2002. The criminal revision filed by the appellant was disposed of by the High Court on 16.3.2010 upholding the conviction but reducing the sentence from six to four months rigorous imprisonment. That order is challenged by the accused. 5. One of the contentions urged by the accused before the appellate court and High Court was that the charge against him was that he attempted to outrage the modesty of Prakashi Devi (PW-1) whereas the evidence was to show that he attempted to outrage the modesty of her daughter-in-law Sheela Devi. He contended that as the charge levelled against him was not proved, and as he was not required to defend himself against a charge that he assaulted and outraged the modesty of Sheela Devi, he ought to have been acquitted. This was negatived by the appellate court and High Court holding that an accused cannot take advantage of a technical defect in framing the charge. It was held that mentioning the name of Prakashi Devi instead of the name of Sheela Devi in the charge was an error that did not prejudice the accused. 6. The following question therefore arises for our consideration: When the charge is that the accused assaulted `X' and outraged her modesty, but the evidence is that he assaulted `Y' to outrage her modesty, can the accused be punished, for having assaulting and outraging the modesty of `Y', even though he was not charged with any offence with reference to `Y', on the ground that the error or omission in the charge did not prejudice the accused or result in failure of justice. 7. Section 211 of the Code relates to the contents of the charge. It inter alia provides that every charge under the Code shall state the offence with which the accused is charged. Section 212 of the Code provides that the charge shall contain the particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged. Section 215 of the Code however clarifies that no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice. Section 464 of the Code relates to effect of omission to frame, or absence of, or error in, charge. Sub-section (1) thereof provides that no finding, sentence or order of a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charge, unless, in the opinion of the court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. Sub-section (2) of sec. 464 provides that if the court of appeal, confirmation or revision is of opinion that failure of justice has in fact been occasioned, it may -- (a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommended from the point immediately after the framing of the charge; (b) in case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit. 8. In Willie (William) Slaney vs. State of Madhya Pradesh [AIR 1956 SC 116] this court explained the concepts of \"prejudice to the accused\" and \"failure of justice\" thus:- \"(6) Before we proceed to set out our answer and examine the provisions of the Code, we will pause to observe that the Code is a code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well-established and well-understood lines that accord with our notions of natural justice. If he does, if he is tried by a competent court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is `substantial' compliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice. That, broadly speaking, is the basic principle on which the Code is based. (7) Now here, as in all procedural laws, certain things are regarded as vital. Disregard of a provision of that nature is fatal to the trial and at once invalidates the conviction. Others are not vital and whatever the irregularity they can be cured; and in that event the conviction must stand unless the Court is satisfied that there was prejudice. Some of these matters are dealt with by the Code and wherever that is the case full effect must be given to its provisions.\" This Court then examined the question as to when a procedure adopted could be said to have worked actual injustice to the accused and held : \"Except where there is something so vital as to cut at the root of jurisdiction or so abhorrent to what one might term natural justice, the matter resolves itself to a question of prejudice. Some violations of the Code will be so obvious that they will speak for themselves as, for example, a refusal to give the accused a hearing, a refusal to allow him to defend himself, a refusal to explain the nature of the charge to him and so forth. These go to the foundations of natural justice and would be struck down as illegal forthwith. It hardly matters whether this is because prejudice is then patent or because it is so abhorrent to well-established notions of natural justice that a trial of that kind is only a mockery of a trial and not of the kind envisaged by the laws of our land because either way they would be struck down at once. Other violations will not be so obvious and it may be possible to show that having regard to all that occurred no prejudice was occasioned or that there was no reasonable probability of prejudice. In still another class of case, the matter may be so near the border line that very slight evidence of a reasonable possibility of prejudice would swing the balance in favour of the accused. ... The Code is emphatic that `whatever' the irregularity it is not to be regarded as fatal unless there is prejudice.\" \"It is the substance that we must seek. Courts have to administer justice and justice includes the punishment of guilt just as much as the protection of innocence. Neither can be done if the shadow is mistaken for the substance and the goal is lost in a labyrinth of unsubstantial technicalities. Broad vision is required, a nice balancing of the rights of the State and the protection of society in general against protection from harassment to the individual and the risks of unjust conviction. Every reasonable presumption must be made in favour of an accused person; he must be given the benefit of every reasonable doubt. The same broad principles of justice and fair play must be brought to bear when determining a matter of prejudice as in adjudging guilt. But when all is said and done what we are concerned to see is whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. If all these elements are there and no prejudice is shown the conviction must stand whatever the irregularities whether traceable to the charge or to a want of one.\" \"In adjudging the question of prejudice the fact that the absence of a charge, or a substantial mistake in it, is a serious lacuna will naturally operate to the benefit of the accused and if there is any reasonable and substantial doubt about whether he was, or was reasonably likely to have been, misled in the circumstances of any particular case, he is as much entitled to the benefit of it here as elsewhere; but if, on a careful consideration of all the facts, prejudice, or a reasonable and substantial likelihood of it, is not disclosed the conviction must stand; also it will always be material to consider whether objection to the nature of the charge, or a total want of one, was taken at an early stage......But these are matters of fact which will be special to each different case and no conclusion on these questions of fact in any one case can ever be regarded as a precedent or a guide for a conclusion of fact in another, because the facts can never be alike in any two cases however alike they may seem. There is no such thing as a judicial precedent on facts though counsel, and even judges, are sometimes prone to argue and to act as if there were.\" (emphasis supplied) In Gurbachan Singh v. State of Punjab [AIR 1957 SC 623] following Willie Slaney, this Court held: \"......in judging a question of prejudice, as of guilt, courts must act with a broad vision and look to the substance and not to technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself.\" In Shamnsaheb M. Multtani vs. State of Karnataka - 2001 (2) SCC 577, this Court considered the meaning of the expression \"failure of justice\" occurring in section 464 of Cr.PC. This Court held thus : \"The crux of the matter is this : Would there be occasion for a failure of justice by adopting such a course as to convict an accused of the offence under section 304-B IPC when all the ingredients necessary for the said offence have come out in evidence, although he was not charged with the said offence? ... a conviction would be valid even if there is any omission or irregularity in the charge, provided it did not occasion a failure of justice....The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage. One of the cardinal principles of natural justice is that no man should be condemned without being heard, (audi alteram partem). But the law reports are replete with instances of courts hesitating to approve the contention that failure of justice had occasioned merely because a person was not heard on a particular aspect. However, if the aspect is of such a nature that non-explanation of it has contributed to penalizing an individual, the court should say that since he was not given the opportunity to explain that aspect there was failure of justice on account of non-compliance with the principle of natural justice.\" The above principles are reiterated in several decisions of this Court, including State of West Bengal vs. Laisal Haque - AIR 1989 SC 129, State of A.P. vs. Thakkidiram Reddy - 1998 (6) SCC 554, Dalbir Singh v. State of UP [2004 (5) SCC 334], Dumpala Chandra Reddy vs. Nimakayala Bali Reddy - 2008 (8) SCC 339 and Sanichar Sahni vs. State of Bihar - 2009 (7) SCC 198. 9. The following principles relating to sections 212, 215 and 464 of the Code, relevant to this case, become evident from the said enunciations: (i) The object of framing a charge is to enable an accused to have a clear idea of what he is being tried for and of the essential facts that he has to meet. The charge must also contain the particulars of date, time, place and person against whom the offence was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged. (ii) The accused is entitled to know with certainty and accuracy, the exact nature of the charge against him, and unless he has such knowledge, his defence will be prejudiced. Where an accused is charged with having committed offence against one person but on the evidence led, he is convicted for committing offence against another person, without a charge being framed in respect of it, the accused will be prejudiced, resulting in a failure of justice. But there will be no prejudice or failure of justice where there was an error in the charge and the accused was aware of the error. Such knowledge can be inferred from the defence, that is, if the defence of the accused showed that he was defending himself against the real and actual charge and not the erroneous charge. (iii) In judging a question of prejudice, as of guilt, the courts must act with a broad vision and look to the substance and not to the technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly, and whether he was given a full and fair chance to defend himself. 10. The respondent relied upon the decision of this court in State of Himachal Pradesh v. Geeta Ram [2000 (7) SCC 452]. In that case the respondent was chargesheeted for an offence under section 376 IPC and section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The Magistrate committed the case to Sessions Court which was specified as a special court under the Act. The special court framed a charge only for an offence under section 376 IPC and after trial convicted the respondent under section 376 IPC and sentenced him to ten years imprisonment. The High Court set aside the conviction on the technical ground that the trial court had no jurisdiction as it was a special court specified in under the SC & ST (Prevention of Atrocities) Act. This Court reversed the decision of the High Court on the ground that a special court under the Act being a sessions court, it continued to have jurisdiction to try the case for the offence under section 376 IPC. That matter was considered under section 465 of the Code and not relevant on the facts of this case. 11. As noticed above, in this case, the charge was that appellant committed trespass into the house of Prakashi Devi for assaulting Prakashi Devi, and assaulted the said Prakashi Devi and outraged her modesty. The accused concentrated his cross-examination with reference to the said charge and elicited answers showing that he did not assault or outrage the modesty of Prakashi Devi. He did not try to challenge the evidence let in to show that he had tried to outrage the modesty of Sheela Devi, as he was not charged with such an offence. The evidence of PW-1 and PW-2 was that the appellant did not touch or tease or abuse Prakashi Devi. Their evidence was that he touched/caught the hand of Sheela Devi and when she raised an alarm he ran away. When the charge was that the accused attempted to commit trespass into the house of Prakashi Devi with intent to outrage the modesty of Prakashi Devi, the conclusion of the appellate court and the High Court that there was no failure of justice if he is punished for the offence of having assaulted Sheela Devi and outraging her modesty, is opposed to principles of fair play and natural justice embodied in sections 211, 212, 215 and 464 of the Code. When the accused is charged with having entered the house of Prakashi Devi and assaulted the said Prakashi Devi with intent to outrage her modesty and when the accused defended himself in regard to the said charge and concentrated on proving that the said charges were not true, he cannot be convicted for having assaulted and outraging the modesty of someone else, namely Sheela Devi. The accused did not have any opportunity to meet or defend himself against the charge that he assaulted Sheela Devi and outraged her modesty. Nor did he proceed with his defence on the understanding that he was being charged with having committed the offence with reference to Sheela Devi. One of the fundamental principles of justice is that an accused should know what is the charge against him so that he can build his defence in regard to that charge. An accused cannot be punished for committing an offence against `Y' when he is charged with having committed the offence against `X' and the entire defence of the accused was with reference to charge of having committed offence against `X'. 12. The illustrations under a provision of a Statute offer relevant and valuable indications as to meaning and object of the provision and are helpful in the working and application of the provision. Illustration (e) under section 215 of the Code, as contrasted from illustration (d) under that section, throws some light on this issue. The said illustrations are extracted below : \"(d) A is charged with the murder of Khoda Baksh on the 21st January, 1882. In fact, the murdered person's name was Haidar Baksh, and the date of the murder was the 20th January, 1882. A was never charged with any murder but one, and had heard the inquiry before the Magistrate, which referred exclusively to the case of Haidar Baksh. The Court may infer from these facts that A was not misled, and that the error in the charge was immaterial. (e) A was charged with murdering Haidar Baksh on the 20th January, 1882, and Khoda Baksh (who tried to arrest him for that murder) on the 21 st January, 1882. When charged for the murder of Haidar Baksh, he was tried for the murder of Khoda Baksh. The witnesses present in his defence were witnesses in the case of Haidar Baksh. The Court may infer from this that A was misled, and that the error was material.\" Applying the guidance offered by the said illustrations and the legal principles evolved by this Court, the position will be as follows : If Sheela Devi alone had been present at the house at the time of the incident and the accused had assaulted and outraged the modesty of the said Sheela Devi, but in the charge the name of the victim had been erroneously mentioned, say as Sushila Devi or Prakashi Devi (though there was no person by such name), and the inquiry exclusively referred to the assault and outraging the modesty of Sheela Devi, the court could infer that the accused was not misled and the error in the charge was immaterial. On the other hand, if two persons were present in the house at the time of the incident namely Prakashi Devi and Sheela Devi and the accused is charged with trespassing into the house of Prakashi Devi, and assaulting and outraging the modesty of the said Prakashi Devi, and the witnesses refer only to the assault and outraging the modesty of Sheela Devi, the court will have to infer that the accused was prejudiced, if the accused had solely concentrated and focused his defence and entire cross-examination to show that he did not commit the offences against Prakashi Devi. 13. The court having charged the accused with the offence of having trespassed into the house of Prakashi Devi with intent to assault her and having further charged him for having assaulted the said Prakashi Devi by outraging her modesty, convicts him on the ground that though he did not assault or outrage the modesty of Prakashi Devi, he had outraged the modesty of Sheela Devi, that would lead to failure of justice. There was a material error in the charge as it violated the requirement of sub-section (1) of section 212 of the Code, that the charge shall contain particulars as to the person against whom the offence was committed. There were two women present at the house at the time of the alleged incident, namely Prakashi Devi and her daughter-in-law Sheela Devi. In view of the specific charge, the accused concentrated on showing that the charge was false. He did not attempt to meet the case made out in the trial that the offence was against Sheela Devi. The accused was thus clearly misled by the error in the charge which caused prejudiced to the accused thereby occasioning failure of justice. Therefore, we are of the view that there should be a new trial after charging him with the offence of outraging the modesty of Sheela Devi. 14. The appeal is therefore allowed, the conviction of the accused is set aside and the matter is remitted to the trial court with a direction for a new trial after framing a charge by substituting the words \"her daughter-in-law Sheela Devi\" for the words \"abovenamed Prakashi Devi\", in the second part of the charge. ...........................J (R. V. Raveendran) .............................J (H. L. 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{"id": "1404484", "text": "PETITIONER: STATE OF ANDHRA PRADESH Vs. RESPONDENT: CHEEMALAPATI GANESWARA RAO & ANR. DATE OF JUDGMENT: 23/04/1963 BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. SUBBARAO, K. DAYAL, RAGHUBAR CITATION: 1963 AIR 1850 1964 SCR (3) 297 CITATOR INFO : R 1973 SC2210 (14,24) F 1975 SC1309 (8,15) ACT: Criminal Trial-Joinder of charges and persons-Conspiracy, charge of-If illegal after conspiracy fructifies-Examination of accused-Right of accused to examine himself as witness-If duty of Court to inform accused of right-Pardon, legality of-Approver-Refreshing memory by reference to document-If Permissible-Admissibility of evidence-Account Books -Absenee of entries of payments alleged -Code of Criminal Procedure, 1898 (5 of 1898), ss. 233 to 339,342,337,529,537-Indian Evidence Act. 1872(1 of 1872), ss.5,11,34,159,160. HEADNOTE: A and B were tried together at one trial, A of offences under ss. 120-B, 409,477-A and 471 read with s. 476 Indian Penal Code and B of offences under ss. 120-B,409 read with 109 298 and 471 read with 467 Indian Penal Code. The Sessions judge who tried them convicted A of all the offences charged and B of the first two charges. On appeal the High Court acquitted both of them. The State appealed to the Supreme Court. The respondents contended: (i) that there was a misjoinder of charges and persons on account of the cumulative use of the various clauses of s. 239 of the Code of Criminal Procedure which was not permissible, (ii) that no charge of conspiracy could be framed after the conspiracy had fructified, (iii) that the Sessions judge had failed to inform the accused of their right under 3. 342 ( 4 ) of the Code to examine themselves as witnesses, (iv) that the pardon had been granted to the approver illegally, (v) that the approver had been allowed illegally to refresh his memory by reference to documents at the time when he was examined before the Court, and (vi) that the account books of certain firms which contained no entries regarding payments alleged to have been made to them were inadmissible in evidence. Held that there was no misjoinder of charges and of accused persons. It is open to the Court to avail itself cumula- tively of the provisions of the different clauses of s. 239 of the Code for the purpose of framing charges. Sections 233 to 236 do not override the provisions of s. 239. But the provisions of ss. 234 to 236 can also be resorted to in the case of a joint trial of several persons permissible under s. 239. Even if there was a misjoinder the High Court was incompetent to set aside the convictions without coming to the definite conclusion that the misjoinder bad occasioned failure of justice. Re: Fankaralapati Gopala Rao, A.I.R. 1936 Andhra 21 and T.B. Mukherji v. State, A.I.R. 1954 All. 501, not approved. State of Andhra Pradesh v. Kandimalla Subbaiah, [1962] 2 S.C.R. 194, K.V. Kriahna Murthy Iyer v. State of Madras, A.I.R. 1954 S.C. 406, Willi (William) Slaney v. State of Madhya Pradesh. (1955) 2 S.C.R. 1140, Birichh Bhuian v. The State of Bihar. (1964) Supp. 2 S.C.R. 328. Held further that where offences have been committed in pursuance of a conspiracy, it is legally permissible to charge the accused with these offences as well as with the conspiracy to commit those offences. Conspiracy is an entirely independent offence and though other offences are committed in pursuance of the conspiracy, the liability of the conspirators for the conspiracy itself cannot disappear. 299 State of Andhra Pradesh v. Kandimalla Subbaiah. (1962) 2 S.C.R. 194, relied on. S, Swamirathnam v. State of Madras, A.I.R. 1957 S.C. 340 and Natwarlal Sakarlal Mody v. State of Bombay, Cr. A. No. 111 of 1959, dt 19.1.196 1, referred to. Held further, that there was no violation of the provisions of s. 342 of the Code. The Sessions Judge had erred on the side of overcautiousness by putting every circumstance appearing in the evidence to the accused. Copies of the questions put to the accused were given to them before hand. Any point left over in the questions was covered in the written statements filed by the accused. In such circumstance the length of the questions or of the examination could not prejudice the accused. Further, there was no duty cast on the Court to inform the accused of their right under s. 342 (4) to examine themselves as witnesses. They were represented by counsel who must have been aware of this provision. Held further, that the pardon was legally granted to the approver under s. 337 of the Code and was a valid pardon. The offences with which the accused were charged were all such in respect of which a pardon could be granted under s. 337 (1). The offences under s. 467 read with s. 471 which was exclusively triable by a court of sessions and the offence under s. 477-A which was mentioned in s. 337 (1) itself and thus both fell within the ambit of s. 377 (1). the offence under s. 409. and consequently the offence under s. 120-B also, was punishable with imprisonment for life or with imprisonment not exceeding ten years and was an \"offence punishable with imprisonment which may extend to ten years\" within the meaning of s. 337 (1). Further, tinder G.O. No. 3106 dated September 9, 1949, the Madras Government, the power of a District Magistrate to grant pardon was specifically conferred on Additional District Magistrates, and the Additional District Magistrate, (Independent) who granted the pardon in the present case was competent to do so. Held further, that the Sessions judge acted legally and properly in allowing the approver to refresh his memory, while deposing, by referring to the account books and other documents produced in the case. Where a witness has to depose to a large number of transactions and those transactions are referred to or mentioned either in the account books or in other documents there is nothing wrong in allowing the witness to refer to the account books and the documents 300 while questions are put to him. Such a course is specifically permitted by ss. 19 and 160 of the Evidence Act. Held further, that the account books of the firms which contained no entries with respect to payments alleged to have been made were not relevant under s. 34 of the Evidence Act, as that section is applicable only to entries in account books regularly kept and says nothing about non- existence of entries. But they were relevant under s. I I of the Act as the absence of the entries would be inconsistent with the receipt of the amounts which was a fact in issue. They were also relevant under s. 5 to prove the facts alleged by the prosecution that payments were never made to these firms and that those firms maintained their accounts in the regular course of business, and both these were relevant facts. Queen Empress V. Grees Chander Banerjee (1884) I.L.R. IO Cal, 1024, and Ram Pershad Singh v. Lakhpati Koer, (1902) I.L.R. 30 Cal. 231, referred to. JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 39 of 1961. Appeal by special leave from the judgment and order dated January 30, 1960 of the Andhra Pradesh High Court (in Criminal Appeals Nos. 277 and 278 of 1957 and Criminal Revision Case No. 810 of 1957. A.S.R. Chari, K. R. Choudhry and P.D. Menon, for the appellant. Bhimasankaran and R. Thiagarajan for respondent No. 1. R. Mahalingier, for respondent No. 2. 1963. April 23. The judgment of the Court was delivered by MUDHOLKAR J.-The respondent No. I was tried before the Court of Sessions, Visakhapatnam for offences under s. 120-B, Indian Penal Code, s. 409, s. 477-A and s. 471 read with s. 467, I.P.C. while respondent No. 2 was tried for an offence under s. 120-B and for offences under ss. 409 read with s. 109, 477-A and 471 read with s. 467, I.P.C. Each of the respondents was convicted of the first two offences, but the respondent No. I alone was convicted of the other two offences. Various sentences were passed against them by the Additional Sessions judge, Visakhapatnam, who presided over the court. The respondents preferred appeals before the High Court challenging their convictions and sentences. The State on the other hand preferred an application for revision under s. 439, Cr. P.C. for the enhancement of the sentences passed on the respondents. The High Court allowed the two appeals, acquitted the respondents and dismissed the application for revision preferred by the State. The State of Andhra Pradesh has come up before this Court in appeal by obtaining special leave under Art. 136 of the Constitution. The prosecution case in so far as it is material for the decision of this appeal is as follows : In the year 1929 the Andhra Engineering Co., which was originally a partnership firm formed by one D.L.N. Raju was converted into a private limited, company with its headquarters at Visakhapatnam. (We shall refer to this company throughout as the AECO). It obtained licences from the Government under the Electricity Act for supply of electrical energy to Visakhapatnam, Anakapalli and some other places. As the AECO did not have the necessary capital to undertake the work Raju floated in the year 1933 a public limited company called Visakhapatnam Electric Supply Corporation Ltd., (referred hereafter as VESCO) and another in the year 1936 called the Anakapalli Electric Supply Corporation Ltd. The AECO transferred its licences for the supply of electrical energy to the consumers of Visakhapatnam to VESCO and similarly transferred to AECO the licence to supply electrical energy to consumers at Anakapalli. The AECO was appointed Managing Agent for each of these corporations under separate agreements. Some time later other industrial concerns, the Andhra Cements Ltd., Vi jayawada and the East Coast Ceremics, Rajahmurthy were started apparently by Raju himself- and the AECO was appointed the Managing Agent of each of these concerns. The original managing agency agreement in favour of AECO with respect to VESCO was for a period of 15 years i.e., from 1933 to 1948 and was later renewed for the remaining term of the currency of the licence granted by the Government under the Electricity Act. A mention may be made of the fact that in June, 1952 the VESCO undertaking was acquired by the Government under the provisions of the \"'Electricity Undertaking Acquisition Act\" but nothing turns on it. The VESCO had its own Board of Directors while the AECO had also its own separate Board of Directors. The VESCO had no Managing Director but at each meeting of its Board of Directors one of the Directors used to be elected Chairman. The same practice was followed at the meeting of the general body of the shareholders. The AECO on the other band always had a Managing Director, first of whom was D.L.N. Raju. He died in the year 1939 and was succeeded by R.K.N.G. Raju, an Advocate of Rajahmundry. This person, however, did not shift to Visakhapatnam on his becoming the Managing Director but continued to stay most of the time at Rajahmundry. According to the prosecution both these concerns were running smoothly and efficiently during the lifetime of D.L.N. Raju because he was personally attending to their affairs. His successor, however, apart from the fact that be continued to be staying mostly at Rajahmundry, was also interested in several other ventures, including a sugar factory at Dewas in Central India. Eventually many of those ventures failed. According to the prosecution the second Raju was not bestowing sufficient care and attention on the affairs of VESCO. The AECO as Managing Agents of VESCO had appointed in the year 1939 one D.V. Appala Raju, a trusted employee, as its representative and as the secretary of VESCO. In 1944 this person resigned from his appointments and started his own business in radio and electrical goods in the name of D. Brothers. He was succeeded by T. Visweswara Rao, P.W. 6, an employee of the AECO. The respondent No. 1, Ganeswara Rao was also an old employee of AECO, having been appointed a stenotypist in the year 1923 on an initial salary of Rs. 40/- p.m. Eventually he became the Head Clerk therein. He pressed his claim for appointment as Secretary of VESCO and representative of the Managing Agents at Visakhapatnam and R .H.G. Raju appointed him to that post. All this is not disputed. The respondent No. 1, even after his appointment on two posts connected with VESCO, continued to work with the AECO also whose business had by then been confined only to that of Managing Agents of the four companies floated by D.L.N. Raju. It is the prosecution case that as Secretary of VESCO and the resident representative of the Managing Agents, the respondent No. I was attending to the day to day affairs of VESCO, which included the receiving of all sums of money due to VESCO, spending money for the purpose of VESCO attending to the appointment, supervision and control of the staff of VESCO, purchasing materials required for the purpose of VESCO and supervising over the accounts of VESCO. He was thus all important with respect to the every day affairs of VESCO. His dual capacity enabled the respondent No. I to earn the confidence not only of the Directors of AECO but also of those of VESCO. The accounts maintained by the VESCO used to be explained by him not only to the Directors but also to the shareholders. The knowledge of the Financial position of VESCO obtained by them used to be derived essentially from the respondent No. 1. As Secretary of VESCO it was his duty to convene the meetings of the Board of Directors, to present before them the periodical statement of receipts and expenditure of VESCO, to convene meetings of the General Body, to prepare the Managing Agents' report and the Director's report as also to see to the presentation of auditors' report and the statement of accounts. The explanations of the Managing Agents and the Directors of VESCO with respect to the items mentioned in the orders of the Board used also to be placed by him before the shareholders. It was also his duty to have the accounts of VESCO audited by the auditors elected by the general body and to produce before the auditors the relevant accounts, vouchers, bank statements and so on. There were no complaints about the management of the affairs of VESCO or the AECO till the end of 1946 or the beginning of 1947. One significant fact, however, which occurred prior to 1946 - is referred to by the prosecution. Till the -year 1945 Messrs C. P. Rao & Co., a firm of Chartered Accountants were the auditors of VESCO but after the respondent No. I became Secretary. one B. Rajan was elected Auditor not only for VESCO but for all the other four concerns, including AECO. This person was Auditor for Greenlands Hotel at Visakhapatnam, of which the respondent No. I was a Director. R.K.N.G. Raju took till towards the end of 1947 and died at Madras in April, 1948. According to the prosecution the respondent No. I wanted to take advantage of this fact and conceived of a scheme for misappropriating as much money belonging to VESCO as possible before the managing agency agreement of AECO came to an end in October, 1948. The respondent No. I secured the promotion of the approver K.V. Ramana, who was originally Accounts Clerk to the post of Senior Accountant. Similarly K. V. Gopala Raju was transferred from the post of Stores Clerk to the general department and K.S.N. Murty, the discharged accused, was appointed Stores Clerk in his place. Later, however, Murty was also got transferred to the general section and replaced by P. W. 18, Srinivasa Rao originally a stores boy. The approver who was originally an Accounts clerk with the AECO was, it may be mentioned, appointed a cashier in VESCO in 1946 at the instance of the respondent No. I and was thus beholden to him. He was later promoted as Senior Accountant and in his place the respondent No. 2 Laksbminarayana Rao was appointed the Cashier. According to the prosecution the respondent No. I took both the approver and Lakshminarayana Rao in his confidence as also some other persons \"known and unknown\" for carrying out his nefarious purpose, namely, the misappropriation of the funds of VESCO during the subsistence of AECO's managing agency of VESCO. The conspiracy is said to have been hatched in the year 1947 and falsification of accounts and misappropriation of funds of VESCO went on till the end of the accounting year. The term of the managing agency was renewed in 1943 and AECO con- tinued to be managing agents until the VESCO was taken over by the Government in 1952. The respondent No. I continued to be the Secretary of VESCO and resident representative of the Managing Agents throughout the period of conspiracy. After the death of R.K.N.G. Raju, it was discovered that the AECO was indebted to many concerns which were under its managing agency, the liability being shown either as that of AECO or that of R.K.N.G. Raju personally. Again, the VESCO was shown as indebted to the Andhra Cement,; to the extent of Rs. 42,000/-. This amount was, however, paid by the AECO from the funds of VESCO. The respondent No. I and some of his friends were in search of a rich and substantial man who would be amenable to them to fill the post of Managing Director of AECO. Eventually their choice fell on G. V. Subba Raju, P. W. 25, a resident of Manchili, who held a large number of shares in the AECO and who was, besides, related to R.K.N.G. Raju by marriage. It is said that this person has not received much education and knows only bow to sign his name in English. He was assured that by consenting to become the Managing Director be would not be required to discharge onerous duties and that the respondent No. I would look to all the affairs of VESCO. He was also told that apart from signing important papers which may be sent to him by the respondent No. I from time to time to Manchili or wherever be might be would have no work to do. He agreed and was elected Managing Director of AECO in the middle of 1948. Upon this understanding he accepted the position offered to him. The VESCO used to receive large amounts of money from high tension power consumers such as the railways, K. G. Hospital, the Port Administration, the Andhra University etc., by cheques. But domestic consumers usually paid their bills in cash to the bill collectors who used to hand over their collections to the respondent No. 2. The respondent No. 2 was asked by the respondent No. I to maintain a private note book. In \"that book payments which used to be made by respondent No. 2 on the basis of slips issued by the respondent No. I (which included payments to his relatives or to business firms in which he was personally interested) used to be noted and the amount totalled up at the end of the day. This amount was posted in VESCO's Cash Handover Book as \"'by safe\" indicating that this amount was kept in the safe, though in fact it was not. On the basis of the entries in the Handover Book the final accounts were written up. The respondent No. I opened four personal accounts in different banks, including the Imperial Bank of India (as the State Bank then was). When the respondent No. I had to issue a personal cheque on any of these Banks he used to ask the second respondent to send an equivalent amount to the Bank concerned for being credited to his account. These amounts also used to be noted in the private note book and entered \"by safe' in the Handover Book. Another thing which the respondent No. I initiated was opening a heading in the ledger called \"advance purchase of materials.\" Amounts which had been misappropriated used to be posted therein though in fact no orders were placed for any material. It may be mentioned that Subba Raju used to visit Visakhapatnam twice a month and check up the account books. At that time it used to be represented to him that the amounts which were shown to be in the safe and not found therein (but which were actually misappropriated) had been sent to the Bank for being deposited. Apparently Subba Raju was fully satisfied with this and other explanations and, therefore, he appointed one C. S. Raju, who was the Manager of Andhra Cements to supervise over the affairs of VESCO. Apparently because of this a new method of misappropriation was adopted by the respondents by starting in the VESCO account books, an account called \"suspense account\". A lakh of rupees passed through that account. Amounts which were misappropriated used to find their way in this account. A new cash book was also said to have been prepared by the conspirators with the object of covering up the misappropriations which had been made. Subba Raju was not satisfied with the nature of supervision exercised by C. S. Raju over the affairs of VESCO because he used to look only at the cash book entries of the days on which he paid visits to VESCO's office, to which he used to go with previous intimation. Besides that, C. S. Raju's management of Andhra Cements had landed it into a loss of Rs. 30,000/-`. Because of all these things he had C. S. Raju replaced towards the end of the year 1951 by one Subbaramayya, a retired Finance Officer from the Madras Electricity Board both as a Director of Andhra Cements and as a Supervisor over the accounts of VESCO. Subbaramayya took his work seriously and called for information on a number of points from the respondent No. 1. He, however, was unable to obtain any information. In January, 1952 he therefore brought one S. G. Krishna Aiyar who had vast experience in the maintenance of accounts of electrical undertaking's having been Chief Accountant of the South Madras Electric Supply Corporation, to undertake an investigation and then to act as Financial Adviser. In the meantime on November 29, 1951 there was a meeting of the General Body at which the accounts were, among other things, to be considered. There was a considerable uproar at that meeting because the respondent No. 1 said that the Auditor's report had not been received. The shareholders felt that the report had been received but was being suppressed or deliberately withheld. However, the meeting was postponed and eventually held on December 9, 1951. On that date the respondent No. 1 produced the auditor's report (Ex. p. 234 of which Ex. P. 235 is a printed copy). According to the prosecution the report is a forged document. That was also the feeling-of a number of shareholders who wanted to see the original but one Dutt who was Chairman of the meeting after seeing Ex. P. 234 said that the report seemed to be a genuine one. S. G. Krishna Aiyar after his appointment in January, 1952, made close enquiry and submitted an interim report. That report showed that during the period 1948-49 Rs. 33,271-10-0 shown as paid to the Andhra Power System were in fact not paid. The respondent No. 1 on being asked to explain said that he would give his explanation to the Managing Director. The Interim Report showed that there was a shortage of about Rs. 90,000/- for this period. On February 12, 1952 the respondent No. I wrote to the Managing Director admitting his responsibility and agreed to make good the amounts found short or such other amounts as would be found short up to the end of March, 1952. Further scrutiny of the accounts was being carried out by Krishna Aiyar and in his subsequent report he pointed out that Rs. 2,38,000/- which were shown as having been paid to the Andhra Power System had actually not been paid. In fact in April, 1952 the Collector attached VESCO properties for realising this amount. On April 30, 1952 the respondent No. 1, by selling some of his property, himself paid Rs. 50,000/- to the Andhra Power System towards the sum due to it from VESCO and had promised to pay the balance shortly thereafter. He was given time for doing so but he failed to pay it. The Directors of VESCO thereafter authorised K. S. Dutt, one of the Directors to lodge a complaint with the police which he accordingly lodged on May 19, 1952. On the next day the police placed an armed guard around the office of the respondent No. I and seized a number of papers. As a result of investigation they found that there was a total misappropriation of Rs. 3,40,000/-. On May 13, 1954 a chargesheet was filed against the two respondents as well as Murti and the approver Ramana. OD September 13, 1954 Ramana offered to make a full Confession to the Additional District Magistrate (Independent) who was empowered to grant pardon under s. 337 of i he Code of Criminal Procedure. He, however, directed Ramana to make his confession before a SubMagistrate. The latter accordingly made a confession on November 15, 1954 and on November 17, 1954 the Additional District Magistrate (Independent) granted him pardon and that is how he came to be examined as a witness in this case. As already stated, the Additional Sessions judge convicted both the respondents, the respondent No. I in respect of each head of the offences with which he was charged and the respondent No. 2 in respect only of the offences of conspiracy and misappropriation. The High Court set aside the conviction of the respondents on a number of grounds. In the first place according to the High Court, joint trial of two or more persons in respect of different offences cornmitted by each of them is illegal and that here as they were charged with having committed offences under s. 120-B, s. 409, s. 477-A and s. 476/467, I.P.C. they could not be tried jointly. According to it the provisions of s. 239 were of no avail. Next according to the High Court even if s. 239 is applicable its provisions are subject to those of s. 234 and as such the trial being for more than three offences was impermissible. Then according to the High Court offences under. s. 409 and s. 471/467 are of different kinds and are not capable of joint commission. Therefore, they could not be jointly tried. Further, according to the High Court where a conspiracy has yielded its fruits the conspirators can be charged with the actual offences committed and not with conspiracy to commit those offences. Charge of conspiracy, according to the High Court, can be validly made only when the prosecution establishes that every conspirator expected to receive a personal benefit from it and that the prosecution has not been able to establish that the respondent No. 2 or the approver evidently had any such expectations since they did not in fact receive any corresponding benefit. In so far as the respondent No. 2 is concerned the High Court has held that since he was charged with a specific offence under s.409 I.P.C. he could not be convicted of mere abetment of an offence. The approver's evidence was held by the High Court to be inadmissible because the pardon granted to him was illegal. The High Court has also held that his evidence is unreliable and further that the Additional Sessions judge was in error in allowing him to refresh his memory by referring to various documents in a manner not permitted by s. 159 of the Evidence Act. The High Court has further stated that inadmissible evidence was taken on record by the Additional Sessions judge, namely, account books of Billimoria Brothers, maintained in Gujrati and further that the Additional Sessions judge was in error in allowing the prosecution to use those account books for establishing absence of entries with regard to certain payments alleged in the VESCO books to have been made to them. Finally, the High Court held that the examination of the respondent under s. 342 of the Code was unfair for a number of reasons and that the Additional Sessions judge had failed to perform an important duty in that he did not call the attention of the respondents to the provisions of s. 342 which enable an accused person to give evidence in his own behalf Mr. Bhimasankaram, appearing for the two respondents, however, has not sought to support the judgment of the High Court on all these points. The points which he urged are briefly these: (1) That there was a misjoinder of charges and persons in that the various provisions of s. 239 were clubbed together and an omnibus charge of conspiracy was framed which on its face was one likely to embarrass the respondents and make their task of defending themselves difficult. (2) The procedure adopted in the investiga- tion and committal stages was irregular. (3) Irrelevant evidence was introduced and some evidence was introduced in a manner not authorised by the Evidence Act. (4) That the Court abused its powers under s.342, Cr. P.C. while conducting the examination of the respondents. (5) The evidence of the approver was inadmissible because the pardon granted to him was illegal, that, in any case, it is unreliable, was so found even by the Sessions judge and must, therefore, be rejected. If the evidence of the approver is left out the remaining evidence would be inadequate to sustain the prosecution case. We shall deal with Mr. Bhimasankaram's contentions in the order in which we have set them out. The first question for consideration is whether there was a misjoinder of parties and of persons. The first charge is in respect of the conspiracy alleged to have been entered into by the two respondents, K. V. Ramana, the approver, and others \"known and unknown\" to commit criminal breach of trust of the funds of VESCO and, in order to screen its detection, to falsify the accounts of VESCO and to use forged documents as genuine. On the face of it this is a valid charge. But certain objections have been taken to it with which we will deal at the appropriate place. The second charge is for an offence of criminal breach of trust punishable under s. 409 and the accusation therein is that the two respondents along with Ramana, misappropriated 69 items aggregating to a little over Rs. 3,20,000/-. It is clear from the charge that some of the amounts were misappropriated between April, 1947 and March, 1950, some between April, 1947 and March, 1949, some between April, 1947 and March, 1951 and quite a large number between September, 1947 and March, 1950 and a still large number between April, 1951 and March, 1952. It is thus apparent that offences committed within a space of 12 months were tried along with offences committed beyond that period. Unless, therefore, the provisions of s. 239 are applicable it would follow that there was a misjoinder of charges. The third charge is that the two respondents, along with the approver Ramana made false entries on seven different dates in the account books between September 19, 1947 and March 18, 1952 and thus committed an offence under s. 477-A, I.P.C. The fourth charge is that the two respondents, along with the approver Ramana forged six documents on different dates between March 28, 1949 and November 12, 1951 and thus committed an offence under s. 471 read with s. 467, I.P.C. As we have pointed out earlier the respondent No. I alone was convicted by the Additional Sessions judge in respect of the third and fourth charges. Mr. Bhimasankaram supports the reason given by the High Court for coming to the conclusion that there was a misjoinder of charges. The main reasons upon which the conclusion of the High Court is based are firstly that there could be no clubbing together of the provisions of the various clauses of s. 239 and secondly that the respondents were charged with more than three offences of the same kind and that this was in contravention of s. 239 (c). In coming to the conclusion that the provisions of various clauses of s. 239 cannot be applied cumulatively the High Court has relied upon the decision in Re: Vankavalapati Gopala Rao (1). There the learned judges have held thus: \"These clauses are mutually exclusive and they cannot be simultaneously applied and to construe them as supplementing each other would be enlarging the scope of the exceptions. Each clause is an exception to the general rule enacted in s. 233, Cr. P.C. If such a combination is permissible, all persons accused of offences described in cls. (a) to (g) can be tried together in one case which certainly involves a bewildering multiplicity of charges and which would obviously set at naught the salutary principle contained in s. 233.