Digital Supreme Court Reports

The Official Law Report

Fortnightly
2024 | Volume 2

Citation Style: [ Year ] Volume No. S.C.R. Page no.

Digitally Published by
Supreme Court of India
Digital Supreme Court Reports
The Official Law Report
Fortnightly
2024 | Volume 2

Digitally Published by
Supreme Court of India
 Editorial Board

Hon’ble Dr. Justice D Y Chandrachud

Chief Justice of India
Patron-in-Chief

Hon’ble Mr. Justice Abhay S. Oka

Judge, Supreme Court of India
Patron

Hon’ble Mr. Justice P. S. Narasimha

Judge, Supreme Court of India
Patron

Dr. Uma Narayan

Registrar/OSD (Editorial)
Email: [email protected], [email protected]

Mr. Bibhuti Bhushan Bose

Additional Registrar (Editorial) & Editor-in-Chief
Email: [email protected], [email protected]

Dr. Sukhda Pritam

Additional Registrar (Editorial-DigiSCR) & Director, CRP
Email: [email protected]

© 2024 Supreme Court of India. All Rights Reserved.

Digitally Published by
Supreme Court of India

Tilak Marg, New Delhi-110001

Email: [email protected]
Web.: digiscr.sci.gov.in/, www.sci.gov.in/
 Contents

1. Velthepu Srinivas and Others v.

State of Andhra Pradesh (Now State of Telangana) and Anr.. . . . . . . 1

2. The Authorised Officer, Central Bank of India v.

Shanmugavelu. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

3. Union of India and Ors. v.

M/S. B.T. Patil and Sons Belgaum (Construction) Pvt. Ltd. . . . . . . . 91

4. Bhaggi @ Bhagirath @ Naran v.

The State of Madhya Pradesh. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111

5. Jagmohan and Another v.

Badri Nath And Others. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123

6. Gurwinder Singh v. State of Punjab & Another. . . . . . . . . . . . . . . . 134

7. Rajasekar v. The State Rep. by The Inspector of Police. . . . . . . . . 152

8. Vinod Kanjibhai Bhagora v. State of Gujarat & Anr. . . . . . . . . . . . . 155

9. Abdul Jabbar v. The State of Haryana & Ors.. . . . . . . . . . . . . . . . . 162

10. Sudhir Vilas Kalel & Ors. v. Bapu Rajaram Kalel & Ors. . . . . . . . . 165

11. Naresh Chandra Agrawal v.

The Institute of Chartered Accountants of India and Others . . . . . 194

12. Sushil Kumar Pandey & Ors. v.

The High Court of Jharkhand & Anr.. . . . . . . . . . . . . . . . . . . . . . . . 217

13. No.2809759H Ex-Recruit Babanna Machched v.

Union of India and Ors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242

14. Mamidi Anil Kumar Reddy v.

The State of Andhra Pradesh & Anr.. . . . . . . . . . . . . . . . . . . . . . . . 252
15. Greater Noida Industrial Development Authority v.
Prabhjit Singh Soni & Anr.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258

16. Mallappa & Ors. v. State of Karnataka. . . . . . . . . . . . . . . . . . . . . . . 288

17. Directorate of Enforcement v. Niraj Tyagi & Ors.. . . . . . . . . . . . . . . 311

18. Vasantha (Dead) Thr. Lr. v.

Rajalakshmi @ Rajam (Dead) Thr.Lrs. . . . . . . . . . . . . . . . . . . . . . . 326

19. Chatrapal v. The State of Uttar Pradesh & Anr.. . . . . . . . . . . . . . . . 348

20. State by the Inspector of Police v. B. Ramu . . . . . . . . . . . . . . . . . . 357

21. Deepak Kumar Shrivas & Anr. v.

State of Chhattisgarh & Ors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364

22. Chandigarh Housing Board v. Tarsem Lal. . . . . . . . . . . . . . . . . . . . 371

23. Kalinga @ Kushal v.

State of Karnataka By Police Inspector Hubli . . . . . . . . . . . . . . . . 391

24. Manoj Kumar v. Union of India & Ors.. . . . . . . . . . . . . . . . . . . . . . . 409

25. Association for Democratic Reforms & Anr. v.

Union of India & Ors.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 420

26. Dr. Mrs. Suman V. Jain v. Marwadi Sammelan

through its Secretary and Others. . . . . . . . . . . . . . . . . . . . . . . . . . . 617

27. Mohd Abaad Ali & Anr. v.

Directorate of Revenue Prosecution Intelligence. . . . . . . . . . . . . . . 638

28. The Tehsildar, Urban Improvement Trust and Anr. v.

Ganga Bai Menariya (Dead) Through Lrs. and Others. . . . . . . . . . 650

29. Ram Singh v. The State of U.P.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 668

30. N. Manogar & Anr. v. The Inspector of Police & Ors. . . . . . . . . . . . 685

31. Kuldeep Kumar v. U.T. Chandigarh and Others. . . . . . . . . . . . . . . . 693

32. Smt. Vidya K. & Ors. v. State of Karnataka & Ors.. . . . . . . . . . . . . 713

33. Ravindra Kumar v. State of U.P. & ORS.. . . . . . . . . . . . . . . . . . . . . 722

34. Ram Nath v. The State of Uttar Pradesh & Ors.. . . . . . . . . . . . . . . 743

35. M/S Brahmaputra Concrete Pipe Industries Etc. Etc. v.

The Assam State Electricity Board and Others. . . . . . . . . . . . . . . . 758

36. Shailesh Kumar v.

State of U.P. (Now State of Uttarakhand) . . . . . . . . . . . . . . . . . . . . 776

37. Anun Dhawan & Ors. v. Union of India & Ors. . . . . . . . . . . . . . . . . 812

38. CDR Seema Chaudhary v. Union of India and Others . . . . . . . . . 820

39. Naresh Kumar v. State of Haryana . . . . . . . . . . . . . . . . . . . . . . . . . 830

40. Lucknow Nagar Nigam & Others v.

Kohli Brothers Colour Lab. Pvt. Ltd. & Others. . . . . . . . . . . . . . . . . 847

41. Basavaraj v. Indira and Others. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935

42. High Court Bar Association, Allahabad v.

State of U.P. & Ors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 946

43. Dattatraya v. The State of Maharashtra. . . . . . . . . . . . . . . . . . . . . . 989

44. Bharti Cellular Limited (Now Bharti Airtel Limited) v.

Assistant Commissioner of Income Tax, Circle 57,
Kolkata and Another . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1001

45. State of Punjab v. Gurpreet Singh & Ors.. . . . . . . . . . . . . . . . . . . 1039

46. M. Vijayakumar v. State of Tamil Nadu . . . . . . . . . . . . . . . . . . . . . 1054

47. Najrul Seikh v. Dr. Sumit Banerjee & Anr.. . . . . . . . . . . . . . . . . . . 1065

48. Satender Kumar Antil v.

Central Bureau of Investigation and Anr.. . . . . . . . . . . . . . . . . . . . 1072

49. Vedanta Limited v. The State of Tamil Nadu & Ors. . . . . . . . . . . . 1121

50. Dr Kavita Kamboj v.

High Court of Punjab and Haryana & Ors. . . . . . . . . . . . . . . . . . . 1136

51. Thakore Umedsing Nathusing v. State of Gujarat. . . . . . . . . . . . . 1178

52. Anil Kishore Pandit v. The State of Bihar and Others. . . . . . . . . . 1196
53. Balveer Batra v.
The New India Assurance Company & Anr. . . . . . . . . . . . . . . . . . 1204

54. Vikas Chandra v. State of Uttar Pradesh & Anr. . . . . . . . . . . . . . . 1223

 [2024] 2 S.C.R. 1 : 2024 INSC 87

Velthepu Srinivas and Others

v.
State of Andhra Pradesh (Now State of Telangana) and Anr.
(Criminal Appeal No. 2852 of 2023)
06 February 2024
[B.R. Gavai and Pamidighantam Sri Narasimha,* JJ.]

Issue for Consideration

The courts below, if justified in convicting the four accused u/ss.
302/34 IPC and imposing sentence for life for committing murder
of the victim.

Headnotes
Penal Code, 1860 – ss. 302/34, s. 304 Part II – Murder with
common intention – Culpable homicide not amounting to
murder, when – Political animosity between two groups
led to the murder of the deceased – Prosecution witnesses
corroborating incident of accused A 1 stopping an auto,
dragging the deceased to the house of A-4, and the other
accused-A2, A4 joined A-1 and assaulted the deceased with
various weapons, whereas, A-3 used a stone to assault the
deceased – Conviction u/ss. 302/34 and sentence for life
imposed by the courts below – Correctness:
Held: As regards A1, A2 and A4, the decision of the trial court and
the High Court is concurred with – Their analyses and conclusions
are based on correct appreciation of evidence and law – However,
as regards, the culpability of A-3 for murder, testimonies of four
eye-witnesses state that the A-3 had used a stone to hit the
deceased’s head, he never took axe in his hands – Perusal of the
evidence would reveal that it is not the case of the prosecution
that A-3 was along with the other accused while the deceased
was dragged to the house – After the other accused assaulted
the deceased with sword, A-3 came thereafter and assaulted the
deceased with stone lying there – Evidence insufficient to deduce
a conclusion that A-3 shared the common intention with the other
accused to cause the murder of the deceased – In fact, both the
courts mechanically drew an inference against A3 u/s. 34 merely

* Author
2 [2024] 2 S.C.R.

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based on his presence near the scene of offence and his familial
relations with the other accused – Even though, A-3 might not have
had the common intention to commit the murder, nevertheless, his
participation in the assault and the wielding of the stone certainly
makes him culpable for the offence that he has committed – A-3
should have had the knowledge that the use of a stone to hit the
head of the deceased is likely to cause death – Thus, he is held
guilty of the offence u/s. 304 Part II – Conviction and sentence of
A-1, A-2 and A-4 u/s. 302/34 is upheld, however, the conviction
of A-3 is modified to s. 304 Part II and sentenced to 10 years
imprisonment. [Paras 17, 23, 28, 30, 31, 32]

Case Law Cited

Camilo Vaz v. State of Goa, [2000] 2 SCR 1088 : (2000)
9 SCC 1; Bawa Singh v. State of Punjab 1993 Supp
(2) SCC 754; Sarup Singh v. State of Haryana (2009)
16 SCC 479; Ghana Pradhan & Ors. v. State of Orissa
1991 Supp (2) SCC 451 – referred to.

List of Acts
Penal Code, 1860

List of Keywords
Murder; Common intention; Witnesses; Corroboration; Sentence for
life; Evidence; Eye-witnesses; Appreciation of evidence and law;
Testimonies; Oral and documentary evidence; Scene of offence;
Post-mortem report; Likely to cause death.

Case Arising From

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.2852

of 2023
From the Judgment and Order dated 26.04.2022 of the High Court
for the State of Telangana at Hyderabad in CRLA No.308 of 2005

Appearances for Parties

Gaurav Agrawal, D. Abhinav Rao, Ms. Prerna Robin, Rahul Jajoo,
Devadipta Das, Advs. for the Appellants.
Sirajudeen, Sr. Adv., Krishna Kumar Singh, Sri Harsha Peechara,
Duvvuri Subrahmanya Bhanu, Ms. Pallavi, Ms. Kriti Sinha, Akshat
[2024] 2 S.C.R.  3

Velthepu Srinivas and Others v.

State of Andhra Pradesh (Now State of Telangana) and Anr.

Kulshreshtha, Rajiv Kumar Choudhry, G.Seshagiri Rao, Gaichangpou

Gangmei, Rahul Aggarwal, Amit Pratap Singh, Ms. Lothungbeni T.
Lotha, Yimyanger Longkumer, Advs. for the Respondents.

Judgment / Order of the Supreme Court

Judgment
Pamidighantam Sri Narasimha, J.
1. This criminal appeal by appellants (accused 1 to 4) is against the
concurrent conviction under Section 302 read with Section 34 and
sentence for life imposed by the Trial as well as the Telangana High
Court. For the reasons to follow, while we confirm the judgment and
sentence with respect to A-1, A-2 and A-4, the conviction and sentence
of A-3 is however modified to Section 304 Part II and sentenced to
10 years imprisonment. The details of the crime, trial, decisions of
the Courts, followed by our analyses and conclusions are as follows.
2. The case of the prosecution is that the accused 1 to 4 belonging to
the same family, and the deceased, come from the same village -
Janda Venkatpur, Asifabad, Telangana. It is alleged that the sister of
the deceased and the wife of A-4 were political aspirants and they
contested the Gram Panchayat elections. In the said elections, the
sister of the deceased succeeded and the wife of A-4 lost and that,
unfortunately, led to an animosity between the two groups, eventually
leading to the murder of the deceased which is described as follows.
3. On 15.11.2001, at about 8AM, the deceased was going to Luxettipet
on some work in an auto-rikshaw. In the same auto-rikshaw, one
Sanga Swamy @ Thruputhi (PW-6) and Smt. Chetimala Rajitha
(PW-9) were travelling as co-passengers. When the auto reached
the house of A-4, it is alleged that A-1 stopped the auto-rickshaw
and dragged the deceased out by pulling his legs. At the same time,
A-2 joined A-1 and both the accused dragged the deceased towards
the house of A-4. At that point, it is alleged that A-1 to A-4 attacked
the deceased with an axe, a sword, a stone and a knife, thereby
inflicting severe bleeding injuries leading to death of the deceased
on the spot.
4. The son of the deceased, Kona Kiran Kumar, later examined as
PW-1, being an eyewitness, proceeded to the police station and
reported the incident at about 9PM by way of a complaint (Exhibit
4 [2024] 2 S.C.R.

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P-1). The Sub-Inspector of Police (PW-17), Luxettipet received the

complaint and registered an FIR (Exhibit P-32), and took up the
investigation. He then recorded the statement of PW-1.
5. In view of the gravity of the crime, the Circle Inspector of
Police (PW-18) took up further investigation and immediately
proceeded to the village to examine the scene of offence. He
found the body of the deceased in the front yard of A-4’s house.
He enabled PW-15 to take photographs of the dead body
(Exhibits P-21 to 30) and himself drew the sketch of the scene
of offence (Exhibit P-37). He also conducted an inquest over
the body of the deceased in the presence of PW-10 and
PW-12 (panch witnesses). The inquest report was marked as Exhibit
P-5. He also seized a stick (MO.4), control earth (MO.5), blood-
stained earth (MO.6), cotton full shirt (MO.7) and a baniyan under
cover of a panchnama. PW-18 recorded the statements of PWs 4,
5, 6, 7, 8, 9, and 15. The prosecution maintained that PWs 1, 3, 4,
6, 7 and 8 are eyewitnesses to the incident.
6. The Judicial Magistrate First-Class (PW-16) also recorded the
statements of PWs 1 to 9 under Section 164 of the CrPC. The Post-
mortem over the dead body of the deceased was conducted by Dr
Victor Dinesh (PW-11) at 3PM on 15.11.2001 at the Government
Civil Hospital. PW-11, in his report, found 8 incised wounds, 3 partial
amputations and 1 deep lacerated wound. It was his opinion that the
cause of death was due to cardio-pulmonary arrest due to transaction
spinal cord at atlanto occipital joint.
7. The Sub-Inspector (PW-17) is said to have apprehended all the
accused on 23.11.2001 and produced them before PW-18 in his
office. PW-18 recorded the confessional statement of the accused in
the presence of PW-13 and PW-14 (panch witnesses). In pursuance
of the confession, all the accused led him and the panch witnesses
to the field of one Mr. Appani Gangaiah at Laximpur Shivar. There,
A-1 recovered and showed an axe, A-2 a sword and A-4 a knife
which were all hidden behind the bushes in the field. PW-18 seized
these objects in front of PW-11 to PW-13, later came to be marked
as Exhibits MOs 1 to 3. PW-18 also recovered a lungi belonging to
A-1 and one belonging to A-2 (Exhibit MO’s 9 and 10, respectively).
These material objects were sent to a Forensic Lab in Hyderabad,
the report of which is marked as Exhibit P-16.
[2024] 2 S.C.R.  5

Velthepu Srinivas and Others v.

State of Andhra Pradesh (Now State of Telangana) and Anr.

8. After completion of the above referred investigation, a charge-

sheet was filed on 09.01.2002. The Judicial First-Class Magistrate,
Luxettipet took cognizance of the offence under Section 302 read
with Section 34 of IPC, against all the accused. On production of the
accused, the Magistrate furnished copies of the charge-sheet and
other connected documents and committed the case to the Court
of Sessions and the Learned Sessions Judge numbered the trial as
Sessions Case No. 523 of 2003. After the charges were framed, the
accused pleaded not guilty and sought trial.
9. At the trial, the prosecution examined 18 witnesses being PW-1 to
PW-18, and marked 37 documents and 10 Material Objects (MO’s).
After the closure of evidence, the accused were examined under
Section 313 CrPC with reference to the incriminating material found
against them in the evidence of the prosecution witnesses, and they
denied the same. There are no defence witnesses.
10. The Trial Court, by its elaborate judgment dated 24.02.2005, found
all four accused guilty for the murder of the deceased and convicted
them under Section 302 read with Section 34 of the IPC. Accordingly,
they were sentenced to undergo imprisonment for life and to pay a
fine of Rs. 500 each, in default, to undergo simple imprisonment of
one month. All the accused appealed to the High Court.
11. For the completeness of narration, we may indicate that the High Court
initially acquitted all the accused by its judgment dated 21.06.2007,
but in appeal to this Court, their conviction and sentences were
set-aside, and the criminal appeal was remanded back to the High
Court for fresh consideration. It is in this background that the order
impugned came to be passed by the High Court.
12. After remand, the High Court confirmed the judgment of the Trial
Court and dismissed the criminal appeals. The Special Leave Petition
filed by the accused was admitted on 01.08.2022 and this is how we
have heard Shri Gaurav Agrawal, learned counsel for the appellants
and Shri Krishan Kumar Singh learned counsel for the State and
Shri Sirajudeen, learned senior counsel for the respondent No. 2.
13. Findings of the Trial Court: The Trial Court had examined the
credibility of the Prosecution witness in great detail. According to
the Trial Court, PWs 1, 3, 4, 6, 7 and 8 were eyewitnesses to the
incident and their testimonies were consistent. Among them, PW-6’s
6 [2024] 2 S.C.R.

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testimony was a clinching piece of evidence as he was privy to the

incident from the very beginning. He was subjected to intense cross-
examination with respect to his residence and other details about
the incident. Except for minor variations, the Trial Court found his
testimony unshaken, being consistent and natural. The Trial Court
found the testimonies PW-1, PW-3, PW-4, PW-7, PW-8 corroborating
the incident of stopping an auto, dragging the deceased out, and
subsequently assaulting the deceased with various weapons.
14. Collectively, the witnesses reiterated that A-1 stopped the auto-
rickshaw and pulled the deceased out and A-2 attacking the
deceased’s hands with a sword. As they reached A-4’s house, A-4
took the sword from A-2 and struck the deceased on his head. A-4
also inflicted injuries by a knife. The common account about A-3 is
that he hit the deceased on the head with a stone. Accused No. 1
continued the attack and hit the deceased with an axe. Largely, these
witnesses recounted a consistent narrative of the attack, identifying
the weapons used and the roles of each accused.
15. Judgment of the High Court: According to the High Court, the
accounts of PWs 1, 3, 4, 6, 7 and 8, who witnessed the incident,
converge and are consistent with the injuries, weapons and motive
for the murder of the deceased. The High Court correctly relied on
the evidence of PW-6 who was in an auto-rickshaw along with the
deceased on the day of the incident. PW6’s evidence that he boarded
the auto-rickshaw of PW-5, followed by the deceased and Rajitha
(PW-9) joining him, was believed by the High Court.
16. The account of PW6 being corroborated by the evidence of PWs
1, 3, 4, 7 and 8, the High Court held that the evidence conclusively
establishes the guilt of the accused beyond reasonable doubt. The
High Court also noted the submission relating to the contradictions
in the Complaint (Ex. P1) and the testimonies of PWs 1, 3, 4, 6, 7
and 8, specifically relating to the acts of assault, however, the High
Court came to the conclusion that they were minor in nature.
17. Though the High Court saw that the trial court extensively examined
the evidence and considered all the submissions, it has nevertheless
considered the evidence afresh and after a detailed examination,
arrived at the same conclusion. We have given our anxious
consideration and have scrutinised the evidence of all the eye-
[2024] 2 S.C.R.  7

Velthepu Srinivas and Others v.

State of Andhra Pradesh (Now State of Telangana) and Anr.

witnesses in detail. We are in full agreement with the decision of the

Trial Court and the High Court. Their analyses and conclusions are
based on correct appreciation of evidence and law. However, there
is one aspect which stands out in the above-referred analyses of the
Trial Court and the High Court, and that pertains to the conclusion on
the culpability of A-3 for murder. We will now examine the evidence
as against A-3.
18. Evidence against Accused No.3: To commence with, the FIR states
that A-3 hit the deceased on the head, thereby causing death. The
Chargesheet states that A3 used a stone to do the same. However,
no further details have been provided. Further as we examine the
testimonies of all the eyewitnesses the following picture emerges.
PWs 1, 3, 4 and 6 state that the A-3 had used a stone to hit the
deceased’s head. PW-7 and PW-8 do not speak about his role.
19. PW-1, in his examination-in-chief and cross-examination, has
respectively stated as follows:
Chief - “When I was trying to go near the deceased, A-3
threatened me saying that if I go there he would kill me.
A-3 hit the deceased with a stone.”
Cross - “I read Ex. P-1 complaint and it does not show
that A-1 and A-3 threatened me and other eye witnesses
to kill if we tried to rescue the deceased”
20. PW-3, in his examination-in-chief and cross-examination, has
respectively stated as follows:
Chief - “After hearing the cries of the said Rajitha and
Swamy I, PW1, Kona Mallesh Akireeddy Ramesh, T.Odaiah
rushed to the spot. By the time we reached the spot the
deceased was lying on ground with injuries and on seeing
us A-3 took a stone and gave threats to us saying that he
would hit us if we go there.”
Cross - “It is not true to say that I did not state before the
police that when land other eye witnesses were going
near· the place of the incident A-3 armed with a stone
threatened to kill us. It is not true to say that for the first
time before this court I am deposing that A-3 armed with
a stone threatened me and other witnesses to kill”
8 [2024] 2 S.C.R.

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21. P.W. 4, in his examination-in-chief, has stated as follows:

“A-3 took a stone and hit on the head of the deceased.”
22. P.W. 6, in his examination-in-chief, has stated as follows:
“A-3 took a stone and hit on the head of the deceased.”
23. A reading of the judgment and order passed by the Trial as well as
the High Court would indicate that neither the prosecution or defence,
nor the court, have focussed on the role of A-3 as evidenced by
the oral and documentary evidence. There is nothing to attribute
A-3 with the intent to murder the deceased. In fact, both the Courts
have mechanically drawn an inference against A-3 under Section 34
of the Act merely based on his presence near the scene of offence
and his familial relations with the other accused.
24. As per the post-mortem report, the cause of death is “cardio
pulmonary arrest due to transaction spinal cord at atlanto occipital
joint”. The atlanto occipital joint is at the back of the neck, which is
the exact place where A-1 assaulted the deceased with the help of
an axe. This axe was then taken by A-2 and thereafter, by A-4, who
also assaulted the deceased. All the eye-witnesses are clear in this
account. In other words, it was only A-3 who never took the axe in
his hand. He only used a stone to assault the deceased.
25. Considering the statements of the eye-witnesses, coupled with the
post-mortem report, it is not possible to contend that A-3 would have
had the intention to commit the murder of the deceased and as such,
he cannot be convicted under Section 302 IPC.
26. In fact, Victor Dinesh (PW-11), who gave the post-mortem report
had indicated the injuries as under:
“1. Incised wound extending from right ear to left cheek
19 cm long 6 cm deep 2 mm wide grievous sharp
weapon, Ante mortem.
2. Incised wound on the right eye brow (4cms) simple
sharp weapon Ante mortem.
3. Incised wound on the left side of fore head about
9 cms above left eye brow measuring 8 cms sharp
weapon Ante mortem.
[2024] 2 S.C.R.  9

Velthepu Srinivas and Others v.

State of Andhra Pradesh (Now State of Telangana) and Anr.

4. Incised wound on left shoulder measuring 4 cm long

3mm wide. Sharp weapon ante mortem.
5. Incised wound on right should of 8 cm long 1 ½ cm
wide sharp weapon, ante mortem.
6. 5 cm x 6 Incised wound (slice) on the vertex. Sharp
weapon ante mortem.
7. 8 cms long incised wound backs of left wrist, sharp
weapon ante mortem.
8. 12 cms incised wound on the front of left hand, sharp
weapon, ante mortem.
9. Partial amputation of middle 3 fingers of left hand,
ante mortem.
10. Partial amputation of right thumb. Measuring 2 cms
sharp weapon ante mortem.
11. Partial amputation of right index finger measuring 3
cms sharp weapon, ante mortem.
12. Deep lacerated wound on the back of neck measuring
18 cms 7 cms with complete transaction of spinal
card and Atlanta occipital joint. Blunt weapon, ante
mortem.”
27. It is evident from the evidence of PW-11 that the deceased suffered
12 injuries, of which 10 are caused by sharp-edged weapons. The
11th injury is a partial amputation of the middle 3 fingers of left hand.
The final injury is a lacerated wound on the back of neck measuring
18 cms x 7 cms with complete transaction of spinal cord and atlanto
occipital joint. The Trial Court and the High Court have not analysed
the evidence as against A-3. They have proceeded to convict him
along with others under Section 302 with the aid of Section 34. The
cumulative circumstances in which A-3 was seen participating in
the crime would clearly indicate that he had no intention to commit
murder of the deceased for two clear reasons. Firstly, while every
other accused took the axe used by A1 initially and contributed to the
assault with this weapon, A-3 did not wield the axe at any point of
time. Secondly, A-3 only had a stone in his hand, and in fact, some
of the witnesses said that he merely threatened in case they seek
10 [2024] 2 S.C.R.

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to intervene and prevent the assault. Under these circumstances,

we hold that A-3 did not share a common intention to commit the
murder of the deceased. Additionally, there is no evidence that A-3
came along with the other accused evidencing a common intention.
The description of the incident is that when the deceased came to
the scene of occurrence, A-1 dragged him to the house of A-4, and
the other accused joined A-1. In this context, A-3 picked up a stone
to assault the deceased.
28. Even though, A-3 might not have had the common intention to
commit the murder, nevertheless, his participation in the assault
and the wielding of the stone certainly makes him culpable for the
offence that he has committed. While we acquit A-3 of the offence
under Section 302 read with Section 34 of the IPC, he is liable for
the offence under 304 Part II IPC. The law on Section 304 Part II
has been succinctly laid down in Camilo Vaz v. State of Goa, (2000)
9 SCC 1, where it was held that:
14. This section is in two parts. If analysed, the section
provides for two kinds of punishment to two different
situations: (1) if the act by which death is caused is
done with the intention of causing death or causing such
bodily injury as is likely to cause death. Here the important
ingredient is the “intention”; (2) if the act is done with the
knowledge that it is likely to cause death but without any
intention to cause death or such bodily injury as is likely
to cause death. When a person hits another with a danda
on a vital part of the body with such force that the person
hit meets his death, knowledge has to be imputed to the
accused….
29. In the past, this Court has considered factors such as lack of medical
evidence to prove whether the act/injury was individually sufficient
to cause death1, a single blow on head with a hammer2 and lack
of cogent evidence of the eye-witnesses that the accused shared a
common intention to commit murder3 as some factors to commute
a sentence from Section 302 to Section 304 Part II IPC.

1 Bawa Singh v. State of Punjab, 1993 Supp (2) SCC 754.

2 Sarup Singh v. State of Haryana, (2009) 16 SCC 479.
3 Ghana Pradhan & Ors. v. State of Orissa, 1991 Supp (2) SCC 451.
[2024] 2 S.C.R.  11

Velthepu Srinivas and Others v.

State of Andhra Pradesh (Now State of Telangana) and Anr.

30. Returning back to the facts of the case, there is certainly no escape
from coming to the conclusion that A-3 should have had the knowledge
that the use of a stone to hit the head of the deceased is likely to cause
death. However, as demonstrated before, the evidence is insufficient
to deduce a conclusion that he shared a common intention with the
other accused to commit the murder of the deceased. Considering
the role that A-3 has played, we hold him guilty of the offence under
Section 304 Part II IPC.
31. The perusal of the evidence would reveal that it is not the case of
the prosecution that A-3 was along with the other accused while the
deceased was dragged to the house. The deposition would reveal
that after the other accused assaulted the deceased with sword, A-3
came thereafter and assaulted the deceased with stone lying there.
We, therefore, find that the prosecution has not been in a position
to establish that A-3 shared the common intention with the other
accused to cause the murder of the deceased.
32. For the reasons stated above, we uphold the conviction and sentence
of A-1, A-2 and A-4 under Section 302 read with Section 34 IPC and
dismiss their Criminal Appeal No. 2852 of 2023 against the judgment
of the High Court of Telangana in Criminal Appeal No. 308 of 2005
dated 26.04.2022. We acquit A-3 of the conviction and sentence
under Section 302 read with Section 34 and convict him under
Section 304 Part II and sentence him to undergo imprisonment for
10 years. To this extent, the appeal of A-3 is allowed by altering the
conviction under Section 302 to Section 304 Part II IPC.
33. Pending applications, if any, are disposed of.

Headnotes prepared by: Nidhi Jain Result of the case: Appeal disposed of.
 [2024] 2 S.C.R. 12 : 2024 INSC 80

The Authorised Officer, Central Bank of India

v.
Shanmugavelu
(Civil Appeal No(s). 235-236 of 2024)
02 February 2024
[Dr Dhananjaya Y Chandrachud, CJI, J B Pardiwala,*
Manoj Misra, JJ.]

Issue for Consideration

(i)Whether, the underlying principle of Section(s) 73 & 74 respectively
of the Contract Act, 1872 Act is applicable to forfeiture of earnest-
money deposit under Rule 9(5) of the SARFAESI Rules. In other
words, whether the forfeiture of the earnest-money deposit under
Rule 9(5) of the SARFAESI Rules can be only to the extent of
loss or damages incurred by the Bank; (ii) Whether, the forfeiture
of the entire amount towards the earnest-money deposit under
Rule 9(5) of the Rules amounts to unjust enrichment. In other
words, whether the quantum of forfeiture under the SARFAESI
Rule is limited to the extent of debt owed; (iii) Whether a case of
exceptionable circumstances could be said to have been made
out by the respondent to set aside the order of forfeiture of the
earnest money deposit.

Headnotes
Securitization and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 – Security Interest
(Enforcement) Rules, 2002 – Contract Act, 1872 – ss. 73 and
74 – Whether, the underlying principle of Section(s) 73 & 74
respectively of the Contract Act, 1872 Act is applicable to
forfeiture of earnest-money deposit under Rule 9(5) of the
SARFAESI Rules:
Held: The SARFAESI Act is a special legislation with an overriding
effect on the general law, and only those legislations which are either
specifically mentioned in Section 37 or deal with securitization will
apply in addition to the SARFAESI Act – Being so, the underlying
principle envisaged under Section(s) 73 & 74 of the 1872 Act which
is a general law will have no application, when it comes to the
SARFAESI Act more particularly the forfeiture of earnest-money
deposit which has been statutorily provided under Rule 9(5) of the

* Author
[2024] 2 S.C.R.  13

The Authorised Officer, Central Bank of India v. Shanmugavelu

SARFAESI Rules as a consequence of the auction purchaser’s

failure to deposit the balance amount – The forfeiture can be justified
if the terms of the contract are clear and explicit – If it is found that
the earnest money was paid in accordance with the terms of the
tender for the due performance of the contract by the Promisee,
the same can be forfeited in case of non-performance by him or
her – Since, the forfeiture under Rule 9(5) of the SARFAESI Rules
is also taking place pursuant to the terms & conditions of a public
auction – Suffice to say, Section(s) 73 and 74 of the 1872 Act will
have no application whatsoever, when it comes to forfeiture of the
earnest-money deposit under Rule 9 sub-rule (5) of the SARFAESI
Rules. [Paras 68, 89, 91]
Securitization and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 – Security Interest
(Enforcement) Rules, 2002 – Contract Act, 1872 – The High
Court held that forfeiture of the entire deposit u/r. 9 sub-
rule (5) of the SARFAESI Rules by the appellant bank after
having recovered its dues from the subsequent sale amounts
to unjust enrichment – Whether, the forfeiture of the entire
amount towards the earnest-money deposit under Rule 9(5)
of the Rules amounts to unjust enrichment:
Held: The consequence of forfeiture of 25% of the deposit under
Rule 9(5) of the SARFAESI Rules is a legal consequence that has
been statutorily provided in the event of default in payment of the
balance amount – The consequence envisaged under Rule 9(5)
follows irrespective of whether a subsequent sale takes place at a
higher price or not, and this forfeiture is not subject to any recovery
already made or to the extent of the debt owed – In such cases,
no extent of equity can either substitute or dilute the statutory
consequence of forfeiture of 25% of deposit under Rule 9(5) of
the SARFAESI Rules – The High Court erred in law by holding
that forfeiture of the entire deposit under Rule 9 sub-rule (5) of
the SARFAESI Rules by the appellant bank after having already
recovered its dues from the subsequent sale amounts to unjust
enrichment. [Paras 111, 113]
Securitization and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 – Security Interest
(Enforcement) Rules, 2002 – Contract Act, 1872 – Whether a
case of exceptionable circumstances could be said to have
been made out by the respondent to set aside the order of
forfeiture of the earnest money deposit:
14 [2024] 2 S.C.R.