\" (p. 24) In support of this view the High Court in that case has relied upon the decision in T. B. Mukherji v. State (2 ) and referred to the decision in Singarachariar v. Emperor (3) and D. K. Chandra v. The State(,). Before considering these decisions it will be useful to look at the scheme of Chapter XIX of the Code of Criminal Procedure which deals with the charge. The chapter is split up into two sub-heads, '-Form of charges\" and \"Joinder of charges.\" Sections 221 to 232 are comprised under the first sub-head and ss. 233 to 240 in the second. Sections 221 to 223 deal with the framing and content of charge. s. 224 deals with the interpretation of the language of the charge and s. 225 with the effect of errors in the charge. Sections 226 to 231 deal with the power of the court with regard to framing and altering charges and the procedure to be adopted at the trial where a charge is found to be defective or there is no charge or where a new charge is to be (1) A.I.R. 1956 Andhra 21. (2) A.I.R. 1954 All. 501. (3) A,I,R, 1934 Mad 673. (4) A,I.R. 1952 Bom.. 177. F.B, framed. Section 232 deals with the power of the. appellate court or the High Court when it discovers that there is material error in the charge. Then we come to the other sub-head of this chapter. Section 233 provides that for every distinct offence of which any person is accused there shall be a. separate charge. It thus lays down the normal rule to be followed in every case. But it also provides that this will be subject to the exceptions contained in SS. 234, 235, 236 and 239. The first three provisions relate to the framing of charges against a single accused person. Section 234 (1) deals with the trial of a person for offences of the same kind not exceeding three committed within the space of 12 months from the first to the last of such offences and s. 231 (2) what is meant by the expression 'offences of' the same kind'. This provision lifts partially the ban on the trial of a person for more than one offence at the same trial. Section 235(1), however, goes a step further and permits the trial of a person for more offences than one if they are so connected together as to form the same transaction. Thus under this provision if the connection between the various offences is established the limitations placed by s. 234(1) both as regards the number and the period during which the offences are alleged to have been committed will not apply. Full effect cannot possibly be given to this provision if we hold that it is subject to the limitation of s.234(1). Sub-section (2) of S. 235 deals with a case where an offence falls within two definitions and sub-s.(3) deals with a case in which a number of acts are alleged against an accused person, different com- binations of which may constitute different offences. Then we come to s. 236 which provides that if a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences and further provides that any number of such charges may be tried together. It also permits that charges could be framed against an accused person in the alternative if the court thinks fit. Thus, this is a special provision available in case of doubt and is neither subject to the limitations prescribed by s. 233 nor those of the other preceding provisions. Now, if the respondent No. 1 were alone tried upon the second, third and the fourth charges the provisions of s. 235(1) could have been pressed in aid if the allegations were that the offences were so connected together as to form one and the same transaction and the validity of the trial would not have been open to any attack. Similarly if the second respondent were alone tried on the second charge his trial would not have been open to any objection if the allegation were that the offences were so connected together as to form the same transaction. Here, however, we have a case where the prosecution alleges that there was additionally a conspiracy to which apart from the two respondents the approver and some other persons were parties and where in both the respondents were tried together. A conspiracy must be regarded as one transaction and, there- fore, a single individual charged with it could be tried with the aid of s. 235(1) for all the acts committed by him in furtherance or in pursuance of the conspiracy without the limitations imposed by s.234(1). For, where all the acts are referable to the same conspiracy their connection with one another is obvious. The only provision in the Code which permits the joint trial of more than one person is s. 239 and what we have to see is whether under that provision the two respondents could have been jointly tried for the offences with which they were charged. Let us, therefore, examine closely the provisions of s. 239. It will be useful to set out the provisions of that section which run thus : \" The following persons may be charged and tried together, namely:- (a) persons accused of the same offence committed in the course of the same transaction; (b) persons accused of an offence and per- sons accused of abetment, or of an attempt to commit such offence; (e) persons accused of more than one offence of the same kind within the meaning of section 234 committed by them jointly within the period of twelve months; (d) persons accused of different offences committed in the course of the same transaction; (e) persons accused of an offence which includes theft, extortion, or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of, property possession of which is alleged to have been transferred by any such offence committed by the first-named persons, or of abetment of or attempting to commit any such 1st-named offence; (f) persons accused of offences under sec- tions 411 and 414 of the Indian Penal Code or either of those sections in respect of stolen property the possession of which has been transferred by one offence; and (g) persons accused of any offence under Chapter XII of the Indian Penal Code relating to counterfeit coin, and persons accused of any other offence under the said Chapter relating to the same coin, or of abetment of or attempting to commit any such offence; and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges.\" This first thing to be noticed is that s. 239 does not read as if its various clauses can be applied only alternatively. On the other hand at the end of cl. (f) there is a conjunction 'and'. If the intention of the Legislature was that the provisions of these clauses should be available only alternatively it would have used the word \"or\" and not \"and\" which has the opposite effect. Grammatically, therefore, it would appear that the provisions of the various clauses are capable of being applied cumulatively. The opening words of the section show that it is an enabling provision and, therefore, the Court has a discretion to avail itself cumulatively of two or more clauses. Of course a Court has the power to depart from the grammatical construction if it finds that strict adherence to the grammatical construction will defeat the object the Legislature had in view. The concluding portion of s. 239 shows that the provisions contained in the former part of Chapter XIX shall, as far as may be, apply to the charges framed with the aid of s. 239. Does this mean that the provisions of s. 233, 234, 235, and 236 must also be complied with? Obviously, s. 233 does not override the provisions of s. 239. Section 234 cannot also be regarded as an overriding provision because reading it that way will lead to the clear result that whereas several accused persons can be charged at the same trial with any number of different offences committed by them in the course of the same transaction they cannot be tried also for -offences of the same kind exceeding three in number and committed beyond a space of 12 months from the first to the last. It could not have been the intention of the Legislature to create such a situation. Again, as already stated, s. 234(1) does not override the provisions of s. 235(1) which permits trial of a person for more offences than one committed during any period provided they are so connected together as to form one transaction. Unless we read s. 234(1) as not enacting a fetter on s. 235(1), it may not be possible to give full effect to the latter. Now, since s. 234(1) cannot be properly read a,,; overriding s. 235(1) there is no valid reason for construing it as overriding the provisions of s. 239 either. There are also other reasons which point to this conclusion which we will set out while considering the argument advanced by Mr. Bhimasankaram. Mr. Bhimasankaram contended that s, 239 must be read at least subject to ss. 234(1) and 235(1) on the ground that if there are certain restrictions with respect to the trial of a single accused there is no reason why those restrictions will disappear if an accused person is tried along with several other persons. Thus he points out that where several persons are accused of more offences than one of the same kind committed by them jointly within a period of 12 months, the number of offences for which they could be tried cannot exceed three. In this connection he relied upon the words \"within the meaning of s. 224\" occurring in cl. (c) of s. 239. These words, he contended, clearly show that cl. (c) of s. 239 is subject to the provisions of s. 234. In our opinion the words \" within the meaning of s. 234\" indicate that what was meant by the words offence of the same kind\" in cl. (c) of s. 239 is the same thing as was meant by the identical expression used in s. 234(1) and defined in s. 234(2) and nothing more. If it was the intention of the Legislature to provide that the number of offences for which several accused persons could be tried under cl. (c) of s. 239 should be limited to three as provided in s. 234(1), the Legislature would either have Said \"'persons accused of more offences than one of the same kind not exceeding three in number\" or may have used the words \"person accused of more than one offence of the same kind to the extent permissible under s. 234\". Language of this kind would have made perfectly clear that cl. (c) of s. 239 was subject to s. 234(1). As already stated, if s. 239(c) is construed as being subject to s. 234(1), there would be this anomaly that whereas the same accused person could be charged with and tried jointly for any number of offences of different kinds committed by them, for more than three offences of the same kind committed by them jointly there will have to be a separate trial with respect to such offences. Surely such could not have been the intention of the legislature. The object of enacting s. 239 was to avoid multiplicity of trials and the only limitation which could properly be placed on the trial of several persons for the same kind of or different offences would be that which considerations of justice and fairness would require. No doubt, such a construction would also give rise to the result that whereas so far as the trial of a single accused person is concerned the charges must be limited to three offences committed by him within the space of 12 months from the first to the last of such offences, there would be no such limitation when along with that accused person there are one or more persons who have jointly committed those offences. The reason for this possibly is that the Legislature did not want to differentiate between cases where any number of different offences were committed jointly by a group of persons from cases where any number of offences of the same kind were committed by a group of persons. According to Mr. Chari s. 235(1) cannot be construed as having an overriding effect on s. 239 because whereas it contemplates acts so connected together as to form the same transaction resulting in more offences than one, s. 239(d) contemplates offences committed in the course of the same transaction and nothing more. The question is whether for the purposes of s. 239(d) it is necessary to ascertain any- thing more than this that the different offences were committed in the course of the same transaction or whether it must further be ascertained whether the acts are intrinsically connected with one another. Under s. 235(1) what has to be ascertained is whether the offences arise out of acts so connected together as to form the same transaction, but the words \"so connected together as to form\" are not repeated after the words \"'same transaction\" in s. 239. What has to be ascertained then is whether these words are also to be read in all the clauses of s. 239 which refer to the same transaction. Section 235(1), while pro- viding for the joint trial for more than one offence, indicates that there must be connection between the acts and the transaction. According to this provision there must thus be a connection between a series of acts before, they could be regarded as forming the same transaction. What is meant by \"same transaction\" is not defined anywhere in the Code. Indeed, it would always be difficult to define precisely what the expression means. Whether a transaction can be regarded as the same would necessarily depend upon the particular facts of each case and it seems to us to be a difficult task to undertake a definition of that which the Legislature has deliberately left undefined. We have not come across a single decision of any Court which has embarked upon the difficult task of defining the expression. But it is generally thought that where there is proximity of time or place or unity of purpose and design or continuity of action in respect of a series of acts, it may be possible to infer that they form part of the same transaction. It is, however, not necessary that every one of these elements should co-exist for a transaction to be regarded as the same. But if several acts committed by a person show a unity of purpose or design that would be a strong circumstance to indicate that those acts form part of the same transaction. The connection between a series of acts seems to us to be an essential ingredient for those acts to constitute the same transaction and, therefore, the mere absence of the words \"so connected together as to from\" in cl. (a), (c) and (d) of s. 239 would make little difference. Now, a transaction may consist of an isolated act or may consist of a series of acts. The series of acts which constitute a transaction must of necessity be connected with one another and if some of them stands out independently, they would not form part of the same transaction but would constitute a different transaction or transactions. Therefore, even if the expression \"'same transaction\" alone had been used in s. 235(1) it would have meant a transaction consisting either of a single act or of a series of connec- ted acts. The expression \"same transaction\" occurring in cls. (a), (c) and (d) of s. 239 as well as that occurring in s. 235(1) ought to be given the same meaning according to the normal rule of construction of statutes. Looking at the matter in that way, it is pointless to inquire further whether the provisions of s. 239 are subject to those of s. 236(1). The provisions of sub-s. (2) and (3) of s. 235 are enabling provisions and quite plainly can have no overriding effect. But it would be open to the court to resort to those provisions even in the case of a joint trial of several persons permissible under s. 239. Section 236 is also an enabling provision to be availed of in case of doubt and it is meaningless to say that s. 239 is subject to s. 236. ]Bearing in mind the fact that the provisions in the \"former part\" of Chapter XIX are applicable to charges made with the aid of s. 239 only \"so far as may be\" it would not be right to construe s. 239 as being subject to the provisions of ss. 233 to 236. It was contended by Mr. Chari that the expression \"former part\" would apply to the first sub- division of chapter XIX which deals with the form and content of the charges and the powers of the court with regard to the absence of charge and alteration of charge. We cannot, however, give the expression such a restricted meaning. For, even in the absence of those words, the earlier provisions could not have been ignored. For, it is a rule of construction that all the provisions of a statute are to be read together and given effect to and that it is, therefore, the duty of the Court to construe a statute harmoniously. Thus, while it is clear that the sections preceding s. 239 have no overriding effect on that section,, the courts are not to ignore them but apply such of them as can be applied without detracting from the provisions of S.239. Indeed, the very expression 'so far as may be' empha- sises the fact that while the earlier provisions have to be borne in mind by the Court while applying s. 239 it is not those provisions but the latter which is to have an overriding effect. Apart from this, the question whether the provisions of ss. 233 to 236 have or have no overriding effect on s. 239 is not strictly germane to the question considered by the High Court that is, clubbing together all the provisions of the various clauses of s. 239. Whether they can or cannot be read cumulatively must be determined by consideration of the language used in those clauses. We have already indicated how those clauses may be grammatically read. On a plain construction of the provisions of s. 239, therefore, it is open to the Court to avail itself cumulatively of the provisions of the different clauses of s. 239 for the purpose of framing charges and charges so framed by it will not be in violation of the law, the provisions of ss. 233, 234 and 235 notwithstanding. The decision of the Allahabad High Court in T. R. Mukherji's case (IL), is directly in point and is clearly to the effect that the different clauses of s. 239 are mutually exclusive in the sense that it is not possible to combine the provisions of two or more clauses in any one case and to try jointly several persons partly by applying the provisions of one clause and partly by applying those of another or other clauses. A large number of decisions of the different High Courts and one of the Privy Council have been considered in this case. No doubt, as has been rightly pointed out in this case, separate trial is the normal rule and joint trial is an exception. But while this principle is easy to appreciate and follow where one person alone is the accused and the interaction or intervention of the acts of more persons than one does not come in, it would, where the same act is committed by several persons, be not only inconvenient but injudicious to try all the several persons separately. This would lead to unnecessary multiplicity of trials involving avoidable inconvenience to the witnesses and avoidable expenditure of public time and money. No corresponding advantage can be gained by the accused persons by following the procedure of separate trials. Where, however, several offences are alleged to have been committed by several accused persons it may be more reasonable to follow the normal rule of separate trials. But here, again, if those offences are alleged not to be wholly unconnected but as forming part of the same transaction the only consideration that will justify separate trials would be the embarrassment or difficulty caused to the accused persons in defending themselves. We entirely agree with the High Court that joint trial should be founded on some 'principle'. But we find it difficult to appreciate what seems to (1) A. I. R. 1954 All. 501. be the view of the High Court that because each `clause of s. 239 enunciates a separate principle those principles are, so to speak, mutually' exclusive and cannot be cumulatively resorted to for trying several persons jointly in respect of several offences even though they form part of the same transaction. The High Court has propounded that the connection described in each of the various clauses is mutually exclusive, that no two of them can exist simulta- neously in any case and that one cannot, therefore, have in any case persons connected with one another in two or more ways. In other words, as the High Court puts it, persons included in two or more of the groups cannot all be tried together and that since there is absolutely nothing to connect one group with any other, the persons of one group cannot be tried with those of any other. No reason has been stated in support of this view. Let us consider whether there is anything intrinsically incompatible in combining two clauses of s. 239. Take cls. (a) and (b). Clause (a) says that persons accused of the same offence committed in the course of the same transaction may be charged and tried together. Clause (b) says that persons accused of an offence and persons accused of abetment, or, of an attempt to commit such offence may also be charged and tried together. Now, if persons A, B and C are tried for an offence of murder what intrinsic difficulty would there be in trying X, Y and Z of abetment of the same offence? The transaction in which all of them have participated is the same and the abetment by X, Y and Z of the offence committed by A, B and C would itself establish the connection of their acts with those of X, Y and Z. Next, let us take cls. (a) and (c). Clause (c) provides that persons accused of more than one offence of the same kind within the meaning of s. 234 committed by them jointly within the period of twelve months could also be charged and tried together. Let us consider these clauses along with another illustration. Two persons A and B enter a house at night and first together commit the murder of a man sleeping there and then also his wife. Each of them has committed two offences and each of them participated in the same offence. Why can they not be tried jointly for both murders and why should there be two trials for the two murders ? The offences are of the same kind and must be deemed to have been committed in the course of the same transaction because of association and mutual connection. Now, supposing in the illustration given A killed the man and B killed his wife. Under cl. (c) they could be tried together because the offences are of the same kind. It would be ridiculous to say that they cannot be tried together for jointly committing the murder of the man and the wife because cl. (a) and (c) cannot be combined. For, without combining these two clauses their joint trial for the two offences in each of which both have participated would be impermissible. Then take s. (a) and (d). Under cl. (d) persons accused of different offences committed in the course of the same transaction can be tried together. Let us suppose that a group of persons are accused of having been members of an unlawful assembly the common object of which was to overawe by sheer force another group of persons and take forcible possession of a piece of land. Some of the members of the unlawful assembly carried axes with them while some others carried lathis and attacked the other group. During the course of the attack one person from the second group was killed, as a rest of blows with an axe inflicted by the aggressors A, B and C. Two persons of the second group sustained grievous hurt as a result of lathi blows and one person sustained simple hurt. Let us say that the grievous hurt was caused as a result of lathi blows given by X and Y, simple hurt was caused by lathi blows given by Z. Here, the offences committed were those under ss. 147, 302, 325 and 323, I.P.C. The offences being different and the persons commiting the offences being different, they could not be tried jointly only with the help of cl. (a) of s. 239. Nor again, could they be tried jointly only with the help of cl. (d). Yet the transaction in which the offences were committed is the same and there is a close association amongst the persons who have committed the different offences. What intrinsic difficulty is there in trying them all together simultaneously availing of cls. (a) and (d) of s. 239? These are enabling provisions which circumstance implies that the court may avail itself of one or more of these provisions unless doing so would amount to an infringement of any of the provisions of the Code. All these persons can be jointly tried for offences under s. 147 by recourse to cl. (a). So also A, B and C could be jointly tried together for an offences under s. 302. X and Y can be charged not only with offences under ss. 147 and 325, I. P.C. but also under s. 302 read with s. 149. Similarly Z can be charged with offence's under ss. 147, 323 and offences under s. 302 read with s. 149 and s. 325 read with s. 149. The same offence committed by all of them is that under s. 147 and all of them can be tried jointly in respect of that offence under cl. (a). Similarly, if we take cl. (d) by itself all of them can be tried jointly for the different offences committed by each of them in the course of the same transaction and if cl. (a) is unavailable they could not be tried for the offence under s. 147 at the same trial. This means that the trial for an offence under s. 147 will have to be separated from the trial for the different offences committed by them. It is difficult to appreciate what purpose would be served by separating the trial for the same offence from the trial for different offences. To repeat, the object of the legislature in enacting s. 239, Cr.P.C. clearly was to prevent multiplicity of trials and not only would that object be defeated but an extraordinary result will ensue if the various clauses of s. 239 are read disjunctively. The reasons given by the Allahabad High Court, therefore, do not merit acceptance. The decision in Singarachariar's Case (1), has really no bearing upon the point before us. What was held there was that ss. 235 (1) and s. 236 are mutually exclusive and if a case is covered by one of them it cannot be covered by the other. In that case the question was whether a person who was first tried for an offence under s. 380, I.P.C. for stealing a blank second class railway ticket from the booking office, tried, for it and acquitted, could not be tried subsequently for the offence of forgery by making entries in that ticket and using it. The acquittal in the previous case was urged as a bar under s. 403(1) of the Code to the trial for an offence under s. 467, I.P.C. The contention apparently was that this was a case which fell under s. 236, Cr. P.C. and that if he had been tried alternatively for both the offences at the same trial the Court could have dealt with him under s. 237, Cr. P.C. The High Court, however, held that to be a kind of case which fell under s. 235(1) of the Code and that since that was so, the provisions of s. 236 were excluded. It is difficult to appreciate how this case assists the conclusion arrived at by the High Court. In D.K. Chandra's Case (2) it was held that the provisions of ss. 234, 235 and 236 being exceptions to s. 233 must be strictly construed and that if joinder of charges did not fall under any of them it would be illegal and contrary to law. The precise point which we have to consider here did not fall for consideration in that case i.e., whether the provisions of the various clauses of s. 239 could be used together or not. This decision is, therefore, of little assistance. On the other band there is the decision of this Court in The State of Andhra Pradesh v. Kandinmlla Subbaiah (3), which is to the effect that where several persons had committed offences in the course of the same transactions, they could jointly be tried in respect of all those offences under s. 239 of the Code of Criminal (1) A.I.R. 1934 Mad 673. C. (2) A. I.R. 1952 Bom. 177, F. B. (3) [1962] 2 S. R. 194. Procedure and the limitation placed by s. 234 of the Code could not come into operation. There, nine persons were jointly tried for 'an offence under s. 5 (1) (c) and (d) of the Prevention of Corruption Act, 1947, and s. 109, I. P. C. read with s' 420, s. 466 and s. 467, I. P. C. and all except one for offences under ss. 420, 467/471, I.P.C. Some of them were also charged with separate offences under some of these provisions. Two of the accused persons preferred a revision application before the High Court of Andhra Pradesh in which they challenged the charges framed against them. The High Court allowed the revision application. But on appeal by the State of Andhra Pradesh to this Court, this Court held that there was no misjoinder of charges, that the introduction of a large number of charges, spread over a long period was a question of propriety and that it should be left to the judge or the Magistrate trying the case to adopt the course which he thought to be appropriate in the facts and circumstances of the case. In so far as some of the charges were concerned this Court pointed out that the Special judge who was to try the case should consider splitting them up so that the accused persons would not be prejudiced in answering the charges and defending themselves. It is true that the question of reading the various clauses cumulatively did not specifically arise for decision in that case but the High Court had held that the first charge was an omnibus charge containing as many as 203 offences and that it was in direct violation of ss. 234, 235 and 239 of the Code of Criminal Procedure. Dealing with this matter this Court held at p. 200 : \"No doubt, sub-s. (1) of s. 234 provides that not more than three offences of the same kind committed by an accused person within the space of 12 months can be tried at the same trial. But then s. 235 (1) provides that if in any one series of acts so connected together as to form the same transaction more offences than one are committed by the same person, he may be charged with and tried at one trial for every such offence. Therefore, where the alleged offences have been committed in the course of the same transaction the limitation placed by s. 234 (1) cannot operate. No doubt, the offence mentioned in charge No. I is alleged to have been committed not by just one person but by all the accused and the question is whether all these persons can be jointly tried in respect of all these offences. To this kind of charges. 239 would apply. This section provides that the following persons may be charged and tried together, namely : (1) persons accused of the same offence committed in the course of the same transaction; (2) persons accused of abetment or an attempt to commit such an offence; (3) persons accused of different offences committed in the course of the same transaction. Clearly, therefore, all the accused persons could be tried together in respect of all the offences now comprised in charge No. 1. This Court has thus clearly read the provisions of the various clauses cumulatively and we see no reason to read them differently. There remains the decision of this Court in K.V. Krishna Murthy Iyer v. The State of Madras (IN on which Mr. Bhimasankaram strongly relied. In that case this Court upheld the order of the High Court of Madras in quashing the charges in the exercise (1) A. I. R. 1954 s, a. 406. of its inherent powers even before the conclusion of the trial. It is true that there the charges were 67 in number and spread over a long period, of time. That again was a matter which came before the High Court before conviction and not after the trial was over. When an objection is taken at an early stage, there is time enough to rectify an error. But in the case before us no objection was taken to multiplicity or misjoinder of charges before the learned Additional Sessions judge and it was only in the High Court that the point was raised, In such circumstances what the Court has to consider is whether prejudice has in fact been caused to the accused by reason of the multiplicity of charges or misjoinder, if any, of the charges. This is quite clear from the provisions of s. 537 of the Code as amended by Act 26 of 1955. In Willie (William) Slaney v. The State of Madhya Pradesh (1), all the learned judges were in agreement on the point that this section and s. 535 cover every case in which there is departure from the rules set out in Ch. XIX ranging from error, omissions and irregularities in charges that are framed, down to charges that might have been framed and were not and include a total omission to frame a charge at all at any stage of the trial. The whole question has again been examined by this Court recently in Birichh Bhuian v. The State of Bihar (2). Subba Rao J., who delivered the judgment of the Court has stated the position thus \"To summarise: a charge is a precise formula- tion of a specific accusation made against a person of an offence alleged to have been com- mitted by him. Sections 234 to 239 permit the joinder of such charges under specified condi- tions for the purpose of a single trial. Such a joinder may be of charges in respect of different offences committed by a single person or several persons. If the joinder of charges was contrary to the provisions of the Code it would (1) [1955] 2 S. Co R. 1140, (2) [1963] Supp. 2S.C.R. 328 be a misjoinder of charges. Section 537 prohibits the revisional or the appellate court from setting aside a finding, sentence or order passed by a court of competent jurisdiction on the ground of such a misjoinder unless it has occasioned a failure of justice.\" Even if we were to assume that there has been a misjoinder of charges in violation of the provisions of ss. 233 to 239 of the Code, the High Court was incompetent to set aside the conviction of the respondents without coming to the definite conclusion that misjoinder had occasioned failure of justice. This decision completely meets the argument based upon Dawson's Case (1). Merely because the accused persons are charged with a large number of offences and convicted at the trial the conviction cannot be set aside by the appellate court unless it in fact came to the conclusion that the accused persons were embarrassed in their defence with the result that there was a failure of injustice. For all these reasons we cannot accept the argument of learned counsel on the ground of misjoinder of charges and multiplicity of charges. Mr. Bhimasankaram, supporting the view taken by the High Court then contends that it is not permissible to frame a charge of conspiracy when the matter has proceeded beyond the stage of conspiracy and that in pursuance of it offences have actually been committed. A similar view was expressed by the same High Court in the case which was reversed by this Court in The State of Andhra Pradesh V. Kandinalla Subbaiah (2), and it was held that conspiracy to commit an offence being itself an offence a person can be separately charged with respect to such a conspiracy. Then this Court has observed: \" Where a number of offences are committed by several persons in pursuance of a conspiracy it is usual to charge them with those (1) (1960)1 All, E. R. 558 (2) [1962] 2 S.C.R. 194, offences as well as with the offence of conspiracy to commit those offences. As an instance of this we may refer to the case in S. Swamirathnam v. State of Madras (1). Though the point was not argued before this Court in the way it appears to have been argued.................. before the High Court of Andhra Pradesh, this Court did not see any- thing wrong in the trial of several persons accused of offences under s. 120-B and s.420. I.P.C. We cannot, therefore, accept the view taken by the High Court of Andhra Pradesh that the charge of conspiracy was bad. If the alleged offences are said to have flown out of the conspiracy the appropriate form of charge would be a specific charge in respect of each of those offences along with the charge of conspiracy.\" (pp. 201-202). This decision is sufficient to dispose of the point under consideration. In Swamirathnam's case (1), which is a decision of this Court certain persons were tried for the offence of the conspiracy to cheat the members of the public and for specific offences of cheating in pursuance of that conspiracy. It was urged before this Court that there was misjoinder of charges and persons Negativing the contention this Court held that the charge as framed disclosed a single conspiracy although spread over several years, that there was one object of the conspiracy and that was to cheat the members of the public, that the fact that in the course of years other joined the conspiracy or that several incidents of cheating took place in pursuance of the conspiracy did not have the effect of splitting the conspiracy into several conspiracies. that the several instances of cheating being alleged to be in pursuance of that conspiracy were parts of the same transaction and, therefore, the joint trial of the accused (1) A. I. R. 1957 S. C. 340, 343, 344. persons for the different offences was not vitiated. No doubt, there is no discussion there as to the question whether the various clauses of s. 239 could be combined or as to the impact of the provisions of S. 233 to 236 on those of s. 239. The actual decision of the case is, however, directly opposed to the contention now put forward before us. This decision has been followed in Natwarlal Sakarlal Mody v. The State of Bombay (1). In that case the impact of s. 120-B, I.P.C. on ss. 233 and 239 of the Code of Criminal Procedure was considered by this Court and this Court observed: \"The combined effect of the three provisions (ss. 235, 236 and 239) is that if there is a criminal conspiracy to commit different offences, the persons who are members of that conspiracy may be charged and tried together but the necessary condition for invoking the provisions of s. 239 (d) is that the offence should have been committed in the course of one transaction i.e., in the present case one and the same conspiracy.\" Here again, the question of clubbing together of the various provisions of cls. (a) to (d) of s. 239 was not raised expressly in the argument before the Court. But the ultimate decision of the case would negative such argument. Mr. Bhimasankaram then relying upon the decision in R. v. Dawson (2), contended that in any event it was not desirable to try the respondents at the same trial for as many as 83 offences and pointed out that these observations had received the approval of this Court in The State of Andhra Pradesh v. Kandimalla Subbaiah (3). In the first place there the trial had not actually begun. Again, what was said by this Court was that it is undesirable to complicate a trial by introducing a large number of charges (1) Crl. A. No. III of 1959 decided on January 19, 1961. (2) (1960) 1 All. E.R. 568, (3) [1962] 2 B.C.R. 194. spread over a long period but even so this was a question of propriety which should be left to the discretion of the judge or Magistrate trying the case. Objection was taken very seriously by Mr. Bhimasankaram to the charge of conspiracy framed in this case. That charge reads thus : \"That both of you along with K.V. Ramana, Ex.- Senior Accountant of the Vizagapatam Electric Supply Corporation Ltd., Visakhapatnam (approver) and others, known or unknown, in or about April 1, 1947, at Visakhapatnam, agreed to do illegal acts, to wit, commit criminal breach of trust in respect of the funds belonging to the Vizagapatam Electric Supply Corporation Ltd., Vizagapatnam; and to screen yourselves from detection of the same, to wilfully, and with intent to defraud, falsify the accounts of the said Vizagapatam Electric Supply Corporation Ltd., Visakhapatnam and that pursuant to the said agreement, you committed criminal breach of trust in respect of funds of the said Vizagapatam Electric Supply Corporation Ltd., Visakhapatnam to the extent of over Rs 3,20,000 and falsified the said accounts between April, 1947 and March, 1952, and also used forged documents as genuine], offences punishable-under Sections 409, Indian Penal Code and 477-A, Indian Penal Code and 471 read with section 467, Indian Penal Code ; and thereby committed an offence of criminal conspiracy punishable under Section 120-B of the Indian Penal Code and within my cognizance.\" Adverting to the portion which we have bracketed, his first objection was that the charge comprises within it not merely the conspiracy but also what was in fact done in pursuance of the conspiracy. His next objection was that it brought within its purview all the various offences which were alleged to have been committed by the respondents. The third objection was that no charge of conspiracy could have been framed after the conspiracy had borne its fruits. The last objection was that the charge of conspiracy was added to the charge sheet very late. We shall first deal with the third point. The offence of conspiracy is an entirely independent offence and though other offences are committed in pursuance of the conspiracy the liability of the conspirators for the conspiracy itself cannot disappear. In the Indian Penal Code, as originally enacted, conspiracy was not an offence. Section 120 -B which makes criminal conspiracy punishable was added by the Indian Criminal Law Amendment Act, 1913 (8 of 1913) along with s. 120-A. Section 120-A defines conspiracy and s. 120- B provides for the punishment for the offence of conspiracy. Criminal conspiracy as defined in s. 120-A and consists of an agreement to do an illegal act or an agreement to do an act which is not illegal by illegal means. Section 120 B provides that whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards shall be punishable in the same manner as if he has abetted such offence unless there was an express provision in the Code for the punishment of such conspiracy. Criminal conspiracy was, however, not an unknown thing before the amendment of the Indian Penal Code in 1913. But what the amendment did was to make that conspiracy itself punishable. The idea was to prevent the commission of crimes by, so to ,speak, nipping them in the bud. But it does not follow that where crimes have been committed the liability to punishment already incurred under s. 120-B by having entered into a criminal conspiracy is thereby wiped away. No doubt, as already stated, where offences for committing which a conspiracy was entered into have actually been committed it may not, in the particular circumstances of a case, be desirable to charge the offender both with the conspiracy and the offences committed in pursuance of that conspiracy. But that would be a matter ultimately within the discretion of the court before which the trial takes place. In so far as the fourth point is concerned, that would have a bearing not on the form of the charge but on the credibility of the evidence bearing on the point of conspiracy. As we are remanding the appeal to the High Court for a fresh decision after full consideration of the evidence adduced in the case it would be open to it to consider this matter particularly while judging the credibility of the-evidence of the approver. In so far as the portion included in the bracket is concerned we agree with the learned counsel that it should not have found place there. The ideas, however, of the committing magistrate in stating all that is said there appears to have been merely to describe the conspiracy and do nothing more. We do not think that either that or the other objection raised, that is, that the charge embraces within it all the offences said to have been committed by the respondents can properly. be said to vitiate the charge. The object in saying what has been set out in the first charge was only to give notice to the respondents as to the ambit of the conspiracy to which they will have to answer and nothing more. Even assuming for a moment that this charge is cumbersome in the absence of any objection by the respondents at the proper time and in the absence of any material from which we could infer prejudice, they are precluded by the provisions of s. 225 from complaining about it at any rate after their conviction by the trial court. Coming to the next point of Mr.. Bhimsankaram regarding the abuse of powers under s. 342 his first contention was that long and involved questions were put to the respondents. His second contention was that reference was made to a number of documents in some of these questions and those documents were not made available to the respondents for answering those questions. The third contention was that the questions were involved, confusing and bordered on cross-examination. Finally he said that the court did not perform its duty under s. 342 (4) of the Code as amended as it failed to bring to the notice of the respondents that they may, if they chose, give evidence in their defence. In support of his first contention he referred to questions Nos. 4, 8, 9, 10 and 20 put to the respondent No. I and question No. 12 put to the respondent No. 2 and tried to show that those questions rolled up a large number of separate questions and that it could not have been possible for the respondents to give any rational answers to those questions. We have read the questions and so also the answers. While we are disposed to agree with learned counsel that the questions embrace a number of matters and that it would have been better if those matters had been made the subjects of separate questions, the answers given by the respondents clearly show that they understood the questions and wherever possible they have given complete answers to those questions. That is to say, they have given their explantion regarding the circumstances appearing in the evidence set out in the questions and wherever that was not feasible they have said that they would do so in their written statements. In fact written statements have been filed by each of them in which every point left over has been fully answered. We are informed that the questions had been prepared before hand by the learned Additional Sessions judge, copies thereof were made available to each of the respondents and it was with reference to those copies that they gave their answers in the court. A pointed reference was made to question No. 20 put to respondent No. I which contains as many as 22 sub-heads and it is said that it was an extremely unfair and embarrassing question. What the learned Additional Sessions judge has done is to err on the side of over-cautiousness by putting every circumstance appearing in the evidence to the respondents for eliciting their explanations. His object was to obviate the possibility of a complaint before the appellate court that they were denied the opportunity of explaining the circumstances appearing in evidence against them because of defective questions. Nor again, do we think that there is any substance in the complaint made that the respondents had no opportunity of referring to the documents to which reference has been made in certain questions. No objection was taken on their behalf before the learned Additional Sessions judge and from the manner in which they have answered the questions there is no doubt that they must have had opportunity to look at the relevant documents and answer the questions. We are also satisfied that there is no substance in the complaint that the questioning bordered on cross-examination. Undoubtedly the learned Additional Sessions judge has questioned the respondents very fully and elaborately but to say that this bordered on cross- examination is wholly unjustifiable. The object of the learned Additional Sessions Judge quite clearly was, as already stated, to leave no loophole for a complaint to be made before the appellate court of incomplete or insufficient examination under s. 342. Finally we are clear that it was not the duty of the court to draw the pointed attention of the respondents to the provisions of sub-s. (4) of s. 342 and tell them that they may, if they chose, enter the witness box. It is true that by introducing this provision the disability placed on an accused person in respect of giving evidence on oath in his own defence has been removed and to that extent such person is placed on par with an accused person under the English law. The new provision, however, does no more than lift the ban and does not impose a duty on the court to draw the attention of an accused person to its contents. Apart from that, the respondents were represented by counsel at the trial who knew very well what the law was. No complaint was made by the respondents even in appeal that they were ignorant of their right, that had they known about it they would have given evidence on oath in their defence and that because of this they have been prejudiced. In the circumstances this point must also be rejected as being without substance. The irrelevant evidence to which Mr. Bhimasankaram referred was certain account books. The entries in the. account books of VESCO show that certain sums of money were paid to various parties, Crompton Engineering Co., Lumin Electric Co., D. Brothers, Radio and Electrical, Madras, Vizagapatam Municipality, P. V. Ramanayya Bros., and Andhra Power System. They also show payment case was that the payments which were entered in the account of VESCO do not find a place in the account books of the corresponding firms or authorities because they were never made by VESCO. The High Court has pointed out that the main evidence on which the prosecution rests its case that the amount represented by the entries against these various firms were in. fact misappropriated by the, respondents in the circumstance that there are no corresponding entries in the account books of those firms. The argument before the High Court was and before us is that, the absence of an entry cannot of electricity duty to Government. The prosecution be established by reference to s. 34 of the Indian Evidence Act which reads thus: \"Entries in books of account, regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.\" This section appears in a group of sections headed \"Statements made under special circumstances\". What it does is to make entries in books of account regularly kept in the course of business relevant in all proceedings in a court of law. These entries are, however, not by themselves sufficient to charge any person with liability. Therefore, when A sues B for a sum of money it is open to him to put his account books' in evidence provided they are regularly kept in the course of business and show by reference to them that the amount claimed by him is debited against B. The entry though made by A in his own account books, and though it is in his own favour is a piece of evidence which the court may take into consideration for the purpose of determining whether the amount referred to therein was in fact paid by A to B. The entry by itself is of no help to A in his claim against B but it can be considered by the court along with the evidence of A for drawing the conclusion that the amount was paid by A to B. To this limited extent entries -in the account books are relevant and can be proved. Section 34 does not go beyond that. It says nothing about non-existence of entries in account books. We, therefore, agree with the High Court that the account books of the various concerns to whom payments are said to have been made by the respondents are not by themselves evidence of the fact that no payments were received by them. The decision in Queen Empress v. Grees Chunder Banerjee (1), upon which reliance (1) (1884) I. L. R. 10 Cal. 1024. is placed by the High Court in support of its view is also to that effect. Similarly in Ram prashad Singh v. Lakhpati Koer (1). Lord Robertson during the course of the hearing has observed that no inference can be drawn from the absence of any entry relating to any particular matter which observation supports the view taken in Queen Empress v. Girish Chander Banerjee (2). That, however, is not the only provision to be considered. There is s. II of the Evidence Act which provides that facts not otherwise relevant are relevant if they are inconsistent with any fact in issue or relevant fact. Some of the facts in issue in this case are whether payments of certain sums of money were made to Crompton Engineering Co., and other firms or authorities. These are relevant facts. Absence of entries in their account books would be inconsistent with the receipt of the accounts and would thus be a relevant fact which can be proved under s. 11. The fact that no payments were received by those firms has been deposed to by persons connected with those firms and whose duty it was to receive and acknowledge amounts received by the firms or who were in charge of the accounts of these firms. For the purpose of showing that no amounts were received by the firms, their account books would thus be as relevant as the VESCO account books for the purpose of showing the contrary. Similarly there is s. 5 of the Evidence Act which reads thus: \"Evidence may be given in any suit or procee- ding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.\" It is the case of the prosecution that the alleged payments were never made by VESCO to the various firms. It is also their case that these firms maintain their accounts in the regular course of business and it is their practice to enter in those accounts all payments received by them. Both the sets of facts are (1) (1902) I. L. R. 30 Cal. 231, 247. (2) (1884) I.L.R. 10 C.L 1024. relevant, that is, non-receipt of the amounts by the firms and non-existence of entries in their account books pertaining to those amounts. It is permissible, therefore, for the prosecution to lead evidence to ,Drove both these facts. The best evidence to prove the latter set of facts consists of the account books of the firms themselves. It is under these provisions that the account books of the firms must be held to be relevant. What value to attach to them is another matter and would be for the Court of fact to consider. It may further - be mentioned that the account books of VESCO show certain payments made to Billimoria & Co. of Kharagpur. Papers seized by the police include receipts purporting to have been signed by one J. J. Billimoria on behalf of the firm. The prosecution case is that these receipts are forged documents and the entries in the account books of VESCO are false. One of the partners of the firm was examined by the prosecution as a witness in the case and he produced the account books of the firm. Those account books are in Gujrati and he stated in his evidence that the accounts were regularly kept and that there were no entries in them corresponding to the entries in the VESCO accounts. The High Court held that since the account books were not translated they are not admissible in evidence. The High Court was clearly wrong in so holding. In coming to this conclusion it has relied upon the provisions of s. 356 (2A) of the Code of Criminal Procedure. That section reads thus: \"When the evidence of such witness is given in any other language, not being English, than the language of the Court, the Magistrate or Sessions judge may take it down in that language with his own hand, or cause it to be taken down in that language in his presence and hearing and under his personal direction and superintendence, and an authenticated translation of such evidence in the language of the Court or in English shall form part of the record.\" This provision relates only to the oral evidence adduced in a case and not to documentary evidence. Mr. Bhimasankaram, therefore, very rightly did not support the view of the High Court. In the circumstances we wish to say nothing further on the point. We may, however, point out that Billimoria himself gave his evidence in English. Another point urged by Mr. Bhimasankaram was that as many as 2,000 documents were \"dumped\" by the prosecution in this case out of which 1600 documents were not sought to be proved by it. Further, 64 documents were missing from the records when they came to the High Court and that this has caused serious prejudice to the respondent. No objection, however, was taken in the courts below on this score and in the absence of any prejudice to the respondents we do not think that we should take notice of the complaint made by Mr. Bhimasankaram. The third point stressed by him was that the approver was allowed to refresh his memory, while deposing in the case, by referring extensively to the account books and various documents produced in the case. This, according to him, was an absue of the provisions of s. 159 of the Evidence Act. Now, s. 159 expressly enables a witness while under examination to refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is being questioned or soon afterwards, or to a writing made -similarly by another person and read by the witness immediately or soon after the writing was made. Section 160 provides that a witness may also testify to the facts mentioned in any such document as is mentioned in s. 159. The complaint of Mr. Bhimasankaram is that the approver should have been questioned about the various facts which were sought to be established through his evidence and it was only if and when he was in a difficulty that he should have been allowed to refer to the account books. Instead of doing that what he was permitted to do was just to prove the various documents or read those documents and then depose with reference to them. In our opinion, where a witness has to depose to a large number of transactions , and those transactions referred to are or mentioned either in the account books or in other documents there is nothing wrong in allowing the witness to refer to the account books and the documents while answering the questions put to him in his examination. He cannot be expected to remember every transaction in all its details and s. 160 specifically permits a witness to testify the facts mentioned in the documents referred to in s. 159 although he has no recollection of the facts themselves if he is sure that the facts were correctly recorded in the document. That is precisely what happened in this case and we do not think that the Additional Sessions judge adopted a procedure which was either a violation of law or was an abuse of the power of the Court. The next point is a formidable one. According to Mr. Bhimasankaram, the pardon tendered to the approver was illegal and if the pardon is illegal his evidence is wholly inadmissible. Further, according to him, the evidence of the approver was found by the Additional Sessions judge to be unreliable and therefore, the first condition referred to in Sarwan Singh v. The State of Punjab (1), was not satisfied. For all these reasons the evidence of the approver must be left out of account. If it is left out of account, he contends, there is nothing left in the prose- cution case, because, as pointed out by the Additional Sessions judge himself the evidence of the approver is the pivot of the prosecution case. (1) [1957] S.C. R. 953. The pardon is stated to be illegal for two reasons. The first reason is that none of the offences alleged to have been committed falls within s. 337 of the Code of Criminal Procedure and the second reason is that the pardon was granted by an authority not empowered to grant it. Section 337 (1) as it stood before its amendment by Act 26 of 1955 read thus \"In the case of any offence triable exclusively by the High Court or Court of Session, or any offence punishable with imprisonment which may extend to ten years, or any offence punishable under section 211 of the Indian Penal Code with imprisonment which may extend to seven years, or any offence under any of the following sections of the -Indian Penal Code namely, sections 161, 165, 165A, 216A, 369, 401, 431, 435 and 477-A, the District Magistrate, a Presidency Magistrate, a sub-divisional Magistrate or any Magistrate of the first class may, at any stage of the investigation or inquiry into, or the trial of the offence, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowlege relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof : Provided that, where the offence is under inquiry or trial, no Magistrate of the first class other than the District Magistrate shall exercise the power hereby conferred unless he is the Magistrate making the inquiry or holding the trial, and, where the offence is under investigation, no such Magistrate shall exercise the said power unless he is a Magistrate having jurisdiction in a place where the offence might be inquired into or tried and the sanction of the District Magistrate has been obtained to the exercise thereof.\" His contention is that where none of the offences is exclusively triable by the High Court or the Court of Sessions pardon could be granted only if the offences are punishable with imprisonment which could extend to ten years but not if a higher punishment were provided for them. Here, one of the offences alleged against the respondents is criminal breach of trust punishable under s. 409, I.P.C. It is not exclusively triable by a Court of Sessions and the punishment as set out in the 7th column of Schedule II, Cr. P. C. was transportation for life or imprisonment of either description for ten years and fine. He contends that since the offence is punishable with transportation for life, s. 337 (1) could not be availed of for granting pardon to the approver. It seems to us that it would not be correct to read s. 337 (1) in the way sought by learned counsel. The very object of this provision is to allow pardon to be tendered in cases where a grave offence is alleged to have been committed by several persons so that with the aid of the evidence of the person pardoned the offence could be brought home to the rest. The gravity is of course to be determined with reference to the sentence awardable with respect to that offence. On the strength of these considerations Mr. Chari for the State contends that if the words \"any offence punishable with imprisonment which may extend to 10 years\" were interpreted to mean offences which were punishable with imprinsonment of less than 10 years grave offences which are not exclusively triable by a court of Sessions will be completely out of s. 337 (1). He suggests that this provision can also be reasonably interpreted to mean that where the offences are punishable with imprisonment exceeding 10 years pardon may be granted to the approver. No doubt, if this interpretation is accepted the object of the section, that is, to embrace within it the graver offences, would be fulfilled, but we wish to express no opinion on it. For, the pardon granted in -this case can be regarded as being within the ambit of s. 337 (1) for another reason. It will be noticed that transportation for life was not the only punishment provided for an offence under s. 409 of the Indian Penal Code even before the amendment made to the Indian Penal Code by s. 117 of the Act 26 of 1955, the other alternative being imprisonment up to 10 years. Therefore, since the offence under s. 409 was not merely punishable with transportation for life but alternately also punishable with imprisonment which could extend to 10 years, s. 337 (1) would apply. This section does not expressly say that the only punishment provided for the offence should be imprisonment not exceeding 10 years. The reason why two alternative maximum sentences are given in col. 7, that is, transportation for life (now imprisonment for life) and imprisonment not exceeding 10 years appears to be that the offence is not exclusively triable by a court of session and could also be tried by a Magistrate, who, except when empowered under s. 30 would be incompetent to try offences punishable with transportation for life (now imprisonment for life) and the further reason that it should be open to the court of Session, instead of awarding the sentence of transportation for life to a convicted person to award him imprisonment in a jail in India itself for a period not execeeding 10 years. Now, of course, by the amendment made by s. 117 of Act 26 of 1955 for the words \"transportation for life\" the words \"imprisonment for life\" have been substituted, but the original structure of all the sections now amended continues. That is why they read rather queer but even so they serve the purpose of allowing certain offences triable by a court of Session, to be triable also by Magistrates of the First Class. Be that as it may, there is no substance in the first ground. What we have said about pardon in respect of an offence under s. 409 would apply equally to that for one under s. 120-B because the punishment for it is the same as that for the offence under s. 409. The offence under s. 467 read with s. 471 is punishable with imprisonment for life or imprisonment of either description for a period of 10 years but it is exclusively triable by a court of Session and, therefore, in so far as such offence is concerned the argument of Mr. Bhimasankaram would not even have been available. As regards the offence under s. 477-A, it is one of those sections which are specifically enumerated in s. 337 (1) and the argument advanced before us-and which we have rejected would not even be available with regard to the pardon in respect of that offence. It is true that the respondent No. I alone was convicted by the Additional Sessions judge of this offence and the offence under s. 467 read with s. 471 but the validity of a pardon is to be determined with reference to the offence alleged against the approver alone and not with reference to the offence or offences for which his associates were ultimately convicted. Coming to the next ground of attack on the validity of pardon, the argument of Mr. Bhimasankaram is that whereas s. 337 (1) speaks of pardon being granted by a District Magistrate, or Presidency Magistrate, a Sub-Divisional Magistrate or any Magistrate of First Class, except in cases where an enquiry or trial was pending before another Magis- tratc, the pardon here was granted by the Additional District Magistrate in a case where an enquiry was pending before the District Magistrate and is, therefore, illegal and of no avail. He contends that s. 337 (1) speaks of the District Magistrate which expression does not include an Additional District Magistrate. Mr. Bhimasankaram's argument on the point may be summarised thus : Such a power cannot be conferred upon an Additional District Magistrate because s. 337 (1) does not contemplate grant of pardon by an Additional District Magistrate and that the Additional District Magistrate would have no status other than that of a Magistrate, First Class. No doubt, under entry (9-a) in Part III of Sch. III to the Code a Magistrate, First Class, has the power to grant pardon under s. 337 but it is limited by the proviso thereto to certain classes of cases. A case under enquiry or trial before another magistrate does not fall in any of these classes. Therefore, a pardon granted by him in such a case would be illegal. The Magistrate before whom the enquiry or trial is proceeding or the District Magistrate would be the only authorities competent to grant a pardon in such a case. Alternatively, the State Government has not made any directions under sub-s. (2) of s. 10 specifying the powers of the District Magistrate which would lie exercisable by the Additional District Magistrate concerned. In order to appreciate and consider the argument it is desirable to bear in mind the changes in the magisterial set up in the former province of Madras which comprised within it the district of Visakhapatnam. By Government Order No. 3106 dated September 9, 1949 the Government of the Province of Madras issued certain instructions to the Magistrates in pursuance of the separation of the judiciary from the executive. It divided the magistrates into two groups, Judicial magistrates and executive magistrates. The latter category comprises of the executive officers of the Revenue Department, on whom the responsibility for the maintenance of law and order was to continue to rest., Para 4 of the instructions provides \".................. To enable them to discharge this respon- sibility, these officers will continue to be magistrates. The Collector, by virtue of office, will retain some of the powers of a District Magistrate and will be called the 'Additional District Magistrate. To distinguish him from his Personal Assistant, he may be called 'Additional District Magistrate (Independent)'. He will continue to be the Head of the Police. Similarly, the Revenue Divisional Officers will be exofficio First Class Magistrates, and the Tahsildars and the Deputy Tahsildars will be ex-officio Second Class Magistrates. The extent of their magisterial powers will be as indicated in the Schedule of allocation of powers. They will exercise these powers within their respective revenue jurisdictions.\" Para 5 provides that as officers of the Revenue Department, those magistrates would be under the control of the Government through the Board of Revenue. The Additional District Magistrates (Independent) would also be under the control of the Government through the Board of Revenue. The category of judicial Magistrates was constituted of the following: (1) District Magistrate; (2) Sub-divisional Magistrates; (3) Additional First Class Magistrates and (4) Second Class Magistrates (Sub- magistrates). The District Magistrate was constituted as the principal magistrate of the District and as such was entrusted with the duty of general administration and superintendence and control over the other judicial magis- trates in the district. In addition to his general supervisory functions and the special powers under the Code of hearing revision petitions, transfer petitions, appeals from Second Class Magistrates and the like, the District Magistrate was also to be assigned a specific area, the cases arising from which would be disposed of normally by himself. This body of magistrates was made subordinate to the High Court. Till the separation between the judiciary and the executive was effected the Collector as the head of the Revenue Department was also the District Magistrate. Consequent on the separation he became only an Additional District Magistrate. Part IV of the Government order deals with the allocation of powers between the judicial and executive magistrates. Para 19(3) occurring in this part deals with allocation of powers under the provisions of the Code otherwise than these referred to in the earlier paragraphs. It specifically provides that the power to tender pardon udder s. 337 shall be exercised by executive magistrates except in cases referred to in the proviso to sub-s. (1) of that section, in which case a judicial magistrate may exercise that power. In spite of the Government order all Magistrates who have, under Sch. III to the Code of Criminal procedure the power to grant pardon will continue to have that power and, therefore, a pardon granted by a judicial Magistrate in contravention of the Government order will not be rendered invalid. However, that is not the point which is relevant while considering the argument of Mr. Bhimasankaram. His point is that the proviso to s. 337(1) confers the power on \"the District Magistrate\" to grant pardon in a case pending before another Magistrate and not on \"a District Magistrate\" and, therefore, his power to grant pardon in such cases cannot be conferred under sub-s.(2) of s. 10 on an Additional District Magistrate. According to him, under that section only the powers of \"a District Magistrate\" meaning thereby only the powers under Entry 7 (a) in Part V of Sch. III as distinguished from the power under the proviso to s. 337 (1) can be conferred upon an Additional District Magistrate. Secondly, according to him, no direction has in fact been shown to have been made by the State Government conferring upon an Additional District Magistrate the power of the District Magistrate to grant pardon. In our opinion, there is no subtance in the contention. The power conferred by sub-s. (1) of s. 337 on the different clauses of Magistrates is of the same character. The power to grant pardon in a case pending before another Magistrate is no doubt conferred by the proviso only on the District Magistrate. But Entry 7 (a) in Part V of Sch. III when it refers to the power of a District Magistrate under s. 337 (1) does not exclude the power under the proviso. There is, therefore, no warrant for drawing a distinction between the powers of \"the District Magistrate\" and the powers of \"'a District Magistrate.\" The power of a District Magistrate to grant Pardon has been specifically conferred on Additional District Magistrates as would appear from s. no. 37 of Sch. III of the Government Order, which reads thus : \"SI. Judl. Exec. Concurrent no. magis- magis- jurisdic- trate trate tion 37 337(1) 2nd paragraph (proviso) Remarks Reference to the District Magistrate in the proviso should be construed as reference to the Executive District Magistrate. Reference to the Magistrate making the enquiry or holding the trial etc., should be construed as a reference to the judicial Magistrate.\" No doubt, here the reference is to the Executive District Magistrate. But it is clear from the other part of the Government Order that what is meant by that is the Additional District Magistrate (Independent). This was., and, we are told, is being regarded as a direction of the Government falling under subs. (2) of s. 10 of the Code. Whether the interpretation is correct or not, we feel little doubt that the action of the Additional District Magistrate (Independent) Visakhapatnam in granting a pardon to the approver in this case though it was pending enquiry before the District Magistrate (judicial), was bona fide. A pardon granted bona fide is fully protected by the provisions of s. 529, Cr. P. C. The High Court has not considered any of the provisions to which we have referred but held that as the offence was being equired into by the District Magistrate,the Additional District Magistrate could not usurp the functions of the former and grant a pardon. Had it done so, it would not have come to this conclusion. We are, therefore, unable to accept it. Mr. Chari for the State advanced a further argument before us in case his main argument that the pardon was valid failed and said that the approver, even if we ignore the pardon, was a competent witness. In support of his contention he strongly relied upon the decision in Kandaswamy Gounder In re : the appellant (1), and the cases referred to therein, in particular the decision in Winson v. Queen (2). What has been held in all these cases is that where the trial of a person who was charged with having committed an offence or offences jointly with several persons is separated from the trial of those persons, he would be a competent witness against them though of course there will always be the question as to what weight should be attached to his evidence. Mr. Chari then referred to s. 133 of the Evidence Act and pointed out that this section clearly makes an accomplice evidence admissible in a case and that an approver whose pardon is found to be invalid does not cease to be an accomplice and contends that he is, therefore, as competent a witness as he would have been if he had not been granted pardon at all and not been put on trial. Learned counsel further pointed out that the decisions show (1) I.L.R. 1957 Mad 715, (2) (1866) L.R. I Q.B. that however undesirable it may be to adduce the evidence of a person jointly accused of having committed an offence along with others, his evidence is competent and admissible except when it is given in a case in which he is being actually tried. This legal position does not, according to him, offend the guarantee against testimonial compulsion and he points out that that is the reason why an accused person is not to be administered an oath when the court examines him under s. 342 (1) for enabling him to explain the circumstances appearing in evidence against him. If pardon is tendered to an accused person and eventually it is found that the pardon is illegal such person is pushed back into the rank of an accused person and being no more than an accomplice would be a competent witness. The question raised is an important one and requires a serious consideration. Mr. Chari in support of his contention has cited a large number of cases, Indian as well as English, and certain passages from Halsbury's Laws of England. But in the view we take about the legal validity of the pardon tendered, we do not wish to pronounce one way or the other on this very interesting question. Now, as regards the reliability of the approver. It is no doubt true that an approver has always been regarded as an infamous witness, who, on his own showing has participated in a crime or crimes and later to save his own skin, turned against his former associates and agreed to give evidence against them in the hope that he will be pardoned for the offence committed by him. The High Court seems to think that before reliance could be placed upon the evidence of the approver it must appear that he is a penitent witness. That, in our opinion, is not the correct legal position. The section itself shows that the motivating factor for an approver to turn, what in England is called \"King's evidence\" is the hope of pardon and not any noble sentiment like contrition at the evil in which he has participated. Whether the evidence of the approver should in any given case be accepted or not will have to be determined by applying the usual tests such as the probability of the truth of what he has deposed to the circumstances in which he has come to give evidence whether he has made a full and complete disclosure, whether his evidence is merely self-exculpatory and so on and so forth. The court has, in addition, to ascertain whether his evidence has been corroborated sufficiently in material particulars. What is necessary to consider is whether applying all these tests we should act upon the evidence of the approver should be acted upon. We however, find that certain documents upon which Mr. Chari wants to rely are not included in the paper book. It would take considerable time if we were to adjourn this matter now and give an opportunity to the parties to include those documents on record. The better course would be for us to set aside the acquittal of the respondents and send back the appeal to the High Court ?or being decided on merits. The High Court will of course be bound by the finding which we have given on the questions of law agitated before us. What it must now do is to consider the entire evidence and decide for itself whether it is sufficient to bring home all or any of the offences to the respondents. We may mention that the High Court's observation that the approver's evidence was treated as unreliable by the learned Additional Sessions judge is not correct. Of course, the view taken by the Additional Sessions judge is not binding on the High Court. But it should remove from its mind the misconception that the Additional Sessions judge has not believed him. There is another thing which we would like to make clear. The decision in Sarwan Singh v. The State of Punjab (1), on which reliance has been placed by the High Court has been explained by this Court in the case of (1) [1957] B. C. R. 953. Maj. E. G. Barsay v. The State of Bombay (1). This Court has pointed out in the latter decision that while it must be shown that the approver is a witness of truth, the evidence adduced in a case cannot be considered in compartments and that even for judging the credibility of, the approver the evidence led to corroborate him in material particulars would be relevant for consideration. The High Court should bear this in mind for deciding whether the evidence of the approver should be acted upon or not. Then again it would not be sufficient for the High Court to deal with the evidence in a general way. It would be necessary for it to consider for itself the evidence adduced by the prosecution on the specific charges and then to conclude whether those charges have been established or not. The prosecution would be well, advised if, instead of placing the evidence on each and every one of those large number of charges against the respondents, it chooses to select a few charges under each head other than the head of conspiracy and concentrates on establishing those charges, this would save public time and also serve the purpose of the prosecution. With these observations we set aside the acquittal of the respondents and remit the appeal to the High Court for decision on merits in the light of our observations. Appeal allowed. Case remanded. (1) [1962] 2 S.C. 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{"id": "90251163", "text": "1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1340 2019 (Arising out of SLP(Crl.) No.7523 of 2019) P. CHIDAMBARAM ...Appellant VERSUS DIRECTORATE OF ENFORCEMENT \u2026Respondent JUDGMENT R. BANUMATHI, J. Leave granted. 2. This appeal relates to the alleged irregularities in Foreign Investment Promotion Board (FIPB) clearance given to the INX Media for receiving foreign investment to the tune of Rs.305 crores against approved inflow of Rs.4.62 crores. The High Court of Delhi rejected the appellant\u2019s plea for anticipatory bail in the case registered by Central Bureau of Investigation (CBI) being RC No.220/2017-E-0011 under Section 120B IPC read with Signature Not Verified Digitally signed by Section 420 IPC, Section 8 and Section 13(2) read with Section 13(1)(d) of ASHWANI KUMAR Date: 2019.09.05 14:14:59 IST Reason: the Prevention of Corruption Act, 1988. By the impugned order dated 20.08.2019, the High Court also refused to grant anticipatory bail in the case registered by the Enforcement Directorate in ECIR No.07/HIU/2017 punishable under Sections 3 and 4 of the Prevention of Money-Laundering Act, 2002. 3. Grievance of the appellant is that against the impugned order of the High Court, the appellant tried to get the matter listed in the Supreme Court on 21.08.2019; but the appellant could not get an urgent hearing in the Supreme Court seeking stay of the impugned order of the High Court. The appellant was arrested by the CBI on the night of 21.08.2019. Since the appellant was arrested and remanded to custody in CBI case, in view of the judgment of the Constitution Bench in Shri Gurbaksh Singh Sibbia and others v. State of Punjab (1980) 2 SCC 565, the appellant cannot seek anticipatory bail after he is arrested. Accordingly, SLP(Crl.) No.7525 of 2019 preferred by the appellant qua the CBI case was dismissed as infructuous vide order dated 26.08.2019 on the ground that the appellant has already been arrested and remanded to custody. This Court granted liberty to the appellant to work out his remedy in accordance with law. 4. On 15.05.2017, CBI registered FIR in RC No.220/2017-E-0011 under Section 120B IPC read with Section 420 IPC, Section 8 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 against the accused viz. (i) INX Media through its Director Indrani Mukherjea; (ii) INX News through its Director Sh. Pratim Mukherjea @ Peter Mukherjea and others; (iii) Sh. Karti P. Chidambaram; (iv) Chess Management Services through its Director Sh. Karti P. Chidambaram and others; (v) Advantage Strategic Consulting through its Director Ms. Padma Vishwanathan @ Padma Bhaskararaman and others; (vi) unknown officers/officials of Ministry of Finance, Govt. of India; and (vii) other unknown persons for the alleged irregularities in giving FIPB\u2019s clearance to INX Media to receive overseas funds of Rs.305 crores against approved Foreign Direct Investment (FDI) of Rs.4.62 crores. 5. Case of the prosecution in the predicate offence is that in 2007, INX Media Pvt. Ltd. approached Foreign Investment Promotion Board (FIPB) seeking approval for FDI upto 46.216 per cent of the issued equity capital. While sending the proposal by INX Media to be placed before the FIPB, INX Media had clearly mentioned in it the inflow of FDI to the extent of Rs.4,62,16,000/- taking the proposed issue at its face value. The FIPB in its meeting held on 18.05.2007 recommended the proposal of INX Media subject to the approval of the Finance Minister-the appellant. In the meeting, the Board did not approve the downstream investment by INX Media in INX News. In violation of the conditions of the approval, the recommendation of FIPB:- (i) INX Media deliberately made a downstream investment to the extent of 26% in the capital of INX News Ltd. without specific approval of FIPB which included indirect foreign investment by the same Foreign Investors; (ii) generated more than Rs.305 crores FDI in INX Media which is in clear violation of the approved foreign flow of Rs.4.62 crores by issuing shares to the foreign investors at a premium of more than Rs.800/- per share. 6. Upon receipt of a complaint on the basis of a cheque for an amount of Rs.10,00,000/- made in favour of M/s Advantage Strategic Consulting Private Limited (ASCPL) by INX Media, the investigation wing of the Income Tax Department proceeded to investigate the matter and the relevant information was sought from the FIPB, which in turn, vide its letter dated 26.05.2008 sought clarification from the INX Media which justified its action saying that the downstream investment has been authorised and that the same was made in accordance with the approval of FIPB. It is alleged by the prosecution that in order to get out of the situation without any penal provision, INX Media entered into a criminal conspiracy with Sh. Karti Chidambaram, Promoter Director, Chess Management Services Pvt. Ltd. and the appellant-the then Finance Minister of India. INX Media through the letter dated 26.06.2008 tried to justify their action stating that the downstream investment has been approved and the same was made in accordance with approval. 7. The FIR further alleges that for the services rendered by Sh. Karti Chidambaram to INX Media through Chess Management Services in getting the issues scuttled by influencing the public servants of FIPB unit of the Ministry of Finance, consideration in the form of payments were received against invoices raised on INX Media by ASCPL. It is alleged in the FIR that the very reason for getting the invoices raised in the name of ASCPL for the services rendered by Chess Management Services was with a view to conceal the identity of Sh. Karti Chidambaram inasmuch as on the day when the invoices were raised and payment was received. It is stated that Sh. Karti Chidambaram was the Promoter, Director of Chess Management Services whereas ASCPL was being controlled by him indirectly. It is alleged that the invoices approximately for an amount of Rs.3.50 crores were falsely got raised in favour of INX Media in the name of other companies in which Sh. Karti Chidambaram was having sustainable interest either directly or indirectly. It is alleged that such invoices were falsely got raised for creation of acquisition of media content, consultancy in respect of market research, acquisition of content of various genre of Audio- Video etc. It is alleged that INX Media Group in his record has clearly mentioned the purpose of payment of Rs.10,00,000/- to ASCPL as towards \u201cmanagement consultancy charges towards FIPB notification and clarification\u201d. Alleging that the above acts of omission and commission prima facie disclose commission of offence, CBI has registered FIR in RC No.220/2017-E-0011 on 15.05.2017 under Section 120B read with Section 6 420 IPC, Section 8 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 against the aforesaid accused. 8. On the basis of the said FIR registered by CBI, the Enforcement Directorate registered a case in ECIR No.07/HIU/2017 against the aforesaid accused persons for allegedly committing the offence punishable under Sections 3 and 4 of the Prevention of Money-Laundering Act, 2002 (PMLA). Ever since the registration of the cases in 2017, there were various proceedings seeking bail and number of other proceedings pending filed by Sh. Karti Chidambaram and other accused. Finally, the Delhi High Court granted bail to Sh. Karti Chidambaram in INX Media case filed by CBI on 23.03.2018. Thereafter, the appellant moved Delhi High Court seeking anticipatory bail both in CBI case and also in money-laundering case filed by Enforcement Directorate. On 25.07.2018, the Delhi High Court granted the appellant interim protection from arrest in both the cases and the same was extended till 20.08.2019 \u2013 the date on which the High Court dismissed the appellant\u2019s petition refusing to grant anticipatory bail. 9. The High Court dismissed the application refusing to grant anticipatory bail to the appellant by holding that \u201cit is a classic case of money-laundering\u201d. The High Court observed that \u201cit is a clear case of money-laundering\u201d. The learned Single Judge dismissed the application for anticipatory bail by holding \u201cthat the alleged irregularities committed by the appellant makes out a prima facie case for refusing pre-arrest bail to the appellant\u201d. The learned Single Judge also held that \u201cconsidering the gravity of the offence and the evasive reply given by the appellant to the questions put to him while he was under the protective cover extended to him by the court are the twin factors which weigh to deny the pre-arrest bail to the appellant\u201d. Being aggrieved, the appellant has preferred this appeal. 10. Lengthy arguments were heard on number of hearings stretched over for long time. Learned Senior counsel appearing for the appellant Mr. Kapil Sibal and Mr. Abhishek Manu Singhvi made meticulous submissions on the concept of life and liberty enshrined in Article 21 of the Constitution of India to urge that the appellant is entitled to the privilege of anticipatory bail. Arguments were also advanced on various aspects \u2013 whether the court can look into the materials produced by the respondent-Enforcement Directorate to seek custody of the appellant when the appellant was not confronted with those documents on the three dates of interrogation of the appellant conducted on 19.12.2018, 01.01.2019 and 21.01.2019. Interlocutory application was filed by the appellant to produce the transcripts of the questions put to the appellant and the answers given by the appellant, recorded by Enforcement Directorate. Countering the above submissions, Mr. Tushar Mehta, learned Solicitor General made the submissions that grant of anticipatory bail is not part of Article 21 of the Constitution of India. Mr. Tushar Mehta urged that having regard to the materials collected by the respondent-Enforcement Directorate and the specific inputs and in view of the provisions of the special enactment- PMLA, custodial interrogation of the appellant is required and the appellant is not entitled to the privilege of anticipatory bail. Contention of Mr. Kapil Sibal, learned Senior counsel:- 11. Mr. Kapil Sibal, learned Senior counsel appearing on behalf of the appellant submitted that the clearance for INX FDI was approved by Foreign Investment Promotion Board (FIPB) consisting of six Secretaries and the appellant as the then Finance Minister granted approval in the normal course of official business. The learned Senior counsel submitted that the crux of the allegation is that the appellant\u2019s son Sh. Karti Chidambaram tried to influence the officials of FIPB for granting ex-post facto approval for downstream investment by INX Media to INX News; whereas neither the Board members of FIPB nor the officials of FIPB have stated anything about the appellant\u2019s son Sh. Karti Chidambaram that he approached and influenced them for ex-post facto approval. The learned Senior counsel contended that the entire case alleges about money paid to ASCPL and Sh. Karti Chidambaram is neither the share-holder nor a Director in the said ASCPL; but the Enforcement Directorate has falsely alleged that Sh. Karti Chidambaram has been controlling the company- ASCPL. It was submitted that the appellant has nothing to do with the said ASCPL to whom money has been paid by INX Media. 12. Taking us through the impugned judgment and the note said to have been submitted by the Enforcement Directorate before the High Court, the learned Senior counsel submitted that the learned Single Judge has \u201ccopied and pasted\u201d paragraphs after paragraphs of the note given by the respondent in the court. It was urged that there was no basis for the allegations contained in the said note to substantiate the alleged transactions/transfer of money as stated in the tabular column given in the impugned order. 13. So far as the sealed cover containing the materials sought to be handed over by the Enforcement Directorate, the learned Senior counsel raised strong objections and submitted that the Enforcement Directorate cannot randomly produce the documents in the court \u201cbehind the back\u201d of the appellant for seeking custody of the appellant. Strong objections were raised for the plea of Enforcement Directorate requesting the court to receive the sealed cover and for looking into the documents/material collected during the investigation allegedly showing the trail of money in the name of companies and the money-laundering. 14. The appellant was interrogated by the respondent on three dates viz. 19.12.2018, 01.01.2019 and 21.01.2019. So far as the observation of the High Court that the appellant was \u201cevasive\u201d during interrogation, the learned Senior counsel submitted that the appellant has well cooperated with the respondent and the respondent cannot allege that the appellant was \u201cnon-cooperative\u201d. On behalf of the appellant, an application has also been filed seeking direction to the respondent to produce the transcripts of the questioning conducted on 19.12.2018, 01.01.2019 and 21.01.2019. The learned Senior counsel submitted that the transcripts will show whether the appellant was \u201cevasive\u201d or not during his questioning as alleged by the respondent. 15. Learned Senior counsel submitted that the provision for anticipatory bail i.e. Section 438 Cr.P.C. has to be interpreted in a fair and reasonable manner and while so, the High Court has mechanically rejected the anticipatory bail. It was further submitted that in case of offences of the nature alleged, everything is borne out by the records and there is no question of the appellant being \u201cevasive\u201d. The learned Senior counsel also submitted that co-accused Sh. Karti Chidambaram and Padma Bhaskararaman were granted bail and the other accused Indrani Mukherjea and Sh. Pratim Mukherjea @ Peter Mukherjea are on statutory bail and the appellant is entitled to bail on parity also. Contention of Mr. Abhishek Manu Singhvi, learned Senior counsel:- 16. Reiterating the submission of Mr. Kapil Sibal, Mr. Abhishek Manu Singhvi, learned Senior counsel submitted that the Enforcement Directorate cannot say that the appellant was \u201cnon-cooperative\u201d and \u201cevasive\u201d. Mr. Singhvi also urged for production of transcripts i.e. questions put to the appellant and the answers which would show whether the appellant has properly responded to the questions or not. Placing reliance upon Additional District Magistrate, Jabalpur v. Shivakant Shukla (1976) 2 SCC 521, the learned Senior counsel submitted that the respondent cannot rely upon the documents without furnishing those documents to the appellant or without questioning the appellant about the materials collected during the investigation. Reiterating the submission of Mr. Sibal, Mr. Singhvi contended that the High Court has denied anticipatory bail to the appellant on the basis of materials produced by the respondent in the cover before the court which were never shown to the appellant nor was the appellant confronted with the same. The learned Senior counsel submitted that the alleged occurrence was of the year 2007-08 and Sections 420 IPC and 120B IPC and Section 13 of the Prevention of Corruption Act were not part of the \u201cscheduled offence\u201d of Prevention of Money-Laundering Act in 2008 and were introduced by a notification dated 01.06.2009 and in view of the protection given under Article 20(1) of the Constitution of India, there can never be a retrospective operation of a criminal/penal statute. Placing reliance upon Rao Shiv Bahadur Singh and another v. State of Vindhya Pradesh AIR 1953 SC 394, it was contended that the appellant has to substantiate the contention that the acts charged as offences were offences \u201cat the time of commission of the offence\u201d. The learned Senior counsel urged that in 2007-2008 when the alleged acts of commission and omission were committed, they were not \u201cscheduled offences\u201d and hence prosecution under Prevention of Money-Laundering Act, 2002 is not maintainable. 17. The learned Senior counsel has taken strong exception to the two factors stated by the High Court in the impugned order for denying pre- arrest bail i.e. (i) gravity of the offence; and (ii) the appellant was \u201cevasive\u201d to deny the anticipatory bail. The learned Senior counsel submitted that the \u201cgravity of the offence\u201d cannot be the perception of the individual or the court and the test for \u201cgravity of the offence\u201d should be the punishment prescribed by the statute for the offence committed. Insofar as the finding of the High Court that \u201cthe appellant was evasive to the questions\u201d, the learned Senior counsel submitted that the investigating agency- Enforcement Directorate cannot expect an accused to give answers in the manner they want and that the accused is entitled to protection under Article 20(3) of the Constitution of India. Reliance was placed upon Santosh s/o Dwarkadas Fafat v. State of Maharashtra (2017) 9 SCC 714. Contention of Mr. Tushar Mehta, learned Solicitor General:- 18. Taking us through the Statement of Objects and Reasons and salient features of the PMLA, the learned Solicitor General submitted that India is a part of the global community having responsibility to crackdown on money- laundering with an effective legislation and PMLA is a result of the joint initiatives taken by several nations. Taking us through the various provisions of the PMLA, the learned Solicitor General submitted that money-laundering poses a serious threat to the financial system and financial integrity of the nation and has to be sternly dealt with. It was submitted that PMLA offence has two dimensions \u2013 predicate offence and money-laundering. Money-laundering is a separate and independent offence punishable under Section 4 read with Section 3 of the PMLA. 19. Learned Solicitor General submitted that under Section 19 of PMLA, specified officers, on the basis of material in possession, having reason to believe which is to be recorded in writing that the person has been guilty of the offence under the Act, have power to arrest. It was urged that the power to arrest and necessary safeguards are enshrined under Section 19 of the Act. It was submitted that since respondent has collected cogent materials to show that it is a case of money-laundering and the Enforcement Directorate has issued Letter rogatory and if the Court intervenes by granting anticipatory bail, the authority cannot exercise the statutory right of arrest and interrogate the appellant. 20. The learned Solicitor General submitted that they have obtained specific inputs from overseas banks and also about the companies and properties and it is a clear case of money-laundering. The learned Solicitor General submitted that the Court has power to look into the materials so collected by the Enforcement Directorate and the same cannot be shared with the appellant at this initial stage when the Court is considering the matter for grant of pre-arrest bail. Relying upon number of judgments, the learned Solicitor General has submitted that as a matter of practice, Courts have always perused the case diaries produced by the prosecution and receive and peruse the materials/documents to satisfy its judicial conscience. In support of his contention, learned Solicitor General placed reliance upon Romila Thapar and Others v. Union of India and Others (2018) 10 SCC 753, Jai Prakash Singh v. State of Bihar and Another (2012) 4 SCC 379 and Directorate of Enforcement and Another v. P.V. Prabhakar Rao (1997) 6 SCC 647 and other judgments and requested the Court to peruse the materials produced by the Enforcement Directorate in the sealed cover. 