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Held: Where extraneous conditions exist that might have led to the
inability of the successful auction purchaser despite best efforts
from depositing the balance amount to no fault of its own, in such
cases the earnest-money deposited by such innocent successful
auction purchaser could certainly be asked to be refunded – In the
instant case, it is the respondent’s case that he was unable to make
the balance payment owing to the advent of the demonetization –
The same led to a delay in raising the necessary finance – It has
been pleaded by the respondent that the appellant bank failed to
provide certain documents to him in time as a result of which he
was not able to secure a term loan – However, the aforesaid by no
stretch can be said to be an exceptional circumstance warranting
judicial interference – Because demonetization had occurred much
before the e-auction was conducted by the appellant bank – As
regards the requisition of documents, the sale was confirmed on
07.12.2016, and the respondent first requested for the documents
only on 20.12.2016, and the said documents were provided to
him by the appellant within a month’s time i.e., on 21.01.2017 – It
may also not be out of place to mention that the respondent was
granted an extension of 90-days’ time period to make the balance
payment, and was specifically reminded that no further extension
would be granted, in-spite of this the respondent failed to make the
balance payment – The e-auction notice inviting bids along with the
correspondence between the appellant bank and the respondent
are unambiguous and clearly spelt out the consequences of not
paying the balance amount within the specified period. [Paras
117, 118, 119, 120]
Doctrines/Principles – Principle of ‘Reading-Down’ a provision:
Held: The principle of “reading down” a provision refers to a legal
interpretation approach where a court, while examining the validity
of a statute, attempts to give a narrowed or restricted meaning to
a particular provision in order to uphold its constitutionality – This
principle is rooted in the idea that courts should make every effort
to preserve the validity of legislation and should only declare a law
invalid as a last resort – When a court encounters a provision that,
if interpreted according to its plain and literal meaning, might lead
to constitutional or legal issues, the court may opt to read down the
provision –Reading down involves construing the language of the
provision in a manner that limits its scope or application, making
it consistent with constitutional or legal principles – The rationale
[2024] 2 S.C.R.  15

The Authorised Officer, Central Bank of India v. Shanmugavelu

behind the principle of reading down is to avoid striking down an

entire legislation – Courts generally prefer to preserve the intent
of the legislature and the overall validity of a law by adopting an
interpretation that addresses the specific constitutional concerns
without invalidating the entire statute. [Paras 93, 94, 95]
Security Interest (Enforcement) Rules, 2002 – Rule 9 sub-rule
(5) – Harshness of a provision is no reason to read down the
same:
Held: Harshness of a provision is no reason to read down the
same, if its plain meaning is unambiguous and perfectly valid – A
law/rule should be beneficial in the sense that it should suppress
the mischief and advance the remedy – The harsh consequence of
forfeiture of the entire earnest-money deposit has been consciously
incorporated by the legislature in Rule 9(5) of the SARFAESI
Rules so as to sub-serve the larger object of the SARFAESI Act
of timely resolving the bad debts of the country – The idea behind
prescribing such a harsh consequence is not illusory, it is to attach
a legal sanctity to an auction process once conducted under the
SARFAESI Act from ultimately getting concluded – Any dilution of
the forfeiture provided under Rule 9(5) of the SARFAESI Rules
would result in the entire auction process under the SARFAESI
Act being set at naught by mischievous auction purchaser(s)
through sham bids, thereby undermining the overall object of the
SARFAESI Act of promoting financial stability, reducing NPAs and
fostering a more efficient and streamlined mechanism for recovery
of bad debts. [Paras 101 and 102]
Securitization and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 – Legislative History
and scheme – Discussed.

Case Law Cited

Fateh Chand v. Balkishan Dass, [1964] SCR 515 : AIR
1963 SC 1405 – followed.
Madras Petrochem Ltd. & Anr. v. Board for Industrial
and Financial Reconstruction & Ors., [2016] 11 SCR
419 : (2016) 4 SCC 1; Karsandas H. Thacker v. M/s.
The Saran Engineering Co. Ltd., AIR 1965 SC 1981;
K. P. Subbarama Sastri and others v. K. S. Raghavan
& Ors., [1987] 2 SCR 767 : (1987) 2 SCC 424; Rakesh
16 [2024] 2 S.C.R.

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Birani (Dead) through LRs v. Prem Narain Sehgal &

Anr., [2018] 3 SCR 750 : (2018) 5 SCC 543; Agarwal
Tracom Private Limited v. Punjab National Bank & Ors.,
[2017] 11 SCR 164 : (2018) 1 SCC 626; Celir LLP. v.
Bafna Motors (Mumbai) Pvt. Ltd. & Ors., 2023 SCC
OnLine SC 1209; R.S. Joshi, Sales Tax Officer, Gujarat
& Ors. v. Ajit Mills Limited & Anr., [1978] 1 SCR 338 :
(1977) 4 SCC 98; Maula Bux v. Union of India, [1970] 1
SCR 928 : 1969 (2) SCC 554; Kailash Nath Associates
v. Delhi Development Authority & Anr., [2015] 1 SCR
627 : (2015) 4 SCC 136; B.R. Enterprises v. State of
U.P. & Ors., [1999] 2 SCR 1111 : (1999) 9 SCC 700;
Calcutta Gujarati Education Society & Anr. v. Calcutta
Municipal Corpn. & Ors., [2003] 2 Suppl. SCR 915 :
(2003) 10 SCC 533; Sahakari Khand Udyog Mandal
Ltd. v. Commissioner of Central Excise & Customs,
[2005] 2 SCR 606 : (2005) 3 SCC 738; National Spot
Exchange Ltd. v. Anil Kohli, Resolution Professional for
Dunar Foods Ltd., [2021] 7 SCR 1024 : (2022) 11 SCC
761; Alisha Khan v. Indian Bank (Allahabad Bank) &
Ors, 2021 SCC OnLine SC 3340; Authorized Officer
State Bank of India v. C. Natarajan, [2023] 5 SCR 1067:
2023 SCC Online SC 510 – relied on.
Mardia Chemicals Ltd. & Ors. v. Union of India & Ors.,
[2004] 3 SCR 982 : (2004) 4 SCC 311; United Bank
of India v. Satyawati Tondon & Ors., [2010] 9 SCR 1 :
(2010) 8 SCC 110; Satish Batra v. Sudhir Rawal, [2012]
9 SCR 662 : (2013) 1 SCC 345; Videocon Properties
Ltd. v. Dr. Bhalchandra Laboratories & Ors., [2003] 6
Suppl. SCR 1197 : (2004) 3 SCC 711; Shree Hanuman
Cotton Mills & Ors. v. Tata Air Craft Limited, [1970]
3 SCR 127 : (1969) 3 SCC 522; Delhi Development
Authority v. Grihshapana Cooperative Group Housing
Society Ltd., [1995] 2 SCR 115 : 1995 Supp (1) SCC
751; V. Lakshmanan v. B.R. Mangalagiri & Ors., 1995
Supp (2) SCC 33; HUDA v. Kewal Krishnan Goel, [1996]
2 Suppl. SCR 587 : 1996 (4) SCC 249 – referred to.
Dinanath Damodar Kale v. Malvi Mody Ranchhoddas
and Co., AIR 1930 Bom 213 – referred to.
[2024] 2 S.C.R.  17

The Authorised Officer, Central Bank of India v. Shanmugavelu

Hadley & Anr. v. Baxendale & Ors., (1843-60) ALL E.R.

Rep. 461; Victoria Laundry (Windsor) Ltd v. Newman
Industrial Ltd., [1949] 2 K.B. 528; Kunwar Chiranjit
Singh v. Har Swarup, (1926) 23 LW 172; Vide Howe
v. Smith, (1884) 27 Ch.D. 89; Stockloser v. Johnson,
(1954) 1 All. E.R. 630 – referred to.

Books and Periodicals Cited

Treatise on the Law of Sale of Personal Property by
Benjamin, 1950, 8th Edition at page 946; Halsbury’s
Laws of England, third edition, volume XXXIV, page
118; G. C. Cheshire and C.H.S. Fifoot on the Law of
Contracts (fifth edition) at pages 496- 497.

List of Acts
Securitization and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002; Security Interest
(Enforcement) Rules, 2002; Contract Act, 1872.

List of Keywords
Simple mortgage; Default in payment; e-auction notice; Secured
asset; Public auction; Auction purchaser; Failure in remitting balance
amount; Cancellation of sale; Forfeiture under the SARFAESI
Rules; Secured creditor; Earnest money; Law on forfeiture of
earnest money; Principle of ‘Reading-Down’; Unjust enrichment;
Compensation for loss or damage caused by breach of contract.

Case Arising From

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.235-236 of

2024.
From the Judgment and Order dated 27.10.2021 of the High Court
of Judicature at Madras in CRP Nos.1892 and 2282 of 2021.
Appearances for Parties
Dhruv Mehta, Sr. Adv., Amit K. Nain, PBA Srinivasan, Keith Verghese,
V. Aravind, Ms. Srishti Bansal, Sumit Swami, Ms. Pooja Kumari,
Advs. for the Appellant.
Dr. S. Muralidhar, Sr. Adv., S. Sethuraman, M. A. Karthik, Ms. Aswathi
M. K., Advs. for the Respondents.
18 [2024] 2 S.C.R.

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Judgment / Order of the Supreme Court

Judgment
J.B. Pardiwala, J.
For the convenience of exposition, this judgment is divided in the
following parts:-
INDEX*
A. FACTUAL MATRIX..................................................................3

B. IMPUGNED ORDER.............................................................13

C. SUBMISSIONS OF THE APPELLANT.................................17

D. SUBMISSIONS OF THE RESPONDENT.............................18

E. ANALYSIS (Points for Determination)...............................19

i) Legislative History and Scheme of the

SARFAESI Act..............................................................20

ii) Applicability of Section(s) 73 & 74 of the 1872

Act to Forfeiture under the SARFAESI Rules..........32

a. Forfeiture under the SARFAESI Rules.................44

b. Concept of Earnest-Money & Law on

Forfeiture of Earnest-Money Deposit....................49

c. Law on the principle of

‘Reading-Down’ a provision...................................66

iii) Whether, the forfeiture of the entire

earnest-money deposit amounts to Unjust
Enrichment?.................................................................73

iv) Whether Exceptional Circumstances exist

to set aside the forfeiture of the earnest
money deposit?...........................................................77

F. CONCLUSION.......................................................................81

* Ed. Note : Pagination is as per the original judgment.

[2024] 2 S.C.R.  19

The Authorised Officer, Central Bank of India v. Shanmugavelu

1. Since the issues raised in both the captioned appeals are the same,
the parties are also the same and the challenge is also to the self-
same judgment and order passed by the High Court, those were
taken up for hearing analogously and are being disposed of by this
common judgment and order.
2. For the sake of convenience, the appellant shall hereinafter be referred
to as the Bank being the Secured Creditor, and the respondent shall
hereinafter be referred to as the original Auction-Purchaser.
3. These appeals are at the instance of a Nationalized Bank and are
directed against the common judgment and order dated 27.10.2021
passed by the High Court of judicature at Madras in C.R.P No(s).
1892 & 2282 respectively of 2021 (“Impugned Order”) by which the
High Court allowed the respondent’s writ petition and held that the
forfeiture of the earnest money deposit by the appellant bank could
only be to the extent of the loss suffered by it.

A. FACTUAL MATRIX
4. It appears from the materials on record that the appellant bank
herein had sanctioned credit facilities to one ‘Best and Crompton
Engineering Projects’ against a parcel of land admeasuring 10581
sq.ft. (approx.) with superstructures situated in Survey Nos. 60 and
65/2, Block 6, Alandur village, Mambalam-Guindy, Chennai (for short
the, “Secured Asset”) as security interest in the form of a simple
mortgage in lieu of the sanctioned credit. Sometime thereafter the
said borrowers defaulted and the said loan account was classified as
a non-performing asset (“NPA”) by the appellant bank on 28.05.2013.
5. In order to recover its dues, the appellant bank took measures
under the Securitization and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 (for short, the “SARFAESI
Act”), more particularly under Section 13(4) by taking over the
possession of the Secured Asset and putting the same for sale by
way of public auction.
6. Accordingly, on 24.10.2016 an e-auction notice for the sale of the
Secured Asset at a reserve price of Rs. 9,62,00,000/- came to be
issued by the appellant bank, with the following terms and conditions: -
20 [2024] 2 S.C.R.

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“TERMS & CONDITIONS

1. The e-Auction is being held on “AS IS WHERE IS” and “AS IS
WHAT IS” basis and “NO COMPLAINT” condition.
2. The auction sale will be Online E-Auction/Bidding through
website https://www.bankeauctions.com on 07-12-2016 from
11.00 a.m. to 12. Noon
3. Intending bidders shall hold a valid Digital Signature Certificate,
e-mail address and PAN number. For details with regard to
Digital Signature Certificate please contact M/s C1 India Pvt.
Ltd., E-Mail ID: [email protected] or shankar.
[email protected]
4. Bidders are required to go through the website https://www.
bankeauctions.com for detailed terms and conditions of auction
sale before submitting their bids and taking part in the e- Auction
sale proceedings.
5. To the best of knowledge and information of the Authorized
Officer, there is no encumbrance on property affecting the
security interest. However, the intending bidders should make
their own independent inquiries regarding the encumbrances,
title of property put on auction and claims / rights / dues
affecting the property, prior to submitting their bid. The e-Auction
advertisement does not constitute and will not be deemed to
constitute any commitment or any representation of the bank.
The property is being sold with all the existing and future
encumbrances whether known or unknown to the bank. The
Authorized Officer / Secured Creditor shall not be responsible
in any way for any third party claims / rights / dues.
6. It shall be the responsibility of the bidders to inspect and
satisfy themselves about the asset and specification before
submitting the bid. The inspection of property put on auction
will be permitted to interested bidders at site on 23-11-2016
from 10.00 a.m. to 5.00 p.m.
7. The above mentioned amount should be remitted towards EMD
through RTGS/NEFT to Account No. 3227870680 of Central
Bank of India, CFB, Chennai 600008 IFSC Code CBIN0283507.
Cheques or demand draft shall not be accepted as EMD amount.
[2024] 2 S.C.R.  21

The Authorised Officer, Central Bank of India v. Shanmugavelu

8. Prospective bidders are advised to obtain user id and password

which are mandatory for bidding in the above e-auction from M/s
C1India Pvt. Ltd., helpline 01244302020/2021/2022/2023/2024
E-mail [email protected] or K.N.
SHRINATH-9840446485. Passwords will be allotted only to
those bidders who fulfil all the terms and conditions of e-auction
and have deposited the requisite EMD. And for further property
related query you may contact Mr. G.S. Prasad, Chief Manager,
Central Bank of India, CFB, Chennai Tel. No. 044-42625259
Mobile 9962029300 e-mail ID: [email protected]
during officer hours i.e. 10 AM to 5 PM during the working days.
9. After Registration by the bidder in the Web-Portal, the intending
bidder / purchaser is required to get the copies of the following
documents uploaded in the Web Portal before last date of
submission of the bid viz. i) Copy of the NEFT/RTGS Challan;
ii) Copy of PAN Card; iii) Proof of Identification (KYC) viz. self-
attested copy of Voter ID Card / Driving License / Passport etc.
iv) Copy of proof of address; without which the bid is liable to
be rejected.
10. The interested bidders, who have submitted their bid not below
the Reserve price through online mode before 4.00 p.m. on
05-12-2016 shall be eligible for participating in the e-bidding
process. The e-Auction of above properties would be conducted
exactly on the scheduled Date & Time as mentioned against
each property by way of inter-se bidding amongst the bidders.
The bidder shall improve their offer in multiple of the amount
mentioned under the column “Bid Increase Amount”. In case
bid is placed in the last 5 minutes of the closing time of the
e-Auction, the closing time will automatically get extended for
3 minutes (subject to maximum of unlimited extensions of 3
minutes each). The bidder who submits the highest bid amount
(not below the Reserve Price) on closure of e-Auction process
shall be declared as Successful Bidder and a communication
to that effect will be issued which shall be subject to approval
by the Authorized Officer/Secured Creditor.
11. The Earnest Money Deposit (EMD) of the successful bidder
shall be retained towards part sale consideration and the EMD
of unsuccessful bidders shall be refunded. The Earnest Money
Deposit shall not bear any interest. The successful bidder shall
22 [2024] 2 S.C.R.