21. Opposing the grant of anticipatory bail, the learned Solicitor General submitted that the Enforcement Directorate has cogent evidence to prove that it is a case of money-laundering and there is a need of custodial interrogation of the appellant. The learned Solicitor General submitted that the economic offences stand as a class apart and custodial interrogation is required for the Enforcement Directorate to trace the trail of money and prayed for dismissal of the appeal. 22. As noted earlier, the predicate offences are under Sections 120B IPC and 420 IPC, Section 8 and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act. Case is registered against the appellant and others under Sections 3 and 4 of PMLA. The main point falling for consideration is whether the appellant is entitled to the privilege of anticipatory bail. In order to consider whether the appellant is to be granted the privilege of anticipatory bail, it is necessary to consider the salient features of the special enactment \u2013 Prevention of Money-Laundering Act, 2002. 23. Prevention of Money-laundering Act, 2002 \u2013 Special Enactment:- Money-laundering is the process of concealing illicit sources of money and the launderer transforming the money proceeds derived from criminal activity into funds and moved to other institution or transformed into legitimate asset. It is realised world around that money laundering poses a serious threat not only to the financial systems of the countries but also to their integrity and sovereignty. The Prevention of Money-laundering Act, 2002 was enacted in pursuance of the Political Declaration adopted by the Special Session of the United Nations General Assembly held in June 1998, calling upon the Member States to adopt national money-laundering legislation and programme, primarily with a view to meet out the serious threat posed by money laundering to the financial system of the countries and to their integrity and sovereignty. 24. Statement of Objects and Reasons to the Prevention of Money- laundering Act, 2002 recognises that money laundering poses a serious threat not only to the financial systems of the countries but also to their integrity and sovereignty. PMLA is a special enactment containing the provisions with adequate safeguards with a view to prevent money- laundering. The Preamble to the Prevention of Money-Laundering Act, 2002 states that \u201cAn Act to prevent money-laundering and to provide for confiscation of property derived from, or involved in, money-laundering and for matters connected therewith or incidental thereto.\u201d 25. Chapter II of PMLA contains provisions relating to the offences of money-laundering. Section 2(1)(p) of PMLA defines \u201cmoney-laundering\u201d that it has the same meaning assigned to it in Section 3. Section 2(1)(ra) of PMLA defines \u201coffence of cross border implications\u201d. To prevent offences of \u201ccross border implications\u201d, PMLA contains Sections 55 to 61 dealing with reciprocal arrangement for assistance in certain matters and procedure for attachment and confiscation of property between the contracting States with regard to the offences of money-laundering and predicate offences. Section 2(1)(y) of PMLA defines \u201cscheduled offence\u201d which reads as under:- \u201c2. Definitions \u2013 (1)\u2026\u2026 (y) \u201cscheduled offence\u201d means \u2013 (i) the offences specified under Part A of the Scheduled; or (ii) the offences specified under Part B of the Schedule if the total value involved in such offences is one crore rupees or more; or (iii)the offences specified under Part C of the Schedule.\u201d \u201cScheduled Offence\u201d is a sine qua non for the offence of money-laundering which would generate the money that is being laundered. PMLA contains Schedules which originally contained three parts namely Part A, Part B and Part C. Part A contains various paragraphs which enumerate offences under the Indian Penal Code, Narcotic Drugs and Psychotropic Substances Act, 1985, offences under the Explosives Substances Act, 1908 and the offences under the Prevention of Corruption Act, 1988 (paragraph 8) etc. The Schedule was amended by Act 21 of 2009 (w.e.f. 01.06.2009). Section 13 of Prevention of Corruption Act was inserted in the Part A of the Schedule to PMLA by the Amendment Act, 16 of 2018 (w.e.f. 26.07.2018). 26. Section 3 of PMLA stipulates \u201cmoney-laundering\u201d to be an offence. Section 3 of PMLA states that whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of the crime and projecting it as untainted property shall be guilty of the offences of money laundering. The provisions of the PMLA including Section 3 have undergone various amendments. The words in Section 3 \u201cwith the proceeds of crime and projecting\u201d has been amended as \u201cproceeds of crime including its concealment, possession, acquisition or use and projecting or claiming\u201d by the Amendment Act 2 of 2013 (w.e.f. 15.02.2013). 27. Section 4 of PMLA deals with punishment for money laundering. Prior to Amendment Act 2 of 2013, Section 4 provided punishment with rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and the fine which may extend to Rs.5,00,000/-. By Amendment Act 2 of 2013, Section 4 is amended w.e.f. 15.02.2013 vide S.O. 343(E) dated 08.02.2013. Now, the punishment prescribed under Section 4 of PMLA to the offender is rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and the offender is also liable to pay fine. The limit of fine has been done away with and now after the amendment, appropriate fine even above Rs.5,00,000/- can be imposed against the offender. 28. Section 5 of PMLA which provides for attachment of property involved in money laundering, states that where the Director or any other officer not below the rank of Deputy Director authorised by the Director for the purposes of this Section, has \u201creason to believe\u201d (the reason for such belief to be recorded in writing), on the basis of material in his possession, that (a) any person is in possession of any proceeds of crime; and (b) such proceeds of crime are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings relating to confiscation of such proceeds of crime under Chapter III, he may, by order in writing, provisionally attach such property for a period not exceeding one hundred and fifty days from the date of the order, in such manner as may be prescribed. Section 5 provides that no such order of attachment shall be made unless, in relation to the scheduled offence, a report has been forwarded to a Magistrate under Section 173 of the Code of Criminal Procedure, 1973 (2 of 1974), or a complaint has been filed by a person authorised to investigate the offence mentioned in that Schedule, before a Magistrate or court for taking cognizance of the scheduled offence, as the case may be. 29. The term \u201creason to believe\u201d is not defined in PMLA. The expression \u201creason to believe\u201d has been defined in Section 26 of IPC. As per the definition in Section 26 IPC, a person is said to have \u201creason to believe\u201d a thing, if he has sufficient cause to believe that thing but not otherwise. The specified officer must have \u201creason to believe\u201d on the basis of material in his possession that the property sought to be attached is likely to be concealed, transferred or dealt with in a manner which may result in frustrating any proceedings for confiscation of their property under the Act. It is stated that in the present case, exercising power under Section 5 of the PMLA, the Adjudicating Authority had attached some of the properties of the appellant. Challenging the attachment, the appellant and others are said to have preferred appeal before the Appellate Tribunal and stay has been granted by the Appellate Authority and the said appeal is stated to be pending. 30. As rightly submitted by the learned Solicitor General, sufficient safeguards are provided under the provisions of PMLA. Under Section 5 of PMLA, the Director or any other officer not below the rank of Deputy Director authorised by the Director for the purposes of Section 5 who passed the impugned order is required to have \u201creason to believe\u201d that the properties sought to be attached would be transferred or dealt with in a manner which would frustrate the proceedings relating to confiscation of such properties. Further, the officer who passed the order of attachment is required to record the reasons for such belief. The provisions of the PMLA and the Rules also provide for manner of forwarding a copy of the order of provisional attachment of property along with material under sub-section (2) of Section 5 of PMLA to the Adjudicating Authority. 31. In order to ensure the safeguards, in exercise of power under Section 73 of PMLA, the Central Government has framed \u201cThe Prevention of Money-Laundering (The Manner of Forwarding a Copy of the Order of Provisional Attachment of Property along with the Material, and Copy of the Reasons along with the Material in respect of Survey, to the Adjudicating Authority and its period of Retention) Rules, 2005\u201d. Rule 3 of the said Rules provides for manner of forwarding a copy of the order of provisional attachment of property along with the material under sub-section (2) of Section 5 of the Act to the Adjudicating Authority. Rule 3 stipulates various safeguards as to the confidentiality of the sealed envelope sent to the Adjudicating Authority. 32. Section 17 of PMLA deals with the search and seizure. Section 17 which deals with search and seizure states that where the Director or any other officer not below the rank of Deputy Director authorised by him for the purposes of this section on the basis of the information in his possession has \u201creason to believe\u201d (reason for such belief to be recorded in writing) that any person has committed an offence which constitutes the money laundering or is in possession of any proceeds of crime involved in money laundering etc. may search building, place and seize any record or property found as a result of such search. Section 17 of PMLA also uses the expression \u201creason to believe\u201d and \u201creason for such belief to be recorded in writing\u201d. Here again, the authorised officer shall immediately on search and seizure or upon issuance of freezing order forward a copy of the reasons so recorded along with the material in his possession to the Adjudicating Authority in a \u201csealed envelope\u201d in the manner as may be prescribed and such Adjudicating Authority shall keep such reasons and material for such period as may be prescribed. In order to ensure the sanctity of the search and seizure and to ensure the safeguards, in exercise of power under Section 73 of PMLA, the Central Government has framed \u201cThe Prevention of Money-Laundering (Forms, Search and Seizure or Freezing and the Manner of Forwarding the Reasons and Material to the Adjudicating Authority, Impounding and Custody of Records and the period of Retention) Rules, 2005\u201d. 33. Section 19 of PMLA deals with the power of the specified officer to arrest. Under sub-section (1) of Section 19 of PMLA, the specified officer viz. the Director, the Deputy Director, Assistant Director or any other officer authorised in this behalf by the Central Government by general or special order, on the basis of the material in possession, having \u201creason to believe\u201d and \u201creasons for such belief be recorded in writing\u201d that the person has been guilty of offence punishable under the PMLA, has power to arrest such person. The authorised officer is required to inform the accused the grounds for such arrest at the earliest and in terms of sub- section (3) of Section 19 of the Act, the arrested person is required to be produced to the jurisdictional Judicial Magistrate or Metropolitan Magistrate within 24 hours excluding the journey time from the place of arrest to the Magistrate\u2019s Court. In order to ensure the safeguards, in exercise of power under Section 73 of the Act, the Central Government has framed \u201cThe Prevention of Money-Laundering (The Forms and the Manner of Forwarding a Copy of Order of Arrest of a Person along with the Material to the Adjudicating Authority and its Period of Retention) Rules, 2005\u201d. Rule 3 of the said Rules requires the arresting officer to forward a copy of order of arrest and the material to the Adjudicating Authority in a sealed cover marked \u201cconfidential\u201d and Rule 3 provides for the manner in maintaining the confidentiality of the contents. 34. As rightly submitted by Mr. Tushar Mehta, the procedure under PMLA for arrest ensures sufficient safeguards viz.:- (i) only the specified officers are authorised to arrest; (ii) based on \u201creasons to believe\u201d that an offence punishable under the Act has been committed; (iii) the reasons for such belief to be recorded in writing; (iv) evidence and the material submitted to the Adjudicating Authority in sealed envelope in the manner as may be prescribed ensuring the safeguards in maintaining the confidentiality; and (v) every person arrested under PMLA to be produced before the Judicial Magistrate or Metropolitan Magistrate within 24 hours. Section 19 of PMLA provides for the power to arrest to the specified officer on the basis of material in his possession and has \u201creason to believe\u201d and the \u201creasons for such belief to be recorded in writing\u201d that any person has been guilty of an offence punishable under PMLA. The statutory power has been vested upon the specified officers of higher rank to arrest the person whom the officer has \u201creason to believe\u201d that such person has been guilty of an offence punishable under PMLA. In cases of PMLA, in exercising the power to grant anticipatory bail would be to scuttle the statutory power of the specified officers to arrest which is enshrined in the statute with sufficient safeguards. 35. Section 71 of PMLA gives overriding effect to the provisions of PMLA. Section 71 of PMLA states that the provisions of the Act would have overriding effect on the provisions of all other Acts applicable. The provisions of PMLA shall prevail over the contrary provisions of the other Acts. Section 65 of PMLA states that the provisions of Code of Criminal Procedure, 1973 shall apply to the provisions under the Act insofar as they are not inconsistent with the provisions of PMLA. 36. Insofar as the issue of grant of bail is concerned, Section 45 of PMLA starts with non-obstante clause. Section 45 imposes two conditions for grant of bail to any person accused of any offence punishable for a term of imprisonment of more than three years under Part-A of the Schedule of the Act viz., (i) that the prosecutor must be given an opportunity to oppose the application for such bail; (ii) that the court must be satisfied that there are reasonable grounds for believing that the accused persons is not guilty of such offence and that he is not likely to commit any offence while on bail. 37. The twin conditions under Section 45(1) for the offences classified thereunder in Part-A of the Schedule was held arbitrary and discriminatory and invalid in Nikesh Tarachand Shah v. Union of India and another (2018) 11 SCC 1. Insofar as the twin conditions for release of accused on bail under Section 45 of the Act, the Supreme Court held the same to be unconstitutional as it violates Articles 14 and 21 of the Constitution of India. Subsequently, Section 45 has been amended by Amendment Act 13 of 2008. The words \u201cimprisonment for a term of imprisonment of more than three years under Part A of the Schedule\u201d has been substituted with \u201caccused of an offence under this Act\u2026..\u201d. Section 45 prior to Nikesh Tarachand and post Nikesh Tarachand reads as under:- Section 45 - Prior to Nikesh Tarachand Shah Section 45 - Post Nikesh Tarachand Shah Section 45. Offence to be cognizable and non- Section 45. Offences to be cognizable and non-bailable. bailable. (2) Notwithstanding anything contained in the Code of (1) Notwithstanding contained in the Code of Criminal Procedure, 1973 (2 of 1974), no Criminal Procedure, 1973 (2 of 1974), no person accused of an offence under this Act shall person accused of an offence punishable be released on bail or on his own bond unless- for a term of imprisonment of more than (i) the Public Prosecutor has been given an three years under Part A of the Schedule opportunity to oppose the application for such shall be released on bail or on his own release; and (ii) where the Public Prosecutor opposes the bond unless- (i) the Public Prosecutor has been given application, the court is satisfied that there are an opportunity to oppose the application reasonable grounds for believing that he is not for such release; and guilty of such offence and that he is not likely to (ii) where the Public Prosecutor opposes commit any offence while on bail; the application, the court is satisfied that Provided that a person, who, is under the age of sixteen there are reasonable grounds for years, or is a woman or is sick or infirm, or is accused either believing that he is not guilty of such on his own or along with other co-accused of money offence and that he is not likely to laundering a sum of less than one crore rupees may be commit any offence while on bail; released on bail, if the Special court so directs: Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm, may be released on bail, if the Special Court so directs: 38. The occurrence was of the year 2007-2008. CBI registered the case against Sh. Karti Chidambaram, the appellant and others on 15.05.2017 under Sections 120-B IPC read with Section 420 IPC and under Section 8 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act. Learned Senior counsel for the appellant, Mr. A.M. Singhvi has submitted that there could not have been \u2018reasons to believe\u2019 that the appellant has committed the offence under Section 3 of PMLA, since in 2007-2008 the time of commission of alleged offence, Sections 120-B IPC and 420 IPC and Section 13 of the Prevention of Corruption Act were not there in Part \u2018A\u2019 of the Schedule to PMLA and were included in Part \u2018A\u2019 of the Schedule only by Amendment Act 21 of 2009 w.e.f. 01.06.2009 and w.e.f. 26.07.2018 respectively and therefore, no prima-facie case of commission of offence by the appellant under PMLA is made out. It was urged that under Article 20 of the Constitution, no person shall be convicted of any offence except for violation of law in force at the time of the commission of that act charged as offence. When Section 120B IPC and Section 420 IPC and Section 13 of Prevention of Corruption Act were not then included in Part A of the Schedule, in 2007-2008, then the appellant and others cannot be said to have committed the offence under PMLA. Insofar as Section 8 of the Prevention of Corruption Act is concerned, it was submitted that Section 8 of the Prevention of Corruption Act is not attracted against the appellant as there are no allegations in the FIR that the appellant accepted or agreed to accept any gratification as a motive or reward for inducing any public servant and hence, the accusation under Section 8 of the Prevention of Corruption Act does not apply to the appellant. It was further submitted that even assuming Section 8 of the Prevention of Corruption Act is made out, the amount allegedly paid to ASCPL was only Rs.10,00,000/- whereas, Rs.30,00,000/- was the amount then stipulated to attract Section 8 to be the Scheduled offence under Part A of the Schedule to the Act and therefore, there was no basis for offence against the appellant and in such view of the matter, the appellant is entitled for anticipatory bail. 39. Section 45 of the PMLA makes the offence of money laundering cognizable and non-bailable and no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail unless the twin conditions thereon are satisfied. Section 120-B IPC \u2013 Criminal Conspiracy and Section 420 IPC - Cheating and dishonestly inducing delivery of property were included in Part A of the Schedule to PMLA by way of Amendment Act 21 of 2009 w.e.f. 01.06.2009 and by way of Amendment Act 2 of 2013 w.e.f. 15.02.2013. Likewise, Section 13 of the Prevention of Corruption Act has been introduced to Part A of the Schedule (Paragraph 8) by way of Amendment Act 16 of 2018 w.e.f. 26.07.2018. As pointed out earlier, the FIR was registered by CBI under Section 8 of the Prevention of Corruption Act also which was then in Part A of the Schedule at the time of alleged commission of offence. 40. Learned Senior counsel submitted that since the offence under Sections 120-B IPC and 420 IPC and under Section 13 of Prevention of Corruption Act were included in the Schedule only w.e.f. 01.06.2009 and w.e.f. 26.07.2018 respectively and there can never be a retrospective operation of a criminal/penal statue and the test is not whether the proceeds are retained by the person; but the test as laid down by the Constitution Bench of this Court is, the test of the acts constituting the offence at the time of the commission of the offence and the appellant cannot be proceeded with prosecution under PMLA in violation of constitutional protection under Article 20(1) of the Constitution of India. 41. Under Article 20(1) of the Constitution, no person shall be convicted of any offence except for violation of law in force at the time of commission of that act charged as an offence. FIR for the predicate offence has been registered by CBI under Section 120B IPC, 420 IPC and Section 13 of the Prevention of Corruption Act and also under Section 8 of the Prevention of Corruption Act. As discussed earlier, Section 120B IPC and Section 420 IPC were included in Part A of the Schedule only by Amendment Act 21 of 2009 w.e.f. 01.06.2009. Section 13 of the Prevention of Corruption Act was included in Part A of the Schedule by Amendment Act 16 of 2018 w.e.f. 26.07.2018. Section 8 of the Prevention of Corruption Act is punishable with imprisonment extending upto seven years. Section 8 of the Prevention of Corruption Act was very much available in Part A of the Schedule of PMLA at the time of alleged commission of offence in 2007-2008. It cannot therefore be said that the appellant is proceeded against in violation of Article 20(1) of the Constitution of India for the alleged commission of the acts which was not an offence as per law then in existence. The merits of the contention that Section 8 of the Prevention of Corruption Act cannot be the predicate offence qua the appellant, cannot be gone into at this stage when this Court is only considering the prayer for anticipatory bail. 42. Yet another contention advanced on behalf of the appellant is that minimum threshold for the Enforcement Directorate to acquire jurisdiction at the relevant time was Rs.30 lakhs whereas, in the present case, there is no material to show any payment apart from the sum of Rs.10 lakhs (approximately) allegedly paid by INX Media to ASCPL with which the appellant is said to be having no connection whatsoever. The merits of the contention that Section 8 of the Prevention of Corruption Act (then included in Schedule A of the PMLA in 2007-08) whether attracted or not and whether the Enforcement Directorate had the threshold to acquire jurisdiction under PMLA cannot be considered at this stage while this Court is considering only the prayer for anticipatory bail. 43. In terms of Section 4 of the PMLA, the offence of money-laundering is punishable with rigorous imprisonment for a term not less than three years extending to seven years and with fine. The Second Schedule to the Criminal Procedure Code relates to classification of offences against other laws and in terms of the Second Schedule of the Code, an offence which is punishable with imprisonment for three years and upward but not more than seven years is a cognizable and non-bailable offence. Thus, Section 4 of the Act read with the Second Schedule of the Code makes it clear that the offences under the PMLA are cognizable offences. As pointed out earlier, Section 8 of the Prevention of Corruption Act was then found a mention in Part \u2018A\u2019 of the Schedule (Paragraph 8). Section 8 of the Prevention of Corruption Act is punishable for a term extending to seven years. Thus, the essential requirement of Section 45 of PMLA \u201caccused of an offence punishable for a term of imprisonment of more than three years under Part \u2018A\u2019 of the Schedule\u201d is satisfied making the offence under PMLA. There is no merit in the contention of the appellant that very registration of the FIR against the appellant under PMLA is not maintainable. Whether Court can look into the documents/materials collected during investigation 44. During the course of lengthy hearing, much arguments were advanced mainly on the question whether the court can look into the documents and materials produced by the prosecution before the court without first confronting the accused with those materials. 45. The learned Solicitor General submitted that during investigation, the Enforcement Directorate has collected materials and overseas banks have given specific inputs regarding the companies and properties that money has been parked in the name of shell companies and the said money has been used to make legitimate assets and that custodial interrogation is necessary with regard to the materials so collected. The learned Solicitor General sought to produce the materials so collected in the sealed cover and requested the court to peruse the documents and the materials to satisfy the conscience of the court as to the necessity for the custodial interrogation. 46. Contention of learned Solicitor General requesting the court to peruse the documents produced in the sealed cover was strongly objected by the appellant on the grounds :\u2013 (i) that the Enforcement Directorate cannot randomly place the documents in the court behind the back of the accused to seek custody of the accused; (ii) the materials so collected by Enforcement Directorate during investigation cannot be placed before the court unless the accused has been confronted with such materials. 47. Mr. Kapil Sibal, learned Senior counsel submitted that the statements recorded under Section 161 Cr.P.C. are part of the case diary and the case diary must reflect day to day movement of the investigation based on which the investigating agency came to the conclusion that the crime has been committed so that a final report can be filed before the court. The learned Senior counsel submitted that during the course of such investigation, the investigating officer may discover several documents which may have a bearing on the crime committed; however the documents themselves can never be the part of the case diary and the documents would be a piece of documentary evidence during trial which would be required to be proved in accordance with the provisions of the Evidence Act before such documents can be relied upon for the purpose of supporting the case of prosecution. Enforcement Directorate does not maintain a case diary; but maintain the file with paginated pages. It was urged that even assuming that there is a case diary maintained by the respondent in conformity with Section 172 Cr.P.C., the opinion of the investigating officer for the conclusion reached by the authorised officer under PMLA, can never be relied upon for the purposes of consideration of anticipatory bail. 48. Having regard to the submissions, two points arise for consideration \u2013 (i) whether the court can/cannot look into the documents/materials produced before the court unless the accused was earlier confronted with those documents/materials?; and (ii) whether the court is called upon to hold a mini inquiry during the intermediary stages of investigation by examining whether the questions put to the accused are \u2018satisfactory\u2019 or \u2018evasive\u2019, etc.? 49. Sub-section (2) of Section 172 Cr.P.C. permits any court to send for case diary to use them in the trial. Section 172(3) Cr.P.C. specifically provides that neither the accused nor his agents shall be entitled to call for case diary nor shall he or they be entitled to see them merely because they are referred to by the court. But if they are used by the police officer who made them to refresh his memory or if the court uses them for the purpose of contradicting the such police officer, the provisions of Section 161 Crl.P.C. or the provision of Section 145 of the Evidence Act shall be complied with. In this regard, the learned Solicitor General placed reliance upon Balakram v. State of Uttarakhand and others (2017) 7 SCC 668. Observing that the confidentiality is always kept in the matter of investigation and it is not desirable to make available the police diary to the accused on his demand, in Balakram, the Supreme Court held as under:- \u201c15. The police diary is only a record of day-to-day investigation made by the investigating officer. Neither the accused nor his agent is entitled to call for such case diary and also are not entitled to see them during the course of inquiry or trial. The unfettered power conferred by the statute under Section 172(2) CrPC on the court to examine the entries of the police diary would not allow the accused to claim similar unfettered right to inspect the case diary. \u2026\u2026\u2026. 17. From the aforementioned, it is clear that the denial of right to the accused to inspect the case diary cannot be characterised as unreasonable or arbitrary. The confidentiality is always kept in the matter of investigation and it is not desirable to make available the police diary to the accused on his demand.\u201d 50. Reiterating the same principles in Sidharth and others v. State of Bihar (2005) 12 SCC 545, the Supreme Court held as under:- \u201c27. Lastly, we may point out that in the present case, we have noticed that the entire case diary maintained by the police was made available to the accused. Under Section 172 of the Criminal Procedure Code, every police officer making an investigation has to record his proceedings in a diary setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him and a statement of the circumstances ascertained through his investigation. It is specifically provided in sub-clause (3) of Section 172 that neither the accused nor his agents shall be entitled to call for such diaries nor shall he or they be entitled to see them merely because they are referred to by the court, but if they are used by the police officer who made them to refresh his memory, or if the court uses them for the purpose of contradicting such police officer, the provisions of Section 161 CrPC or the provisions of Section 145 of the Evidence Act shall be complied with. The court is empowered to call for such diaries not to use it as evidence but to use it as aid to find out anything that happened during the investigation of the crime. These provisions have been incorporated in the Code of Criminal Procedure to achieve certain specific objectives. The police officer who is conducting the investigation may come across a series of information which cannot be divulged to the accused. He is bound to record such facts in the case diary. But if the entire case diary is made available to the accused, it may cause serious prejudice to others and even affect the safety and security of those who may have given statements to the police. The confidentiality is always kept in the matter of criminal investigation and it is not desirable to make available the entire case diary to the accused. In the instant case, we have noticed that the entire case diary was given to the accused and the investigating officer was extensively cross-examined on many facts which were not very much relevant for the purpose of the case. The learned Sessions Judge should have been careful in seeing that the trial of the case was conducted in accordance with the provisions of CrPC.\u201d [underlining added] The same position has been reiterated in Naresh Kumar Yadav v. Ravindra Kumar and others (2008) 1 SCC 632 [Paras 11 to 14], Malkiat Singh and others v. State of Punjab (1991) 4 SCC 341 [Para 11] and other judgments. 51. It is seen from various judgments that on several instances, court always received and perused the case diaries/materials collected by the prosecution during investigation to satisfy itself as to whether the investigation is proceeding in the right direction or for consideration of the question of grant of bail etc. In Directorate of Enforcement and another v. P.V. Prabhakar Rao (1997) 6 SCC 647, the Supreme Court perused the records to examine the correctness of the order passed by the High Court granting bail. In R.K. Krishna Kumar v. State of Assam and others (1998) 1 SCC 474, the Supreme Court received court diary maintained under Section 172 Cr.P.C. and perused the case diary to satisfy itself that the investigation has revealed that the company thereon has funded the organisation (ULFA) and that the appellants thereon had a role to play in it. While considering the question of arrest of five well known human rights activists, journalists, advocates and political workers, in Romila Thapar and 36 Others v. Union of India and Others (2018) 10 SCC 753, this Court perused the registers containing relevant documents and the case diary produced by the State of Maharashtra. However, the court avoided to dilate on the factual position emerging therefrom on the ground that any observation made thereon might cause prejudice to the accused or to the prosecution in any manner. Upholding the validity of Section 172(3) Crl.P.C. and observing that \u201cthere can be no better custodian or guardian of the interest of justice than the court trying the case\u201d, in Mukund Lal v. Union of India and another 1989 Supp. (1) SCC 622, the Supreme Court held as under:- 3. \u2026.. \u201cSo far as the other parts are concerned, the accused need not necessarily have a right of access to them because in a criminal trial or enquiry, whatever is sought to be proved against the accused, will have to be proved by the evidence other than the diary itself and the diary can only be used for a very limited purpose by the court or the police officer as stated above. \u2026\u2026\u2026. When in the enquiry or trial, everything which may appear against the accused has to be established and brought before the court by evidence other than the diary and the accused can have the benefit of cross-examining the witnesses and the court has power to call for the diary and use it, of course not as evidence but in aid of the enquiry or trial, I am clearly of the opinion, that the provisions under Section 172(3) CrPC cannot be said to be unconstitutional.\u201d We fully endorse the reasoning of the High Court and concur with its conclusion. We are of the opinion that the provision embodied in sub-section (3) of Section 172 of the CrPC cannot be characterised as unreasonable or arbitrary. Under sub-section (2) of Section 172 CrPC the court itself has the unfettered power to examine the entries in the diaries. This is a very important safeguard. The legislature has reposed complete trust in the court which is conducting the inquiry or the trial. It has empowered the court to call for any such relevant case diary; if there is any inconsistency or contradiction arising in the context of the case diary the court can use the entries for the purpose of contradicting the police officer as provided in sub- section (3) of Section 172 of the CrPC. Ultimately there can be no better custodian or guardian of the interest of justice than the court trying the case. No court will deny to itself the power to make use of the entries in the diary to the advantage of the accused by contradicting the police officer with reference to the contents of the diaries. In view of this safeguard, the charge of unreasonableness or arbitrariness cannot stand scrutiny. \u2026\u2026. Public interest demands that such an entry is not made available to the accused for it might endanger the safety of the informants and it might deter the informants from giving any information to assist the investigating agency, \u2026\u2026.\u201d [underlining added] 52. So far as the production of the case diary during trial and reference to the same by the court and the interdict against accused to call for case diary is governed by Section 172 Cr.P.C. As per sub-section (3) of Section 172, neither the accused nor his agent is entitled to call for such case diaries and also not entitled to see them during the course of enquiry or trial. The case diaries can be used for refreshing memory by the investigating officer and court can use it for the purpose of contradicting such police officer as per provisions of Section 161 or Section 145 of the Indian Evidence Act. Unless the investigating officer or the court so uses the case diary either to refresh the memory or for contradicting the investigating officer as previous statement under Section 161, after drawing his attention under Section 145, the entries in case diary cannot be used by the accused as evidence (vide Section 172(3) Cr.P.C.). 53. It is well-settled that the court can peruse the case diary/materials collected during investigation by the prosecution even before the commencement of the trial inter-alia in circumstances like:- (i) to satisfy its conscience as to whether the investigation is proceeding in the right direction; (ii) to satisfy itself that the investigation has been conducted in the right lines and that there is no misuse or abuse of process in the investigation; (iii) whether regular or anticipatory bail is to be granted to the accused or not; (iv) whether any further custody of the accused is required for the prosecution; (v) to satisfy itself as to the correctness of the decision of the High Court/trial court which is under challenge. The above instances are only illustrative and not exhaustive. Where the interest of justice requires, the court has the powers, to receive the case diary/materials collected during the investigation. As held in Mukund Lal, ultimately there can be no better custodian or guardian of the interest of justice than the court trying the case. Needless to point out that when the Court has received and perused the documents/materials, it is only for the purpose of satisfaction of court\u2019s conscience. In the initial stages of investigation, the Court may not extract or verbatim refer to the materials which the Court has perused (as has been done in this case by the learned Single Judge) and make observations which might cause serious prejudice to the accused in trial and other proceedings resulting in miscarriage of justice. 54. The Enforcement Directorate has produced the sealed cover before us containing the materials collected during investigation and the same was received. Vide order dated 29.08.2019, we have stated that the receipt of the sealed cover would be subject to our finding whether the court can peruse the materials or not. As discussed earlier, we have held that the court can receive the materials/documents collected during the investigation and peruse the same to satisfy its conscience that the investigation is proceeding in the right lines and for the purpose of consideration of grant of bail/anticipatory bail etc. In the present case, though sealed cover was received by this Court, we have consciously refrained from opening the sealed cover and perusing the documents. Lest, if we peruse the materials collected by the respondent and make some observations thereon, it might cause prejudice to the appellant and the other co-accused who are not before this court when they are to pursue the appropriate relief before various forum. Suffice to note that at present, we are only at the stage of considering the pre-arrest bail. Since according to the respondent, they have collected documents/materials for which custodial interrogation of the appellant is necessary, which we deem appropriate to accept the submission of the respondent for the limited purpose of refusing pre-arrest bail to the appellant. 55. Of course, while considering the request for anticipatory bail and while perusing the materials/note produced by the Enforcement Directorate/CBI, the learned Single Judge could have satisfied his conscience to hold that it is not a fit case for grant of anticipatory bail. On the other hand, the learned Single Judge has verbatim quoted the note produced by the respondent- Enforcement Directorate. The learned Single Judge, was not right in extracting the note produced by the Enforcement Directorate/CBI which in our view, is not a correct approach for consideration of grant/refusal of anticipatory bail. But such incorrect approach of the learned Single Judge, in our view, does not affect the correctness of the conclusion in refusing to grant of anticipatory bail to the appellant in view of all other aspects considered herein. Re: Contention:- The appellant should have been confronted with the materials collected by the Enforcement Directorate earlier, before being produced to the court. 56. On behalf of the appellant, it was contended that the materials produced by the Enforcement Directorate could have never been relied upon for the purpose of consideration of anticipatory bail unless the appellant was earlier confronted with those documents/materials. It was submitted that if the appellant\u2019s response was completely \u201cevasive\u201d and \u201cnon co-operative\u201d during the three days when he was interrogated i.e. 19.12.2018, 01.01.2019 and 21.01.2019, the respondent should place before the court the materials put to the appellant and the responses elicited from the accused to demonstrate to the court that \u201cthe accused was completely evasive and non-co-operative\u201d. 57. Contention of the appellant that the court will have to scrutinise the questions put to the accused during interrogation and answers given by the appellant and satisfy itself whether the answers were \u201cevasive or not\u201d, would amount to conducting \u201cmini trial\u201d and substituting court\u2019s view over the view of the investigating agency about the \u201ccooperation\u201d or \u201cevasiveness\u201d of the accused and thereafter, the court to decide the questions of grant of anticipatory bail. This contention is far-fetched and does not merit acceptance. 58. As rightly submitted by learned Solicitor General that if the accused are to be confronted with the materials which were collected by the prosecution/Enforcement Directorate with huge efforts, it would lead to devastating consequences and would defeat the very purpose of the investigation into crimes, in particular, white collar offences. If the contention of the appellant is to be accepted, the investigating agency will have to question each and every accused such materials collected during investigation and in this process, the investigating agency would be exposing the evidence collected by them with huge efforts using their men and resources and this would give a chance to the accused to tamper with the evidence and to destroy the money trail apart from paving the way for the accused to influence the witnesses. If the contention of the appellant is to be accepted that the accused will have to be questioned with the materials and the investigating agency has to satisfy the court that the accused was \u201cevasive\u201d during interrogation, the court will have to undertake a \u201cmini trial\u201d of scrutinizing the matter at intermediary stages of investigation like interrogation of the accused and the answers elicited from the accused and to find out whether the answers given by the accused are \u2018evasive\u2019 or whether they are \u2018satisfactory\u2019 or not. This could have never been the intention of the legislature either under PMLA or any other statute. 59. Interrogation of the accused and the answers elicited from the accused and the opinion whether the answers given by the accused are \u201csatisfactory\u201d or \u201cevasive\u201d, is purely within the domain of the investigating agency and the court cannot substitute its views by conducting mini trial at various stages of the investigation. 60. The investigation of a cognizable offence and the various stages thereon including the interrogation of the accused is exclusively reserved for the investigating agency whose powers are unfettered so long as the investigating officer exercises his investigating powers well within the provisions of the law and the legal bounds. In exercise of its inherent power under Section 482 Cr.P.C., the court can interfere and issue appropriate direction only when the court is convinced that the power of the investigating officer is exercised mala fide or where there is abuse of power and non-compliance of the provisions of Code of Criminal Procedure. However, this power of invoking inherent jurisdiction to issue direction and interfering with the investigation is exercised only in rare cases where there is abuse of process or non-compliance of the provisions of Criminal Procedure Code. 61. In King-Emperor v. Khwaja Nazir Ahmad AIR 1945 PC 18 : 1944 SCC Online PC 29, it was held as under:- \u201c\u2026..it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under S. 491 of the Crl. P.C. \u2026.\u201d [underlining added] 62. The above decision in Khwaja Nazir Ahmad has been quoted with approval by the Supreme Court in Abhinandan Jha and others v. Dinesh Mishra AIR 1968 SC 117 and State of Bihar and another v. J.A.C. Saldanha and others (1980) 1 SCC 554. Observing that the investigation of the offence is the field exclusively reserved for the executive through the police department and the superintendence over which vests in the State Government, in J.A.C. Saldanha, it was held as under:- \u201c25. There is a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively reserved for the executive through the police department the superintendence over which vests in the State Government. The executive which is charged with a duty to keep vigilance over law and order situation is obliged to prevent crime and if an offence is alleged to have been committed it is its bounded duty to investigate into the offence and bring the offender to book. Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer submits report to the court requesting the court to take cognizance of the offence under Section 190 of the Code its duty comes to an end. On a cognizance of the offence being taken by the court the police function of investigation comes to an end subject to the provision contained in Section 173(8), there commences the adjudicatory function of the judiciary to determine whether an offence has been committed and if so, whether by the person or persons charged with the crime by the police in its report to the court, and to award adequate punishment according to law for the offence proved to the satisfaction of the court. There is thus a well defined and well demarcated function in the field of crime detection and its subsequent adjudication between the police and the Magistrate. This had been recognised way back in King Emperor v. Khwaja Nazir Ahmad AIR 1944 PC 18 \u2026\u2026...\u201d. The same view was reiterated in Dukhishyam Benupani, Asstt. Director, Enforcement Directorate (FERA) v. Arun Kumar Bajoria (1998) 1 SCC 52, M.C. Abraham and Another v. State of Maharashtra and Others (2003) 2 SCC 649, Subramanian Swamy v. Director, Central Bureau of Investigation and another (2014) 8 SCC 682 and Divine Retreat Centre v. State of Kerala and Others (2008) 3 SCC 542. 63. Investigation into crimes is the prerogative of the police and excepting in rare cases, the judiciary should keep out all the areas of investigation. In State of Bihar and another v. P.P. Sharma, IAS and another 1992 Supp. (1) 222, it was held that \u201cThe investigating officer is an arm of the law and plays a pivotal role in the dispensation of criminal justice and maintenance of law and order. \u2026..Enough power is therefore given to the police officer in the area of investigating process and granting them the court latitude to exercise its discretionary power to make a successful investigation\u2026\u201d. In Dukhishyam Benupani, Asstt. Director, Enforcement Directorate (FERA) v. Arun Kumar Bajoria (1998) 1 SCC 52, this Court held that \u201c\u2026\u2026it is not the function of the court to monitor investigation processes so long as such investigation does not transgress any provision of law. It must be left to the investigating agency to decide the venue, the timings and the questions and the manner of putting such questions to persons involved in such offences. A blanket order fully insulating a person from arrest would make his interrogation a mere ritual.\u201d 64. As held by the Supreme Court in a catena of judgments that there is a well-defined and demarcated function in the field of investigation and its subsequent adjudication. It is not the function of the court to monitor the investigation process so long as the investigation does not violate any provision of law. It must be left to the discretion of the investigating agency to decide the course of investigation. If the court is to interfere in each and every stage of the investigation and the interrogation of the accused, it would affect the normal course of investigation. It must be left to the investigating agency to proceed in its own manner in interrogation of the accused, nature of questions put to him and the manner of interrogation of the accused. 65. It is one thing to say that if the power of investigation has been exercised by an investigating officer mala fide or non-compliance of the provisions of the Criminal Procedure Code in the conduct of the investigation, it is open to the court to quash the proceedings where there is a clear case of abuse of power. It is a different matter that the High Court in exercise of its inherent power under Section 482 Cr.P.C., the court can always issue appropriate direction at the instance of an aggrieved person if the High Court is convinced that the power of investigation has been exercised by the investigating officer mala fide and not in accordance with the provisions of the Criminal Procedure Code. However, as pointed out earlier that power is to be exercised in rare cases where there is a clear abuse of power and non-compliance of the provisions falling under Chapter-XII of the Code of Criminal Procedure requiring the interference of the High Court. In the initial stages of investigation where the court is considering the question of grant of regular bail or pre-arrest bail, it is not for the court to enter into the demarcated function of the investigation and collection of evidence/materials for establishing the offence and interrogation of the accused and the witnesses. 