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have to deposit 25% of the auction price less the EMD already
paid, within 24 hours of the acceptance of bid price by the
Authorized Officer and the balance 75% of the sale price on
or before 15th day of sale or within such extended period as
agreed upon in writing by and solely at the discretion of the
Authorized Officer. If any such extension is allowed, the amount
deposited by the successful bidder shall not carry any interest.
In case of default in payment by the highest and successful
bidder, the amount already deposited by the bidder shall be
liable to be forfeited and property shall be put to re-auction
and the defaulting bidder shall have no claim / right in respect
of property/amount.
12. The authorized Officer is not bound to accept the highest offer
and the authorized officer has absolute right to accept or reject
any or all offer(s) or adjourn / postpone / cancel the e-auction
without assigning any reasons thereof. ...”
7. Pursuant to the same, the e-auction was conducted on 07.12.2016
and a total of four bids were received wherein the respondent also
participated and submitted its bid to the tune of Rs. 12,27,00,000/-.
The respondent’s bid was found to be the highest and was classified
as H1 and accordingly, the respondent was declared as the successful
auction purchaser.
8. Pursuant to the aforesaid, the respondent on the same day deposited
25% of the bid amount i.e., Rs. 3,06,75,000/- as the earnest money
deposit upon which, the appellant confirmed the sale of the Secured
Asset in favour of the respondent vide its letter dated 07.12.2016
which inter-alia stipulated that in the event of default in payment of
the balance amount, the sale shall be liable to be cancelled and the
earnest money would be forfeited. The said sale confirmation letter
is being reproduced below: -
“CFB/CHEN/2016-17/685 December 7, 2016
Mr. R Shanmugavelu
Managing Director
M/s Sunbright Designers Private Limited
Module No – 4, Readymade Garment Complex
SIDCO Industrial Estate, Guindy
Chennai-600032
[2024] 2 S.C.R.  23

The Authorised Officer, Central Bank of India v. Shanmugavelu

Sir,
Reg: Recovery Proceedings under the provision of SARFAESI
Act 2002 in our borrowal account M/s Best & Crompton
Engineering Projects Limited – E Auction of property held on
07/12/2016.
We have to inform you that in the E auction held on 07/12/2016
pursuant to the E-auction sale notice dated 24/10/2016 issued by
the Authorized Officer. In respect of Schedule property covered
in the E auction sale notice i.e.,
Lot no. 1: Property belonging to M/s Futuretech Industries Ltd.
presently known as Candid Industries Ltd. All that piece and
parcel of the immovable property being industrial land together
with the superstructure/shed standing thereon admeasuring
10581 sq. ft. or thereabouts comprised in survey nos. 60 part
and 65/2, Block no. 6, Alandur village, Mambalam-Guindy Taluk,
sub-registration district Alandur, registration district Chennai
South presently situated at plot no. A-19, Thiru Vi Ka Industrial
Estate, South by: Plot no. A-18, Thiru Vi Ka Industrial Estate
East by: 80 feet Road, West by: Service Road.
You have been declared as successful bidder at the sale price
of Rs. 12,27,00,000/- (Rupees Twelve Crore Twenty Seven
Lac only). You are now required to remit as per E auction
Sale notice 25% of the sale price less Earnest Money Deposit
amount already remitted by you i.e., Rs. 3,06,75,000/- minus
EMD remitted Rs. 96,20,000/- = Rs. 2,10,55,000/- (Rupees
Two Crore Ten Lac Fifty Five Thousand only) by RTGS/NEFT
to the same account number to which you have remitted the
Earnest Money Deposit within 24 hours of acceptance of bid.
The balance amount amounting to Rs. 9,20,25,000/- (Rupees
Nine Crore Twenty Lac Twenty Five Thousand Only) is to be
remitted by you by RTGS to the same account number on or
before 15 days from today; failing which the sale is liable to be
cancelled and the EMD will be forfeited.
Please note that the E Auction sale has been conducted strictly
as per the terms and conditions spelt out in the E Auction notice
dated 24/10/2016.
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Thanking You
Yours sincerely,
Sd/-
AUTHORIZED OFFICER”
9. The respondent vide its email dated 19.12.2016, requested the
appellant bank for grant of extension of three-months’ time for the
payment of the balance amount on the ground that its term-loan
was still under-process.
10. The appellant bank vide its letter dated 20.12.2016, acceded to
the request of the respondent and granted a further extension of
three-months’ time i.e., till 07.03.2017 in terms of Rule 9(4) of the
Security Interest (Enforcement) Rules, 2002 (for short, the “SARFAESI
Rules”). The said letter also stated that no further extension of time
shall be granted and in the event the respondent fails to pay the
balance amount, the sale shall be cancelled and the amount already
paid shall be forfeited. The said letter is being reproduced below: -
“CFB/CHEN/2016-17/718 December 20, 2016
Mr. R Shanmugavelu
Managing Director
M/s Sunbright Designers Private Limited
Module No – 4, Readymade Garment Complex
SIDCO Industrial Estate, Guindy
Chennai-600032
Sir,
Reg: Recovery Proceedings under the provision of SARFAESI
Act 2002 in the account M/s Best & Crompton Engineering
Projects Limited – E Auction of property held on 07/12/2016.
We may once again inform you that in the E auction held
on 07/12/2016 pursuant to the E-auction sale notice dated
24/10/2016 issued by the Authorized Officer in respect of
Schedule property covered in the E auction sale notice i.e.,
Property belonging to M/s Futuretech Industries Ltd. presently
known as Candid Industries Ltd. Al that piece and parcel of
the immovable property being industrial land together with the
superstructure/shed standing thereon admeasuring 10581 sq.
[2024] 2 S.C.R.  25

The Authorised Officer, Central Bank of India v. Shanmugavelu

ft. or thereabouts comprised in survey nos. 60 part and 65/2

part, Block no. 6, Alandur village, Mambalam-Guindy Taluk, sub-
registration district Alandur, registration district Chennai South
presently situated at plot no. A-19, Thiru Vi Ka Industrial Estate,
South by: Plot no. A-18, Thiru Vi Ka Industrial Estate East by:
80 feet Road, West by: Service Road, you have been declared
as successful bidder at the sale price of Rs. 12,27,00,000/-
(Rupees Twelve Crore Twenty Seven Lac only).
You had remitted Rs. 2,10,55,000/- (Rupees Two Crore Ten Lac
Fifty Five Thousand only) as per E auction Sale notice 25%
of the sale price less Earnest Money Deposit amount already
remitted by you (i.e., Rs. 3,06,75,000/- minus Rs.96,20,000/-)
on 08/12/2016 as per the bid terms.
The balance amount amounting to Rs. 9,20,25,000/- (Rupees
Nine Crore Twenty Lac Twenty Five Thousand Only) was to be
remitted by you before 15 days from the date of bid failing which
the sale is liable to be cancelled and the EMD will be forfeited.
However, you had vide your mail dated 19/12/2016 requested to
give you three (3) months time to pay the balance 75% payment
of the bid amount and also assured that you will honour the
offer in the time frame.
After carefully going through your request, the Authorized
officer hereby permit/ allow you to pay the balance amount of
Rs 9,20,25,000/- (Rupees Nine crore Twenty Lac Twenty Five
Thousand Only) within 90 days from the date of BID. Further
we may also inform you that no further extension of time will
be granted and if you fail to pay the balance sale amount the
sale will be cancelled and the amount already paid will be
forfeited by the Bank.
Thanking You
Yours sincerely,
Sd/-
AUTHORIZED OFFICER”
11. The respondent being unable to pay the balance amount within
the extended period sought an additional 15-days for making the
balance-payment vide its letter dated 06.03.2017.
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12. However, the appellant vide its letter dated 27.03.2017 turned down
the said request for further extension and intimated the respondent that
due to its failure in remitting the balance amount within the stipulated
time, the sale is cancelled and the amount already deposited stands
forfeited. The said sale cancellation letter is being reproduced below: -
“CFB/CHEN/2016-17/919 March 27, 2017
Mr. R. Shanmugavelu
Managing Director
M/s Sunbright Designers Private Limited
Module No.-4, Readymade Garment Complex
SIDCO Industrial Estates, Guindy
Chennai-600032
Sir,
Reg: Recovery Proceedings under the provision of SARFAESI
Act 2002 in the account M/s Best & Crompton Engineering
Projects Limited
Ref: E Auction of property held on 07/12/2016
You were declared as successful bidder at the sale price of Rs.
12,27,00,000/- (Rupees Twelve Crore Twenty Seven Lac only)
in the E auction held on 07/12/2016 pursuant to the E auction
sale notice dated 24/10/2016 issued by the Authorised Officer
in respect of Schedule property covered in the E auction sale
notice i.e., mortgaged property belonging to M/s Futuretech
Industries Ltd presently known as Candid Industries Ltd.
Schedule
All that place and parcel of the immovable property being
industrial land together with the superstructure/shed standing
thereon admeasuring 10581 sq.ft. or thereabouts comprised in
survey nos. 60 part and 65/2 part. Block no. 6, Alandur village,
Mambalam-Guindy Taluk, sub-registration district Alandur,
registration district Chennai South presently situated at plot
no. A-19. Thiru Vi Ka Industrial Estate, South by: Plot no. A-18,
Thiru Vi Ka Industrial Estate, and East by: 80 feet Road, West
by: Service Road.
[2024] 2 S.C.R.  27

The Authorised Officer, Central Bank of India v. Shanmugavelu

You had remitted a total of Rs. 3,06,75,000 towards 25% of the

sale price on (i.e. Rs. 96,20,000 on 7-12-2016 towards EMD
and Rs. 2,10,55,000 on 08/12/2016 as per the terms of the bid.
The balance sale price amount to Rs. 9,20,25,000/- (Rupees
Nine Crore Twenty Lac Twenty Five Thousand only) was to be
remitted by you before 15 days from the date of bid failing which
the sale was liable to be cancelled and the amount deposited
by you had to be forfeited. However, you had vide your mail
dated 19/12/2016 requested to give you three (3) months’ time
to pay the balance 75% payment of the bid amount and also
assured that you will honour the offer in the time frame.
After carefully going through your request, the Authorized
officer permitted/allowed you to pay the balance amount of
Rs.9,20,25,000/-( Rupees Nine crore Twenty Lac Twenty Five
Thousand Only) within 90 days from the date of BID vide our
letter No. CFB/CHEN/2016-17/718 dated 20/12/2016. Further
we also informed you that no further extension of time will be
granted and if you fail to pay the balance sale amount the sale
will be cancelled and the amount already paid was liable to be
forfeited by the Bank.
You had again requested for extension of time for another 15
days vide your letter dated 06/03/2017. After going through your
representation/request, we permitted you to remit the balance
of Rs. 9,20,25,000/- (Rupees Nine Crore Twenty Lac Twenty
Five Thousand Only) by 22/03/2017 thereby giving three months
time from the 15th day of confirmation of sale as per the Security
Interests (Enforcement) Rules, 2002.
We hereby inform you that as you have failed to remit the balance
amount of Rs. 9,20,25,000/- (Rupees Nine crore Twenty Lac
Twenty Five Thousand Only) by 22/03/2017, the amount of Rs.
3,06,75,000/- which was already paid by you stands forfeited.
This letter issued without prejudice to the bank’s rights to bring
the property for fresh auction sale.
Thanking you
Yours sincerely,
Sd/-
AUTHORISED OFFICER”
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13. Despite the aforesaid letter, the respondent on 05.04.2017 addressed

one another letter to the appellant seeking further extension of 90
days for making the balance sale payment by enclosing a cheque
of Rs.50,00,000/- to show its bona fides. However, the appellant
returned the cheque and declined the said request vide its letter
dated 06.04.2017.
14. Aggrieved by the aforesaid, the respondent filed an application being
SA No. 143 of 2018 before the Debts Recovery Tribunal-II (“DRT”)
assailing the appellant’s sale cancellation and forfeiture letters dated
27.03.2017 and 06.04.2017 respectively.
15. During the pendency of the proceedings before the DRT as aforesaid
a fresh auction of the Secured Asset was conducted by the appellant
bank on 13.03.2019, and it appears that pursuant to the same the
sale was completed at an enhanced price of Rs. 14.76 crore i.e.,
more than the price fetched in the previous auction.
16. The DRT-II vide its order dated 06.05.2019 allowed the application
being SA No. 143 of 2018 and directed the appellant bank to refund
the earnest money deposited by the respondent after deducting a
sum of Rs. 5,00,000/- towards the expenditure incurred. The DRT-II
in its order observed that the respondent had requested the appellant
bank to provide certain documents required for the grant of term loan
which was not provided, as a result of which the term loan was not
granted and the respondent failed to remit the balance amount. It
further observed that as the Secured Asset had been sold for an
amount higher than the initial bid, no loss was caused to the appellant.
17. The aforesaid order was challenged by the appellant before the Debt
Recovery Appellate Tribunal, Chennai (“DRAT”) by way of RA(SA)
No. 119 of 2019. The DRAT vide its order dated 30.07.2021 observed
that the secured creditor was not entitled to forfeit the entire amount
deposited, but partly allowed the appeal and enhanced the forfeiture
from Rs. 5 Lac to Rs. 55 Lac.
B. IMPUGNED ORDER
18. Aggrieved with the aforesaid, both the appellant and the respondent
approached the High Court of judicature at Madras by way of
C.R.P. No(s). 1892 & 2282 of 2021 respectively, assailing the
order dated 30.07.2021 passed by the DRAT, Chennai, wherein
[2024] 2 S.C.R.  29

The Authorised Officer, Central Bank of India v. Shanmugavelu

the High Court vide the impugned judgment and final order dated
27.10.2021 allowed the respondent’s civil revision petition. The
operative portion is reproduced below: -
“19. For the reasons aforesaid, the enhancement of
the quantum of forfeiture as permitted by the Appellate
Tribunal in the impugned order of July 30, 2021 cannot
be sustained and the same is set aside. The quantum
as awarded by the DRT-II, Chennai in its order of May
06, 2019 is restored and to such extent the order of the
appellate authority is set aside.”
19. The impugned judgment of the High Court is in two-parts. In other
words, the High Court allowed the respondent’s civil revision petition
setting aside the DRAT’s order on two grounds: -
(i) First, the High Court took the view that the forfeiture of an amount
or deposit by a secured creditor under the SARFAESI Rules
cannot be more than the loss or damage suffered by it. The
High Court held that Rule 9 sub-rule (5) of the SARFAESI Rules
which provides for forfeiture cannot override the underlying ethos
of Section 73 of the Indian Contract Act, 1872 (for short, “the
1872 Act”). The relevant observations are reproduced below: -
“10. Section 74 of the Contract Act, 1872 provides for
compensation for breach of contract where the penalty is
stipulated. Section 73 of the Contract Act is the general
rule that provides for compensation for loss or damage
caused by breach of contract and Section 74 is where
the quantum is specified. What Section 73 of the Contract
Act mandates is that a party who suffers as a result of
a breach committed by the other party to the contract
“is entitled to receive from the party who has broken the
contract, compensation for any loss or damage caused to
him thereby, which naturally arose in the usual course of
things from such breach, or which the parties knew, when
they made the contract, to be likely to result from the breach
of it.” Any detailed discussion on such provision would
be beyond the scope of the present lis and may require
many more sheets that may be conveniently expended in
the present exercise. Indeed, Section 73 of the Contract
Act is in the nature of a jurisprudential philosophy that is
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accepted as a part of the law in this country. In short, it

implies that only such of the loss or damage suffered by
the party not in breach, may be recovered from the party
in breach, as a consequence of the breach. It is possible
that as a result of the breach, the party not in breach does
not suffer any adverse impact. It is also possible, as in the
present case, that as a consequence of the breach, the
party not in breach obtains a benefit, in such cases, where
no loss or damage has been occasioned to the party not
in breach, such party cannot extract any money merely
on account of such breach, as the entitlement in law to
compensation is not upon the commission of breach, but
only upon any loss or damage suffered as a consequence
thereof. That is elementary.
xxx xxx xxx
12. Rule 9(5) of the said Rules of 2002 has to be seen as
an enabling provision that permits forfeiture in principle.
However, such Rule cannot be conferred an exalted status
to override the underlying ethos of Section 73 of the
Contract Act. In other words, Rule 9(5) has to yield to the
principle recognised in Section 73 of the Contract Act or
it must be read down accordingly. Thus, notwithstanding
the wide words used in Rule 9(5) of the said Rules, a
secured creditor may not forfeit any more than the loss
or damage suffered by such creditor as a consequence of
the failure on the part of a bidder to make payment of the
consideration or the balance consideration in terms of the
bid. It is only if such principle as embodied in Section 73 of
the Contract Act, is read into Rule 9(5) of the said Rules,
would there be an appropriate answer to the conundrum
as to whether a colossal default of the entirety of the
consideration or the mere default of one rupee out of the
consideration would result in the identical consequence
of forfeiture as indicated in the provision.
13. In any event, notwithstanding the reference to Section
35 of the Act of 2002, the apparent overriding effect of
the provisions of the Act of 2002 has to be tempered in
the light of Section 37 of the Act. Though Section 37 of
[2024] 2 S.C.R.  31

The Authorised Officer, Central Bank of India v. Shanmugavelu

the Act refers to several statutes by name, the residual

limb of such provision recognises “or any other law for the
time being in force”, which would embrace the Contract
Act within its fold. It is completely unacceptable that by
virtue of the delegated legislation as in the Rules of 2002,
the fundamental principle envisaged in the Contract Act
would get diluted or altogether disregarded.”
(Emphasis supplied)
(ii) Secondly, the High Court was of the view that the forfeiture of
the entire earnest money deposit by the appellant amounts to
unjust enrichment which is not permissible. It observed that
under the SARFAESI Act, a secured creditor is not entitled to
obtain any amount more than the debt due to it, and as such
any forfeiture under the SARFAESI Act ought to be assessed
by computing damages on the basis of evidence. The relevant
observations are reproduced below: -
“18. It was completely open to the appellate authority
to enhance the quantum as awarded by the DRT.
However, such exercise could have been undertaken by
inviting evidence in such regard. The appellate authority
purported to enhance the quantum from Rs 5 lakh to
Rs 55 lakh without indicating any or cogent grounds for
such enhancement. Though an element of guesstimation
is permitted while assessing damages, when an initial
authority has indicated a ballpark figure, any tinkering with
such figure at the appellate stage would require material in
support thereof, which is completely lacking in the judgment
and order impugned dated July 30, 2021 passed by the
appellate authority in the present case.
xxx xxx xxx
20. Before parting, there is another aspect that has to be
referred to for the completeness of the discussion. The
purpose of the Act of 2002 is to ensure speedy recovery
of the debt due to secured creditors covered by such
statute. Towards such end, the provisions of the said
Act and the Rules made thereunder give primacy to the
secured creditor in initially assessing the quantum of debt
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due and in proceeding against the securities furnished for

realising such debt due. However, no secured creditor,
not even by embracing the provisions of the said Act of
2002, can unjustly enrich itself or obtain any more by way
of resorting to any of the measures contemplated under
Section 13(4) of the Act or otherwise than the debt that
is due to it and the costs that may have been incurred in
course of trying to recover the debt due. In a sense, if the
forfeiture provision in Rule 9(5) of the said Rules is ready
to imply what the secured creditor in this case seeks to, it
may result in a secured creditor unjustly enriching itself,
which is not permissible.”
(Emphasis supplied)
20. The plain reading of the aforesaid findings recorded by the High
Court lays down three propositions of law as follows:
(1) Rule 9(5) of the SARFAESI Rules is merely an enabling
provision that permits forfeiture in principle. It cannot override
the underlying ethos of Section 73 of the 1872 Act. It should
yield to the principle recognised in Section 73 of the 1872 Act
or must be read down accordingly.
(2) By virtue of the delegated legislation as in the SARFAESI Rules,
the fundamental principle envisaged in the 1872 Act should not
be permitted to be diluted or altogether disregarded.
(3) Rule 9(5) of the SARFAESI Rules if not read along with the
principle recognised in Section 73 of the 1872 Act, the same
may result in a secured creditor unjustly enriching itself which
is not permissible.
21. In view of the aforesaid, the Bank being aggrieved with the impugned
order passed by the High Court is here before this Court with the
present appeals.
C. SUBMISSIONS OF THE APPELLANT
22. Mr. Dhruv Mehta, the learned Senior Counsel appearing for the
appellants submitted that the issue framed by the High Court in its
Impugned Judgment is wholly alien to the sale conducted under the
SARFAESI Rules, more particularly Rule 9.
[2024] 2 S.C.R.  33

The Authorised Officer, Central Bank of India v. Shanmugavelu

23. It was submitted that the High Court was not correct in reading down
Rule 9(5) and holding that the same must yield to the principles
recognized in Section 73 of the 1872 Act, notwithstanding the wide
words used in Rule 9(5) of SARFAESI Rules.
24. It was further submitted that the High Court failed to appreciate that
the auction sale under consideration was a statutory sale conducted
by the appellant in accordance with the SARFAESI Rules and as
Section 35 of the SARFAESI Act gives an overriding effect, this would
not be a case of breach of contract which would attract principles
underlying Section 73 of the 1872 Act.
25. Mr. Mehta placed strong reliance on a recent decision of this Court
in Authorized Officer State Bank of India v. C. Natarajan reported
in 2023 SCC Online SC 510, wherein whilst dealing with a similar
issue, it was held that Rule 9 which is part of a special enactment
will have precedence over Sections 73 and 74 respectively of the
1872 Act which is a general provision.
26. It was further submitted that Rule 9(5) of the SARFAESI Rules, ought
to be interpreted strictly because often the borrowers use subversive
methods to hinder the auction process which may lead to erosion
of the secured asset’s value in light of reauctions.
27. In the last, Mr. Mehta submitted that clause 11 of the e-auction notice
dated 24.10.2016 explicitly provided that the failure of the auction
purchaser in paying the balance amount would result in forfeiture
of the earnest-money deposit.
28. In such circumstances referred to above, the learned Senior Counsel
prayed that there being merit in his appeals, the same be allowed
and the impugned judgment and order of the High Court be set aside.
D. SUBMISSIONS OF THE RESPONDENT
29. Dr. S. Muralidhar, the learned Senior Counsel appearing for the
respondent on the other hand vehemently submitted that no error not
to speak of any error of law could be said to have been committed
by the High Court in passing the impugned judgment and order.
30. It was submitted that Section 35 of the SARFAESI Act only gives the
Act an overriding effect over other laws, and is not applicable to the
SARFAESI Rules made under it. Therefore Rule 9(5) of SARFASI
Rules is only an enabling provision and cannot override the statutory
provisions of the 1872 Act.
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31. It was submitted that the High Court committed no error in holding
that the appellant bank could not have forfeited the amount deposited
by a third party being the auction purchaser without any real damage
or loss being caused to it.
32. It was further submitted that under the SARFAESI Rules, the
authorized officer is left with an unguided power of forfeiture. Such
unguided power conferred on a delegated authority like the authorized
officer in a bank is opposed to public policy and would result in unjust
enrichment. Therefore, the said Rule 9(5) is liable to be struck down
as unconstitutional being opposed to public policy and principles of
fair play and unreasonableness.
33. In such circumstances referred to above, it was prayed on behalf of
the respondent that there being no merit in the appeals, the same
may be dismissed.
E. ANALYSIS (Points for Determination)
34. Having heard the learned counsel appearing for the parties and
having gone through the materials on record, the following questions
fall for our consideration: -
I. Whether, the underlying principle of Section(s) 73 & 74
respectively of the 1872 Act is applicable to forfeiture of earnest-
money deposit under Rule 9(5) of the SARFAESI Rules? In
other words, whether the forfeiture of the earnest-money deposit
under Rule 9(5) of the SARFAESI Rules can be only to the
extent of loss or damages incurred by the Bank?
II. Whether, the forfeiture of the entire amount towards the earnest-
money deposit under Rule 9(5) of the Rules amounts to unjust
enrichment? In other words, whether the quantum of forfeiture
under the SARFAESI Rule is limited to the extent of debt owed?
III. Whether a case of exceptionable circumstances could be said
to have been made out by the respondent to set aside the order
of forfeiture of the earnest money deposit?

i) Legislative History and Scheme of the SARFAESI Act

35. Till early 1990s, the civil suits were being filed for recovery of the
dues of banks and financial institutions under the Act 1882 and the
Code of Civil Procedure, 1908 (“CPC”). Due to various difficulties the
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The Authorised Officer, Central Bank of India v. Shanmugavelu

banks and financial institutions had to face in recovering loans and

enforcement of securities, the Parliament enacted the Recovery of
Debts Due to Banks and Financial Institutions Act, 1993 (for short,
the “RDBFI Act”).
36. On account of lack of infrastructure and manpower, the regular
civil courts were not in a position to cope up with the speed in the
adjudication of recovery cases. In the light of recommendations of
the Tiwari Committee the special tribunals came to be set up under
the provisions of the RDBFI Act referred to above for the recovery
of huge accumulated NPA of the Bank loans.
37. On the continuing rise in number of Non-Performing Assets (NPA)
at banks and other financial institutions in India; a poor rate of loan
recovery and the failure of the existing legislation in redressing the
difficulties of recovery by banks; the Narasimham Committee I & II
and Andyarujina Committee were constituted by the Government
for examining and suggesting banking reforms in India. These
Committees in their reports observed that one out of every five
borrower was a defaulter, and that due to the long and tedious
process of existing frame work of law and the overburdening of
existing forums including the specialised tribunals under the 1993
Act, any attempt of recovery with the assistance of court/tribunal
often rendered the secured asset nearly worthless due to the long
delays. In this background the Committees thus, proposed new laws
for securitisation in order to permit banks and financial institutions
to hold securities and sell them in a timely manner without the
involvement of the courts.
38. On the recommendations of the Narasimham Committee and
Andyarujina Committee, the SARFAESI Act was enacted to empower
the banks and financial institutions to take possession of the securities
and to sell them without intervention of the court.
39. The statement of objects and reasons for which the Act has been
enacted reads as under: -
“STATEMENT OF OBJECTS AND REASONS
The financial sector has been one of the key drivers in India’s
efforts to achieve success in rapidly developing its economy.
While the banking industry in India is progressively complying
with the international prudential norms and accounting practices
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there are certain areas in which the banking and financial

sector do not have a level playing field as compared to other
participants in the financial markets in the world. There is no
legal provision for facilitating securitisation of financial assets
of banks and financial institutions. Further, unlike international
banks, the banks and financial institutions in India do not have
power to take possession of securities and sell them. Our existing
legal framework relating to commercial transactions has not
kept pace with the changing commercial practices and financial
sector reforms. This has resulted in slow pace of recovery of
defaulting loans and mounting levels of non-performing assets
of banks and financial institutions. Narasimham Committee I
and II and Andhyarujina Committee constituted by the Central
Government for the purpose of examining banking sector reforms
have considered the need for changes in the legal system in
respect of these areas. These Committees, inter alia, have
suggested enactment of a new legislation for securitisation and
empowering banks and financial institutions to take possession
of the securities and to sell them without the intervention of
the court. Acting on these suggestions, the Securitisation and
Reconstruction of Financial Assets and Enforcement of Security
Interest Ordinance, 2002 was promulgated on the 21st June,
2002 to regulate securitisation and reconstruction of financial
assets and enforcement of security interest and for matters
connected therewith or incidental thereto. The provisions of the
Ordinance would enable banks and financial institutions to realise
long-term assets, manage problem of liquidity, asset liability
mismatches and improve recovery by exercising powers to take
possession of securities, sell them and reduce nonperforming
assets by adopting measures for recovery or reconstruction.”
40. This Court in Mardia Chemicals Ltd. & Ors. v. Union of India & Ors.
reported in (2004) 4 SCC 311, examined the history and legislative
backdrop that ultimately led to the enactment of the SARFAESI Act
as under: -
“34. Some facts which need to be taken note of are that the
banks and the financial institutions have heavily financed the
petitioners and other industries. It is also a fact that a large sum
of amount remains unrecovered. Normal process of recovery
of debts through courts is lengthy and time taken is not suited
for recovery of such dues. For financial assistance rendered
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The Authorised Officer, Central Bank of India v. Shanmugavelu

to the industries by the financial institutions, financial liquidity

is essential failing which there is a blockade of large sums of
amounts creating circumstances which retard the economic
progress followed by a large number of other consequential ill
effects. Considering all these circumstances, the Recovery of
Debts Due to Banks and Financial Institutions Act was enacted
in 1993 but as the figures show it also did not bring the desired
results. Though it is submitted on behalf of the petitioners that
it so happened due to inaction on the part of the Governments
in creating Debts Recovery Tribunals and appointing presiding
officers, for a long time. Even after leaving that margin, it is
to be noted that things in the spheres concerned are desired
to move faster. In the present-day global economy it may be
difficult to stick to old and conventional methods of financing
and recovery of dues. Hence, in our view, it cannot be said that
a step taken towards securitisation of the debts and to evolve
means for faster recovery of NPAs was not called for or that
it was superimposition of undesired law since one legislation
was already operating in the field, namely, the Recovery of
Debts Due to Banks and Financial Institutions Act. It is also
to be noted that the idea has not erupted abruptly to resort to
such a legislation. It appears that a thought was given to the
problems and the Narasimham Committee was constituted
which recommended for such a legislation keeping in view the
changing times and economic situation whereafter yet another
Expert Committee was constituted, then alone the impugned
law was enacted. Liquidity of finances and flow of money is
essential for any healthy and growth-oriented economy. But
certainly, what must be kept in mind is that the law should
not be in derogation of the rights which are guaranteed to the
people under the Constitution. The procedure should also be
fair, reasonable and valid, though it may vary looking to the
different situations needed to be tackled and object sought to
be achieved.
xxx xxx xxx
36. In its Second Report, the Narasimham Committee observed
that NPAs in 1992 were uncomfortably high for most of the
public sector banks. In Chapter VIII of the Second Report
the Narasimham Committee deals about legal and legislative
framework and observed:
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“8.1. A legal framework that clearly defines the rights and

liabilities of parties to contracts and provides for speedy
resolution of disputes is a sine qua non for efficient trade
and commerce, especially for financial intermediation. In
our system, the evolution of the legal framework has not
kept pace with changing commercial practice and with
the financial sector reforms. As a result, the economy
has not been able to reap the full benefits of the reforms
process. As an illustration, we could look at the scheme of
mortgage in the Transfer of Property Act, which is critical
to the work of financial intermediaries….”
One of the measures recommended in the circumstances was to
vest the financial institutions through special statutes, the power
of sale of the assets without intervention of the court and for
reconstruction of assets. It is thus to be seen that the question
of non-recoverable or delayed recovery of debts advanced by
the banks or financial institutions has been attracting attention
and the matter was considered in depth by the Committees
specially constituted consisting of the experts in the field. In the
prevalent situation where the amounts of dues are huge and
hope of early recovery is less, it cannot be said that a more
effective legislation for the purpose was uncalled for or that it
could not be resorted to. It is again to be noted that after the
Report of the Narasimham Committee, yet another Committee
was constituted headed by Mr Andhyarujina for bringing about
the needed steps within the legal framework. We are therefore,
unable to find much substance in the submission made on
behalf of the petitioners that while the Recovery of Debts Due
to Banks and Financial Institutions Act was in operation it was
uncalled for to have yet another legislation for the recovery of
the mounting dues. Considering the totality of circumstances
and the financial climate world over, if it was thought as a
matter of policy to have yet speedier legal method to recover
the dues, such a policy decision cannot be faulted with nor is
it a matter to be gone into by the courts to test the legitimacy
of such a measure relating to financial policy.”
41. In this regard, reference may be made to the following observations
of this Court in the case of United Bank of India v. Satyawati
Tondon & Ors. reported in (2010) 8 SCC 110. The relevant paras
are being reproduced hereunder:
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The Authorised Officer, Central Bank of India v. Shanmugavelu

“1. … With a view to give impetus to the industrial

development of the country, the Central and State
Governments encouraged the banks and other financial
institutions to formulate liberal policies for grant of loans
and other financial facilities to those who wanted to set
up new industrial units or expand the existing units. Many
hundred thousand took advantage of easy financing by the
banks and other financial institutions but a large number
of them did not repay the amount of loan, etc. Not only
this, they instituted frivolous cases and succeeded in
persuading the civil courts to pass orders of injunction
against the steps taken by banks and financial institutions
to recover their dues. Due to lack of adequate infrastructure
and non-availability of manpower, the regular courts could
not accomplish the task of expeditiously adjudicating the
cases instituted by banks and other financial institutions for
recovery of their dues. As a result, several hundred crores
of public money got blocked in unproductive ventures.
2. In order to redeem the situation, the Government of India
constituted a committee under the Chairmanship of Shri T.
Tiwari to examine the legal and other difficulties faced by
banks and financial institutions in the recovery of their dues
and suggest remedial measures. The Tiwari Committee noted
that the existing procedure for recovery was very cumbersome
and suggested that special tribunals be set up for recovery
of the dues of banks and financial institutions by following a
summary procedure. The Tiwari Committee also prepared a
draft of the proposed legislation which contained a provision
for disposal of cases in three months and conferment of
power upon the Recovery Officer for expeditious execution
of orders made by adjudicating bodies.”
42. Section 13 of the SARFAESI Act contains the provisions relating to
the enforcement of the security interest and the manner in which the
same may be done by the secured creditor without the intervention
of the court or ribunal in accordance with its provisions.
43. Rules 8 and 9 respectively of the SARFAESI Rules prescribe the
procedure and formalities to be followed for the sale of immovable
secured asset as per Section 13 of the SARFAESI Act. In the present
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lis, we are concerned with Rule 9 more particularly sub-rule (5) of

the SARFAESI Rules which provides for forfeiture of 25% of the
deposit made under sub-rule (3) in the event the successful auction
purchaser fails to pay the balance amount within the stipulated time
period under sub-rule (4). The said Rule reads as under: -
“9. Time of sale, issue of sale certificate and delivery
of possession, etc.–(1) No sale of immovable property
under these rules, in first instance shall take place before
the expiry of thirty days from the date on which the public
notice of sale is published in newspapers as referred to in
the proviso to sub-rule (6) of rule 8 or notice of sale has
been served to the borrower:
Provided further that if sale of immovable property by
any one of the methods specified by sub-rule (5) of rule
8 fails and sale is required to be conducted again, the
authorised officer shall serve, affix and publish notice of
sale of not less than fifteen days to the borrower, for any
subsequent sale.
(2) The sale shall be confirmed in favour of the purchaser
who has offered the highest sale price in his bid or tender
or quotation or offer to the authorised officer and shall be
subject to confirmation by the secured creditor:
Provided that no sale under this rule shall be confirmed, if
the amount offered by sale price is less than the reserve
price, specified under sub-rule (5) of rule 8:
Provided further that if the authorised officer fails to obtain
a price higher than the reserve price, he may, with the
consent of the borrower and the secured creditor effect
the sale at such price.
(3) On every sale of immovable property, the purchaser
shall immediately, i.e. on the same day or not later than
next working day, as the case may be, pay a deposit
of twenty five per cent. of the amount of the sale price,
which is inclusive of earnest money deposited, if any, to
the authorised officer conducting the sale and in default
of such deposit, the property shall be sold again;
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The Authorised Officer, Central Bank of India v. Shanmugavelu