66. Whether direction to produce the transcripts could be issued:- Contention of the appellant is that it has not been placed before the court as to what were the questions/aspects on which the appellant was interrogated on 19.12.2018, 01.01.2019 and 21.01.2019 and the Enforcement Directorate has not been able to show as to how the answers given by the appellant are \u201cevasive\u201d. It was submitted that the investigating agency-Enforcement Directorate cannot expect the accused to give answers in the manner they want and the investigating agency should always keep in their mind the rights of the accused protected under Article 20(3) of the Constitution of India. Since the interrogation of the accused and the questions put to the accused and the answers given by the accused are part of the investigation which is purely within the domain of the investigation officer, unless satisfied that the police officer has improperly and illegally exercised his investigating powers in breach of any statutory provision, the court cannot interfere. In the present case, no direction could be issued to the respondent to produce the transcripts of the questions put to the appellant and answers given by the appellant. Grant of Anticipatory bail in exceptional cases:- 67. Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes. Power under Section 438 Cr.P.C. is an extraordinary power and the same has to be exercised sparingly. The privilege of the pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; possibility of applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy. 68. On behalf of the appellant, much arguments were advanced contending that anticipatory bail is a facet of Article 21 of the Constitution of India. It was contended that unless custodial interrogation is warranted, in the facts and circumstances of the case, denial of anticipatory bail would amount to denial of the right conferred upon the appellant under Article 21 of the Constitution of India. 69. Article 21 of the Constitution of India states that no person shall be deprived of his life or personal liberty except according to procedure prescribed by law. However, the power conferred by Article 21 of the Constitution of India is not unfettered and is qualified by the later part of the Article i.e. \u201c\u2026except according to a procedure prescribed by law.\u201d In State of M.P. and another v. Ram Kishna Balothia and another (1995) 3 SCC 221, the Supreme Court held that the right of anticipatory bail is not a part of Article 21 of the Constitution of India and held as under:- \u201c7. \u2026\u2026We find it difficult to accept the contention that Section 438 of the Code of Criminal Procedure is an integral part of Article 21. In the first place, there was no provision similar to Section 438 in the old Criminal Procedure Code. The Law Commission in its 41st Report recommended introduction of a provision for grant of anticipatory bail. It observed: \u201cWe agree that this would be a useful advantage. Though we must add that it is in very exceptional cases that such power should be exercised.\u201d In the light of this recommendation, Section 438 was incorporated, for the first time, in the Criminal Procedure Code of 1973. Looking to the cautious recommendation of the Law Commission, the power to grant anticipatory bail is conferred only on a Court of Session or the High Court. Also, anticipatory bail cannot be granted as a matter of right. It is essentially a statutory right conferred long after the coming into force of the Constitution. It cannot be considered as an essential ingredient of Article 21 of the Constitution. And its non-application to a certain special category of offences cannot be considered as violative of Article 21.\u201d [underlining added] 70. We are conscious of the fact that the legislative intent behind the introduction of Section 438 Cr.P.C. is to safeguard the individual\u2019s personal liberty and to protect him from the possibility of being humiliated and from being subjected to unnecessary police custody. However, the court must also keep in view that a criminal offence is not just an offence against an individual, rather the larger societal interest is at stake. Therefore, a delicate balance is required to be established between the two rights - safeguarding the personal liberty of an individual and the societal interest. It cannot be said that refusal to grant anticipatory bail would amount to denial of the rights conferred upon the appellant under Article 21 of the Constitution of India. 71. The learned Solicitor General has submitted that depending upon the facts of each case, it is for the investigating agency to confront the accused with the material, only when the accused is in custody. It was submitted that the statutory right under Section 19 of PMLA has an in-built safeguard against arbitrary exercise of power of arrest by the investigating officer. Submitting that custodial interrogation is a recognised mode of interrogation which is not only permissible but has been held to be more effective, the learned Solicitor General placed reliance upon State Rep. By The CBI v. Anil Sharma (1997) 7 SCC 187; Sudhir v. State of Maharashtra and Another (2016) 1 SCC 146; and Assistant Director, Directorate of Enforcement v. Hassan Ali Khan (2011) 12 SCC 684. 72. Ordinarily, arrest is a part of the process of the investigation intended to secure several purposes. There may be circumstances in which the accused may provide information leading to discovery of material facts and relevant information. Grant of anticipatory bail may hamper the investigation. Pre-arrest bail is to strike a balance between the individual\u2019s right to personal freedom and the right of the investigating agency to interrogate the accused as to the material so far collected and to collect more information which may lead to recovery of relevant information. In State Rep. By The CBI v. Anil Sharma (1997) 7 SCC 187, the Supreme Court held as under:- \u201c6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders.\u201d 73. Observing that the arrest is a part of the investigation intended to secure several purposes, in Adri Dharan Das v. State of W.B. (2005) 4 SCC 303, it was held as under:- \u201c19. Ordinarily, arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent his disappearance, to maintain law and order in the locality. For these or other reasons, arrest may become an inevitable part of the process of investigation. The legality of the proposed arrest cannot be gone into in an application under Section 438 of the Code. The role of the investigator is well defined and the jurisdictional scope of interference by the court in the process of investigation is limited. The court ordinarily will not interfere with the investigation of a crime or with the arrest of the accused in a cognizable offence. An interim order restraining arrest, if passed while dealing with an application under Section 438 of the Code will amount to interference in the investigation, which cannot, at any rate, be done under Section 438 of the Code.\u201d 74. In Siddharam Satlingappa Mhetre v. State of Maharashtra and Others (2011) 1 SCC 694, the Supreme Court laid down the factors and parameters to be considered while dealing with anticipatory bail. It was held that the nature and the gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made and that the court must evaluate the available material against the accused very carefully. It was also held that the court should also consider whether the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. 75. After referring to Siddharam Satlingappa Mhetre and other judgments and observing that anticipatory bail can be granted only in exceptional circumstances, in Jai Prakash Singh v. State of Bihar and another (2012) 4 SCC 379, the Supreme Court held as under:- \u201c19. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefor. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty. (See D.K. Ganesh Babu v. P.T. Manokaran (2007) 4 SCC 434, State of Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain (2008) 1 SCC 213 and Union of India v. Padam Narain Aggarwal (2008) 13 SCC 305.)\u201d Economic Offences:- 76. Power under Section 438 Cr.P.C. being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of the society. In Directorate of Enforcement v. Ashok Kumar Jain (1998) 2 SCC 105, it was held that in economic offences, the accused is not entitled to anticipatory bail. 77. The learned Solicitor General submitted that the \u201cScheduled offence\u201d and \u201coffence of money laundering\u201d are independent of each other and PMLA being a special enactment applicable to the offence of money laundering is not a fit case for grant of anticipatory bail. The learned Solicitor General submitted that money laundering being an economic offence committed with much planning and deliberate design poses a serious threat to the nation\u2019s economy and financial integrity and in order to unearth the laundering and trail of money, custodial interrogation of the appellant is necessary. 78. Observing that economic offence is committed with deliberate design with an eye on personal profit regardless to the consequence to the community, in State of Gujarat v. Mohanlal Jitamalji Porwal and others (1987) 2 SCC 364, it was held as under:- \u201c5. \u2026.The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest\u2026..\u201d 79. Observing that economic offences constitute a class apart and need to be visited with different approach in the matter of bail, in Y.S. Jagan Mohan Reddy v. CBI (2013) 7 SCC 439, the Supreme Court held as under:- \u201c34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. 35. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations.\u201d [underlining added] 80. Referring to Dukhishyam Benupani, Assistant Director, Enforcement Directorate (FERA) v. Arun Kumar Bajoria (1998) 1 SCC 52, in Enforcement Officer, Ted, Bombay v. Bher Chand Tikaji Bora and others (1999) 5 SCC 720, while hearing an appeal by the Enforcement Directorate against the order of the Single Judge of the Bombay High Court granting anticipatory bail to the respondent thereon, the Supreme Court set aside the order of the Single Judge granting anticipatory bail. 81. Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation. Having regard to the materials said to have been collected by the respondent-Enforcement Directorate and considering the stage of the investigation, we are of the view that it is not a fit case to grant anticipatory bail. 82. In a case of money-laundering where it involves many stages of \u201cplacement\u201d, \u201clayering i.e. funds moved to other institutions to conceal origin\u201d and \u201cinterrogation i.e. funds used to acquire various assets\u201d, it requires systematic and analysed investigation which would be of great advantage. As held in Anil Sharma, success in such interrogation would elude if the accused knows that he is protected by a pre-arrest bail order. Section 438 Cr.P.C. is to be invoked only in exceptional cases where the case alleged is frivolous or groundless. In the case in hand, there are allegations of laundering the proceeds of the crime. The Enforcement Directorate claims to have certain specific inputs from various sources, including overseas banks. Letter rogatory is also said to have been issued and some response have been received by the department. Having regard to the nature of allegations and the stage of the investigation, in our view, the investigating agency has to be given sufficient freedom in the process of investigation. Though we do not endorse the approach of the learned Single Judge in extracting the note produced by the Enforcement Directorate, we do not find any ground warranting interference with the impugned order. Considering the facts and circumstances of the case, in our view, grant of anticipatory bail to the appellant will hamper the investigation and this is not a fit case for exercise of discretion to grant anticipatory bail to the appellant. 83. In the result, the appeal is dismissed. It is for the appellant to work out his remedy in accordance with law. As and when the application for regular bail is filed, the same shall be considered by the learned trial court on its own merits and in accordance with law without being influenced by any of the observations made in this judgment and the impugned order of the High Court. \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026..J. [R. BANUMATHI] \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026..J. [A.S. 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{"id": "1011232", "text": "PETITIONER: ACHUTANANDA PUROHIT AND ORS. Vs. RESPONDENT: THE STATE OF ORISSA DATE OF JUDGMENT26/03/1976 BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. CHANDRACHUD, Y.V. UNTWALIA, N.L. CITATION: 1976 AIR 2118 1976 SCR (3) 919 1976 SCC (3) 183 ACT: Orissa Estates Abolition Act, 1951-Secs. 26-27- Constitution of India Articles 31A-31B-31(2)-31(3)-Agrarian reform-Whether interest at market rate or statutory rate- Calculation of compensation. HEADNOTE: The appellant was the intermediary in respect of vast forest and other lands in the State of Orissa. The estates vested in the State in April 1960 by force of the Orissa Estates Abolition Act, 1951. The appellant submitted necessary return for compensation as provided by the Act. The Compensation Officer passed an order adverse to the appellant whereupon the appellant filed an appeal to the Collector which was rejected. A second appeal filed before the Board of Revenue was dismissed. Later on, Revision Petitions were filed in the High Court. The High Court set aside the order and directed remand to the Compensation Officer. Thereafter, the District Forest Officer made his appraisal of the annual income and submitted to the Chief Conservator of Forests who altered the actual yield and reduced it substantially. Both the State and the appellant filed appeals to the Collector which were dismissed. A second appeal was filed by the appellant before the Board of Revenue without success. In the Revision Applications filed before the High Court which led to the remand now challenged in the present appeals the appellant contended before this Court: (1) The interest ought to have been awarded at 12 per cent as against the statutory rate of 2 1/2 per cent from the date of the vesting till payment. (2) Compensation money should be so calculated that the purchasing power of the amount of compensation to be paid on the date of actual payment will not be less than the purchasing power on the date of vesting. (3) The slab-system of calculation of compensation in the Act providing smaller multiples for estates yielding larger income is unconstitutional. (4) Unlike in case of fisheries etc., where the actual income is to be included in the gross assets, in the case of forests, the assumed income and not the actual income is to be included. During the agricultural year immediately preceding the abolition, the petitioners had not actually derived any income from the forests and as such they were under no obligation to pay any income tax on such income. Therefore, deduction of income tax from the gross assets is illegal and unwarranted. (5) The compensation has not been computed in accordance with the scheme of the Act. (6) The date of vesting is the last date by which the calculation of compensation should have been made and since that had not been done the Compensation Officer had become functus officio in awarding compensation. Dismissing the appeals, ^ HELD: 1. The policy of the law of agrarian reforms postulates the extinguishment of ancient privileges and cornering of land resources and the socio-economic yardstick is different from what applies to ordinary purchases of real estate and this is manifest in the special provisions contained in Article 31A and 31B of the Constitution. A similar principle applies to the award of interest which may sometimes be notional when feudal interests are puffed out. The 920 dynamic rule of law with a social mission makes a meaningful distinction between rights steeped in the old system and compensation for deprivation of those interests on the one hand and the ordinary commercial transactions on the other. [923 F-G] 2. It is more or less a world phenomenon that the erosion in value of the unit of currency has been taking place. But this invisible devaluation owing to the inflationary spiral does not affect the quantum of monetary compensation prescribed by statute. For the purposes of the law, the rupee of long ago is the same as the rupee of today although for the purposes of the, market place and cost of living, the housewife's answer may be different. [924B-C] 3. Article 31(3) read with Article 31(2) bars any challenge to the amount of compensation on acquisition by the State subject to the compliance with the prescriptions in the said sub articles on the ground that the amount so fixed or determined is not adequate. Presidential assent has been accorded to this State Act and so the ban operates. [924C-D] 4. The submission of the appellant proceeds on a misreading of section 27. In the case of forests it is the assumed and not the actual income that forms the basis for calculation of compensation. Similarly an assumed income tax also has to be worked out and deducted. [924F-G] 5. The scheme of the Act is that the compensation must be calculated on the basis of appraisal of the annual yield of the forests on the date of vesting firstly by a Forest Officer and secondly by the Chief Conservator of Forests,screening it and approving it. In the present case, the Chief Conservator had substituted his appraisement which was accepted by the statutory Tribunal. There was a fundamental difference in the basis adopted by the Forest Officer and the Chief Conservator of Forests in the matter of assessing in the income of the Forest in question. What the Chief Conservator did was not to approve wholly or in a modified form what the Forest Officer did but to make his own appraisal independently and without reference to the report of the statutory functionary. This was wrong and contrary to section 26. This Court is in agreement with the course adopted by the High Court and the reasoning which has prevailed with it. [925C, 927A-B] 6. Before the date of vesting the State never can nor does fix the compensation through the Compensation Officer in any of the agrarian reform laws and these compensation operations are post-statutory exercises. Therefore, there is no substance in the funtcus officio argument. If the officer had no jurisdiction the land would be gone because of the vesting provision and no compensation would be forthcoming for want of jurisdiction; a consequence the appellant never wants. Technicality can be frightened away by technicality. [927D-E] 7. After remand the Forest Officer will do the appraisement of the annual income, forward his report to the Chief Conservator of Forests who will take the said report into consideration and, if necessary, make the modifications therein or approve it with such changes as he deems fit. Certainly, the Chief Conservator cannot be ignored by the Compensation Officer nor can the Chief Conservator ignore the assessment made by the Forest Officer and go through an independent exercise. The take over of the forest of the appellant was effected as early as in 1960. The High Court has stated that a large part of the delay has been due to laches committed from time to time by the officers charged with the duty to calculate the compensation. It is therefore directed that the proceedings before the Compensation Officer shall be completed within six months from today. [927F-H, 928A-B] JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 312 to 314 of 1972. Appeals by Special Leave from the Judgment and Order dated the 19-3-71 of the Orissa High Court in C.W. Nos. 325 to 327/70. Appellant No. 1 in person and D. N. Misra for the Appellants. Gobind Das and G. S. Chatterjee for the Respondent. The Judgment of the Court was delivered by. KRISHNA IYER, J. Three civil appeals, stemming from three revision petitions to the High Court of Orissa under the Orissa Estates Abolition Act, 1951 (Orissa Act I of 1952) (for short, the Act) have reached this Court, thanks to special leave granted to the appellant, who is common in all the cases. The High Court, after deciding various issues, remanded the cases to the Compensation Officer under the Act, after over-ruling most of the contentions pressed before it by the appellant. Shri Achutananda Purohit, appellant, was the intermediary in respect of vast forests and other lands comprised in the estate of Jujumura in the district of Sambalpur. This estate vested in the State on April 1, 1960 by force of the Act and the crucial question agitated before us, consequentially turns on the quantum of compensation awardable under Chapter V of the Act. The appellant has received around Rs. 3,00,000/- but much more, according to him, is due and this controversy can be settled by examining his specific points. Shri Purohit, appellant, is an Advocate by profession and is 83 years old. He has argued in person and with passion. We have listened with patience to all his submissions, good, bad and indifferent. If we may anticipate ourselves, none of the nine submissions has appealed to us, save to the extent the High Court has upheld. Even so, a minimal narration of the facts and a brief consideration of each argument is necessary and we proceed to do so. While his arguments did not impress us, we were touched by his concluding words that he had been born and had grown in an adivasi village, in the only brahmin family and, in his evening years of life, proposed to give a substantial part of the compensation the State would give him for adivasi welfare. Although he waxed sentimentally on this note, he did not convince us on his contentions. With these prefatory observations, we proceed to formulate the many points urged and give our findings and reasons, one after the other. We are directly concerned with the issue of compensation which is dealt with, as earlier stated, in Chapter V of the Act. The Compensation Officer is charged with fixing the quantum in the prescribed manner. A compensation assessment roll containing the gross asset and net income of each estate, together with the compensation payable in respect of such estate, has to be prepared by him. Of course, when there is joint ownership, s. 24 stipulates that the compensation shall be determined for the estate as a whole and not separately for each of the shares therein. Section 26 has great relevance as it lays down the method of arriving at the gross asset and s. 27 has like significance as it focuses on the manner in which the net income from an estate shall be computed by deducting certain items from the gross asset of the estate. Section 28 states how the amount of compensation is to be determined and the methodology of payment. There are a few other sections in Chapter VI which deal with payment of compensation. The Act also provides for appeal, second appeal and revision, the last being to the High Court and the earlier ones being to the Collector and a Board constituted under s. 22. The rule-making power is vested in the government under s. 47 and there is a routine 'removal of difficulties' clause contained in s. 50. These furnish in bare outline the provisions with which we are directly concerned. Against the background of law just projected, we may set out Shri Purohit's points which, if we may say so, are substantially the same as have been argued by him in revision before the High Court with partial success. For convenience of reference, we may extract the statement by the High Court of the contentions urged before it (and repeated before us) by the appellant: \"(1) The provisions of s. 37(3) read with s. 26(2) (b) (v) of the Act make it clear that the date of vesting is the last date by which the calculation of compensation should have been made. As admittedly compensation had not been calculated by the date of vesting, the Compensation Officer lost his statutory jurisdiction to do so. It is this Court which, by its order dated 10-4-1969 in Civil Revisions 201, 202 and 203 of 1968 conferred new jurisdiction on the Compensation Officer to deal freshly with the case and therefore notwithstanding anything contained in the Act, the compensation has to be calculated according to the directions given by the Court; (2) The Court was fully aware of the statutory provision in s. 26(2) (b) (v) of the Act, but in spite of it, the direction was that the Divisional Forest Officer should make the appraisement. There was no direction that this report of the D.F.O. should be further subject to the approval of the Chief Conservator of Forests. The calculation made by the Chief Conservator of Forests therefore has no statutory force but could be just a piece of evidence. But as the Court directed that no further evidence on behalf of the State should be received, Ext. A/1 is inadmissible in evidence. (3) Assuming that in spite of the directions of the court the Compensation Officer is entitled to follow the procedure laid down in Section 26(2)(b)(v), the expression 'subject to the approval of the Chief Conservator of Forests' does not refer to the appraisement made by the D.F.O. but refers to his appointment. (4) Assuming that s. 26(2) (b) (v) would have full force, what it contemplates is that the appraisement must be made by the D.F.O., and it is subject to the approval by the Chief Conservator of Forests. But what has happened here is that the Chief Conservator himself made the appraisement without referring to the appraisement made by the D.F.O. and as such the appraisement made by the Chief Conservator is invalid. (5) The report of the Chief Conservator of Forests is also invalid because of the fact that the appraisement is made only with reference to the area of the disputed forests without taking into consideration the density of growth therein; (6) Unlike in case of fisheries etc., where the actual income is to be included in the gross assets, in the case of forests, the assumed income and not the actual income is to be included. During the agricultural year immediately preceding the abolition, the petitioners had not actually derived any income from the forests and as such they were under no obligation to pay any income-tax on such income. Therefore, deduction of income-tax from the gross assets is illegal and unwarranted. (7) The slab-system of calculation of compensation in the Act providing smaller multiples for estates yielding larger income is unconstitutional. (8) Compensation money should be so calculated that the purchasing power of the amount of compensation to be paid on the date of actual payment will not be less than its purchasing power on the date of vesting; and (9) Interest should be calculated at not less than 12% per annum from the date of vesting till payment.\" The meat of the matter, the primary question agitated in the appeal, lopping off the fringe issues of lesser import, consists in the statutory methodology and functionaries prescribed by the Act for quantifying the compensation and the compliance therewith by the statutory machinery in the case of the appellant. But before examining this essential issue we may dispose of the minor points pressed, so that the deck may be cleared for dealing with what deserves to be dealt with. Point No. 9, in the catalogue already given, relates to the claim for 12% interest on the amount of compensation as against the statutory rate of 2 1/2%. The policy of the law of agrarian reform postulates the extinguishment of ancient privileges and cornering of land resources, and the socio- economic yardstick is different from what applies to ordinary purchases of real estate and this is manifest in the special provisions contained in Art. 31A and Art. 31B of the Constitution. A similar principle applies to the award of interest which may sometimes be notional when feudal interests are puffed out. We cannot import the notion of prevailing bank rates in such situations. The dynamic rule of law, with a social mission, makes a meaningful distinction between rights steeped in the old system and compensation for deprivation of those interests, on the one hand, and the ordinary commercial transactions or regulation of rights untinged by social transformation urges, on the other. This gives rationality to the seeming disparity. Holmes once commented: 'It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV'. Here there is good reason to depart from the old rule of full compensation and it perhaps legitimates the reduced rate of recompense. Moreover, the High Court has rightly pointed out that the validity of s. 37(3) of the Act which fixes a small rate of interest on the compensation amount has been upheld by the Supreme Court in Gajapati Narayan's Case(1). Point No. 8 has only to be stated to be rejected. The contention is that on the date of vesting, which was well over two decades ago, the purchasing power of the rupee was much higher than its present value. It is more or less a world phenomenon that the erosi on in value of the unit of currency has been taking place, but this invisible devaluation owing to the inflationary spiral does not affect the quantum of monetary compensation prescribed by statute. For the purposes of the law, the rupee of long ago is the same as the rupee of today, although for the purposes of the market place and cost-of living, the housewife's answer may be different. Law is sometimes blind. The next point in the reverse order is equally unsubstantial and may be disposed of right away. The appellant challenges the slab system of compensation provided in the Act which awards smaller multiples for estates yielding larger incomes, on the score of violation of the fundamental rights under the Constitution. The short answer is that Art. 31(3) read with Art. 31(2) bars any challenge to the amount of compensation on acquisition by the State subject to compliance with the prescriptions in the said sub-Articles, on the ground that the amount so fixed or determined is not adequate. Presidential assent has been accorded to this State Act and so the ban operates. Moreover, Art. 31A repels the applicability of Arts. 14, 19 and 31 to the acquisition by the State of any estate or of any rights therein etc. This provision directly demolishes the contention of the appellant. Point No. 6 in the list of contentions earlier reproduced is also bereft of force and we may make short shrift of it. The argument is that for certain reasons the appellant could not derive and actual income from the forests taken over by the State from him and therefore there was no income-tax payable on any agricultural income from these forests. The contention is that therefore in arriving at the next income the deduction of income-tax is not permissible. Here again, the flaw in the submission consists in mis-reading s. 27 of the Act which expressly states that the net income from an estate shall be computed by deducting from the gross assets of such estate any sum 'which was payable by the intermediary as income-tax in respect of any income ..... derived from such estate for the previous agricultural year'. No income, therefore no income-tax, and therefore no deduction, is the syllogism of Shri Purohit. He forgets that in the case of forests it is the assumed income and not the actual income that forms the basis of calculation of compensation. Indeed, if the actual income were to be the foundation for computation of compensation on the premise that not actual income has accrued, the compensation might be zero. On the other hand, statutory compensation is provided for on the formula of assumed income in the previous year. Similarly, an assumed income- tax also has to be worked out and deducted. If a notional income on the assumed basis can be used for fixing compensation, a notional income-tax can be calculated and deducted. The confusion that vitiates the argument is prompted by a circular letter of government regarding non- deductability of income-tax due to the State from the amount of compensation lying to the credit of estateholders. We have examined the circular letter and are satisfied that it has no relevance to a situation like the present and it deals with a totally different matter. In short, s. 27 properly construed, can not lend itself to the meaning imputed to it by the appellant. The serious question that survives for consideration is covered by the remaining points which more or less overlap. The statutory scheme of compensation for forest lands consists of a machinery for assessment of the net income which is multiplied on a sliding scale and the method of challenge to the determination by the aggrieved owner of State. Section 26(2) (b) (v) is relevant here and may be set out: \"26(2) 'gross asset' when used with reference to an estate means the aggregate of the rents, including all cesses, which were payable in respect of the estate for the previous agricultural year- (b) by the raiyats or any other persons cultivating the land other than the land settled with the intermediary or intermidaris under Sub-section (1) of Section 7 and includes:- (v) gross income from forests calculated on the basis of the appraisement made of annual yield of the forests on the date of vesting by a Forest Officer subject to the approval of the Chief Conservator of Forests, such Forest Officer being not below the rank of a Divisional Forest Officer to be appointed in this behalf by the State Government.\" The expression 'Forest Officer', used here, has been explained in s. 26. So the first step is for the Government to appoint Forest Officers from out of D.F.Os. in the Forest Department, for the purposes of the Act. Those Officers ascertain the income from the forest concerned and the figure so fixed is subject to the approval of the C.C.F. (Chief Conservator of Forests), presumably the top expert in the department. The power to approve implies the power to disapprove or modify but not to report or arrive at an income de hors the Forest Officer's Report altogether. The section is clear that the gross income from forests must be calculated on the basis of appraisal of the annual yield on the date of vesting firstly, by a Forest Officer and, secondly, by the Chief Conservator of Forests screening it and approving it. Indeed, preliminary to the appraisal operation, the intermediary receives a notice in Form 'D' (rule 13) and he is expected to furnish a return of the relevant particulars and supporting information to enable correct appraisement. In the present case, the appellant did submit the 'D' return to the Compensation Officer and adduced some evidence to substantiate it. The Compensation Officer passed an order adverse to the appellant, where upon he filed an appeal to the Collector which was rejected. A Second Appeal followed before the Board of Revenue which was dismissed. Later, revision petition were filed before the High Court and G. K. Misra J., set aside the order disallowing the inclusion of the income from forests for ascertainment of compensation and directed a remand to the Compensation Officer. The said order (the relevant portion of which we are concerned) runs thus: \"He would immediately call upon the Divisional Forest Officer to make appraisement within three months from the receipt of the record. The appraisement can be scientifically done by looking to the age of the trees as they stand now. It is open to the petitioners to give evidence that after the date of vesting many of the trees and forest produce have been removed. Besides the evidence already on record would be taken into consideration. The Divisional Forest Officer who would make the appraisement will be examined as a witness for the Compensation Officer and would be subjected to cross-examination. No other evidence would be permissible as the State has not chosen to give any other evidence. Under Rule 13(1-c) of the Orissa Estates Abolition Rules, 1952 the compensation officer may rely upon such other materials as may otherwise be ascertained by him. But in such a case the materials must be brought to the notice of the petitioners who would be entitled to cross-examine the witnesses connected therewith and may give rebutting evidence. The compensation case is to be disposed of by the compensation officer within six months from today (10- 4-1969) with intimation to this Court.\" Strictly speaking, the statutory requirement is for initial appraisal of the annual income by the Forest Officer. The use of the expression 'Divisional Forest Officers is erroneous although Forest Officers are appointed from among Divisional Forest Officers. Equally clearly, a slight error has crept into the Judge's order because he does not make any reference specifically to the statutory requirement of approval of the Chief Conservator of Forests of the appraisement made by the Forest Officer. However, what followed is interesting though erroneous. The District Forest Officer (who, incidentally, happens to be a Forest Officer under the Act, having been appointed as required thereunder) made his appraisal of the annual income and submitted to the Chief Conservator who altered the annual yield and reduced it substantially. But he pointed out that the Forest Officer had omitted to include the income from kendu leaves and added that sum to the income from forests. Even so, the total figure was less than what the Divisional Forest Officer had recommended. The Compensation officer accepted the report of the Chief Conservator and made the statutory calculation on that date. Both the State and the appellant filed appeals to the Collector which were dismissed. A second appeal was filed by the appellant before the Board of Revenue without success. Then followed three revision petitions to the High Court which led to the order of remand now attacked before us in the present appeals. From this narrative, what follows is that the Chief Conservator had substituted his appraisement which was accepted by the statutory tribunal. Indeed, there was a fundamental difference in the basis adopted by the Forest Officer and the Chief Conservator in the matter of assessing the income of the forests in question. We need not go into this detail except for the purpose of noticing that what the Chief Conservator did was not to approve wholly or in a modified form what the Forest Officer did but to make his own appraisal independently and without reference to the report of the statutory functionary, viz., the Forest Officer. This was wrong and contrary to s. 26, as was contended by the appellant and in a way accepted by the High Court. We are in agreement with the course adopted by the High Court and the reasoning which has prevailed with it. The direction given by the learned Judge in the remand order is correct although it may require a little clarification. Having heard the appellant at some length, we see no flaw in the High Court's order on this aspect of the matter. It is astonishing that anyone should urge, as the appellant did, that the date of vesting is the last date by which the calculation of compensation should have been made and since that had not been done, the Compensation Officer had become functus officio in awarding compensation. Before the date of vesting the State never can, nor does, fix the compensation through the Compensation officer in any of the agrarian reform laws, and these compensation operations are poststatutory exercises. Therefore there is no substance in the functus officio argument. If the officer had no jurisdiction, the land would be gone because of the vesting provision and no compensation would be forthcoming for want of jurisdiction-a consequence the appellant never wants. Technicality can be frightened away by technicality. Nor is it right to contend, as the appellant did, that the Compensation Officer's jurisdiction was created by the order of remand by the High Court. No, it was created by the statute and canalised by the order of remand. It follows that, after the present second remand, the re-appraisal of the annual net income cannot be done solely by the Forest Officer without securing the approval of the Chief Conservator. Nor can the Compensation Officer by-pass the Chief Conservator on the misunderstood strength of the High Court's first order of remand. The true legal drill is- and this holds good after the second remand order-that the Forest officer will do the appraisement of the annual income, forward his report to the Chief Conservator of Forests who will take the said report into consideration and, if necessary, make modifications therein or approve it with such changes as he deems fit. Certainly the Chief Conservator cannot be ignored by the Compensation Officer nor can the Chief Conservator ignore the assessment made by the Forest Officer and go through an independent exercise. The integrated process has already been explained by us and will be followed in the proceedings to ensue on remand. We may make it clear that now that a Forest officer has made an appraisement, the Chief Conservator of Forests will apply his mind to it and approve it as a whole or with such modifications as he thinks necessary and forward it to the Compensation Officer. This will, among other things, save time. Thereafter, the appropriate statutory course will follow. Substantially, this is what has been done by the learned Judge when allowing the revisions and remitting the case back to the Compensation Officer. The take-over of the forests of the appellant was effected as early as 1960 and 16 years have passed without the intermediary being out of the litigative woods. The High Court has stated that a large part of the delay has been 'due to laches committed from time to time by the Officers who have been charged with the duty to calculate the compensation. It is again due to mistakes committed by the authorities concerned that the matter is being remitted back to the Compensation Officer for disposal'. The force of these observations constrains us to direct that the proceedings before the Compensation Officer shall be completed within six months from today. In this context, it is perhaps not irrelevant to remember that the appellant, a freedom-fighter, is an 83-year-old man and, at this stage of his life, the State should show commisseration not merely in quickly disposing of the proceedings but also in not being cantankerous in awarding and disbursing the balance compensation. With these directions and observations we affirm the orders under appeal but, while dismissing the appeals, direct the parties to bear their costs in this Court. P.H.P. 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{"id": "156503", "text": "PETITIONER: MOHAN LAL SHAMLAL SONI Vs. RESPONDENT: UNION OF INDIA AND ANOTHER DATE OF JUDGMENT22/02/1991 BENCH: PANDIAN, S.R. (J) BENCH: PANDIAN, S.R. (J) REDDY, K. JAYACHANDRA (J) CITATION: 1991 AIR 1346 1991 SCR (1) 712 1991 SCC Supl. (1) 271 JT 1991 (3) 17 1991 SCALE (1)401 ACT: Code of Criminal Procedure 1973-Section 311 (Corresponding to section 540 of the old code)-Summoning of person as witness-Recall or re-examine of such person- Juridiction of Court-To be dictated by exigency of situation and fair play. HEADNOTE: Appellant's business and residential premises were raided by the Customs Department as a result whereof gold ingots with foreign marks, gold ornaments, silver bricks, coins and a cash of Rs.79,000 was seized. The Assistant Collector of Customs filed two separate complaints relating to the said incident against the appellant before the Judicial magistrate, one for violating the provisions of Customs Act, 1962 and the other under the Gold Control Act, 1968. In the trial, after the close of evidence by both sides, prosecution as also defence, arguments were advanced on behalf of the accused appellant. The prosecution at that stage before commencing its arguments filed two applications in both the cases, under Section 540 of the Old Code (corresponding to section 311 of the new Code) requesting the trial court to recall one witness viz., the Seizing officer, and issue summons to two more witnesses for examination either as prosecution witnesses or as court witnesses. The trial magistrate rejected both the application and the revision petitions preferred by the respondents against that order failed before the Sessions Judge. The Union of India thereupon preferred two revision applications before the High Court. The State of Gujarat also preferred separate revision applications before the High Court. The High Court allowed the revision petitions and directed examination of the three witnesses sought to be summoned. Being aggrieved the appellant has filed these appeals after obtaining special leave against the decision of the High Court, in the revision applications filed by the Union of India. No appeal has been filed against the order passed by the High Court in the revision applications filed before it, by the State of Gujarat. The main contention of the appellant is that the High Court erred in allowing the second revision application in view of the provisions of section 397(3) of the new Code thus permitting the prosecution to fill up the lacuna and plug the loopholes in its case which is prejudicial to the appellant. 713 Dismissing the appeals, this Court, HELD: Though Section 540 (Section 311 of the new Code) is, in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court should be exercised, or with regard to the manner in which they should be exercised, that power is circumscribed by the principle that underlines section 540, namely, evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means. The aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capricicously or arbitrarily. Due care should be taken by the court while exercising power under this section and it must not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties. [721B-E] Whenever any additional evidence is examined or fresh evidence is admitted against the accused, it is absolutely necessary in the interests of justice that the accused should be afforded a fair and reasonable opportunity to rebut that evidence brought on record against him. [725E] The Criminal court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the court and must obviously be dictated by exigency of the situation, and fair-play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case. [724C-D] The facts and circumstances of the case require the examination of these three witnesses for a just decision of the case as held by the High Court. [726G] Jamatraj Kewalji Govni v. State of Maharashtra, [1967] 3 SCR 415; Rameshwar Dayal v. State of U.P., [1978] 2 SCC 518; State of West Bengal v. Tulsidas Mundhra, [1963] 2 S.C.J. 204 at 207; Masalti v. State of U.P., AIR 1965 S.C.202; Rajeshwar Prasad Misra v. State of West Bengal and Anr., [1966] 2 S.C.R. 178; R.B. Mithani v. 714 Maharashtra, AIR 1971 S.C. 1630; Channu Lal v. R., AIR 1949 All 692; Rengaswami Naicker v. Muruga Naicker, AIR 1954 Mad 169; Shugan Chand v. Emperor, AIR 1925 Lah 531 and The Queen v. Assanoolah, 13 SWR (Crl.) 15, referred to. Mir Mohd. Omar and Others v. State of West Bengal, [1989] 4 SCC 436, distinguished. JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 4 & 5 of 1979. From the Judgment and Order dated 21.3.1978 of the Gujarat High Court in Criminal Revision Application Nos. 98 and 97 of 1978. S.K. Kulkarani and P.C. Kapur (NP) for the Appellant. Arun Jetley, Additional Solicitor General, Ms. Indu Malhotra, M.N. Shroff, P. Parmeshwaran, Ms. A. Subhashini, Ms. Ayesha Karim and P.K. Mullick for the Respondents. The Judgment of the Court was delivered by S. RATNAVEL PANDIAN J. These criminal appeals by special leave granted under Article 136 of the Constitution of India are preferred by the appellant questioning the correctness of the judgment of the Gujarat High Court in Criminal Revision Application Nos. 98 and 97 of 1978 whereby the High Court set aside the judgment and orders dated 2.1.1978 of the Sessions Judge, Kutch at Bhuj made in Criminal Revision Application Nos. 46 and 45 of 1976 confirming the orders dated 19.6.76 passed by the Judicial Magistrate, First Class, Kutch in Application Exh. Nos. 94 and 98 in Criminal Case Nos. 929 and 930 of 1973 respectively. The factual matrix that have relevance to the questions, raised and canvassed at the hearing may be briefly stated. A raid conducted by the officers of the Customs Department in the business-cum-residential premises of the appellant on 17.9.1971 resulted in the seizure of some gold Lagadis bearing foreign marks, primary gold, gold ornaments and silver bricks, coins etc. to the value of about Rs.8,48,422. During the said raid a sum of Rs.79,000 was also seized. In respect of this incident, the Assistant Collector of Customs filed two separate complaints on 26.11.1973 against the appellant in the court of the Judicial Magistrage, First Class, Anjar, being criminal cases Nos. 929 and 930 of 1973 for offences punishable (1) under the provisions of the Customs Act 1962 and (2) under the Gold Control Act 1968. After examination of the prosecution as well as the defence witnesses and recording of the statements of the appellants under Section 342 of the old Code of Criminal Procedure (hereinafter referred to as the Code') arguments were advanced on behalf of the appellant/accused. The prosecution at this stage before commencing its arguments filed two applications both the cases under Section 540 of the old Code (corresponding to Section 311 of the new Code) requesting the Trial Court to recall Mr. Mirchandani (the Seizing Officer) for further examination and to issue summons to two more witnesses, namely, Mr. K.K. Das, Assistant Collector of Customs and the Deputy Chief Officer (Assayer) of Mint Master, Bombay for examination either as prosecution witnesses or as court witnesses as cotemplated under the said provision. The learned Judicial Magistrate passed two orders rejecting the applications which orders, on revision by the respondents were confirmed by the session's Judge on being aggrieved by the said revisional orders, the Union of India (the first respondent herein) preferred two Criminal Revision Applications Nos. 97 and 98 of 1978. The second respondent, namely, the State of Gujarat also preferred two other Criminal Revision Application Nos. 124 and 125 of 1978. The High Court by its Common Judgment, though heavily criticised the conduct of the prosecution for its deplorable and lethargic attitude in not carefully and promptly conducting the proceedings allowed all the Criminal Revisions for the reasons assigned therein holding thus: \"In view of what has been stated above, I accept the four petitions filed in this court by the Union of India, and the State of Gujarat, and direct the Union of India to examine the aforesaid three witnesses within a period of fortnight after the receipt of the order of this court to the trial court. After the Union of India examines the aforesaid three witnesses as aforesaid, it will be open to the accused to cross-examine all the witnesses examined by the Union of India before the learned Magistrate. Feeling aggrieved by the judgment of the High Court, these two appeals are preferred by the appellant. In this context, it is pertinent to note that the appellant has not directed any appeal against the judgment of the High Court in allowing the two other Revision Application Nos. 124 and 126 of 1978 filed by the Gujarat Government which were also allowed by the High Court. The learned counsel appearing on behalf of the appellant vigorously challenged the legality of the impugned judgment inter-alia contending that the High Court has gravely erred in allowing the second revision petitions filed by the respondent by ignorning the weighty reasons given by the Trial Magistrate and the Section Judge (before whom the first revision was filed) and thereby in permitting the respondent-the Union of India-to examine the three witnesses as prayed by it, notwithstanding that the case was pending before the Trial Court for considerable length of time and the defence argument was concluded and that the High Court, by the impugned order has permitted the prosecution to bolster up its case by filling up the lacuna and plugging the loopholes which if carried out would be detrimental and prejudicial to the appellant. The next legal submission made on behalf of the appellant is that the entertainment of the second revision by the High Court is in violation of sub-sections (2) and (3) of Section 397 of the new Code since the order passed by the Magistrate was an interlocutory order and that even assuming that it was not so, the second revision by the same affected party is not entertainable. Before adverting to the arguments advanced on behalf of the appellant, we would examine in general the scope and intent of Section 540 of the old Code (corresponding to Section 311 of the new Code). Section 540 was found in Chapter XLVI of the old Code of 1898 under the heading \"Miscellaneous'. But the present corresponding Sections 311 of the new Code is found among other Sections in Chapter XXIV under the heading 'General Provisions as to Enquiries and Trials'. Section 311 is an almost verbatim reproduction of Section 540 of the old Code except for the insertion of the words 'to be' before the word 'essential' occurring in the old Section. This section is manifestly in two parts. Whereas the word 'used' in the first part is 'may' the word used in the second part is 'shall'. In consequence, the first part which is permissive gives purely discretionary authority to the Criminal Code and enables it 'at any stage of enquiry' trial or other proceedings' under the Code to act in one of the three ways, namely, (1) to summon any person as a witness or (2) to examine any person in attendance, though not summoned as a witness, or (3) to recall and re-examine any person already examined. The second part which is mandatory imposes an obligation on the Court- (1) to summon and examine, or (2) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. The very usage of the words such as 'any court', 'at any stage', or 'of any enquiry, trial or other proceedings', 'any person' and 'any such person' clearly spells out that this section is expressed in the widest possible terms and do not limit the discretion of the Court in any way. However, the very width requires a corresponding caution that the discretionary power should be invoked as the exigencies of justice require and exercised judically with circumpection and consistently with the provisions of the Code. The second part of the Section does not allow for any discretion but it binds and compels the Court to take any of the aforementioned two steps if the fresh evidence to be obtained is essential to the just decision of the case. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. Nonetheless if either of the parties with-holds any evidence which could be produced and which, if produced, be unfavorable to the party withholding such evidence, the court can draw a presumption under illustration (g) to Section 114 of the Evidence Act. In such a situation a question that arises for consideration is whether the presiding officer of a Court should simply sit as a mere umpire at a contest between two parties and declare at the end of combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice? It is a well accepted and settled principle that a Court must discharge its statutory functions-whether discretionary or obligatory-according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done. In order to enable the Court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the New Code) are enacted whereunder any Court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated. There are various other provisions in the new Code corresponding to the provision of the old Code empowering the court specified therein to recall any witness or witnesses already examined or summon any witness, if it is felt necessary in the interest of justice at various stages mentioned in the concerned specific provisions. A Judge under Section 236 (Section 310 old Code) or a Magistrate under Section 248(3) (Section 251-A(13) and 255-A old Code) is empowered to take evidence in respect of the previous convictions of the accused person concerned if he is charged with the previous conviction under sub-section (7) of Section 211 and if he does not admit the previous conviction. Under Section 367 (Section 375 old Code) if, when sentence of death passed by the Court of Sessions is submitted for confirmation to the High Court under Section 366(1) (Section 374 of the old Code), the High Court thinks that a further enquiry should be made into or additional evidence taken upon, any point bearing upon the guilt or innocence of the convicted person, it may make such inquiry or take such evidence itself or direct it to be made or taken by the Court of Session. Under Section 391 (Section 428 of old Code) the Appellate Court while dealing with any appeal under Chapter XXIX, if thinks additional evidence to be necessary, may after recording its reasons either take such evidence itself or direct it to be taken by a subordinate Court as the case may be. Under Section 463(2) (Section 533 old Code) if any Court of Appeal, Reference and Revision before which confession or other statement of an accused recorded or purporting to be recorded under Section 164 or Section 281 (Section 364 of the old Code) is tendered, or has been received in evidence, finds that any of the provisions of either such sections have not been complied with by the Magistrate recording the statement, the Court may notwithstanding anything contained in Section 91 of the Indian Evidence Act take evidence in regard to such non- compliance and may, if satisfied that such non-compliance has not injured the accused in his defence on the merits and that he duly made the statement recorded, admit such evidence. Analogous to the above provisions of the Code of Criminal Procedure there are various provisions in the civil Procedure Code also enabling the civil Court to summon witnesses and examine them in the interest of justice. Under Order X Rule 2 of the Civil Procedure Code, the Court at the first hearing of the suit or at any subsequent hearing may examine any party appearing in person or present in Court or any person able to answer any material questions relating to the suit by whom such party or his pleader is accompanied. Under Order X Rule 14 the Court may of its own motion summon as a witness any person including the party to the suit for examination and the said Rule is under the caption \"Court may of its own accord summon as witnesses strangers to suit\" and Order XVIII Rule 17 empowers the Court to recall any witness who has been examined and may subject to Law of Evidence for the time being in force put such questions to him as it thinks fit. The powers of the Court under this Rule 17 are discretionary and very wide. Besides the above specific provisions under the Cr. P.C. and C.P.C. empowering the criminal and civil courts as the case may be, to summon and examine witnesses, a Judge in order to discover or to obtain proof of relevant facts is empowered under Section 165 of the Indian Evidence Act to exercise all the privileges and powers subject to the proviso to that section which power he has under the Evidence Act. Section 540 of the old Code (Section 311 of the new Code) and Section 165 of the Evidence Act may be said to be complementary to each other and as observed by this Court in Jamatraj Kewalji Govani v. State of Maharashtra, [1967] 3 SCR 415 \"these two sections between them confer jurisdiction on the Judge to act in aid of justice.\" The second part of Section 540 as pointed out albeit imposes upon the Court an obligation of summoning or recalling and re-examining any witness and the only condition prescribed is that the evidence sought to be obtained must be essential to the just decision of the case. Though any party to the proceedings points out the desirability some evidence being taken, then the Court has to exercise its power under this provision-either discetionary or mandatory-depending on the facts and circumstances of each case, having in view that the most paramount principle underlying this provision is to discover or to obtain proper proof of relevant facts in order to meet the requirements of justice. In this connection we would like to quote with approval the following views of Lumpkin, J. in Epps v. S., 19 Ga, 118 (Am), which reads thus: \"............it is not only the right but the duty of the presiding judge to call the attention of the witness to it, whether it makes for or against the prosecution; his aim being neither to punish the innocent nor screen the guilty, but to administer the law correctly ................................. ................................................... Counsel seek only for their client's success; but the judge must watch that justice triumphs.\" The law is clearly expounded in the case of Jamatraj Kewalji Govani (referred to above) wherein Hidayatullah, J as he then was, while speaking for the Bench about the unfettered discretionary power of the court as envisaged under Section 540 of the Code has stated thus: \"It is difficult to limit the power under our Code to cases which involve something arising ex- improviso which no human ingenuity could foresee, in the course of the defence. Our Code does not make this a condition of the exercise of the power and it is not right to embark on judicial legislation. Cases that go far are of course not quite right. Indeed they could be decided on fact because it can always be seen whether the new matter is strictly necessary for a just decision and not intended to give an unfair advantage to one of the rival sides ................................ ................................................... ................................................... It would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in court or to recall a witness already examined, and makes this the duty and obligation of the Court provided the just decision of the case demands it. In other words, where the court exercises the power under the second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the court is right in thinking that the new evidence is needed by it for a just decision of the case. If the court has acted without the requirements of a just decision, the action is open to criticism but if the court's action is supportable as being in aid of a just decision the action cannot be regarded as exceeding the jurisdiction.\" The next important question is whether Section 540 gives the court carte-blanche drawing no underlying principle in the exercise of the extra-ordinary power and whether the said Section is unguided, uncontrolled and uncanalised. Though Section 540 (Section 311 of the new Code) is, in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court should be exercised, or with regard to the manner in which they should be exercised, that power is circumscribed by the principle that underlines Section 540, namely, evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means. Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or the cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties. Fazal Ali, J in Rameshwar Dayal v. State of U.P., [1978] 2 SCC 518 while expressing his views about the careful exercise of its power by the court has stated: \"It is true that under Section 540 of the Criminal Procedure Code the High Court has got very wide powers to examine any witness it likes for the just decision of the case, but this power has to be exercised sparingly and only when the ends of justice so demand. The higher the power the more careful should be its exercise .................... The words, \"Just decision of the case\" would become meaningless and without any significance if a decision is to be arrived at without a sense of justice and fair play.\" In State of West Bengal v. Tulsidas Mundhra, [1963] 2 S.C.J. 204 at 207, it has observed: \"It would be noticed that this section confers on criminal Courts very wide powers. It is no doubt for the Court to consider whether its power under this section should be exercised or not. But if it is satisfied that the evidence of any person not examined or further evidence of any person already examined is essential to the just decision of the case, it is its duty to take such evidence. The exercise of the power conferred by section 540 is conditioned by the requirement that such exercise would be essential to the just decision of the case.\" At the risk of repetition it may be said that Section 540 allows the court to invoke its inherent power at any stage, as long as the court retains seisin of the criminal proceeding, without qualifying any limitation or prohibition. Needless to say that an enquiry or trial in a criminal proceeding comes to an end or reaches its finality when the order or judgment is pronounced and until then the court has power to use this section. The answer to the question like the one that has arisen in the present case is whether the court would be justified in exercising its power under Section 540 is found in Kewalji's case (albeit). In that case the appellant was prosecuted on two counts under Section 135(a) and (b) of the Customs Act. The appellant did not lead any evidence on his behalf but filed a written statement, claiming inter-alia that no offence had been disclosed against him, since no witness had deposed that the contraband had been seized from him under the Act in the reasonable belief that they were smuggled goods. The day after the statement was filed, the prosecution applied for examination of the customs officer who was incharge of the search as a court witness in the interest of justice. The Magistrate ordered the examination of the officer under Section 540 of the Code rejecting the objections raised by the appellant. Though an opportunity was given to the appellant to lead defence evidence, the appellant stated that he had nothing further to add and no evidence to lead. The Trial Court convicted the appellant who being aggrieved by the judgment of the Trial Court preferred an appeal to the High Court which dismissed the appeal. Before this Court it was contended that the evidence of the officer was improperly received. That contention has been repelled by this court observing \"This power is exercisable at any time and the Code of Criminal Procedure clearly so states\" and thereafter concluded \"it cannot be said that the Court had exceeded its jurisdiction in acting the second part of Section 540 of the Code of Criminal Procedure.\" Gajendragadkar, J. speaking for the Bench in Tulsidas Mundhra (cited supra) has pointed out as follows: \"Section 540 in terms applies at any stage of any enquiry, trial or other proceeding under this Code. This section is wide enough to include a proceeding under section 207-A and so, it would be unreasonable to contend that the scheme of section 207-A makes section 540 inapplicable to the proceeding governed by section 207-A. The power of the Court under section 540 can be exercised as much in regard to cases governed by section 207-A as in regard to other proceedings governed by the other relevant provisions of the Code.\" (It may be noted that section 207-A of the old Code in Chapter XVIII under the caption \"Enquiry into cases triable by the court of Session or the High Court\" dealt with the procedures to be adopted in proceedings instituted on police report and this provision is omitted in the new Code.) This Court in Kewalji's case (albeit) held that Chapter XXI of Cr. P.C. (old) under the heading \"Of the Trail of Warrant-cases by Magistrates\" does not restrict the powers of criminal court under Section 540. In Masalti v. State of U.P., AIR 1965 S.C. 202 wherein the defence did not opt to examine some witnesses who have been left out by the prosecution on the bona fide belief that those witnesses had been won over and the court also after due deliberation refused to exercise its power under Section 540; this Court while examining a submission that the Trial Court should have exercised its power under Section 540 and examined those witnesses expressed its opinion that \"that is one aspect of the matter which we have to take into account\"-that is in considering whether the accused were prejudiced or not. It has been held by this Court in Rajeswar Prasad Mora v. State of West Bengal & Anr.,[1966] 1 SCR 178 while dealing with the ample power and jurisdiction of the court in taking additional evidence as follows: \"Additional evidence may be necessary for a variety of reasons which it is hardly necessary (even if it was possible) to list here. We do not propose to do what the Legislature has refrained from doing, namely, to control discretion of the appellate Court to certain stated circumstances. It may, however, be said that additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it. The power must be exercised sparingly and only in suitable cases. Once such action is justified, there is no restriction on the kind of evidence which may be received. It may be formal or substantial.\" The above view has been reiterated in R.B. Mithani v. Maharashtra, AIR 1971 S.C. 1630. The principle of law that emerges from the views expressed by this court in the above decisions is that the Criminal Court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair-play and good sense appear to be the only safe guides and that only the requirements of justice command and examination of any person which would depend on the facts and circumstances of each case. What falls for determination now is whether the person indicated should be given an opportunity to rebut the evidence of the witness or witnesses summoned and examined under Section 540. This question came for determination in Rameshwar Dayal's case and this court answered that question thus: \"It was argued by counsel for the State that there is no provision in the Criminal Procedure Code which requires the court to allow the appellant an opportunity to rebut the evidence of witnesses recommended under Section 540 Cr. P.C. This argument, in our opinion, is based on a serious misconception of the correct approach to the cardinal principles of criminal justice. Section 540 itself incorporates a rule of natural justice. The accused is presumed to be innocent until he is proved guilty. It is, therefore, manifest that where any fresh evidence is admitted against the accused the presumption of innocence is weakened and the accused in all fairness should be given an opportunity to rebut that evidence. The right to adduce evidence in rebuttal is one of the inevitable steps in the defence of a case by the accused and a refusal of the same amounts not only to an infraction of the provisions of the Criminal Procedure Code but also of the principles of natural justice and offends the famous maxim audi alteram partem ............................... ................................................... A careful perusal of this provision manifestly reveals that the statute has armed the Court with all the powers to do full justice between the parties as full justice cannot be done until both the parties are properly heard the condition of giving an opportunity to the accused to rebut any fresh evidence sought to be adduced against him either at the trial or the appellate stage appears to us to be implicit under Section 540 of the Cr. P.C.\" See also Kewalji's case (cited above). This was the view taken by various High Court such as in Channu Lal v. R., AIR 1949 All. 692; Rengaswami Naicker v. Muruga Naicker, AIR 1954 Mad. 169; Shugan Chand v. Emperor, AIR 1925 Lah 531 and The Queen v. Assanoolah, 13 SWR (Crl.) 15. The views expressed in the above judgments of the various High Courts have been approved by this Court in Rameshwar Dayal's case. We are in full agreement with the above view of Fazal Ali, J and hold that whenever any additional evidence is examined or fresh evidence is admitted against the accused, it is absolutely necessary in the interest of justice that the accused should be afforded a fair and reasonable opportunity to rebut that evidence brought on record against him. With this legal background let us now turn to the challenge posed by the appellant in these appeals. The Trial Court and the First Revision Court rejected the request of the prosecution on three grounds, namely, first that the prosecution has attempted to fabricate evidence at a belated stage to fill up the lacuna in the prosecution case and secondly that the request of the prosecution for taking additional evidence was after the closure of the defence and thirdly a substantial prejudice would be caused to the appellant if the prosecution is allowed to adduce fresh evidence. As pointed out by the High Court in its impugned order, gold, silver ornaments of the value of Rs.8,48,482 and currency notes of Rs.79,000 have been seized from the premises, searched on the strength of the search warrant issued by Shri K.K. Das. What the appellant now contends is that the order of the High Court permitting the prosecution to recall one of the witnesses already examined and to summon two other new witnesses to prove the foreign makings on the legadis is in violation of the principle underlying Section 540. We waded through the entire records inclusive of the copies of depositions, search warrant and the application filed by the prosecution under Section 540 which are available in the file, forwarded by the High Court though those documents are not annexed with the SLP. The prosecution filed the petition for examination of the three witnesses stating that foreign ingots (lagadis) have been sized from the possession of the appellant and that warrant for search of the premises of the appellant/accused was issued in this regard by the Assistant Collector of Customs, namely Shri K.K. Das and hence fresh evidence is necessary for a just decision of the case. After perusing the depositions of the witnesses already examined that are found on the file, we think that the appellant/accused cannot be said to be prejudiced in any way by examination of these three witnesses. PW-2 who was then working as Superintendent of Customs in the office of the Assistant Collector of Customs at Adipur during the relevant period has stated that Shri K.K. Das who was the then Assistant Collector of Customs issued the warrant dated 7.9.1971 authorising Shri Mirchandani, Superintendent of Customs, Adipur to search for the prohibited and dutiable goods and documents in the premises mentioned in the warrant. It is elicited from the same witness in the cross examination that the gold ornaments were seized since the sizing authority doubted that they are smuggled gold and procured by contriving the Gold Control Act. It is seen from the evidence of PW-3 that he and others inclusive of Superintendent Mirchandani went to the house of the appellant and they seized the gold ornaments Dhalia, that is, primary gold under Panchnama and search list Exts. 24 and 25. Therefore, the appellant's grievance that he has been taken by surprise on the request of the prosecution for taking fresh evidence; that the evidence sought to be obtained is only for filling up the lacuna and the judgment, impugned is prejudicial to him cannot be countenanced. Of the three witnesses, permitted to be summoned and examined on the side of the Union of India, the Mint Master is only an assayer. In our considered opinion, the facts and circumstances of the case require the examination of these three witnesses for a just decision of the case as held by the High Court. In the light of the proposition of law which we have derived in the preceding portion of the judgment there is no illegality in summoning the witnesses after the closure of the defence arguments. It is seen from the order of the Trial Court that the argument of the prosecution has not yet begun. Since we feel that any further observation of ours in justification of this order may prejudice the defence of the appellant before the Trial Court, we are not inclined to discuss the evidence any further. A decision of this Court in Mir Mohd. Omar and Other v. State of West Bengal, [1989] 4 SCC 436 was relied upon to show that after the examination of the accused under Section 313 of the new Code (corresponding to Section 342 of the old Code) the prosecution should not move the Trial Judge for recalling a witness already examined, but the observation made in that decision has no application to the present case because in that case the said observation was made in a different context by this court while examining the plea of the prosecution in making corrections of the evidence already recorded under Section 272 of the Code and that decision does not deal with the ambit of Section 540 of the Code. The other contention raised on behalf of the appellant is that the order of the Magistrate rejecting the application of the prosecution under Section 540 is not a revisable order under Section 397(1) as it being an interlocutory order and even if it is not so, the second revision by the same party-i.e. Union of India is not entertainable in view of the statutory bar under Section 397(3) of the new Code as the Union of India has already availed the revision under Section 397(2) before the Session Judge. We may straightaway reject this plea on the simple ground that the prosecution in the present case was launched under the old Code and as such the only provision of the old Code have to be applied as per Section 484 of the new Code. The fervent plea of the appellant is though the prosecution was instituted under the old Code he should not be denied the benefit and advantage of Section 397(2) and (3) of the new Code. We are afraid that we could accede to this inexorable request of the appellant for two reasons, namely, that the appellant has not challenged the maintainability of the second revision, filed and heard after the commencement of the new Code before the High Court, claiming advantage of Section 397(3) of the new Code and secondly he participated in the revision proceedings throughout under the old Code. Having failed in the revision he has no justification to raise this point before this Court, especially when the proceedings under the old Code are saved by Section 484 of the new Code. As far as the question whether an order under Section 540 of the old Code is an inerlocutory order or a final order, need not be gone into as that question does not arise in these proceedings. We would like to point out before parting with this judgment that though the High Court by its impugned judgment directed the Union of India to examine the three witnesses, in fact it has allowed all the four revision applications inclusive of the revision application Nos. 124 and 125 of 1978 filed by the State of Gujarat seeking the same prayer as that of the Union of India. The appellant as we have pointed out in the prefatory portion of this judgment that that part of the judgment of the High Court allowing the two revisions filed by the State Government remains unchallenged. Further we would like to point out that the High Court in its concluding paragraph of its judgment instead of using the words \"I ...... direct\" ought to have used the word \"I ..... permit\". For all the reasons stated above we hold that the judgment of the High Court does not suffer from any illegality or perversity calling for an interference at the hands of this Court and as such the appeals are liable to be dismissed as devoid of any merit. However, we direct the Trial Court to afford a fair opportunity to the appellant/accused to cross-examine the witnesses sought to be examined by the Union of India and also to lead rebuttal evidence if the appellant so desires. Accordingly these two appeals are dismissed. Y.L. 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{"id": "661155", "text": "CASE NO.: Writ Petition (crl.) 169 of 1999 Writ Petition (crl.) 243 of 1999 PETITIONER: DADU @ TULSIDAS Vs. RESPONDENT: STATE OF MAHARASHTRA DATE OF JUDGMENT: 12/10/2000 BENCH: K.T.Thomas, R.P. Sethi & S.N. Variava. JUDGMENT: SETHI, J: L...I...T.......T.......T.......T.......T.......T.......T..J The Constitutional validity of Section 32A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as \"the Act\") is under challenge in these petitions filed by the convicts of the offences under the Act. The Section is alleged to be arbitrary, discriminatory and violative of Articles 14 and 21 of the Constitution of India which creates unreasonable distinction between the prisoners convicted under the Act and the prisoners convicted for the offences punishable under various other statutes. It is submitted that the Legislature is not competent to take away, by statutory prohibition, the judicial function of the Court in the matter of deciding as to whether after the conviction under the Act the sentence can be suspended or not. The Section is further assailed on the ground that it has negated the statutory provisions of Sections 389, 432 and 433 of the Code of Criminal Procedure (hereinafter referred to as \"the Code\") in the matter of deciding as to whether after the conviction under the Act the sentence can be suspended, remitted or commuted or not and also under what circumstances, restrictions or limitations on the suspension of sentences or the grant of bail could be passed. It is further contended that the Legislature cannot make relevant considerations irrelevant or deprive the courts of their legitimate jurisdiction to exercise the discretion. It is argued that taking away the judicial power of the appellate court to suspend the sentence despite the appeal meriting admission, renders the substantive right of appeal illusory and ineffective. According to one of the petitioners, the prohibition of suspension precludes the Executive from granting parole to a convict who is otherwise entitled to it under the prevalent statutes, jail manual or Government instructions issued in that behalf. The petitioner in W.P.No.169/99 was arrested and upon conviction under Section 21 of the Act sentenced to [email protected]@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ imprisonment for 10 years. He claims to have [email protected]@ JJJJJJJJJJJJJJJJJJJJJ undergone sentence for more than 7 years. He could not claim parole presumably under the impression that Section 32A of the act was a bar for the State to grant it. Though the petitioner has referred to Maharashtra Jail Manual, particularly Chapter XXXVIII providing various kinds of remissions and authorising the grant of parole yet nothing is on the record to show as to whether he in fact applied for parole or not. Petitioner in W.P.243 of 1999, after trial was convicted under the Act and the bail application filed by him alongwith appeal presented in the High Court was dismissed as not pressed in view of the judgment of this Court in Maktool Singh v. State of Punjab [JT 1999 (2) SC 176]. The vires of the section have been defended by the Union of India on the ground that as the Parliament has jurisdiction to enact the law pertaining to Narcotic Drugs and Psychotropic Substances Act, reasonable restrictions can be imposed upon the right of the convict to file appeal and seek release, remission or commutation. The Act is intended to curb the drug addiction and trafficking which is termed to be eating into the vitals of the economy of the country. The illicit money generated by drug trafficking is being used for illicit activities including encouragement of terrorism. Anti-drug justice has been claimed to be a criminal dimension of social justice. It is submitted that statutory control over narcotic drugs in India was being generally exercised through certain Central enactments, though some of the States had also enacted certain statutes to deal with illicit traffic in drugs. Reference is made to the Opium Act and the Dangerous Drugs Act etc. In the absence of comprehensive law to effectively control psychotropic substances in the manner envisaged by the International Convention of Psychotropic Substances, 1971, a necessity was felt to enact some comprehensive legislation on the subject. With a view to meet the social challenge of great dimensions, the Parliament enacted the Act to consolidate and amend the existing provisions relating to control over drug abuse and to provide for enhanced penalties under the Act. The Act provides enhanced and stringent penalties. The offending section is claimed to be not violative of Articles 14, 19 and 21 of the Constitution of India. To fulfil the international obligations and to achieve the objectives of curbing the menace of illegal trafficking, the Section was enacted not only to take away the power of the Executive under Section 433 of the Code but also the power under the Code to suspend, remit or commute the sentences passed under the Act. The convicts under the Act are stated to be a class in themselves justifying the discrimination without offending guarantee of equality enshrined in the Constitution. To support the Constitutional validity of the Section, the respondents have also relied upon the Lok Sabha debates on the subject. Before dealing with the main issue regarding the validity of Section 32A, a side issue, projected in Writ Petition No.169, is required to be dealt with. The writ petition appears to be based upon the misconception of the provisions of law and in ignorance to the various pronouncements of this Court. Parole is not a suspension of the sentence. The convict continues to be serving the sentence despite granting of parole under the Statute, Rules, Jail Manual or the Government orders. \"Parole\" means the release of a prisoner temporarily for a special purpose before the expiry of a sentence, on the promise of good behaviour and return to jail. It is a release from jail, prison or other internment after actually been in jail serving part of sentence. Grant of parole is essentially an Executive function to be exercised within the limits prescribed in that behalf. It would not be open to the court to reduce the period of detention by admitting a detenue or convict on parole. Court cannot substitute the period of detention either by abridging or enlarging it. Dealing with the concept of parole and its effect on period of detention in a preventive detention matter, this Court in Poonam Lata v. M.L. Wadhawan [1987 (3) SCC 347] held: \"There is no denying of the fact that preventive detention is not punishment and the concept of serving out a sentence would not legitimately be within the purview of preventive detention. The grant of parole is essentially an executive function and instances of release of detenus on parole were literally unknown until this Court and some of the High Courts in India in recent years made orders of release on parole on humanitarian considerations. Historically 'parole' is a concept known to military law and denotes release of a prisoner of war on promise to return. Parole has become an integral part of the English and American systems of criminal justice intertwined with the evolution of changing attitudes of the society towards crime and criminals. As a consequence of the introduction of parole into the penal system, all fixed-term sentences of imprisonment of above 18 months are subject to release on licence, that is, parole after a third of the period of sentence has been served. In those countries, parole is taken as an act of grace and not as a matter of right and the convict prisoner may be released on condition that he abides by the promise. It is a provisional release from confinement but is deemed to be a part of the imprisonment. Release on parole is a wing of the reformative process and is expected to provide opportunity to the prisoner to transform himself into a useful citizen. Parole is thus a grant of partial liberty of lessening of restrictions to a convict prisoner, but release on parole does not change the status of the prisoner. Rules are framed providing supervision by parole authorities of the convicts released on parole and in case of failure to perform the promise, the convict released on parole is directed to surrender to custody. (See The Oxford Companion to Law, edited by Walker, 1980 Edn. p.931; Black's Law Dictionary, 5th Edn., P.1006; Jowitt's Dictionary of English Law, 2nd Edn., Vol. 2, p.1320; Kenny's Outlines of Criminal Law; 17th Edn., pp.574- 76; the English Sentencing System by Sir Rupert Cross at pp.31-34; 87 et seq; American Jurisprudence, 2nd Edn., Vol.59, pp.53-61; Corpus Juris Secundum, Vol.67; Probation and Parole, Legal and Social Dimensions by Louis P. Carney). It follows from these authorities that parole is the release of a very long terms prisoner from a penal or correctional institution after he has served a part of his sentence under the continuous custody of the State and under conditions that permit his incarceration in the event of misbehaviour\". This position was again reiterated in State of Haryana v. Mohinder Singh [2000 (3) SCC 394][email protected]@ JJJJJJJJJJJJJJJJJJJJJJJJJ The Constitution Bench of this Court in Sunil Fulchand Shah v. Union of India & Ors. [2000 (3) SCC 409]@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ considered the distinction between bail and parole in [email protected]@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJ context of reckoning the period which a detenu has to undergo in prison and held: \"Bail and parole have different connotation in law. Bail is well understood in criminal jurisprudence and Chapter XXXIII of the Code of Criminal Procedure contains elaborate provisions relating to grant of bail. Bail is granted to a person who has been arrested in a non-bailable offence or has been convicted of an offence after trial. The effect of granting bail is to release the accused from internment though the court would still retain constructive control over him through the sureties. In case the accused is released on his own bond such constructive control could still be exercised through the conditions of the bond secured from him. The literal meaning of the word 'bail' is surety. In Halsbury's Laws of England, 4th Edn., Vol.11, Para 166, the following observation succinctly brings out the effect of bail: The effect of granting bail is not to set the defendant (accused) at liberty but to release him from the custody of law and to entrust him to the custody of sureties who are bound to produce him to appear at his trial at a specified time and place. The sureties may seize their principal at any time and may discharge themselves by handing him over to the custody of law and he will then be imprisoned. 'Parole', however, has a different connotation than bail even though the substantial legal effect of both bail and parole may be the release of a person from detention or custody. The dictionary meaning of \"parole\" is: The Concise Oxford Dictionary - (New Edition) \"The release of a prisoner temporarily for a special purpose or completely before the expiry of a sentence, on the promise of good behaviour; such a promise; a word of honour\" Black's Law Dictionary - (6th Edition) \"Release from jail, prison or other confinement after actually serving part of sentence. Conditional release from imprisonment which entitles parolee to serve remainder of his term outside confides of an institution, if he satisfactorily complies with all terms and conditions provided in parole order.\" According to the Law Lexicon, \"Parole\" has been defined as: \"A parole is a form of conditional pardon, by which the convict is released before the expiration of his term, to remain subject, during the remainder thereof, to supervision by the public authority and to return to imprisonment on violation of the condition of the parole.\" According to Words and Phrases: \"Parole\" ameliorates punishment by permitting convict to serve sentence outside of prison walls, but parole does not interrupt sentence. People ex rel Rainone v. Murphy [135 NE 2d 567, 571, 1 NY 2d 367, 153 NYS 2d 21, 26]. 'Parole does not vacate sentence imposed, but is merely a conditional suspension of sentence. Wooden v. Goheen [Ky, 255 SW 2d 1000, 1002]. A 'parole' is not a 'suspension of sentence', but is a substitution, during continuance of parole, of lower grade of punishment by confinement in legal custody and under control of warden within specified prison bounds outside the prison, for confinement within the prison adjudged by the court. Jenkins v. Madigan [CA Ind, 211 F 2d 904, 906]. A 'parole' does not suspend or curtail the sentence originally imposed by the court as contrasted with a 'commutation of sentence' which actually modifies it\". Again in State of Haryana v. Nauratta Singh & Ors. [2000 (3) SCC 514] it was held by this Court as under:@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ \"Parole relates to executive action taken after the door has been closed on a convict. During parole period there is no suspension of sentence but the sentence is actually continuing to run during that period also.\" It is thus clear that parole did not amount to the suspension, remission or commutation of sentences which could be withheld under the garb of Section 32A of the Act. Notwithstanding the provisions of the offending Section, a convict is entitled to parole, subject, however, to the conditions governing the grant of it under the statute, if any, or the Jail Manual or the Government Instructions. The Writ Petition No.169 of 1999 apparently appears to be misconceived and filed in a hurry without approaching the appropriate authority for the grant of relief in accordance with jail manual applicable in the matter. We will now deal with the crux of the matter relating to the constitutional validity of Section 32A in the light of the challenge thrown to it. Section 32A of the Act reads: \"32A. No suspension, remission or commutation in any sentence awarded under this Act.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any other law for the time being in force but subject to the provisions of section 33, no sentence awarded under this Act (other than section 27) shall be suspended or remitted or commuted.\" A perusal of the Section would indicate that it deals with three different matters, namely, suspension, remission and commutation of the sentences. Prohibition contained in the Section is referable to Sections 389, 432 and 433 of the Code. Section 432 of the Code provides that when any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced in the manner and according to the procedure prescribed therein. Section 433 empowers the appropriate Government to commute: \"(a) a sentence of death, for any other punishment provided by the Indian Penal Code; (b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine; (c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine; (d) a sentence of simple imprisonment, for fine.\" However, Section 389 of the Code empowers an appellate court to suspend the sentence pending the appeal and [email protected]@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ the appellant on bail. Section 32A of the Act, therefore,@@ JJJJJJJJJJJJJJJJJ takes away the powers both of the Appellate Court and the State Executive in the matter of suspending, remitting and commuting the sentence of a person convicted under the Act other than for an offence under Section 27 of the Act. This Court in Maktool Singh's case (supra) held that Section 32A of the Act was a complete bar for the Appellate Court to suspend a sentence passed on persons convicted of offences under the Act (except under Section 27) either during the pendency of any appeal or otherwise. It has an overriding effect with regard to the powers of suspension, commutation and remission provided under the Code. After referring to some conflicting judgments of the High Courts, this Court concluded: \"The upshot of the above discussion is that Section 32A of the Act has taken away the powers of the court to suspend a sentence passed on persons convicted of offences under the Act (except Section 27) either during pendency of any appeal or otherwise. Similarly, the power of the Government under Sections 432, 433 and 434 of the Criminal Procedure Code have also been taken away. Section 32A would have an overriding effect with regard to the powers of suspension, commutation and remission provided under the Criminal Procedure Code.\" The restriction imposed under the offending Section, upon the Executive are claimed to be for a reasonable purpose and object sought to be achieved by the Act. Such exclusion cannot be held unconstitutional, on account of its not being absolute in view of the constitutional powers conferred upon the Executive. Articles 72 and 161 of the Constitution empowers President and the the Governor of a State to grant pardons, reprieves, respites or remissions of punishments or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the Executive power of the Union and State exists. For the exercise of aforesaid constitutional powers circulars are stated to have been issued by the appropriate Governments. It is further submitted that the circulars prescribe limitations both as regards the prisoners who are eligible and those who have been excluded. The restriction imposed upon the Executive, under the Section, appears to be for a reasonable purpose and object sought to be achieved by the Section. While moving the Amendment Bill, which included Section 32A, in the Parliament on 16th December, 1988, the Minister of State in Department of Revenue in the Ministry of Finance explained to the Parliament that the country had been facing the problem of transit traffic in illicit drugs which had been escalated in the recent past. The spill-over from such traffic had been causing problems of abuse and addiction. The Government was concerned with the developing drug situation for which a number of legislative, administrative and preventive measures had been taken resulting in checking the transit traffic to a considerable extent. However, increased internal drug traffic, diversion of opium from illicit growing areas and attempts of illicit manufacture of drugs within the country threatened to undermine the effects of the counter measures taken. Keeping in mind the magnitude of the threat from drug trafficking from the Golden Crescent region comprising Pakistan, Afghanistan and Iran and the Golden Triangle region comprising Burma, Thailand and Laos and having regard to the internal situation, a 14 point directive was stated to have been issued by the then Prime Minister on 4th April, 1988, as a new initiative to combat drug trafficking and drug abuse. Keeping in mind the working of the 1985 Act, the Cabinet Sub Committee recommended that the Act be suitably amended, inter alia, : \"(i) to provide for the constitution of a fund for control of drug abuse and its governing body. The Fund is to be financed by such amounts as may be provided by the Parliament, the sale proceeds of any property forfeited under the Act and any grants that may be made by any person or institution; (ii) to provide for death penalty on second conviction in respect of specified offences involving specified quantities of certain drugs; (iii) to provide that no sentence awarded under the Act, other than section 27, should be suspended, remitted or commuted; (iv) to provide for constitution of Special Courts; (v) to provide that every offence punishable under this Act shall be cognizable and non-bailable; (vi) to provide immunity from prosecution to the addicts volunteering for treatment for deaddiction or detoxification once in their life time; (vii) to bring certain substances which are neither narcotic drugs nor psychotropic substances but are used in the manufacture or production of these drugs or substances, under the ambit of the Act. Such controlled substances would be regulated by issue or order; (viii) violation of the provisions relating to the controlled substances would be liable for punishment with rigorous imprisonment for a term which may extend to 10 years and fine which may extend to Rs.1 lakh; (ix) financing illicit traffic and harbouring drug offenders would be offences liable to punishment at the same level as per drug traffic offences.