(4) The balance amount of purchase price payable shall be

paid by the purchaser to the authorised officer on or before
the fifteenth day of confirmation of sale of the immovable
property or such extended period as may be agreed upon
in writing between the purchaser and the secured creditor,
in any case not exceeding three months.
(5) In default of payment within the period mentioned in
sub-rule (4), the deposit shall be forfeited to the secured
creditor and the property shall be resold and the defaulting
purchaser shall forfeit all claim to the property or to any
part of the sum for which it may be subsequently sold.
(6) On confirmation of sale by the secured creditor and
if the terms of payment have been complied with, the
authorised officer exercising the power of sale shall issue a
certificate of sale of the immovable property in favour of the
purchaser in the Form given in Appendix V to these rules.
(7) Where the immovable property sold is subject to any
encumbrances, the authorised officer may, if he thinks
fit, allow the purchaser to deposit with him the money
required to discharge the encumbrances and any interest
due thereon together with such additional amount that
may be sufficient to meet the contingencies or further
cost, expenses and interest as may be determined by him.
Provided that if after meeting the cost of removing
encumbrances and contingencies there is any surplus
available out of money deposited by the purchaser such
surplus shall be paid to the purchaser within fifteen days,
from date of finalisation of the sale.
(8) On such deposit of money for discharge of the
encumbrances, the authorised officer shall issue or cause
the purchaser to issue notices to the persons interested
in or entitled to the money deposited with him and take
steps to make, the payment accordingly.
(9) The authorised officer shall deliver the property to the
purchaser free from encumbrances known to the secured
creditor on deposit of money as specified in sub-rule (7)
above.
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(10) The certificate of sale issued under sub-rule (6)

shall specifically mention that whether the purchaser has
purchased the immovable secured asset free from any
encumbrances known to the secured creditor or not.”
44. Section 35 of the SARFAESI Act contains the overriding clause and
provides that the Act shall override any other law which is inconsistent
with its provisions, and reads as under: -
“35. The provisions of this Act to override other laws.–
The provisions of this Act shall have effect, notwithstanding
anything inconsistent therewith contained in any other law
for the time being in force or any instrument having effect
by virtue of any such law.”
45. Section 37 of the SARFAESI Act provides that the provisions of the
SARFAESI Act shall be in addition to the Acts mentioned in or and
any other law for the time being in force and that the other laws
shall also be applicable alongside the SARFAESI Act, and reads
as under: -
“37. Application of other laws not barred.–The provisions
of this Act or the rules made thereunder shall be in addition
to, and not in derogation of, the Companies Act, 1956 (1
of 1956), the Securities Contracts (Regulation) Act, 1956
(42 of 1956), the Securities and Exchange Board of India
Act, 1992 (15 of 1992), the Recovery of Debts Due to
Banks and Financial Institutions Act, 1993 (51 of 1993)
or any other law for the time being in force.”
46. This Court in Madras Petrochem Ltd. & Anr. v. Board for Industrial
and Financial Reconstruction & Ors. reported in (2016) 4 SCC 1,
recapitulated the object behind the enactment of the SARFAESI Act
and in that context examined the purpose of Sections 13, 35 and 37
respectively of the SARFAESI Act with the following observations
given as under: -
“16. It is important at this stage to refer to the genesis of these
three legislations. Each of them deals with different aspects of
recovery of debts due to banks and financial institutions. Two
of them refer to creditors’ interests and how best to deal with
recovery of outstanding loans and advances made by them on
the one hand, whereas the Sick Industrial Companies (Special
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The Authorised Officer, Central Bank of India v. Shanmugavelu

Provisions) Act, 1985, on the other hand, deals with certain

debtors which are sick industrial companies [i.e. companies
running industries named in the Schedule to the Industries
(Development and Regulation) Act, 1951] and whether such
“debtors” having become “sick”, are to be rehabilitated. The
question, therefore, is whether the public interest in recovering
debts due to banks and financial institutions is to give way to
the public interest in rehabilitation of sick industrial companies,
regard being had to the present economic scenario in the
country, as reflected in parliamentary legislation.
xxx xxx xxx
19. While this Act had worked for a period of about 7 years,
the Recovery of Debts Due to Banks and Financial Institutions
Act, 1993 was brought into force, pursuant to various committee
reports. The Statement of Objects and Reasons for this Act
reads as follows:
Statement of Objects and Reasons of the Recovery of
Debts Due to Banks and Financial Institutions Act, 1993
“1. Banks and financial institutions at present experience
considerable difficulties in recovering loans and enforcement
of securities charged with them. The existing procedure
for recovery of debts due to the banks and financial
institutions has blocked a significant portion of their funds
in unproductive assets, the value of which deteriorates
with the passage of time. The Committee on the Financial
System headed by Shri M. Narasimham has considered the
setting up of the Special Tribunals with special powers for
adjudication of such matters and speedy recovery as critical
to the successful implementation of the financial sector
reforms. An urgent need was, therefore, felt to work out a
suitable mechanism through which the dues to the banks
and financial institutions could be realised without delay.
In 1981, a Committee under the Chairmanship of Shri T.
Tiwari had examined the legal and other difficulties faced
by banks and financial institutions and suggested remedial
measures including changes in law. The Tiwari Committee
had also suggested setting up of Special Tribunals for
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recovery of dues of the banks and financial institutions by

following a summary procedure. The setting up of Special
Tribunals will not only fulfil a long-felt need, but also will
be an important step in the implementation of the Report
of Narasimham Committee. Whereas on 30-9-1990 more
than fifteen lakhs of cases filed by the public sector banks
and about 304 cases filed by the financial institutions were
pending in various courts, recovery of debts involved more
than Rs 5622 crores in dues of public sector banks and
about Rs 391 crores of dues of the financial institutions.
The locking up of such huge amount of public money in
litigation prevents proper utilisation and recycling of the
funds for the development of the country.
2. The Bill seeks to provide for the establishment of Tribunals
and Appellate Tribunals for expeditious adjudication and
recovery of debts due to banks and financial institutions.
Notes on clauses explain in detail the provisions of the Bill.”
20. The Recovery of Debts Due to Banks and Financial
Institutions Act, 1993 took away the jurisdiction of the courts
and vested this jurisdiction in tribunals established by the Act
so as to ensure speedy recovery of debts due to the banks
and financial institutions mentioned therein. This Act also
included one appeal to the Appellate Tribunal, and transfer
of all suits or other proceedings pending before any court
to tribunals set up under the Act. The Act contained a non
obstante clause in Section 34 stating that its provisions will
have effect notwithstanding anything inconsistent contained in
any other law for the time being in force or in any instrument
having effect by virtue of any other law. In the year 2000, this
Act was amended so as to incorporate a new sub-section (2) in
Section 34 together with a saving provision in sub-section (1).
It is of some interest to note that this Act was to be in addition
to and not in derogation of various Financial Corporation Acts
and the Sick Industrial Companies (Special Provisions) Act,
1985. Clearly, therefore, the object of the 2000 Amendment to
the Recovery of Debts Due to Banks and Financial Institutions
Act, 1993 was to make the Sick Industrial Companies (Special
Provisions) Act, 1985 prevail over it.
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21. Regard being had to the poor working of the Recovery

of Debts Due to Banks and Financial Institutions Act, 1993,
the Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 was brought into
force in the year 2002. …
22. This 2002 Act was brought into force as a result of two
committee reports which opined that recovery of debts due to
banks and financial institutions was not moving as speedily as
expected, and that, therefore, certain other measures would
have to be put in place in order that these banks and financial
institutions would better be able to recover debts owing to them.
xxx xxx xxx
24. The “pivotal” provision, namely, Section 13 of the said
Act makes it clear that banks and financial institutions would
now no longer have to wait for a tribunal judgment under the
Recovery of Debts Due to Banks and Financial Institutions
Act, 1993 to be able to recover debts owing to them. They
could, by following the procedure laid down in Section 13,
take direct action against the debtors by taking possession of
secured assets and selling them; they could also take over the
management of the business of the borrower. They could also
appoint any person to manage the secured assets possession
of which has been taken over by them, and could require, at
any time by notice in writing to any person who has acquired
any of the secured assets from the borrower and from whom
any money is due or may become due from the borrower, to
pay the secured creditor so much of the money as is sufficient
to pay the secured debt.
25. In order to further the objects of the Securitisation and
Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002, the Act contains a non obstante clause in
Section 35 and also contains various Acts in Section 37 which
are to be in addition to and not in derogation of the Securitisation
and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002. Three of these Acts, namely, the
Companies Act, 1956, the Securities Contracts (Regulation)
Act, 1956 and the Securities and Exchange Board of India Act,
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1992, relate to securities generally, whereas the Recovery of

Debts Due to Banks and Financial Institutions Act, 1993 relates
to recovery of debts due to banks and financial institutions.
Significantly, under Section 41 of this Act, three Acts are, by
the Schedule to this Act, amended. We are concerned with
the third of such Acts, namely, the Sick Industrial Companies
(Special Provisions) Act, 1985, in Section 15(1) of which two
provisos have been added. It is the correct interpretation of the
second of these provisos on which the fate of these appeals
ultimately hangs.”
(Emphasis supplied)

ii) Applicability of Section(s) 73 & 74 of the 1872 Act to

Forfeiture under the SARFAESI Rules.
47. Before we proceed to answer the first question formulated by us in
para 34 of this judgment, we must look into the principles underlying
Section 73 of the 1872 Act.
48. Section 73 of the 1872 Act deals with the compensation for loss or
damage caused by breach of contract. The same is extracted below:
“73. Compensation for loss or damage caused by
breach of contract. — When a contract has been broken,
the party who suffers by such breach is entitled to receive,
from the party who has broken the contract, compensation
for any loss or damage caused to him thereby, which
naturally arose in the usual course of things from such
breach, or which the parties knew, when they made the
contract, to be likely to result from the breach of it.
Such compensation is not to be given for any remote and
indirect loss or damage sustained by reason of the breach.
Compensation for failure to discharge obligation
resembling those created by contract. — When an
obligation resembling those created by contract has been
incurred and has not been discharged, any person injured
by the failure to discharge it is entitled to receive the same
compensation from the party in default, as if such person
had contracted to discharge it and had broken his contract.
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Explanation. In estimating the loss or damage arising from

a breach of contract, the means which existed of remedying
the inconvenience caused by the non-performance of the
contract must be taken into account.”
49. The principles underlying Section 73 of the 1872 Act are well settled.
The classic case dealing with remoteness of damages is Hadley &
Anr. v. Baxendale & Ors. reported in (1843-60) ALL E.R. Rep. 461,
wherein it was observed:
“Where two parties have made a contract which one of
them has broken, the damages which the other party ought
to receive in respect of such breach of contract should
be such as may fairly and reasonably be considered
as either arising naturally, i.e., according to the usual
course of things, from such breach of contract itself, or
such as may reasonably be supposed to have been in
the contemplation of both parties at the time they made
the contract as the probable result of the breach of it.
If special circumstances under which the contract was
actually made were communicated by the plaintiffs to the
defendants, and thus known to both parties, the damages
resulting from the breach of such a contract which they
would reasonably contemplate would be the amount
of injury which would ordinarily follow from a breach of
contract under these special circumstances so known and
communicated. But, on the other hand, if these special
circumstances were wholly unknown to the party breaking
the contract, he, at the most, could only be supposed to
have had in his contemplation the amount of injury which
would arise generally, and in the great multitude of cases
not affected by any special circumstances, from such a
breach of contract. For, had the circumstances been known,
the parties might have provided for the breach of contract
by special terms as to the damages in that case; and of
this advantage it would be very unjust to deprive them.”
50. The above principles were explained and clarified by the Court of
Appeal in Victoria Laundry (Windsor) Ltd v. Newman Industrial
Ltd., [1949] 2 K.B. 528 as under:
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“(1.) It is well settled that the governing purpose of damages

is to put the party whose rights have been violated in the
same position, so far as money can do so, as if his rights
had been observed: …
(2.) In cases of breach of contract the aggrieved party
is only entitled to recover such part of the loss actually
resulting as was at the time of the contract reasonably
foreseeable as liable to result from the breach.
(3.) What was at that time reasonably so foreseeable
depends on the knowledge then possessed by the parties
or, at all events, by the party who later commits the breach.
(4.) For this purpose, knowledge “possessed” is of two
kinds; one imputed, the other actual. Everyone, as a
reasonable person, is taken to know the “ordinary course of
things” and consequently what loss is liable to result from
a breach of contract in that ordinary course. This is the
subject matter of the “first rule” in Hadley v. Baxendale 9
Exch. 341. But to this knowledge, which a contract-breaker
is assumed to possess whether he actually possesses
it or not, there may have to be added in a particular
case knowledge which he actually possesses, of special
circumstances outside the “ordinary course of things,” of
such a kind that a breach in those special circumstances
would be liable to cause more loss. Such a case attracts
the operation of the “second rule” so as to make additional
loss also recoverable.
(5.) In order to make the contract-breaker liable under
either rule it is not necessary that he should actually have
asked himself what loss is liable to result from a breach.
As has often been pointed out, parties at the time of
contracting contemplate not the breach of the contract, but
its performance. It suffices that, if he had considered the
question, he would as a reasonable man have concluded
that the loss in question was liable to result ….
(6.) Nor, finally, to make a particular loss recoverable,
need it be proved that upon a given state of knowledge
the defendant could, as a reasonable man, foresee that
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a breach must necessarily result in that loss. It is enough

if he could foresee it was likely so to result. It is indeed
enough, to borrow from the language of Lord du Parcq in
the same case, at page 158, if the loss (or some factor
without which it would not have occurred) is a “serious
possibility” or a “real danger.” …”
51. The above principles apply to grant of compensation under Section
73 of the 1872 Act. This is clear from the decision of this Court in
Karsandas H. Thacker v. M/s. The Saran Engineering Co. Ltd.
reported in AIR 1965 SC 1981. The Court held that when a party
commits breach of contract, the other party is entitled to receive
compensation for any loss by the damage caused to him which
naturally arose in the usual course of business from such breach
or which the parties knew when they made the contract to be likely
to result from the breach of it. Remote and indirect loss or damage
sustained by reason of the breach will not entitle the party complaining
breach, to any compensation. Referring to the facts of the case and
Illustration (k) to Section 73 of the 1872 Act, the Court held:
“13. …On account of the non-delivery of scrap iron, he
could have purchased the scrap iron from the market at
the same controlled price and similar incidental charges.
This means that he did not stand to pay a higher price than
what he was to pay to the respondent and therefore he
could not have suffered any loss on account of the breach
of contract by the respondent. The actual loss, which,
according to the appellant, he suffered on account of the
breach of contract by the respondent was the result of his
contracting to sell 200 tons of scrap iron for export to the
Export Corporation. It may be assumed that, as stated,
the market price of scrap iron for export on January 30,
1953, was the price paid by the Export Corporation for
the purchase of scrap iron that day. As the parties did not
know and could not have known when the contract was
made in July 1952 that the scrap iron would be ultimately
sold by the appellant to the Export Corporation, the parties
could not have known of the likelihood of the loss actually
suffered by the appellant, according to him, on account of
the failure of the respondent to fulfil the contract.
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14. Illustration (k) to S. 73 of the Contract Act is apt for

the purpose of this case. According to that illustration,
the person committing breach of contract has to pay to
the other party the difference between the contract price
of the articles agreed to be sold and the sum paid by the
other party for purchasing another article on account of
the default of the first party, but the first party has not to
pay the compensation which the second party had to pay
to third parties as he had not been told at the time of the
contract that the second party was making the purchase
of the article for delivery to such third parties.”
52. Damages can be awarded only for the loss directly suffered on account
of the breach and not for any remote or indirect loss sustained by
reason of the breach of contract. The general rule is that where
two parties enter into a contract and one of them commits breach,
the other party will be entitled to receive as damages in respect of
such breach of contract, such sum as may fairly and reasonably be
considered arising naturally, that is according to the usual course of
things, from such breach of contract itself or such as may reasonably
be supposed to have been in the contemplation of both parties
at the time they made the contract, as the probable result of the
breach of it. If any special circumstances about the dependency of
the performance of other contract(s) by the party complaining of the
breach, on the performance of the contract in dispute by the party
in breach, had been communicated to the party in breach, and thus
known to both parties at the time of entering into the contract, then
the damages for the breach of the contract in dispute, may include the
compensation for the loss suffered in regard to such other dependent
contracts. But, on the other hand, if the special circumstances were
not made known to the party breaking the contract, the party breaking
the contract, at the most, could only be supposed to have had in its
contemplation the amount of injury which would arise generally and
directly and not any remote or unknown loss or damage.
53. What would be a ‘penalty’ under Section 74 of the 1872 Act was
explained by this Court in K. P. Subbarama Sastri and others v.
K. S. Raghavan & Ors. reported in (1987) 2 SCC 424 as under:
“5. …The question whether a particular stipulation in a
contractual agreement is in the nature of a penalty has to be
determined by the court against the background of various
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relevant factors, such as the character of the transaction

and its special nature, if any, the relative situation of the
parties, the rights and obligations accruing from such a
transaction under the general law and the intention of
the parties in incorporating in the contract the particular
stipulation which is contended to be penal in nature. If on
such a comprehensive consideration, the court finds that
the real purpose for which the stipulation was incorporated
in the contract was that by reason of its burdensome or
oppressive character it may operate in terrorem over the
promiser so as to drive him to fulfil the contract, then the
provision will be held to be one by way of penalty.”
54. The SARFAESI Rules, more particularly Rule 9 was first examined
by this Court in Rakesh Birani (Dead) through LRs v. Prem
Narain Sehgal & Anr. reported in (2018) 5 SCC 543, wherein the
entire auction process under Rule 9 was explained. The relevant
observations read as under: -
“8. In order to comprehend the rival submissions, it is
necessary to ponder as to intendment of Rule 9 of the
2002 Rules which deals with the time of sale, issues of sale
certificate and delivery of possession, etc. Public notice
of sale is to be published in the newspaper and only after
thirty days thereafter, the sale of immovable property can
take place. Under Rule 9(2) of the 2002 Rules, the sale is
required to be confirmed in favour of the purchaser who
has offered the highest sale price to the authorised officer
and shall be subject to confirmation by the secured creditor.
The proviso makes it clear that sale under the said Rule
would be confirmed if the amount offered and the whole
price is not less than the reserved price as specified in
Rule 9(5). It is apparent that Rule 9(1) does not deal with
the confirmation by the authorised officer. It only provides
confirmation by the secured creditor.
9. Rule 9(3) makes it clear that on every sale of immovable
property, the purchaser on the same day or not later than
next working day, has to make a deposit of twenty-five per
cent of the amount of the sale price, which is inclusive of
earnest money deposited if any. Rule 9(4) makes it clear
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that balance amount of the purchase price payable shall be

paid by the purchaser to the authorised officer on or before
the fifteenth day of “confirmation of sale of the immovable
property” or such extended period as may be agreed upon
in writing between the purchaser and the secured creditor.
Thus, Rule 9(2) makes it clear that after confirmation by
the secured creditor the amount has to be deposited. Rule
9(3) also makes it clear that period of fifteen days has to
be computed from the date of confirmation.”
55. This Court in Rakesh Birani (supra) while interpreting Rule 9(5) of
the SARFAESI Rules made the following pertinent observations: -
a. That, the liability of a successful auction purchaser to deposit
the requisite amount begins from the date when the sale is
confirmed by the secured creditor and communicated to the
auction purchaser, wherein 25% of the amount has to be
deposited as earnest money no later than the next working day
from the date of confirmation and the balance amount within
15 days from the said date.
b. That for forfeiture of the 25% earnest money deposit of the
auction purchaser, twin conditions have to be satisfied being (i)
First, that the sale must have been confirmed by the secured
creditor and (ii) second, there is a default in payment of the
balance 75% of the amount.
c. Once the afore-stated conditions are satisfied i.e., the auction
purchaser after confirmation of sale fails to deposit the balance
amount within the stipulated time, the secured creditor is required
to forfeit the original auction purchaser’s earnest money deposit
and the secured assets have to be resold.
d. The relevant observations are being reproduced below: -
“10. In this case, confirmation has been made and
communicated on 27-2- 2013 and within fifteen days
thereof i.e. on 13-3-2018, the amount of twenty-five per
cent had been deposited. Thereafter, sale certificate
has been issued under Rule 9(6). Rule 9(5) also makes
it clear that in default of payment within the period
mentioned in Rule 9(4), the deposit shall be forfeited.
There cannot be any forfeiture of the amount of 25%
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in deposit until and unless the sale is confirmed by the

secured creditor and there is a default of payment of
75% of the amount. The interpretation made by the
High Court thus cannot be accepted.
11. If we read the provisions otherwise then we find
even before the confirmation of sale within fifteen days,
the amount would be forfeited by the authorised officer
who may decide not to confirm the sale that would
be a result not contemplated in Rules 9(2), 9(4) and
9(5) which fortify our conclusion that it is only after the
confirmation is made under Rule 9(4) that amount has
to be deposited and on failure to deposit the amount,
twenty-five per cent amount has to be forfeited and
property has to be resold….”
(Emphasis supplied)
56. In Agarwal Tracom Private Limited v. Punjab National Bank &
Ors. reported in (2018) 1 SCC 626, this Court held that the act of
forfeiture of the earnest money deposit by the secured creditor is
a measure under Section 13(4) of the SARFAESI Act and thus,
challengeable before the DRT under Section 17 of the SARFAESI
Act. The relevant observations are reproduced below: -
“28. We also notice that Rule 9(5) confers express power
on the secured creditor to forfeit the deposit made by the
auction-purchaser in case the auction-purchaser commits
any default in paying instalment of sale money to the
secured creditor. Such action taken by the secured creditor
is, in our opinion, a part of the measures specified in
Section 13(4) and, therefore, it is regarded as a measure
taken Under Section 13(4) read with Rule 9(5)….”
(Emphasis supplied)
57. It appears that the High Court whilst passing the impugned order was
of the view that the legislature had provided for forfeiture under the
SARFAESI Rules as a relief to the secured creditor for the breach
of obligation by the auction purchaser. Thus, it was of the view that
Section 73 of the 1872 Act will be applicable to forfeiture under Rule
9(5) of the SARFAESI Rules and any forfeiture will only be allowed
to the extent of the loss or damage suffered by the secured creditor.
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58. This Court in C. Natarajan (supra) whilst dealing with a similar issue
pertaining to the applicability of Section(s) 73 and 74 of the 1872 Act
on forfeiture under Rule 9(5) of the SARFAESI Rules, answered the
same in a negative. The said decision is in two parts: -
a) It held that as the SARFAESI Act is a special enactment with
overriding effect over other laws by virtue of Section(s) 35 and
37, the 1872 Act more particularly Section(s) 73 and 74 will not
be applicable to Rule 9(5) of the SARFAESI Rules especially
since the rules framed under a statute become part of the statute.
“20. In terms of the Indian Contract Act, 1872 (for brevity
“Contract Act”, hereafter), a person can withdraw his offer
before acceptance. However, once a party expresses
willingness to enter into a contractual relationship subject
to terms and conditions and makes an offer which is
accepted but thereafter commits a breach of contract, he
does so at his own risk and peril and naturally has to suffer
the consequences. We are not oblivious of the terms of
section 73 and section 74 of the Contract Act, being part
of Chapter VI thereof titled “Of the Consequence of Breach
of Contract”. These sections, providing for compensation
for breach of contract and for liquidated damages, have
remained on the statute book for generations and permit
the party suffering the breach to recover such quantum of
loss or damage from the party in breach. However, with
changing times, the minds of people are also changing.
The judiciary, keeping itself abreast of the changes that
are bound to occur in an evolving society, must interpret
new laws that are brought in operation to suit the situation
appropriately. In the current era of globalization, the entire
philosophy of society, mainly on the economic front is
making rapid strides towards changes. Unscrupulous
people have been inventing newer modes and mechanisms
for defrauding and looting the nation. It is in such a scenario
that provisions of enactments, particularly those provisions
which have a direct bearing on the economy of the nation,
must receive such interpretation so that it not only fosters
economic growth but is also in tune with the intention of the
law-makers in introducing a provision such as sub-rule (5)
of rule 9, which though harsh in its operation, is intended to
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suppress the mischief and advance the remedy. If indeed

section 73 and section 74, which are part of the general
law of contract, were sufficient to cater to the remedy, the
need to make sub-rule (5) of rule 9 as part of the Rules
might not have arisen. Additionally, insertion of sub-rule
(5) with such specificity regarding forfeiture must not have
been thought of only for reiterating what is already there.
It was visualized by the law makers that there was a need
to arrest cases of deceptive manipulation of prices at the
instance of unscrupulous borrowers by thwarting sale
processes and this was the trigger for insertion of such
a provision with wide words conferring extensive powers
of forfeiture. The purpose of such insertion must have
also been aimed at instilling a sense of discipline in the
intending purchasers while they proceed to participate in
the auction-sale process. At the cost of repetition, it must
not be forgotten that the SARFAESI Act was enacted
because the general laws were not found to be workable
and efficient enough to ensure liquidity of finances and
flow of money essential for any healthy and growth-
oriented economy. The decision of this Court in Mardia
Chemicals v. Union of India [(2004) 4 SCC 311], while
outlawing only a part of the SARFAESI Act and upholding
the rest, has traced the history of this legislation and the
objects that Parliament had in mind in sufficient detail.
Apart from the law laid down in such decision, these are
the other relevant considerations which ought to be borne
in mind while examining a challenge to a forfeiture order.
21. There is one other aspect which is, more often than not,
glossed over. In terms of sub-rule (5) of rule 9, generally,
forfeiture would be followed by an exercise to resell the
immovable property. On the date an order of forfeiture is
in contemplation of the authorized officer of the secured
creditor for breach committed by the bidder, factually, the
position is quite uncertain for the former in that there is
neither any guarantee of his receiving bids pursuant to a
future sale, much to the satisfaction of the secured creditor,
nor is there any gauge to measure the likely loss to be
suffered by it (secured creditor) if no bidders were interested
to purchase the immovable property. Since the extent of
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loss cannot be immediately foreseen or calculated, such

officers may not have any option but to order forfeiture of
the amount deposited by the defaulting bidder in an attempt
to recover as much money as possible so as to reduce the
secured debt. That the immovable property is later sold
at the same price or at a price higher than the one which
was offered by the party suffering the forfeiture is not an
eventuality that occurs in each and every case. Sections
73 and 74 of the Contract Act would not, therefore, be
sufficient to take care of the interest of the secured creditor
in such a case and that also seems to be another reason
for bringing in the provision for forfeiture in rule 9. Ordinarily,
therefore, validity of an order of forfeiture must be judged
considering the circumstances that were prevailing on the
date it was made and not based on supervening events.
22. Does sub-rule (5) of rule 9, which is part of a delegated
legislation, i.e., the Rules, have the effect of diluting
section 73 and section 74 of the Contract Act? We have
considered it necessary to advert to this question as it
is one of general importance and are of the considered
opinion that the answer must be in the negative. While
the Contract Act embodies the general law of contract,
the SARFAESI Act is a special enactment, inter alia,
for enforcement of security interest without intervention
of court. Rule 9(5) providing for forfeiture is part of the
Rules, which have validly been framed in exercise of
statutory power conferred by section 38 of the SARFAESI
Act. Law is well settled that rules, when validly framed,
become part of the statute. Apart from the presumption as
to constitutionality of a statute, the contesting respondent
did not mount any challenge to sub-rule (5) of rule 9 of
the Rules. The applicability and enforcement of sub-rule
(5) of rule 9 on its terms, therefore, has to be secured in
appropriate cases.”
(Emphasis supplied)
b) That if Rule 9(5) is interpreted in light of Section(s) 73 and 74
of the 1872 Act, then the very auction process could be set at
naught by a mischievous or devious borrower by ‘gaming’ the
auction through sham bids.
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“18. Having regard to the terms of rule 9, the notice

for auction constitutes the ‘invitation to offer’; the bids
submitted by the bidders constitute the ‘offer’ and upon
confirmation of sale in favour of the highest bidder under
sub-rule (2) of rule 9, the contract comes into existence.
Once the contract comes into existence, the bidder is bound
to honour the terms of the statute under which the auction
is conducted and suffer consequences for breach, if any,
as stipulated. Rule 9(5) legislatively lays down a penal
consequence. ‘Forfeiture’ referred to in sub-rule (5) of rule
9, in the setting of the SARFAESI Act and the Rules, has
to be construed as denoting a penalty that the defaulting
bidder must suffer should he fail to make payment of the
entire sale price within the period allowed to him by the
authorized officer of a secured creditor.
19. Though it is true that the power conferred by sub-
rule (5) of rule 9 of the Rules ought not to be exercised
indiscriminately without having due regard to all relevant
facts and circumstances, yet, the said sub-rule ought also
not be read in a manner so as to render its existence
only on paper. Drawing from our experience on the
Bench, it can safely be observed that in many a case
the borrowers themselves, seeking to frustrate auction
sales, use their own henchmen as intending purchasers to
participate in the auction but thereafter they do not choose
to carry forward the transactions citing issues which are
hardly tenable. This leads to auctions being aborted and
issuance of fresh notices. Repetition of such a process
of participation-withdrawal for a couple of times or more
has the undesirable effect of rigging of the valuation of the
immovable property. In such cases, the only perceivable
loss suffered by a secured creditor would seem to be
the extent of expenses incurred by it in putting up the
immovable property for sale. However, what does generally
escape notice in the process is that it is the mischievous
borrower who steals a march over the secured creditor by
managing to have a highly valuable property purchased by
one of its henchmen for a song, thus getting such property
freed from the clutches of mortgage and by diluting the
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security cover which the secured creditor had for its loan
exposure. Bearing in mind such stark reality, sub-rule (5) of
rule 9 cannot but be interpreted pragmatically to serve twin
purposes — first, to facilitate due enforcement of security
interest by the secured creditor (one of the objects of the
SARFAESI Act); and second, to prohibit wrong doers from
being benefitted by a liberal construction thereof.”
(Emphasis supplied)
a. Forfeiture under the SARFAESI Rules:
59. We, first come to the aspect of applicability of Section 73 of the
1872 Act vis-à-vis the SARFAESI Act, more particularly Rule 9(5)
of the SARFAESI Rules. In Madras Petrochem (supra) this Court
made a pertinent observation that Sections 35 and 37 respectively
of the SARFAESI Act form a unique scheme of overriding provisions,
however the scope and ambit of Section 37 is restricted only to the
securities law. The relevant portion is reproduced as under: -
“39. This is what then brings us to the doctrine of
harmonious construction, which is one of the paramount
doctrines that is applied in interpreting all statutes. Since
neither Section 35 nor Section 37 of the Securitisation
and Reconstruction of Financial Assets and Enforcement
of Security Interest Act, 2002 is subject to the other, we
think it is necessary to interpret the expression “or any
other law for the time being in force” in Section 37. If a
literal meaning is given to the said expression, Section 35
will become completely otiose as all other laws will then
be in addition to and not in derogation of the Securitisation
and Reconstruction of Financial Assets and Enforcement
of Security Interest Act, 2002. Obviously this could not
have been the parliamentary intendment, after providing
in Section 35 that the Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest Act,
2002 will prevail over all other laws that are inconsistent
therewith. A middle ground has, therefore, necessarily to
be taken. According to us, the two apparently conflicting
sections can best be harmonised by giving meaning to
both. This can only be done by limiting the scope of the
expression “or any other law for the time being in force”
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contained in Section 37. This expression will, therefore,

have to be held to mean other laws having relation to
the securities market only, as the Recovery of Debts
Due to Banks and Financial Institutions Act, 1993 is the
only other special law, apart from the Securitisation and
Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002, dealing with recovery of debts
due to banks and financial institutions. On this interpretation
also, the Sick Industrial Companies (Special Provisions)
Act, 1985 will not be included for the obvious reason
that its primary objective is to rehabilitate sick industrial
companies and not to deal with the securities market.”
(Emphasis supplied)
60. The aforesaid view came to be reaffirmed by this Court in another
decision in Celir LLP. v. Bafna Motors (Mumbai) Pvt. Ltd. & Ors.
reported in 2023 SCC OnLine SC 1209, wherein it was held that only
those laws which have been either enumerated in Section 37 of the
SARFAESI Act or which occupy and deal with the same field as the
SARFAESI Act will be applicable in addition to the SARFAESI Act.
The relevant observations are being reproduced below: -
“72. Thus, it appears from a combined reading of
the decisions rendered by this Court in Madras
Petrochem (supra) and M.D. Frozen Foods Exports (supra)
that this Court has consistently construed that only those
laws which have either been enumerated in Section 37
SARFAESI Act or similar to it would be applicable in
addition to the SARFAESI Act i.e., laws which deal with
securities or occupy the same field as the SARFAESI Act.
Thus, even on this aspect, we are of the view that the Act,
1882 would not be applicable in addition to the SARFAESI
Act. Suffice to say, that in view of the above discussion,
the statutory right of redemption under the Act, 1882 will
not be applicable to the SARFAESI Act at least in view of
the amended Section 13(8) and any right of redemption
of a borrower must be found within the SARFAESI Act in
terms of the amended Section 13(8).”
(Emphasis supplied)
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61. The legislature through Rule 9(5) of the SARFAESI Rules, has made
a conscious departure from the general law by statutorily providing
for the forfeiture of earnest-money deposit of the successful auction
purchaser for its failure in depositing the balance consideration
within the statutory period. No doubt, the forfeiture is a result of a
breach of obligation, but the consequence of forfeiture in such case
is taking place not because of the breach but because of operation
of the statutory provision providing for forfeiture that is attracted as
a result of the breach.
62. If the consequence of forfeiture was purely a matter of breach of
contract, then there would have been no occasion for the legislature
to specifically provide for forfeiture through the statutory provisions,
and it would have simpliciter relegated the consequences of such
breach to already existing general law under Section(s) 73 and 74
of the 1872 Act. [See C. Natarajan (supra) at Para 20]
63. However, the legislature has consciously provided for only one
consequence in the event of failure of the successful auction purchaser
in depositing the balance amount i.e., forfeiture and has not provided
for imposition of any other stipulation by the secured creditor in the
event of a breach. This has been done, keeping in mind the larger
object of the SARFAESI Act, which is to facilitate recovery of debt in
a time-bound manner by giving teeth to the measures enumerated
within Section 13 of the SARFAESI Act, more particularly sale of
the secured asset in the event the borrower fails to repay the debt.
64. If Section(s) 73 and 74 respectively of the 1872 Act are interpreted so
as to be made applicable to a breach in payment of balance amount
by the successful auction purchaser, it would lead to a chilling effect
in the following ways: -
(i) First, it would be quite preposterous to suggest that in an auction
which is a process meant for recovery of debt due to default of
the borrower, the balance amount if not paid by the successful
auction purchaser, another recovery proceeding would have
to be initiated by the secured creditor in terms of Section(s)
73 and 74 of the 1872 Act to recoup the loss and expenditure
occasioned to it by the defaulting successful auction purchaser.
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(ii) Secondly, such an interpretation would allow unscrupulous