\" The distinction of the convicts under the Act and under other statutes, in so far as it relaters to the exercise of the Executive Powers under Sections 432 and 433 of the Code is concerned, cannot be termed to either arbitrary or discriminatory being violative of Article 14 of the Constitution. Such deprivation of the Executive can also not be stretched to hold that the right to life of a person has been taken away except, according to the procedure established by law. It is not contended on behalf of the petitioners that the procedure prescribed under the Act for holding the trial is not reasonable, fair and just. The offending Section, in so far as it relates to the Executive in the matter of suspension, remission and commutation of sentence, after conviction, does not, in any way, encroach upon the personal liberty of the convict tried fairly and sentenced under the Act. The procedure prescribed for holding the trial under the Act cannot be termed to be arbitrary, whimsical or fanciful. There is, therefore, no vice of unconstitutionality in the Section in so far as it takes away the powers of the Executive conferred upon it under Sections 432 and 433 of the Code, to suspend, remit or commute the sentence of a convict under the Act. Learned counsel appearing for the parties were more concerned with the adverse effect of the Section on [email protected]@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ powers of the judiciary. Impliedly conceding that [email protected]@ JJJJJJJJJJJJJJJJJJJJJJJJJJJ Section was valid so far as it pertained to the appropriate Government, it was argued that the Legislature is not competent to take away the judicial powers of the Court by statutory prohibition as is shown to have been done vide the impugned section. Awarding sentence, upon conviction, is concededly a judicial function to be discharged by the courts of law established in the country. It is always a matter of judicial discretion, however, subject to any mandatory minimum sentence prescribed by the law. The award of sentence by a criminal court wherever made subject to the right of appeal cannot be interfered or intermeddled with in a way which amounts to not only interference but actually taking away the power of judicial review. Awarding the sentence and consideration of its legality or adequacy in appeal is essentially a judicial function embracing within its ambit the power to suspend the sentence under the peculiar circumstances of each case, pending the disposal of the appeal. Not providing atleast one right of appeal, would negate the due process of law in the matter of dispensation of criminal justice. There is no doubt that the right of appeal is the creature of a statute and when conferred, a substantive right. Providing a right of appeal but totally disarming the court from granting interim relief in the form of suspension of sentence would be unjust, unfair and violative of Article 21 of the Constitution particularly when no mechanism is provided for early disposal of the appeal. The pendency of criminal litigation and the experience in dealing with pending matters indicate no possibility of early hearing of the appeal and its disposal on merits atleast in many High Courts. As the present is not the occasion to dilate on the causes for such delay, we restrain ourselves from that exercise. In this view of the matter, the appellate powers of the court cannot be denuded by Executive or judicial process. This Court in Bhagwan Rama Shinde Gosai & Ors. v. State of Gujarat [AIR 1999 SC 1859 held that when a convicted person is sentenced to a fixed period of sentence and the appellate court finds that due to practical reasons the appeal cannot be disposed of expeditiously, it can pass appropriate orders for suspension of sentence. The suspension of the sentence by the appellate court has, however, to be within the parameters of the law prescribed by the Legislature or spelt out by the courts by judicial pronouncements. The exercise of judicial discretion on well recognised principles is the safest possible safeguards for the accused which is at the very core of criminal law administered in India. The Legislature cannot, therefore, make law to deprive the courts of their legitimate jurisdiction conferred under the procedure established by law. Thomas M. Cooley in his \"Treatise on the Constitutional Limitations\" 8th Edition observed that if the Legislature cannot thus indirectly control the action of the courts by requiring of them a construction of the law according to its own views, it is very plain it cannot do so directly, by setting aside their judgments, compelling them to grant new trials, ordering the discharge of offenders, or directing what particular steps shall be taken in the progress of a judicial inquiry. In Denny v. Mattoon[2 Allen, 361], it was stated: \"If, for example, the practical operation of a statute is to determine adversary suits pending between party and party, by substituting in place of the well settled rules of law the arbitrary will of the legislature, and thereby controlling the action of the tribunal before which the suits are pending, no one can doubt that it would be an unauthorised act of legislation, because it directly infringes on the peculiar and appropriate functions of the judiciary. It is exclusive province of courts of justice to apply established principles to cases within their jurisdiction, and to enforce their decisions by rendering judgments and executing them by suitable process. The legislature have no power to interfere with this jurisdiction in such manner as to change the decision of cases pending before courts, or to impair or set aside their judgments, or to take cases out of the settled course of judicial proceeding. It is on this principle that it has been held that the legislature have no power to grant a new trial or direct a rehearing of a cause which has been once judicially settled. The right of a review, or to try a new facts which have been determined by a verdict or decree, depends on fixed and well-settled principles, which it is the duty of the court to apply in the exercise of a sound judgment and discretion. These cannot be regulated or governed by legislative action\". Cooley further opined that forfeiture of rights and property cannot be adjudged by legislative act, confiscations without a judicial hearing after due notice would be void as not being due process of law. Rights of the parties, without the authority of passing consequential or interim orders in the interest of justice, would not be a substantive one. Offending Section is stated to have been enacted in discharge of the international obligations as claimed by the concerned Minister in the Parliament. This submission also appears to be without any substance. Countries, parties to the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988, in the 6th Plenary Meeting held on 19th December, 1988 resolved to adopt means and measures to curb the rising trend in the illicit production of demand for and traffic in narcotic drugs and psychotropic substances which posed a serious threat to the health and welfare of the human beings and adversely affected the economic, cultural and political foundations of the Society. The member countries, inter alia agreed to adopt such measures as may be necessary to establish as criminal offences in its domestic law when committed intentionally: \"(a) (i) The production, manufacture, extraction, preparation, offering, offering for sale, distribution, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation or exportation of any narcotic drug or any psychotropic substance contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention; ii) The cultivation of opium poppy, coca bush or cannabis plant for the purpose of the production of narcotic drugs contrary to the provisions of the 1961 Convention and 1961 Convention as amended; iii) The possession or purchase of any narcotic drug or psychotropic substance for the purpose of any of the activities enumerated in (i) above; iv) The manufacture, transport, or distribution of equipment, materials or of substances listed in Table I and Table II, knowing that they are to be used in or for the illicit cultivation, production or manufacture of narcotic drugs or psychotropic substances; v) The organisation, management or financing of any of the offences enumerated in (i), (ii), (iii) or (iv) above; (b) (i) The conversion or transfer of property, knowing that such property is derived from any offence or [email protected]@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ established in accordance with subparagraph (a) of this paragraph, or from an act, of participation in such offence or offences, for the purpose of concealing or disguising the illicit original of the property or of assisting any person who is involved in the commission of such an offence or offences to evade the legal consequences of his actions, iii) The concealment or disguise of the true nature, source, location, disposition, movement rights with respect to, or ownership of property, knowing that such property is derived from an offence or offences established in accordance with paragraph (a) of this paragraph or from an act of participation in such an offence or offences; It was further agreed that subject to the constitutional principles and the basic concept of its legal system each country shall provide for: \"(i) The acquisition, possession or use of property, knowing, at the time of receipt, that such property was derived from an offence or offences established in accordance with subparagraph (a) of this paragraph or from an act of participation in such offence or offences; (ii) The possession of equipment or materials or substances listed in Table I and Table II, knowing that they are being or are to be used in or for the illicit cultivation, production or manufacture of narcotic drugs or psychotropic substances; (iii)Publicly inciting or inducing others, by any means, to commit any of the offences established in accordance with this article or to use narcotic drugs or psychotropic substances illicitly; (iv) Participation in, association or conspiracy to commit, attempts to commit and aiding, facilitating and counselling the commission of any of the offences established in accordance with this article.\" The parties to the Convention further resolved to provide in addition to conviction and punishment for an offence that the offender shall undergo measures such as treatment, education, after care, rehabilitation or social re-integration. It was further agreed: \"The parties shall endeavour to ensure that any discretionary legal powers under their domestic law relating to the prosecution of persons for offences established in accordance with this article are exercised to maximize the effectiveness of law enforcement measures in respect of those offences and with due regard to the need to deter the commission of such offences. The parties shall ensure that their courts or other competent authorities bear in mind the serious nature of the offences enumerated in paragraph 1 of this article and the circumstances enumerated in paragraph 5 of this article when considering the eventuality of early release or parole of persons convicted of such offences.\" A perusal of the agreement of the Convention to which India is claimed to be a party, clearly and unambiguously show that the court's jurisdiction with respect to the offences relating to narcotic drugs and psychotropic substances was never intended to be ousted, taken away or curtailed. The Declaration was made, subject to \"constitutional principles and the basic concepts of its legal system prevalent in the polity of a member country\". The international Agreement emphasised that the courts of the member countries shall always bear in mind the serious nature of offences sought to be tackled by the Declaration while considering the eventuality of early release or partly of persons convicted of such offences. There was no International Agreement to put a blanket ban on the power of the court to suspend the sentence awarded to a criminal under the Act notwithstanding the constitutional principles and basic concepts of its legal system. It cannot be denied that judicial review in our country is the heart and soul of our constitutional scheme. The judiciary is constituted the ultimate interpreter of the Constitution and is assigned the delicate task of determining the extent and scope of the powers conferred on each branch of the Government, ensuring that action of any branch does not transgress its limits. A Constitution Bench of this Court in S.P. Sampath Kumar v. Union of India [1987 (1) SCC 124] held that \"it is also a basic principle of the Rule of Law which permeates very provision of the Constitution and which forms its very core and essence that the exercise of power by the executive or any other authority must not only be conditioned by the Constitution but also be in accordance with law and it is the judiciary which has to ensure that the law is observed and there is compliance with the requirements of law on the part of the executive and other authorities. This function is discharged by the judiciary by exercise of the power of judicial review which is a most potent weapon in the hands of the judiciary for maintenance of the Rule of Law. The power of judicial review is an integral part of our constitutional system and without it, there will be no government of laws and the Rule of Law would become a teasing illusion and a promise of unreality\". Again in S.S. Bola & Ors. v. B.D. Sardana & Ors. [AIR 1999 SC 3127] it was reiterated that judicial review is the basic feature upon which hinges the checks and balances blended with hind sight in the Constitution as people's sovereign power for their protection and establishment of egalitarian social order under the rule of law. The judicial review was, therefore, held to be an integral part of the Constitution as its basic structure. Similarly, the filing of an appeal, its adjudication and passing of appropriate interim orders is concededly a part of the legal system prevalent in our country. In Ram Charan v. Union of India [1991(9) LCD 160], the Allahabad High Court while dealing with the question of [email protected]@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ constitutional validity of Section 32A found that as [email protected]@ JJJJJJJJJJJJJJ Section leaves no discretion to the court in the matter of deciding, as to whether, after conviction the sentence deserves to be suspended or not without providing any guidelines regarding the early disposal of the appeal within a specified period, it suffers from arbitrariness and thus violative of mandate of Articles 14 and 21 of the Constitution. In the absence of right of suspending a sentence, the right of appeal conferred upon accused was termed to be a right of infructuous appeal. However, Gujarat High Court in Ishwarsingh M. Rajput v. State of Gujarat [1990 (2) Gujarat Law Reporter 1365 =1991(2) Crimes 160] while dealing with the case relating to grant of parole to a convict under the Act found that Section 32A was Constitutionally valid. It was held: \"Further, the classification between the prisoners convicted under the Narcotics Act and the prisoners convicted under any other law, including the Indian Penal Code is reasonable one, it is with specific object to curb deterrently habit forming, booming and paying (beyond imagination) nefarious illegal activity in drug trafficking. Prisoners convicted under the Narcotics Act are class by themselves. Their activities affect the entire society and may, in some cases, be a death-blow to the persons, who become addicts. It is much more paying as it brings unimaginable easy riches. In this view of the matter, the temptation to the prisoner is too great to resist himself from indulging in same type of activity during the period, when he is temporarily released. In most of the cases, it would be difficult for him to leave that activity as it would not be easy for the prisoner to come out of the clutches of the gang, which operates in nefarious illegal activities. Hence, it cannot be said that section 32A violates Article 14 of the Constitution on the ground that it makes unreasonable distinction between a prisoner convicted under the Narcotic Act and a prisoner convicted for any other offences.\" Judged from any angle, the Section in so far as it completely debars the appellate courts from the power to suspend the sentence awarded to a convict under the Act cannot stand the test of constitutionality. Thus Section 32A in so far as it ousts the jurisdiction of the court to suspend the sentence awarded to a convict under the Act is unconstitutional. We are, therefore, of the opinion that Allahabad High Court in Ram Charan's case (Supra) has correctly interpreted the law relating to the constitutional validity of the Section and the judgment of Gujarat High Court in Ishwarsingh M. Rajput's case cannot be held to be good law. Despite holding that Section 32A is unconstitutional to the extent it affects the functioning of the criminal courts in the country, we are not declaring the whole of the section as unconstitutional in view of our finding that the Section, in so far as it takes away the right of the Executive to suspend, remit and commute the sentence, is valid and intra vires of the Constitution. The Declaration of Section 32A to be unconstitutional, in so far as it affects the functioning of the courts in the country, would not render the whole of the section invalid, the restriction imposed by the offending section being distinct and severable. Holding Section 32A as void in so far as it takes away the right of the courts to suspend the sentence awarded to [email protected]@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ convict under the Act, would neither entitle such [email protected]@ JJJJJJJJJJJJJJJJJJ to ask for suspension of the sentence as a matter of right in all cases nor would it absolve the courts of their legal obligations to exercise the power of suspension of sentence within the parameters prescribed under Section 37 of the Act. Section 37 of the Act provides: \"37. Offences to be cognizable and non-bailable (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973-- (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless-- i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force, on granting of bail. This Court in Union of India v. Ram Samujh & Anr. [1999 (9) SCC 429] held that the jurisdiction of the [email protected]@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ to grant bail is circumscribed by the aforesaid section [email protected]@ JJJJJJJJJJJJJJJJJ the Act. The bail can be granted and sentence suspended in a case where there are reasonable grounds for believing that the accused is not guilty of the offence for which convicted and he is not likely to commit any offence while on bail and during the period of suspension of the sentence. The Court further held: \"The aforesaid section is incorporated to achieve the object as mentioned in the Statement of Objects and Reasons for introducing Bill No.125 of 1988 thus: \"Even though the major offences are non-bailable by virtue of the level of punishments, on technical grounds, drug offenders were being released on bail. In the light of certain difficulties faced in the enforcement of the Narcotic Drugs and Psychotropic Substances Act, 1985 the need to amend the law to further strengthen it, has been felt\". (emphasis supplied) It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Dilier v. Chief Secretary, Union Territory of Goa [1990 (1) SCC 95] as under: (SCC p.104, para 24) \"24, With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menance has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.\" 8. To check the menance of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely, i) there are reasonable grounds for believing that the accused is not guilty of such offence; and ii) that he is not likely to commit any offence while on bail. are satisfied.\" Under the circumstances the writ petitions are disposed of by holding that (1) Section 32A does not in any way affect the powers of the authorities to grant parole; (2) It is unconstitutional to the extent it takes away the right of the court to suspend the sentence of a convict under the Act; (3) Nevertheless, a sentence awarded under the Act can be suspended by the appellate court only and strictly subject to the conditions spelt out in Section 37 of the Act as dealt with in this judgment. The petitioner in Writ Petition No.l69/99 shall be at liberty to apply for parole and his prayer be considered and disposed of in accordance with the statutory provisions, if any, Jail Manual or Government Instructions without implying Section 32A of the Act as a bar for consideration of the prayer. Similarly petitioner in Writ Petition No.243/99 is at liberty to move the High Court for suspension of sentence awarded to him under the Act. 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{"id": "1236969", "text": "REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7404 OF 2008 (Arising out of SLP (C) No.6145 of 2006) M/s. Thukral Mechanical Works ... Appellant Versus P.M. Diesels Pvt. Ltd. & Anr. ... Respondents JUDGMENT S.B. Sinha, J. 1. Leave granted. 2. Interpretation of the provisions of Section 46(1)(b) of the Trade and Merchandise Marks Act, 1958 (hereinafter called and referred to for the sake of brevity as `the said Act') is involved herein. 3. The factual matrix of the matter, which is not much in dispute is as under : First Respondent is the registered proprietor of a trade mark `Field Marshal' for Diesel Engines since 1964 bearing No.228867. One M/s. Jain Industries got the trade mark `Field Marshal' registered under clause (7), inter alia, for Flour Mills, Centrifugal Pumps, couplings for machines, pulleys included in class 7 and valves (parts of machines). The said registration was renewed for the periods 13.5.1972 and 12.5.1979; 13.5.1979 and 12.7.1986 and 13.7.1986 and 12.7.1993. Appellant is said to have commenced its business of manufacturing and selling centrifugal pumps also under the mark `Field Marshall'. Allegedly, on the premise that the first respondent is the proprietor of the said mark by reason of long user and, thus, acquired a reputation in that behalf, a legal notice was issued upon it questioning its right to use the said mark in respect of centrifugal pumps by the appellant laying a claim that it had been using the said mark since 1963. 4. Respondent No.1 thereafter filed a suit in the Delhi High Court for grant of a decree of permanent injunction being Suit No.2408 of 1985 alleging infringement of the said mark and/or claiming right of passing off in respect thereof. An ex parte order of injunction was passed on 19.12.1985 against the defendant (appellant herein) to the following effect : \"Notice for April 8, 1986. Meanwhile, a temporary ex parte injunction is issued against the defendants restraining them from manufacturing or selling either themselves or through any dealer or representative diesel oil engines or parts thereof with the trade mark `Field Marshal' and/or any other trade mark identical therewith and all goods falling in Clause 7 of the Trade and Merchandise Mark Rules. The plaintiff shall comply with the requirements of Order 39 Rule 4 of the Code of Civil Procedure.\" 5. Indisputably, during the proceedings in the above suit, M/s. Jain Industries by a deed of assignment assigned the said trade mark along with its goodwill in favour of the appellant. One of the stipulations contained therein reads as under : \"That the party of the second part has satisfied the party of the first part of having used the mark FIELD MARSHAL in respect of Centrifugal Pumps and Valves since 1973.\" 6. Indisputably, First Respondent filed an application under Section 46, 56 and 107 of the Act, marked as C.O. No.9 of 1986, contending that M/s. Jain Industries having not used the trade mark in respect of Centrifugal Pumps for a period more than five years and one month, the mark should be taken off the register. It claimed user of the said mark since 1963 and sought for rectification of the register by expunging the expression `circulation and centrifugal pumps' from the specification of goods. Indisputably, appellant filed an application in form TM 24 on 17.6.1986. The Assistant Registrar, Trade Marks, passed an order on 10.11.1986 certifying : \"THAT the trade mark FIELD MARSHAL BRAND (word per se) is registered under No.228867 in part `A' of the Register as of the date 13th May, 1965 in class 7 in respect of Flour Mills, circulating and centrifugal pumps; coupling for machines; pulleys included in Class 7, and valves (parts of machines) in the name of Pooran Chand Jain and Kailash Chand Jain, trading as Jain Industries, 1166, Phatak Suraj Bhan, Belanganj Agra. THAT Pursuant to a request on form TM-23 dated 17th June, 1986 and order thereon dated 24th October, 1986 Ganga Ram Anil Kumar (HUF), Sunil Kumar and Sumitra Rani, trading as Thukral Mechanical Works Railway Road, Sirhind (Punjab) are registered as subsequent proprietors of this mark as from 30th May, 1986 by virtue of Agreement dated 30th May, 1986. AND THAT The registration of the aforesaid trade mark has been renewed from time to time and will remain in force for a period of a seven years from 13th May, 1986 and may be renewed at the expiration of that period and of each succeeding period of a seven years.\" 7. In the said C.O. No.9 of 1986 filed by the first respondent against M/s. Jain Industries, despite service of notice, nobody appeared on behalf of the defendant. 16.1.1987 was the date fixed in the said suit. Appellant's counsel appeared on that date and, inter alia, contended that presently it was the registered owner of the trade mark which was sought to be cancelled. In view of that statement, a submission was made on behalf of the first respondent that it may be permitted to withdraw the petition with liberty to file a fresh petition on the same cause of action. The learned Judge directed recording of statements of the learned counsel in this behalf; pursuant whereto the same were recorded which reads as under : \"C.O.9 of 1986 Mr. Singh has filed a reply in this petition bringing out that presently he is the registered owner of the trademark which is sought to be cancelled in this petition. In view of this situation learned counsel for the petitioner has submitted that he may be permitted to withdraw this petition with permission to file a fresh petition on this very cause of action after impleading M/s Thakural mechanical Works etc. Let the statement of learned counsel for the petitioner be recorded. Statement of Shri K.L. Aggarwal, counsel for petitioner without oath : In view of the submissions of M/s Thakural Mechanical Works I may be permitted to withdraw this petition with permission to file a fresh petition on this very cause of action. Statement of Shri Hemant Singh, counsel for M/s. Thakural Mechanical Works without oath : I have no objection if the petitioner is permitted to withdraw this petition with permission to file a fresh petition on this very cause of action.\" On the basis of the said statement, the following order was passed : \"This petition has been filed by M/s. PM Diesels Pvt. Ltd. Against M/s. Jain Industries and the Dy. Registrar of Trade Marks under Section 46, 56 and 107 of the Trade and Merchandise Marks Act, 1958 for rectification of entry relating to the Registered Trade Mark No.228867 in Class 7. After the notice was served upon the respondent 1, a reply has been filed by M/s Thakural Mechanical Works bringing out therein that they are now the registered proprietors of said Trade Mark No.228867. In this view of the matter learned counsel for the petitioner has submitted that he may be permitted to withdraw this petition with permission to file a fresh petition on this very cause of action. The request is not opposed on behalf of M/s Thakural Mechanical Works. In these circumstances the request of the plaintiff is granted and petitioner is permitted to withdraw this petition and file a fresh petition on this very cause of action. The petition is accordingly filed as withdrawn leaving the parties to bear their own costs.\" 8. A fresh application was filed by the first respondent. The said M/s. Jain Industries, however, was not impleaded as a party therein. The cause of action therefor was stated to have arisen in the following circumstances : \"That the cause of action for the present petition arose in favour of the petitioner and against the respondents in the month of January 1987 when the respondent informed this Hon'ble Court that they have been recorded as subsequent proprietors of the impugned registered trade mark No.228867 in Class 7 in C.O. No.9 of 1986, whereupon the petitioner withdrew the said earlier petition C.O. No.9 of 1986 with permission of the court to file the present petition, because of the changed circumstances. The cause of action is continuous from day to day till the impugned registration is cancelled/rectified.\" 9. The injunction matter in Suit No.2408 of 1985 came up for hearing before a learned Single Judge of the High Court. By an order dated 19.1.1988, having regard to the provisions contained in the said Act, the learned Judge opined that appellant having become the registered proprietor of the said trade mark, no case for grant of injunction has been made out, the interim order of injunction passed on 19.12.1985 was vacated and the defendants were permitted to use their registered trade mark subject to the following conditions : \"(a) Defendants will not use the logo/style of the word \"Field Marshal\" of which logo and style the plaintiff is the proprietor under the Copyright Act. (b) Defendants shall mention the name of the defendant firm, Thukral Mechanical Works, Sirhind on each and every centrifugal pump manufactured by them and sold in the name of `Field Marshal'. (c) The defendants shall maintain proper accounts of the sale of centrifugal pumps under the trade mark \"Field Marshal\" and shall file them in Court as and when directed.\" 10. Correctness or otherwise of the said order has not been questioned. The second rectification application filed by the first respondent, however, was transferred to the Intellectual Property Appellate Board. The said application was dismissed. A writ petition was filed thereagainst by the first respondent. A learned Single Judge of the Delhi High Court, however, refused to stay the operation of the order of the Board dated 27.10.2004. An appeal was preferred thereagainst. The Division Bench of the High Court thereafter while disposing of both the writ petition and the Letters Patent Appeal allowed the writ petition and set aside the order of the Board and directed it to adjudicate the dispute on merits. The said order of the Division Bench is under challenge in this appeal. 11. The core question which arises for our consideration is as to whether in the aforementioned facts and circumstances of the case, the application under Section 46(1)(b) was maintainable. Before adverting thereto, we may take notice of the relevant statutory provisions : 12. Sections 46(1)(b), 48(1), 48(2) and 56 read as under : \"Section 46--Removal from register and imposition of limitations on ground of non-use--(1) Subject to the provisions of section 47, a registered trade mark may be taken off the register in respect of any of the goods in respect of which it is registered on application made in the prescribed manner to a High Court or to the Registrar by any person aggrieved on the ground either-- (a) ... (b) that up to a date one month before the date of the application, a continuous period of five years or longer had elapsed during which the trade mark was registered and during which there was no bona fide use thereof in relation to those goods by any proprietor thereof for the time being: Provided that, except where the applicant has been permitted under sub-section (3) of section 12 to register an identical or nearly resembling trade mark in respect of the goods in question or where the tribunal is of opinion that he might properly be permitted so to register such a trade mark, the tribunal may refuse an application under clause (a) or clause (b) in relation to any goods, if it is shown that there has been, before the relevent date or during the relevant period, as the case may be, bona fide use of the trade mark by any proprietor thereof for the time being in relation to goods of the same description, being goods in respect of which the trade mark is registered. Section 48--Registered users--(1) Subject to the provisions of section 49, a person other than the registered proprietor of a trade mark may be registered as the registered user thereof in respect of any or all of the goods in respect of which the trademark is registered otherwise than as a defensive trade mark; but the Central Government may, by rules made in this behalf, provide that no application for registration as such shall be enertained unless the agreement between the parties complies with the conditions laid down in the rules for preventing trafficking in trade marks. (2) The permitted use of a trade mark shall be deemed to be used by the proprietor thereof, and shall be deemed not to be used by a person other than the proprietor, for the purposes of section 46 or for any other purpose for which such use is material under this Act or any other law. Section 56--Power to cancel or vary registration and to rectify the register--(1) On application made in the prescribed manner to a High Court or to the Registrar by any person aggrieved, the tribunal may make such order as it may think fit for cancelling or varying the registration of a trade mark on the ground of any contravention, or failure to observe a condition entered on the register in relation thereto. (2) Any person aggrieved by the absence or omission from the register of any entry, or by any entry made in the register without sufficient cause, or by any entry wrongly remaining on the register, or by any error of defect in any entry in the ' register, may apply in the prescribed manner to a High Court or to the Registrar, and the tribunal may make such order for making, expunging or varying the entry as it may think fit. (3) The tribunal may in any proceeding under this section decide any question that may be necessary or expedient to decide in connection with the rectification of the register. (4) The tribunal, of its own motion, may, after giving notice in the prescribed manner to the parties concerned and after giving them an opportunity of being heard, make any order referred to in sub-section (1) or sub- section (2). (5) Any order of the High Court rectifying the register shall direct that notice of the rectification shall be served upon the Registrar in the prescribed manner who shall upon receipt of such notice rectify the register accordingly. (6) The power to rectify the register conferred by this section shall include the power to remove a trade mark registered in Part A of the register to Part B of the register.\" 13. Indisputably, the scope of the provisions for removal from Register in terms of Section 46 and 56 of the Act stand on different footings. Whereas Section 46 had a limited application, Section 56 of the Act is wider in nature. Concededly, clause (a) of sub-section (1) of Section 46 is not attracted in the case. 14. For the purpose of appreciation of the rival contentions, we may notice the findings of the Board as also the High Court. The Board has taken the view that the period of five years and one month will begin to run from the date on which Thukral became the proprietor of the trademark, that is, 30th May, 1986 and, therefore, the rectification application could have been filed by the appellant only sometime in 1991. Opining that an application for rectification against the appellant within a period of seven and a half months from the date of assignment of the trade mark was not maintainable, the application was dismissed. The High Court on the other hand opined : \"It was not anybody's case before us that M/s Jain Industries the registered proprietor of the trademark used it at all. The trademark was used by the Appellant and Thukral, neither of whom were proprietors thereof, except that Thukral claims to have become its proprietor with effect from 30th May, 1986. According to learned counsel for the Appellant, the use of the trademark by Thukral was not legally permissible use inasmuch as Thukral did not have the consent, tacit or otherwise of M/s. Jain Industries to use the trademark. If Thukral did, then it cannot be said that there was no bona fide use thereof by its proprietor, that is, M/s Jain Industries. This appears to be the position at least till 30th May, 1986. In the meantime, as a result of the ex parte ad interim injunction granted on 19th December 1985 by this Court in Suit No.2408 of 1985, there was no question of Thukral using the trademark Field Marshal till the injunction was vacated on 19th January, 1988.\" 15. The Act was enacted to provide for the registration and better protection of trademarks and for the prevention of the use of fraudulent marks of merchandise. Registration of a trade mark remains valid for seven years. Renewal applications are required to be filed on the expiry of seven years. M/s. Jain Industries got itself registered and obtained periodical renewal thereof as is required under the Act. First Respondent withdrew the application against M/s. Jain Industries. The prayer in the application was to take off the registered trade mark from the register in respect of centrifugal pumps (goods) so far as the registration made in favour of the appellant is concerned. 16. It is in the aforementioned situation, we are called upon to determine the meaning of the words `for the time being' occurring in Section 46(1)(b) of the Act. Two interpretations thereto which are possible are : (1) the said words would denote non-use of the trade mark in relation to the goods by the appellant for a period of five years or longer; and (2) The mark had not been used for a period of five years or longer either by the present proprietor thereof or his predecessor. 17. We may, however, also notice that another construction of the said provision has been put forth by Mr. Sunderam, learned senior counsel appearing on behalf of the appellant, that the word `proprietor' would not mean a registered proprietor but also a person who has become `proprietor' by long use thereof. 18. The words `for the time being' would mean differently in different situations. It may mean `the moment or existing position' as was held by this Court in the case of Jivendra Nath Kaul v. Collector/District Magistrate and Anr. [(1992) 3 SCC 576] or in the context of clause (22) of Article 366 of the Constitution as has been held in H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior, H.H. Maharajadhiraja Maharana Shri Bhagwat Singhji Bahadur of Udaipur v. Union of India and Anr. [AIR 1971 SC 530 para 110] to mean : \"By the use of the expression \"for the time being\" in Clause (22) of Article 366 the President is not invested with authority to accord a temporary recognition to a Ruler nor with authority to recognize or not to recognize a Ruler arbitrarily : the expression \"for them time being\" predicts that there shall be a Ruler of the Indian State, that if the first recognized Ruler dies, or ceases to be a Ruler, a successor shall be appointed, and that there shall not be more Rulers than one at a given time.\" The terms also may bring within its umbrage the entire period of five years or more irrespective of the fact as to whether the registered proprietor was one or more than one as has been held by the High Court. 19. There cannot be any doubt or dispute that the registration of a trade mark confers a very valuable right. The person in whose name the trade mark has been registered may take action against any person for passing off the goods as that of the registered owner. It confers an exclusive right of use of the trade mark in relation to the goods in which the trade mark is registered. The same is an assignable right in terms of Section 36 of the Act, whereas an unregistered trade mark is not. 20. Non-user of the said mark, therefore, entails the consequences laid down under clause (b) of Sub-section (1) of Section 46. However, such an application can be filed only by a person aggrieved. When the applicant before the Board establishes the fact in regard to non-user of the mark for a period of more than five years on the part of the registered owner, the latter may show that his case falls within the purview of sub-section (3) of Section 46. 21. The question which, therefore, arises is as to who can prove that he had the bona fide intention to use the trade mark on the date of application for registration. Indisputably, it would be the registered proprietor. Section 46 is a penal provision. It provides for civil or evil consequences. It takes away the valuable right of a registered proprietor. It, therefore, can be taken away only when the conditions laid down therefor are satisfied. 22. While we say so, we are not oblivious of the fact that trafficking in trade mark is to be discouraged. A registered proprietor of a trade mark should not be permitted to circumvent the law of user of the trade mark for a long time by assigning the same from time to time. But then such a case has to be made out. Allegation of trafficking is a serious one. It must be proved in presence of the person against whom such allegations are made. At the time of grant of original registration, advertisements are issued and objections are called for. Renewal of registration, in a sense, also is not automatic. A person who had been using the said trade mark as a proprietor thereof by user is supposed to keep itself abreast with such applications filed by another either for registration of the trade mark or renewal thereof. The non-user for a long time would disentitle a registered proprietor from renewal of the registration. 23. It must not, however, be forgotten that Section 46(1)(b) provides for a special remedy. As a person obtains a right on and from the date of registration and/or renewal thereof, he can ordinarily be deprived of his right unless it is shown that the assignment thereof by his holder was not a bona fide one or had been made by way of camouflage. If the assignee has obtained assignment for bona fide use, he may not be fastened with any liability owing to non-user on the part of his predecessor. In other words, the mistake of the predecessor should not be visited with non-use of the present registered owner. 24. It must, however, be observed that whether a use is for bona fide purpose would essentially be a question of fact. Whether Section 46(1)(b) read with Section 48 of the Act would bring within its purview, not only a registered proprietor but also the proprietor who had otherwise acquired a right would depend upon the facts and circumstances of each case. In Kabushiki Kaisha Toshiba v. Tosiba Appliances Co. & Ors. [(2008) 8 SCALE 354], this Court held : \"We do not find any force in the aforementioned submission. Clauses (a) and (b) operate in different fileds. Sub-section (3) covers a case falling within clause (b) and not the clause (a) thereof. Had the intention of the Parliament been that sub-section (3) covers cases falling under clause (b) and clause (a), having regard to the similarity of the expressions used, there was no reason as to why it could not be stated so explicitly. It was furthermore opined : \"There may be a case where owing to certain special circumstances, a continuous use is not possible. The trade mark for which registration is obtained is used intermittently. Such non-user for a temporary period may be due to any exigency including a bar under a statute, or a policy decision of the Government or any action taken against the registrant.\" It was observed that in cases of intermittent use also, clause (b) shall apply. In Kabushiki Kaisha Toshiba, this Court relied upon Hardie Trading Ltd. & Anr. V. Addisons Paint & Chemicals Ltd. [(2003) 11 SCC 92] : \"In our opinion, the phrase \"person aggrieved\" for the purposes of removal on the ground of non-use under Section 46 has a different connotation from the phrase used in section 56 for canceling or expunging or varying an entry wrongly made or remaining in the Register.\" 25. The submission of Mr. Sudhir Chandra that the appellant was an infringer both of the right of M/s. Jain Industries as also the first respondent and, thus, its use was not bona fide in a case of this nature cannot be accepted. If appellant infringed the right of M/s. Jain Industries, it was for it to take action therefor. It did not. First respondent itself accepts that at least immediately prior to the institution of the suit, appellant had been using the same. We are not concerned herein as to since when it had been doing so. It obtained an or of injunction. The order of injunction was vacated. For one reason or the other, the said order attained finality. Prima facie, therefore, appellant has been held to be the registered owner of the trade mark. It is one thing to say that for the purpose of frustrating an application for rectification, the appellant had colluded with its predecessor for the purpose of trafficking by entering into the deed of assignment which is otherwise illegal and bad in law but it is another thing to say that the appellant could be proceeded against alone for non-user of the registered trade mark for a period of more than five years. For the purpose of making out such a case, both the original registrants as also the assignee were required to be impleaded as parties. 26. We may, at this stage, notice that in Law of Trade Marks by Mr. K.C. Kailasam, while commenting on Section 47 of the Trade Marks Act, 1999 to which our attention has been drawn by Mr. Sudhir Chandra, it is stated : \"Notes on clauses.--This clause corresponds to section 46 of the existing Act and provides for removal of a trade mark from the register on the ground of non-use. A trade mark which is not used within five years of its registration, becomes liable for removal either completely or in respect of those goods or services for which the mark has not been used. Under Section 46(1), it is proposed to clarify that the five years period will start from the date on which the trade mark is actually entered on the register. This amendment is intended to remove any ambiguity, as for all other purposes, the date of registration will be the date on which the application was filed vide clause 23(2). Proviso to sub-clause (1) also provides that the tribunal may refuse removal of the mark if it is shown that any proprietor had in fact made bona fide use of the trademark for goods or services of the same description or associated goods or services. It is also proposed to increase the period from 1 to 3 months in clause 47(1)(a) and (b) in which use of the trade mark, prior to the date of filing of the application for removal of the trade mark, shall be disregarded. This is intended to prevent the registered proprietor to by pass the Act by such token use after he comes to know that an application for removal is about to be filed. ?Sub-clause (3) protects a mark from being removed from the register on ground of non-use if such non-use is shown to have been due to special circumstances in the trade. The clause is proposed to be modified to clarify that special circumstances in the trade will include restrictions imposed by any law or regulation on the use of trade mark in India. Consequential amendments have been made to cover services. (Clause 47 of the Bill)\" 27. The Court while construing a statute takes into consideration the parliamentary intent in amending the provisions thereof. It seeks to enhance the period of moratorium of use of the registered trade mark from one month to three months so as to prevent speculative assignment. Thus, a case of speculative assignment is specifically required to be made out. Such an application may be maintainable in terms of Section 56 of the Act but strictly not in terms of Section 46(1)(b) thereof and that too in the absence of the original registered proprietor. 28. We are not satisfied with the explanation offered by the first respondent that it gave up the case of non-use of the registered trade mark against M/s Jain Industries on the basis of statement made by the learned counsel for the appellant; firstly because consent does not confer jurisdiction; secondly, because want and/or lack of jurisdiction on the part of the Tribunal cannot be waived as if any order is passed without jurisdiction, the same would be a nullity; and thirdly because the cause of action, even according to the first respondent in his application before the High Court, was different. The counsel appearing on behalf of the appellant did not state that it had waived its right so far as non-impleadment of M/s Jain Industries was concerned. It only consented for grant of liberty in favour of the first respondent for filing of an application for the self-same cause of action. The question of maintainability of the second suit is absence of the registrant proprietor was not and could not have been the subject matter of consent at that stage. The cause of action which permitted the first respondent to file an application for rectification against M/s. Jain Industries was non-user thereof by it. Its non-user and rectification of the register could not, in the aforementioned situation, have been tagged with the cause of action, if any, against the appellant. 29. The second contention of Mr. Sudhir Chandra that the appellant was an infringer of the trade mark is again a question of fact. The right of the first respondent as a proprietor of the trade mark by reason of a long user is required to be determined vis-`-vis M/s. Jain Industries as also the appellant in the suit filed by it which is pending. The Board could not, while exercising its jurisdiction under Section 46(1)(b), of the Act proceeded on the basis of such presumption. It is not correct that no cause of action survived against Jain Industries. It was not lost by reason of assignment as was contended by the learned counsel. In the suit, only the competing right of the first respondent qua the appellant can be determined and not a right against M/s. Jain Industries. Such a right cannot be determined in a proceeding under Section 46(1)(b) of the Act which is restricted to non-user of the registered trade mark. Both the appellant and the respondent No.1 were the infringers of the right of M/s. Jain Industries as it was the registered proprietor of the trade mark in respect of the goods in question, namely, centrifugal pumps. 30. Two interpretations of the said provision Section 46(1)(b) are possible. While interpreting the same, however, certain basic principles of construction of statute must be kept in mind. As it takes away somebody's right, it deserves strict construction. Jurisdiction of the Board being dependent on determination of the foundational facts, the same was required to be established on the basis of the averments made in the application and not otherwise. The right of a registered trade mark is not lost automatically on the expiry of five years and one month. It does not provide for a `sun set' law. It has to be adjudicated upon. Whether the registered proprietor of the trade mark had taken recourse to trafficking or not must be determined in an appropriate proceeding. The principle of `purchaser of a property has a duty to make enquiries', therefore, cannot apply in a case of this nature. So long as the right to assign a registered trade mark remains valid, once the same is validly assigned, the assignee derives the same right as that of the assignor in terms of the statute. A title to a trade mark derived on assignment as provided for under the Act cannot be equated with a defective title acquired in any other property as admittedly on the date of assignment, the right of the registered trade mark was not extinguished. 31. Both the findings of the High Court which we have noticed hereinbefore are findings on question of law and in that view of the matter the contention of Mr. Sudhir Chandra that the merit of the matter is yet to be gone into by the Board cannot be a ground for ignoring the submissions made at the bar. 32. Our attention has again been drawn to a passage from `Law of Trade marks & Geographical Indications' by Shri K.C. Kailasam, wherein the judgment of the Tribunal has been criticized in the following terms : \"From the above legislative intent, it would seem that the period of non-use of the trade mark is to be reckoned continuously from the date of its registration. In the case of American Home Products Corporation v. Mac Laboratories Pvt. Ltd. Rendered under the 1958 Act, it was held by the Supreme Court that \"the person seeking to have the trade mark removed from the register has only to prove such continuous non-user.\" It would appear that neither the U.K. Act, nor the Indian Act, at any time envisaged that the commencement of 5 year period of non-use is to be delinked from the date of registration of the mark, so as to give a fresh lease of life to the registration, every-time there is change in the ownership of the mark. If that be so, any registered proprietor could easily defeat an application for rectification by assigning the mark to some other person to have a fresh period of 5 years from the date of assignment and thus effectively frustrate the very object of the provision in section 47(1)(a) and (b). Further, it is to be noted that an assignment is subject to \"the provisions of the Act and any rights vested in any other person\"--See section 37. The assignor cannot obviously transfer more rights than he himself has to the assignee under the Act.\" 33. We do not think that the approach of the learned author is entirely correct. An assigner can transfer only such right which he possesses. If his title is not extinguished by reason of a provision of a statute for non-user of the trade mark for a period of five years, any assignment made shall be valid subject to such situation which we have noticed in paragraph 25 supra. 34. For the views we have taken, we are of the opinion that the impugned judgment cannot be sustained. It is set aside accordingly. The Board shall, however proceed to determine afresh the application filed by the first in the light of the legal principles explained above. 34. The appeal is allowed with costs. Counsel's fee assessed at Rs.1,00,000/-. .....................................J. [S.B. Sinha] .....................................J. 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{"id": "952082", "text": "CASE NO.: Appeal (civil) 4892 of 1998 PETITIONER: RAUNAQ INTERNATIONAL LTD. RESPONDENT: I.V R. CONSTRUCTION LTD. AND ORS. DATE OF JUDGMENT: 09/12/1998 BENCH: MRS. SUJATA V. MANOHAR & B.N. KIRPAL JUDGMENT: JUDGMENT 1998 Supp(3) SCR 421 The Judgment of the Court was delivered by MRS. SUJATA V. MANOHAR, J. The Maharashtra State Electricity Board, the appellant in Civil Appeal No. 4893 of 1998 floated a tender dated 20.12.1997 for design, engineering, manufacture, supply, erection and commissioning of large diameter pipes and steel tanks with all accessories and auxiliaries as prescribed in the bid documents for units 3 and 4 of Khaperkheda Thermal Power Station, Maharashtra, each unit being of 210 MW. The qualifying requirements of bidders as specified in the tender were, that the bidder should have designed Fabricated/manufactured, supplied, erected and successfully commissioned large diameter piping system comprising the supply of M.S. pipes not less than 2000 mm diameter and laid/buried for a minimum total length of 3 kms. in a thermal power station and the same should be in successful operation for the past two years as reckoned on the date set for opening of the bid. Further, the bidder should have minimum turnover of Rs. 7.5 crores per annum for the last 3 consecutive years. Under clause 1.4 of the qualifying criteria, it was provided : 'Notwithstanding anything stated above the Owner reserves the right to assess the Bidders' capability and capacity to perform, should the circumstances warrant such an assessment in the overall interest of the owner.' Pursuant to the invitation, the appellant-Maharashtra State Electricity Board received tenders from eleven bidders including M/s. IVR Construction Ltd. and M/s Raunaq International Ltd., who are the two contestants before us. After screening of the bids a note was submitted by the Technical Director of the Maharashtra State Electricity Board for the consideration of the Board of Directors. The note stated that out of the offers received, four offers were from tenderers who qualified as per the qualifying criteria. M/s IVR Construction Ltd., Hyderabad was stated to be one of the four such offerers. The note also mentioned that two offerers which included M/s Raunaq International Ltd., though not meeting the qualifying requirements, had done CW piping for 210 MW units. M/S IVR Construction Ltd. were recommended by the Technical Director for the placement of the order. The said company, however, fell, short of the requisite experience by one year. The note also stated that the offer of M/s Raunaq International Ltd. was the most competitive, being Rs, 43,28,316 Jess than the price quoted by M/s IVR Construction Ltd, In this connection, it is pointed out by the Maharashtra State Electricity Board that M/s Raunaq International Ltd. have designed, fabricated and commissioned M.S. pipes of 2000 mm diameter buried underground but for a distance less than 3 kms. They also have the requisite experience of doing such work for thermal power units of 210 MWs.. They have more than 2 years' experience in this work. The Board of Directors of the Maharashtra State Electricity Board, at its meeting held on 29.6.1998, after considering the note submitted by the Technical Director, decided to accept the offer of M/s Raunaq International Ltd. in view of the price advantage to the Board and adequate experience of M/s Raunaq International Ltd. of having completed similar type of work for 210 MW units. The offer of M/s Raunaq International Ltd. was accordingly accepted and the tender was awarded to it. M/s IVR Construction Ltd. challenged the decision of the Board in a writ petition filed in the High Court of Bombay, The High Court has passed the impugned interim order under which the High Court stayed the operation of the Letter of Intent dated 20th Of July, 1998 issued to M/s Raunaq international Ltd. Hence the present appeal. In these proceedings the Maharashtra State Electricity Board has filed an affidavit of its Technical Director. It is stated in this affidavit that the offer of M/s Raunaq International Ltd. was accepted on account of the price advantage to the Board, its offer being the lowest; and also in view of the adequate experience which M/s Raunaq International Ltd. possessed, having completed similar work in other 210 MW thermal power stations. This was done by relaxing the qualifying criterion which the Board said, it had the right to do, in view of clause 1.4 set out above. The Maharashtra State Electricity Board has also pointed out that M/s IVR Construction Ltd. also do not satisfy all the qualifying criteria because they do not have two years experience of such work which is prescribed under the qualifying criteria. Their total experience; is of less than a year. Therefore, looking to the fact that relaxation of criteria would have been required in respect of M/s IVR Construction Ltd. also and in view of the fact that the offer of M/s Raunaq International Ltd. is the lowest, if the Board has accepted the offer of M/s Raunaq International Ltd. after weighing their requirements against the qualifications of the two competing bidders, we fail to see how the High Court could have intervened and stayed the operation of the award of contract to M/s Raunaq International Ltd. This is not a case where any mala fides have been alleged against any member of the Board. Nor is there any allegation of any collateral motive for awarding the contract to M/s Raunaq International Ltd. The only ground of challenge in the writ petition filed by M/s IVR Construction Ltd. is that M/s. Raunaq International did not fulfil the qualifying criterion of having laid such pipeline for a distance of 3 kms. But the challenger- M/s IVR Construction Ltd. also does not fulfil the qualifying criterion. In these circumstances, we fail to see any basis for passing the impugned order. The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision considerations which are of paramount importance are commercial considerations. These would be :(1) The price at which the other side is willing to do the work; (2) Whether the goods or services offered are of the requisite specifications; (3) Whether the person tendering has the ability to deliver the goods or services as per specifications. When large works contracts involving engagement of substantial manpower or requiring specific skills are to be offered, the financial ability of the tenderer to fulfil the requirements of the job is also important; (4) the ability of the tenderer to deliver goods or services or to do the work of the requisite standard and quality; (5) past experience of the tenderer, and whether he has successfully completed similar work earlier; (6) time which will be taken to deliver the goods or services; and often (7) the ability of the tenderer to take follow up action, rectify defects or to give post contract services. Even when the State or a public body enters into a commercial transaction, considerations which would prevail in its decision to award the contract to a given party would be the same. However, because the State or a public body or an agency of the State enters into such a contract, there could be, in a given case, an element of public law or public interest involved even in such a commercial transaction. What are these elements of public interest ? (1) Public money would be expended for the purposes of the contract; (2) The goods or services which are being commissioned could be for a public purpose, such as, construction of roads, public buildings, power plants or other public utilities. (3) The public would be directly interested in the timely fulfilment of the contract so that the services become available to the public expeditiously. (4) The public would also be interested in the quality of the work undertaken or goods supplied by the tenderer. Poor quality of work or goods can lead to tremendous public hardship and substantial financial outlay either in correcting mistakes or in rectifying defects or even at times in re-doing the entire work - thus involving larger outlays or public money and delaying the availability of services, facilities or goods. e.g. A delay in commissioning a power project, as in the present case, could lead to power shortages, retardation of industrial development, hardship to the general public and substantial cost escalation. When a writ petition is filed in the High court challenging the award of a contract by a public authority or the State, the court must be satisfied that there is some element of public interest involved in entertaining such a petition. If, for example, the dispute is purely between two tenderers, the court must be very careful to see if there is any element of public interest involved in the litigation. A mere difference in the prices offered by the two tenderers may or may not be decisive in deciding whether any public interest is involved in intervening in such a commercial transaction. It is important to bear in mind that by court intervention, the proposed project may be considerably delayed thus escalating the cost far more than any saving which the court Would ultimately effect in public money by deciding the dispute in favour of one tenderer or the other tenderer. Therefore, unless the court is satisfied that there is a substantial amount of public interest, or the transaction is entered into mala fide. the court should not intervene under Article 226 in disputes between two rival tenderers. When a petition is filed as a public interest litigation challenging the award of a contract by the State or any public body to a particular tenderer, the court must satisfy itself that party which has brought the litigation is litigating bona fide for public good. The public interest litigation should not be merely a cloak for attaining private ends of a third party or of the party bringing the petition. The court can examine the previous record of public service rendered by the organisation bringing public interest litigation. Even when a public interest litigation is entertained the court must be careful to weigh conflicting public interests before intervening. Intervention by the court may ultimately result in delay in the execution of the project The obvious: consequence of such delay is price escalation. If any re-tendering is prescribed, cost of the project can escalate substantially. What is more important, ultimately the public would have to pay a much higher price in the form of delay in the commissioning of the project and the consequent delay in the contemplated public service becoming available to the public. If it is a power project which is thus delayed, the public may lose substantially because of shortage in electric supply and the consequent obstruction in industrial development. If the project is for the construction of a road, or an irrigation canal, the delay in transportation facility becoming available or the delay in water supply for agriculture being available, can be a substantial set back to the country's economic development. Where the decision has been taken bona fide and a choice has been exercised on legitimate considerations and not arbitrarily, there is no reason why the court should entertain a petition under Article 226. Hence before entertaining a writ petition and passing any interim orders in such petitions, the court must carefully weigh conflicting public interests. Only when it comes to a conclusion that there is an overwhelming public interest in entertaining the petition, the court should intervene. Where there is an allegation of mala fides or an allegation that the contract has been entered into for collateral purposes, and the court is satisfied on the material before it, that the allegation needs further examination, the court would be entitled to entertain the petition. But even here, the court must weigh the consequences in balance before granting interim orders. Where the decision-making process has been structured and the tender conditions set out the requirements, the court is entitled to examine whether these requirements have been considered. However, if any relaxation is granted for bona fide reasons, the tender conditions permit such relaxation and the decisions is arrived at for legitimate reasons after a fair consideration of all offers, the court should hesitate to intervene. It is also necessary to remember that price may not always be the sole criterion for awarding a contract. Often when an evaluation committee of experts is appointed to evaluate offers, the expert committee's special knowledge plays a decisive role in deciding which is the best offer. Price offered is only one of the criteria. The past record of the tenderers, the quality of the goods or services which are offered, assessing such quality on the basis of the past performance of the tenderer, its market reputation and so on, all play an important role in deciding to whom the contract should be awarded. At times, a higher price for a much better quality of work, can be legitimately paid in order to secure proper performance of the contract and good quality of work-which is as much in public interest as a low price. The court should not substitute its own decision for the decision of an expert evaluation committee. Normally before such a project is undertaken, a detailed consideration of the need, viability, financing and cost, effectiveness of the proposed project and offers received takes place at various levels in the Government. If there is a good reason why the project should not be undertaken, then the time to object is at the time when the same is under consideration and before a final decision is taken to undertake the project. If breach of law in the execution of the project is apprehended, then it is at the stage when the viability of the project is being considered that the objection before the appropriate authorities including the Court must be raised. We would expect that if such objection or material is placed before the Government the same would be considered before a final decision is taken. It is common experience that considerable time is spent by the authorities concerned before a final decision is taken regarding the execution of a public project. This is the appropriate time when all aspects and all objections should be considered. It is only when valid objections are not taken into account or ignored that the court may intervene, Even so, the Court should be moved at the earliest possible opportunity. Belated petitions should not be entertained. The same considerations must weigh with the court when interim orders are passed in such petitions. The party at whose instance interim orders are obtained has to be made accountable for the consequences of the interim order. The interim order could delay the project, jettison finely worked financial arrangements and escalate costs. Hence the petitioner asking for interim orders, in appropriate cases should be asked to provide security for any increase in cost as a result of such delay, or any damages suffered by the opposite party in consequence of an interim order. Otherwise public detriment may outweigh public benefit in granting such interim orders. Stay order or injunction order, if issued, must be moulded to provide for restitution; A somewhat different approach may be required in the cases of award of a contract by the Government for the purchase of times for its use. Judicial review would be permissible only on the established grounds for such review including mala fides, arbitrariness or unreasonableness of the Wendensbury variety. Balance of convenience would play a major role in moulded interim relief. There is a third variety of transactions entered into by the Government which come up for consideration before the courts, This is where the Government grants licences or permissions for a fee or consideration to private parties, enabling them to commercially exploit such a licence or permission. The principles of judicial review are no different in such a case. However, grant of stay or injunction in such cases may or may not result in prejudice to the public revenue, depending on the facts of the case. At times granting of a licence or permission may cause public harm e.g. in the case of damage to the ecology. Interim orders will have to be mouled in such cases on a consideration of all relevant factors, providing for restitution where required in public interest. It is unfortunate that despite repeated observations of this court in a number of cases, such petitions are being readily entertained by the High Courts without weighing the consequences. In the case of Fertiliser Corporation Kamgar Union (Regd.), Sindri and Ors. v. Union of India and Ors, [1981] 1 SCC 568, this court observed that if the Government acts fairly, though falters in wisdom, the court should not interfere. \"A pragmatic approach to social justice compels us to interpret constitutional provisions, including those like Articles 32 and 226, with a view to see that effective policing of the corridors of power is carried out by the court until other ombudsman arrangement.............. emerges............ The court cannot usurp or abdicate, and the parameters of judicial review must be clearly defined and never exceeded. If the Directorate of a Government company has acted fairly, even if it has faltered in its wisdom, the court cannot, as a super auditor, take the Board of Directors to task. This function is limited to testing whether the administrative action has been fair and free from the taint of unreasonableness and has substantially complied with norms of procedure set for it by rules of public administration.'' In Tata Cellular v. Union of India. [1994] 6 SCC 651, this Court again examined the scope of judicial review in the case of a tender awarded by a public authority for carrying out certain work. This Court acknowledged that the principles of judicial review can apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. However, there are inherent limitations in the exercise of that power of judicial review. The Court also observed that the right to choose cannot be considered as an arbitrary power. Of course, if this power is exercised for any collateral purpose, the exercise of that power will be struck down. \"Judicial quest in administrative matters has been to find the right balance between the administrative discretion to decide matters and the need to remedy any unfairness. Such an unfairness is set right by judicial review.\" After examining a number of authorities, the Court concluded (at page 687) as follows ;- (1) The modern trend points to judicial restraint in administrative action. (2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise, which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. (5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative or quasi-administrative sphere. However, the decision can be tested by the application of the \"Wednesbury principle\" of reasonableness and the decision should be free from arbitrariness, not affected by bias or actuated by mala fides. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased arid unbudgeted expenditure. The same view has been reiterated in Asia Foundation & Construction Ltd v. Trafalgar House Construction (I) Ltd and Ors., [1997] 1 SCC 738, the court observing that judicial review of contractual transactions by Government bodies is permissible to prevent arbitrariness, favouritism or use of power for collateral purposes. This Court added a further dimension to the undesirability of intervention by pointing out that where the project is a high cost project for which loans from the World Bank or other international bodies have been obtained after following the specifications and procedure of such a body, it would be detrimental to public interest to interfere. The same principles have been also reaffirmed in New Horizons Limited and Anr. v. Union of India and Ors., [1995] 1 SCC 478 with this Court again emphasising the need to allow for certain flexibility in administrative decision-making, observing that the decision can be challenged only On the Wednesbury principle of unreasonableness i.e. unless the decision is so unreasonable that no sensible person would have arrived at such a decision, it should riot be upset. In Delhi Science Forum and Ors. v. Union of India and Anr., [1996] 2 SCC 405, this Court once again observed that if a reasonable procedure has been followed, the decision should not be challenged except on the Wednesbury principle of unreasonableness. Dealing with interim orders, this Court observed in Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd. and Ors.,[ 1985] 2 SCR 190 at page 196 that an interim order should not be granted without considering balance of convenience, the public interest involved and the financial impact of an interim order. Similarly, in Ramniklal N. Bhutto and Anr: v. State of Maharashtra and Ors., [1997] 1 SCC 134, the Court said that while granting a Stay the court should arrive at a proper balancing of competing interests and grant a Stay only when there is an overwhelming public interest in granting it, as against the public detriment which may be caused by granting a Stay. Therefore, in granting an Injunction or Stay order against the award of a contract by the Government or a Government agency, the court has to satisfy itself that the public interest in holding up the project far out-weighs the public interest in carrying it out within a reasonable time. The court must also take into account the cost involved in staying the project and whether the public would stand to benefit by incurring such cost. Therefore, when such a Stay order is obtained at the instance of a private party or even at the instance of a body litigating in public interest, any interim order which stops the project from proceeding further, must provide for the reimbursement of costs to the public in case ultimately the litigation started by such an individual or body fails. The public must be compensated both for the delay in implementation of the project and the cost escalation resulting from such delay. Unless an adequate provision is made for this in the interim order, the interim order may prove counter- productive, In the present case it was submitted that the terms and conditions of the tender specified the requisite qualifying criteria before a person could offer a tender. The criteria which were so laid down could not have been relaxed because such a relaxation results in a denial of opportunity to others. In support, the respondents relied Upon Ramana Dayaram Shetty v. International Airport Authority of India and Ors., [1997] 3 SCC 489. In that case the Court had held judicial review as a check on the exercise of arbitrary powers by the State and as a check on its power to grant largess. the Court also observed that When the exercise of discretion is structured in terms of the tenders which have been invited the discretion must be exercised in accordance with the norms so laid down. The same view has been taken by this Court in Premium Granites and Anr. V. State of T.N. and Ors., [1994] 2 SCC 691, where this Court observed that where rational non- discriminatory norms have been laid down for granting of tenders, a departure from such norms can only be made on valid principles, These principles enunciated by this Court: are unexceptional. In the present case, however, the relaxation was permissible under the terms of the tender. The relaxation which the Board has granted to M/s Raunaq International Ltd. is on valid principles looking to the expertise of the tenderer and his past experience although it does not exactly tally with the prescribed criteria. What is more relevant, M/s IVR Construction Ltd. who have challenged this award of tender themselves do not fulfil the requisite criteria. They do not possess the prescribed experience qualification. Therefore, any judicial relief at the instance of a party which does not fulfil the requisite criteria, seems to be misplaced. Even if criteria can be relaxed both for-M/s Raunaq International Ltd. and M/s IVR Construction Ltd., it is clear that the offer of M/s Raunaq International Ltd. is lower and it is on this ground that the Board has accepted the offer of M/s Raunaq International Ltd. We fail-to see how the award of tender can be stayed at the instance of a party which does not fulfil the requisite criteria itself and whose offer is higher than the offer which has been accepted, It is also obvious that by stopping the performance of the contract so awarded, there is a major detriment to the public because the construction of two thermal power units, each of 210 MWs., is held up on account of this dispute. Shortages of power have become notorious. They also seriously affect industrial development and the resulting job opportunities for a large number of people. In the present case there is no overwhelming public interest in stopping the project. There is no allegation whatsoever of any mala fides or collateral reasons for granting the contract to M/s. Raunaq International Ltd. In our view the High Court has seriously erred in granting the interim order. The appeals are, therefore, allowed and the impugned order is set aside. 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{"id": "51289111", "text": "REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOs. 5384-5385 OF 2014 SEETHAKATHI TRUST MADRAS \u2026 Appellant Versus KRISHNAVENI \u2026Respondent JUDGMENT SANJAY KISHAN KAUL, J. Facts: 1. Land measuring 0.08 cents (100 cents = 1 acre) has seen a dispute spanning almost half a century. 2. One C.D. Veeraraghavan Mudaliar was the original owner of 120 acres of land comprising S.No.44 and 45 at No.18, Othivakkam Village, Chengalpattu Taluk. He entered into an agreement in October, 1959 to sell the Land in favour of Janab Sathak Abdul Khadar Sahib who Signature Not Verified intended to purchase the same on behalf of the appellant Trust for a sale Digitally signed by RASHI GUPTA Date: 2022.01.17 16:54:15 IST Reason: consideration of Rs.18,000. The appellant Trust was registered under the Societies Registration Act, 1860 originally and now regulated under the Tamil Nadu Societies Registration Act, 1975. The other story is what is set up by the Respondent who claimed that C.D. Veeraraghavan Mudaliar entered into an agreement of sale with her on 10.04.1961 for sale of 50 acres in patta No.61 and paimash No.987/1 of the Land. 3. It is the claim of the Appellant that C.D. Veeraraghavan Mudaliar had sold 50 acres out of 120 acres of land to one Niraja Devi on 16.11.1963 vide registered sale deed, who took possession of the said land and enjoyed the same. These 50 acres were bounded by a hillock in the east, land belonging to C.D. Veeraraghavan Mudaliar in the west, Government Reserve Forest in the north and Hasanapuram grazing ground and lake in the south. Niraja Devi sold the 50 acres of land to one Perumal Mudaliar vide registered sale deed dated 19.04.1964, who also took possession of the said land and enjoyed the same. As per the Appellant, Perumal Mudaliar sold the 50 acres of land to the Appellant Trust on 19.03.1968 vide a registered sale deed. 4. Insofar as the remaining 70 acres of land is concerned, C.D. Veeraraghavan Mudaliar and his son sold the same to the Appellant vide registered sale deed dated 19.3.1968. The said property is bounded by the land of Niraja Devi on the east, Kumuli Forest Line on the north, boundary line of Kannivakam Village on the west, and boundary line of Hasanapuram Village on the south. In respect of this 70 acres there is no dispute. History of the land dispute: 5. The Respondent filed a suit as O.S. No.31 of 1964 before the Principal Sub-Court, Chengalpattu for specific performance of the agreement dated 10.04.1964 against C.D. Veeraraghavan Mudaliar and his son, which was dismissed on 13.08.1964. The Respondent preferred an appeal against the said order, as A.S. No.366/65 before the District Judge, Changalpattu and the said appeal was also dismissed on 08.03.1966. However, the fate of the Respondent brightened in the second appeal, being S.A. No.1673 of 1966, before the High Court of Judicature at Madras, when they succeeded in terms of the judgment dated 07.07.1970 whereby specific performance of the agreement dated 10.04.1961 was decreed. The High Court inter alia held that time was not the essence of the contract and the land could be identified. In pursuance of the decree so passed in the second appeal, the Respondent filed for execution, being E.P. No.17 of 1976, before the Sub Court, Chengalpattu. The Sub-Court appointed the Taluk head surveyor as Commissioner for demarcation of 50 acres of land, who subsequently filed his interim and final reports. The Sub-Court purportedly executed the sale deed on 09.04.1981 through the officer of the Court and a delivery receipt dated 26.09.1981 was issued to Respondent. 6. The controversy insofar as the present case is concerned arose from a suit filed by the Respondent, being O.S. No.14 of 1984 before the Court of District Munsif, Chengalpattu against the Appellant praying for declaration of title and delivery in her favour to the extent of 0.08 cents of the land and delivery of the same. The suit was predicated inter alia on a rationale that the Respondent had taken possession of 50 acres by way of the execution proceedings, and that the Appellant had trespassed over 0.08 cents of the same. The suit was, however, dismissed on 07.09.1988 as the trial court formed an opinion that the Respondent cannot be said to have taken possession of 50 acres of land as the delivery receipt read that the delivery was effected by the Vetti. The crucial aspect is that the Respondent, who was the best person to speak about the delivery of 50 acres of land chose not to appear in the witness box. This proved fatal to her case as the manager of the Respondent who did appear in the witness box deposed that he was not authorised by the respondent to conduct the case. Thus, the case fell on the evidence led by the Respondent themselves. The testimony of the manager also became material as he admitted to possessing knowledge of the sale deed effected by C.D. Veeraraghavan Mudaliar in favour of Niraja Devi. The manager acknowledged that he was aware of the same through the corresponding encumbrance certificate before the filing of the suit in 1964, and also knew that Niraja Devi had sold 50 acres of land to Perumal Mudaliar. The subsequent purchaser, to the knowledge of the Respondent, was never impleaded as party in the suit nor did she seek to get the sale deeds cancelled. It is in view thereof it was opined that the Respondent was estopped from questioning the appellant\u2019s purchase. The plea of sale being hit by lis pendens was rejected and the appellant was held to have adverse possession of the land as confirmed by the Panchayat Board President, who appeared as a witness and deposed that the Appellant had been enjoying the land for more than 30 years. The Appellant had no knowledge of the earlier proceedings in respect of the suit for specific performance filed by the Respondent. 7. The Respondent preferred an appeal, being A.S. No.101 of 1998, before the Principal Sub Court, Chengalpet, which was dismissed on 28.03.2002. The dismissal was predicated on a dual finding, i.e., that the appellant was in adverse possession of the land, and as per Section 114(3) of the Indian Evidence Act, 1872 (hereinafter referred to as the \u2018Evidence Act\u2019) the expression \u201cmay be presumed\u201d showed that the court can infer the reality from available evidence and documents. The delivery receipt was found to be not a real document of delivery of possession, but of mere paper delivery. 8. The aggrieved Respondent filed a second appeal before the High Court of Judicature at Madras in S.A. No.1552 of 2003 claiming she was the absolute owner of land to the extent of 50 acres pursuant to the clear demarcation by the surveyor as well as the sale deed between her and C.D. Veeraraghava Mudaliar, which was executed on 09.04.1981 through the court process. The grievance against the Appellant was of trespass upon 0.08 cents of land, as a barbed wire fence and a gate had been put up on the same. It was Respondent\u2019s case that possession of the land had been taken over on 26.09.1981, and that the Appellant could not contend that he had title over the land by adverse possession. She professed ignorance of the sale in favour of Niraja Devi and Perumal Mudaliar as rationale for not impleading the Appellant, even though her manager had deposed to the contrary while she had not entered the witness box during the trial. 9. The Appellant claimed title to 50 acres including 0.08 cents and pointed out that Respondent\u2019s grievance was made only with respect to 0.08 cents. The Appellant Trust, in fact, claimed the ownership of entire 120 acres of land. It was contended that no proper delivery had ever been made as admitted by the amin and the possession was only a paper delivery without actual physical possession. No question of law was left to be determined as urged by the Appellant. 10. The High Court vide impugned judgment dated 06.01.2012, however, allowed the second appeal and set aside the judgments passed by the courts below on the ground that they did not properly appreciate the evidence particularly with respect to the execution proceedings. The delivery of 50 acres of land by the amin in accordance with the surveyor\u2019s plans was found to be proof of possession by the Respondent. Further, as per the surveyor\u2019s report, persons belonging to the appellant trust did endeavour to obstruct the possession proceedings but did not challenge the vires of the delivery proceedings. The plea of adverse possession was also rejected. Pleas of the Appellant before this Court: 11. Learned senior counsel for the appellant contended that no substantial question of law was framed by the High Court, which itself is a sine qua non of exercising jurisdiction under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as the \u2018said Code\u2019). The manner in which the High Court proceeded, it was urged, amounted to re-appreciating the evidence and disturbing the concurrent findings of the courts below. The High Court had proceeded into a fact-finding exercise, which was not within its jurisdiction under Section 100 of the said Code. 12. An aspect emphasised by learned counsel for the Appellant was that the Respondent chose not to depose in support of her own case, and the manager who deposed admitted that he had no power or authority to do so. The Respondent alone had knowledge of the alleged facts as appeared from the deposition of the manager and, thus, an adverse inference must be drawn against the Respondent in view of the judicial pronouncements in Vidyadhar v. Manikrao and Anr.1 and Man Kaur (Dead) by LRs v. Hartar Singh Sangha2. It has been held in these (1999) 3 SCC 573 (2010) 10 SCC 512 judicial pronouncements that if a party to a suit does not appear in the witness box to state their own case and does not offer themselves to be cross-examined by the other side, a presumption would arise that the case set up is not correct. The latter of the two judgments has discussed the earlier judgments and catena of other judicial views to the same effect and opined that a plaintiff cannot examine his attorney holder in his place, who did not have personal knowledge either of the transaction or of his readiness and willingness in a suit for specific performance. Thus, a third party who had no personal knowledge cannot give evidence about such readiness and willingness, even if he is an attorney holder of the person concerned. 13. The admission of the manager of the Respondent who appeared in the witness box acknowledging that the sale to Niraja Devi by a registered conveyance deed dated 16.11.1963 prior to the filing of the suit shows that the Respondent was aware of the further sale by Niraja Devi to Perumal Mudaliar by another registered sale deed and thereafter in favour of the Appellant. In such an eventuality, it was urged that the purchasers were necessary parties to the suit and a decree for specific performance obtained behind their back would be a nullity. This proposition was sought to be supported by a judgment of this Court in Lachhman Dass v. Jagat Ram and Ors. 3. In para 16 of the judgment, it has been opined that a party\u2019s right to own and possess a suit land could not have been taken away without impleading the affected party therein and giving an opportunity of hearing in the matter, as the right to hold property is a constitutional right in terms of Article 300-A of the Constitution of India. Thus, if a superior right to hold a property is claimed, procedure therefore must be complied with. In this context, it was urged that as per Section 3 of the Transfer of Property Act, 1882, a registered transaction operates as a notice to all concerned. In the present case, the first sale deed was already registered prior to the institution of the suit by the Respondent for specific performance. Thus, that decree could not be binding on the Appellant. 14. In the alternative, it was pleaded that the decree of specific performance was vitiated by a fraud with the purchaser of the property being deliberately not impleaded in the suit. A reference was made to Section 19(b) of the Specific Relief Act, 1963 (hereinafter referred to as the \u2018Specific Relief Act\u2019), which reads as under: \u201c19. Relief against parties and persons claiming under them by (2007) 10 SCC 448 subsequent title.\u2014Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against\u2014 xxxx xxxx xxxx xxxx (b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract;\u201d 15. Since Niraja Devi was a bona fide purchaser long prior to the institution of the suit for specific performance by the Respondent, specific performance could not be enforced against her or her transferees as they would fall within the exception of transferee for value who had paid money in good faith and without notice of the original contract. 16. Lastly it was sought to be urged that Section 114 of the Evidence Act in the factual context has not been correctly appreciated. The provision reads as under: \u201c114 Court may presume existence of certain facts. \u2014The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.\u201d 17. The aforesaid was in the context that the delivery effected was only a paper delivery and any infraction in effecting the delivery was not curable. The amin had not followed the prescribed procedure in delivering possession and the appellant had continued in possession for over 30 years. Moreover, the suit was only filed for 0.08 cents of land. Pleas of the Respondent before this Court: 18. On the other hand learned senior counsel for the respondent claimed that the Respondent and her daughter are quite old and do not have the wherewithal to pursue litigation. The litigation has been pending since 1961. It was urged that the appellant had title only to 70 acres of land and has trespassed into 0.08 cents of the land, which blocked the entrance to respondent\u2019s land. Thus, though the suit pertains only to a smaller extent of land it affected the enjoyment by the respondent of their possession over larger extent of the land. 19. Learned counsel urged that the trial court and the lower court had overlooked crucial and vital evidence and, thus, the High Court rightly exercised jurisdiction under Section 100 of the said Act. There was no question of impleading the appellant or the prior purchasers as parties as no issue had been framed in the suit in respect thereof. The presumption under Section 114(e) of the Evidence Act must arise and the appellant Trust was aware of the execution proceedings as some of the persons belonging to the appellant Trust are stated to have obstructed the Surveyor\u2019s entry when he went to demarcate the land as well as by the interim and final reports of the surveyor. The Trust never questioned the same at the time and cannot question it now. Conclusion: 20. We have given our thought to the aforesaid aspect. 21. We find that there are more than one infirmities which make it impossible for us to uphold the view taken by the High Court upsetting the concurrent findings of the courts below. 22. The first aspect to be taken note of is that the question of law ought to have been framed under Section 100 of the said Code. Even if the question of law had not been framed at the stage of admission, at least before the deciding the case the said question of law ought to have been framed. We may refer usefully to the judicial view in this behalf in Surat Singh (Dead) v. Siri Bhagwan and Ors. 4, wherein this Court has held that: \u201c29. The scheme of Section 100 is that once the High Court is satisfied that the appeal involves a substantial question of law, such question shall have to be framed under sub-section (4) of Section 100. It is the framing of the question which empowers the High Court to finally decide the appeal in accordance with the procedure prescribed under sub-section (5). Both the requirements prescribed in sub-sections (4) and (5) are, therefore, mandatory and have to be followed in the manner prescribed therein. Indeed, as mentioned (2018) 4 SCC 562 supra, the jurisdiction to decide the second appeal finally arises only after the substantial question of law is framed under sub-section (4). There may be a case and indeed there are cases where even after framing a substantial question of law, the same can be answered against the appellant. It is, however, done only after hearing the respondents under sub-section (5).\u201d 23. There is undoubtedly an element of dispute with respect to possession raised by the two parties qua their respective 50 acres. Insofar as 70 acres of land is concerned that undisputedly vests with the Appellant. The dispute sought to be raised by the Respondent does not pertain to 50 acres but only to 0.08 cents, a fraction of an acre (0.08 per cent of an acre). It may, however, be noticed that according to the Respondent the small area is important for the enjoyment purposes. 24. In our view, it is not necessary to go into the issue of adverse possession as both parties are claiming title. The crucial aspect is the decree obtained for specific performance by the Respondent and the manner of obtaining the decree. The Respondent was fully aware of the prior registered transaction in respect of the same property originally in favour of Niraja Devi. This is as per the deposition of her manager. In such a scenario it is not possible for us to accept that a decree could have been obtained behind the back of a bona fide purchaser, more so when the transaction had taken place prior to the institution of the suit for specific performance. Suffice to say that this view would find support from the judgments in Vidyadhar v. Manikrao5 and Man Kaur v. Hartar Singh Sangha6. 25. The second vital aspect insofar as the case of the Respondent is concerned is that the Respondent did not even step into the witness box to depose to the facts. It is the manager who stepped into the witness box that too without producing any proper authorisation. What he deposed in a way ran contrary to the interest of the Respondent as it was accepted that there was knowledge of the transaction with respect to the same land between third parties and yet the Respondent chose not to implead the purchasers as parties to the suit. Thus, the endeavour was to obtain a decree at the back of the real owners and that is the reason, at least, in the execution proceedings that the original vendor did not even come forward and the sale deed had to be executed through the process of the Court. The case of Niraja Devi and the subsequent purchasers including the Appellant would fall within the exception set out in Section 19(b) of the Specific Relief Act, being transferees who had paid money in good (supra) (supra) faith and without notice of the original contract. There are also some question marks over the manner in which the possession is alleged to have been transferred although we are not required to go into that aspect, as we are concerned with only 0.08 cents of land. 26. We are, thus, unequivocally of the view that for all the aforesaid reasons, the High Court ought not to have interfered with the concurrent findings of the trial court and the first appellate court. 27. The suit of the Respondent stands dismissed in terms of the judgment of the trial court and affirmed by the first appellate court and the impugned judgment of the High Court dated 06.01.2012 is consequently set aside. 28. The appeals are accordingly allowed leaving the parties to bear their own costs. ...\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. [Sanjay Kishan Kaul] ...\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. [M.M. Sundresh] New Delhi. 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