borrowers being hands-in-glove with the auction purchasers to
use subversive methods to participate in an auction only to not
pay the balance amount at the very end and escape relatively
unscathed under the guise of Section(s) 73 and 74 of the 1872
Act, thereby gaming the entire auction process and leaving any
possibility of recoveries under the SARFAESI Act at naught.
[See; C. Natarajan (supra) at Para 19]
65. Thus, such an interpretation would completely defeat the very purpose
and object of the SARFAESI Act and would reduce the measures
provided under Section 13 of the SARFAESI Act to a farce and
thereby undermine the country’s economic interest.
66. At this stage, we may also answer the submission of the respondent
that the authorised officer under Rule 9(5) of the SARFAESI Rules
has been conferred with unguided and unfettered power of forfeiture
and as such the said rule is liable to be struck down. However,
we are not impressed with such submission. First, there was no
challenge to the constitutional validity of Rule 9 sub-rule (5) of the
SARFAESI Rules. Secondly, even as per Agarwal Tracom (supra)
it is always open for a person aggrieved by an order of forfeiture
under the SARFAESI Rules to challenge the same before the DRT
under Section 17 of the SARFAESI Act.
67. As regards the contention that the SARFAESI Rules being a delegated
legislation cannot override the substantive provisions of a statutory
enactment more particularly Section(s) 73 & 74 of the 1872 Act, the
same was negatived by this Court in C. Natarajan (supra) with the
following observations: -
“22. .... We have considered it necessary to advert to
this question as it is one of general importance and are
of the considered opinion that the answer must be in the
negative. While the Contract Act embodies the general
law of contract, the SARFAESI Act is a special enactment,
inter alia, for enforcement of security interest without
intervention of court. Rule 9(5) providing for forfeiture
is part of the Rules, which have validly been framed in
exercise of statutory power conferred by section 38 of the
SARFAESI Act. Law is well settled that rules, when validly
framed, become part of the statute. …”
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68. What can be discerned from the above is that the SARFAESI Act
is a special legislation with an overriding effect on the general law,
and only those legislations which are either specifically mentioned
in Section 37 or deal with securitization will apply in addition to the
SARFAESI Act. Being so, the underlying principle envisaged under
Section(s) 73 & 74 of the 1872 Act which is a general law will have
no application, when it comes to the SARFAESI Act more particularly
the forfeiture of earnest-money deposit which has been statutorily
provided under Rule 9(5) of the SARFAESI Rules as a consequence
of the auction purchaser’s failure to deposit the balance amount.

b. Concept of Earnest-Money & Law on Forfeiture of Earnest-

Money Deposit:
69. This aforesaid aspect may be looked at from another angle.
Section(s) 73 and 74 of the 1872 Act deal with the consequences
and compensation for a breach of contract. It enables a suffering
party to recover such quantum of loss or liquidated damages from
a party in breach so as to make good the loss incurred by it and be
put in the same position prior to its losses.
70. At this juncture, it would be apposite to refer to the meaning of
‘forfeiture’. The word forfeiture is derived from the French word
‘forfaiture’ which means the loss of property by violation of his own
duty. The Black’s Law Dictionary defines ‘forfeiture’ as follows [See:
Henry Campbell Black on “Black’s Law Dictionary”, 1968, 4th Edition]: -
“the loss of a right, privilege, or property because of a
crime, breach of obligation, or neglect of duty.”
“something (especially money or property) lost or
confiscated by this process; a penalty”
“a destruction or deprivation of some estate or right because
of the failure to perform some obligation or condition
contained in a contract”
71. This Court in R.S. Joshi, Sales Tax Officer, Gujarat & Ors. v. Ajit
Mills Limited & Anr. reported in (1977) 4 SCC 98, while explaining
the true purport and meaning of the term ‘forfeiture’ observed that
whether a forfeiture clause is penal in nature must be decided in
the specific setting of a statute. The relevant observations read as
under: -
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“18. Coming to ‘forfeiture’, what is the true character of a

‘forfeiture’ ? Is it punitive in infliction, or merely another form
of exaction of money by one from another? If it is penal, it
falls within implied powers. If it is an act of mere transference
of money from the dealer to the State, then it falls outside the
legislative entry. Such is the essence of the decisions which
we will presently consider. There was a contention that the
expression ‘forfeiture’ did not denote a penalty. This, perhaps,
may have to be decided in the specific setting of a statute. But,
speaking generally and having in mind the object of Section 37
read with Section 46, we are inclined to the view that forfeiture
has a punitive impact. Black’s Legal Dictionary states that ‘to
forfeit’ is ‘to lose, or lose the right to, by some error, fault,
offence or crime’ ‘to incur a penalty.’ ‘Forfeiture’, as judicially
annotated, is ‘a punishment annexed by law to some illegal act
or negligence. . . .’; ‘something imposed as a punishment for an
offence or delinquency.’ The word, in this sense, is frequently
associated with the word ‘penalty’, According to Black’s Legal
Dictionary.
The terms ‘fine’, ‘forfeiture’ and ‘penalty’, are often used loosely
and even confusedly; but when a discrimination is made, the
word ‘penalty’ is found to be generic in its character, including
both fine and forfeiture. A ‘fine’ is a pecuniary penalty and is
commonly (perhaps always) to be collected by suit in some
form. A ‘forfeiture’ is a penalty by which one loses his rights
and interest in his property.
More explicitly, the U. S. Supreme Court has explained the
concept of ‘forfeiture’ in the context of statutory construction.
Chief Justice Taney, in the State of Maryland v. The Baltimore
& Ohio RR Co. 11 L ED. 714, 712 observed:
And a provision, as in this case, that the party shall forfeit a
particular sum, in case he does not perform an act required
by law, has always, in the construction of statutes, been
regarded not as a contract with the delinquent party, but
as the punishment for an offence. Undoubtedly, in the
case of individuals, the word forfeit is construed to be the
language of contract, because contract is the only mode
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in which one person can become liable to pay a penalty

to another for breach of duty, or the failure to perform
an obligation. In legislative proceedings, however, the
construction is otherwise and a forfeiture is always to be
regarded as a punishment inflicted for a violation of some
duty enjoined upon the party by law; and such, very clearly,
is the meaning of the word in the act in question
19. The same connotation has been imparted by our Court
too. A Bench has held: Bankura Municipality v. Lalji Raja and
Sons, 1953 Cri LJ 1101:
According to the dictionary meaning of the word ‘forfeiture’
the loss or the deprivation of goods has got to be in
consequence of a crime, offence or breach of engagement
or has to be by way of penalty of the transgression or a
punishment for an offence. Unless the loss or deprivation
of the goods is by way of a penalty or punishment for a
crime, offence or breach of engagement it would not come
within the definition of forfeiture
This word ‘forfeiture’ must bear the same meaning of a penalty
for breach of a prohibitory direction. The fact that there is
arithmetical identity, assuming it to be so, between the figures
of the illegal collections made by the dealers and the amounts
forfeited to the State cannot create a conceptual confusion
that what is provided is not punishment but a transference of
funds. If this view be correct, and we hold so, the legislature, by
inflicting the forfeiture, does not go outside the crease when it
hits out against the dealer and deprives him, by the penalty of
the law, of the amount illegally gathered from the customers….”
(Emphasis supplied)
72. The privy council in Kunwar Chiranjit Singh v. Har Swarup reported
in (1926) 23 LW 172, while dealing with the concept of earnest
money, had observed as follows: -
“Earnest money is part of the purchase price when the
transaction goes forward: it is forfeited when the transaction
falls through, by reason of the fault or failure of the vendee.”
(Emphasis supplied)
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73. The above referred decision of the Privy Council has been referred to
and relied upon by the High Court of Bombay in the case of Dinanath
Damodar Kale v. Malvi Mody Ranchhoddas and Co. reported in
AIR 1930 Bom 213. The Court observed as under: -
“Turning to the law in England we have a series of decisions
showing that a deposit by way of earnest in a contract for
the sale of land is distinguishable from a penalty for breach
of the contract. The cases cited to us by the appellant’s
counsel are all cases in which either an instalment of the
price or a part payment was by the terms of the contract to
be forfeited on breach by the purchaser. If any authority be
needed to show what the law in England is, it may be found
in the passage in Halsbury, Vol. 25, p. 398, para 681, which
was cited to us by respondents’ counsel. There it is clearly
laid down that there is a distinction between a deposit and
a penalty. This distinction was referred to by the majority of
the Bench in the case of Bishan Chand v. Radha Kishan
Das [(1897) 19 All. 489 = (1897) A.W.N. 123], where it was
stated that a deposit is a payment actually made or advanced
and therefore Ss. 73 and 74 of the Contract Act, have no
application in such a case and are not intended to apply to it.
These sections show what is the compensation to the seller,
who is not responsible for the breach. They contemplate a
case in which he is seeking to recover compensation for the
breach. They do not contemplate a case in which a sum of
money has been paid by way of earnest. Nor is the Contract
Act necessarily exhaustive: see P. R. & Co. v. Bhagwandas
[(1909) 34 Bom. 192, = 2 I.C. 475 = 11 Bom. L.R. 335].
Furthermore, it is to be noted that in this particular contract
there was a specific condition of the sale by auction that the
deposit was to be forfeited in case of default by the purchaser
and we think that such a clause is not unreasonable and
must be given effect to. Our own High Court rules regarding
the sale by the Sheriff’s office (R. 391) specifically allow a
deposit to be forfeited and the mere fact that the word “may”
is used in that Rule cannot be taken to mean that only such
sum out of the deposit can be forfeited as the Court may
think proper as damages following the failure of the buyer
to complete the sale.”
(Emphasis supplied)
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74. Subsequently, a 5-Judge Bench of this Court in its decision in

Fateh Chand v. Balkishan Dass reported in AIR 1963 SC 1405,
held that a forfeiture clause in an ordinary contract would fall within
the meaning of the words “any other stipulation by way of penalty”
of Section 74 of the 1872 Act, and thus only a reasonable amount
can be forfeited. The relevant observations are reproduced below: -
“(10) Section 74 of the Indian Contract Act deals with the
measure of damages in two classes of cases (i) where the
contract names a sum to be paid in case of breach and (ii)
where the contract contains any other stipulation by way
of penalty. We are in the present case not concerned to
decide whether a covenant of forfeiture of deposit for due
performance of a contract falls within the first class. The
measure of damages in the case of breach of a stipulation
by way of penalty is by S. 74 reasonable compensation
not exceeding the penalty stipulated for. In assessing
damages the Court has, subject to the limit of the penalty
stipulated, jurisdiction to award such compensation as it
deems reasonable having regard to all the circumstances of
the case. Jurisdiction of the Court to award compensation
in case of breach of contract is unqualified except as to
the maximum stipulated; but compensation has to be
reasonable, and that imposes upon the Court duty to award
compensation according to settled principles. The section
undoubtedly says that the aggrieved party is entitled to
receive compensation from the party who has broken the
contract, whether or not actual damage or loss is proved
to have been caused by the breach. Thereby it merely
dispenses with proof of “actual loss or damages”; it does
not justify the award of compensation when in consequence
of the breach no legal injury at all has resulted, because
compensation for breach of contract can be awarded to
make good loss or damage which naturally arose in the
usual course of things, or which the parties knew when they
made the contract, to be likely to result from the breach.
(11) Before turning to the question about the compensation
which may be awarded to the plaintiff, it is necessary to
consider whether S. 74 applies to stipulations for forfeiture
of amounts deposited or paid under the contract. It was
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urged that the section deals in terms with the right to

receive from the party who has broken the contract
reasonable compensation and not the right to forfeit what
has already been received by the party aggrieved. There
is however no warrant for the assumption made by some
of the High Courts in India, that S. 74 applies only to
cases where the aggrieved party is seeking to receive
some amount on breach of contract and not to cases
where upon breach of contract an amount received under
the contract is sought to be forfeited. In our judgment the
expression “the contract contains any other stipulation by
way of penalty” comprehensively applies to every covenant
involving a penalty whether it is for payment on breach
of contract of money or delivery of property in future, or
for forfeiture of right to money or other property already
delivered. Duty not to enforce the penalty clause but only
to award reasonable compensation is statutorily imposed
upon Courts by S. 74. In all cases, therefore, where there
is a stipulation in the nature of penalty for forfeiture of an
amount deposited pursuant to the terms of contract which
expressly provides for forfeiture, the court has jurisdiction
to award such sum only as it considers reasonable, but not
exceeding the amount specified in the contract as liable to
forfeiture. We may briefly refer to certain illustrative cases
decided by the High Courts in India which have expressed
a different view.
xxx xxx xxx
(14) … The words “to be paid” which appear in the first
condition do not qualify the second condition relating to
stipulation by way of penalty. The expression “if the contract
contains any other stipulation by way of penalty” widens
the operation of the section so as to make it applicable to
all stipulations by way of penalty, whether the stipulation
is to pay an amount of money, or is of another character,
as, for example, providing for forfeiture of money already
paid. There is nothing in the expression which implies that
the stipulation must be one for rendering something after
the contract is broken. There is no ground for holding that
the expression “contract contains any other stipulation
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by way of penalty” is limited to cases of stipulation in the

nature of an agreement to pay money or deliver property on
breach and does not comprehend covenants under which
amounts paid or property delivered under the contract,
which by the terms of the contract expressly or by clear
implication are liable to be forfeited.
(15) Section 74 declares the law as to liability upon breach
of contract where compensation is by agreement of the
parties pre-determined, or where there is a stipulation by
way of penalty. But the application of the enactment is
not restricted to cases where the aggrieved party claims
relief as a plaintiff. The section does not confer a special
benefit upon any party; it merely declares the law that
notwithstanding any term in the contract pre-determining
damages or providing for forfeiture of any property by way
of penalty, the Court will award to the party aggrieved
only reasonable compensation not exceeding the amount
named or penalty stipulated. The jurisdiction of the Court is
not determined by the accidental circumstance of the party
in default being a plaintiff or a defendant in a suit. Use of
the expression “to receive from the party who has broken
the contract” does not predicate that the jurisdiction of the
Court to adjust amounts which have been paid by the party
in default cannot be exercised in dealing with the claim
of the party complaining of breach of contract. The court
has to adjudge in every case reasonable compensation
to which the plaintiff is entitled from the defendant on
breach of the contract. Such compensation has to be
ascertained having regard to the conditions existing on
the date of the breach.”
(Emphasis supplied)
75. It is apposite to mention that in Fateh Chand (supra) this Court had
clarified that so far as forfeiture of earnest-money is concerned,
Section 74 of the 1872 Act will not be applicable. The relevant
observations are reproduced below:
“(7) The Attorney-General appearing on behalf of the
defendant has not challenged the plaintiff’s right to forfeit
Rs. 1,000/- which were expressly named and paid as
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earnest money. He has, however, contended that the

covenant which gave to the plaintiff the right to forfeit Rs.
24,000/- out of the amount paid by the defendant was
stipulation in the nature of penalty, and the plaintiff can
retain that amount or part thereof only if he establishes
that in consequence of the breach by the defendant, he
suffered loss, and in the view of the Court the amount
or part thereof is reasonable compensation for that loss.
We agree with the Attorney-General that the amount of
Rs. 24,000/- was not of the nature of earnest money. The
agreement expressly provided for payment of Rs. 1,000/- as
earnest money, and that amount was paid by the defendant.
The amount of Rs. 24,000/- was to be paid when vacant
possession of the land and building was delivered, and it
was expressly referred to as “out of the sale price.” If this
amount was also to be regarded as earnest money, there
was no reason why the parties would not have so named
it in the agreement of sale. We are unable to agree with
the High Court that this amount was paid as security for
due performance of the contract. No such case appears
to have been made out in the plaint and the finding of
the High Court on that point is based on no evidence. It
cannot be assumed that because there is a stipulation for
forfeiture the amount paid must bear the character of a
deposit for due performance of the contract.”
(Emphasis supplied)
76. In another decision of this Court in Maula Bux v. Union of India
reported in 1969 (2) SCC 554, a similar view was reiterated and it
was held that forfeiture of earnest money is not a penalty and that
Section 74 of the 1872 Act will only apply where the forfeiture is in
the nature of a penalty. The relevant observations read as under: -
“4. Under the terms of the agreements the amounts deposited
by the plaintiff as security for due performance of the contracts
were to stand forfeited in case the plaintiff neglected to perform
his part of the contract. The High Court observed that the
deposits so made may be regarded as earnest money. But
that view cannot be accepted. According to Earl Jowitt in “The
Dictionary of English Law” at p. 689; “Giving an earnest or
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earnest-money is a mode of signifying assent to a contract of

sale or the like, by giving to the vendor a nominal sum (e.g.
a shilling) as a token that the parties are in earnest or have
made up their minds”. As observed by the Judicial Committee
in Kunwar Chiranjit Singh v. Har Swarup:
“Earnest money is part of the purchase price when the
transaction goes forward; it is forfeited when the transaction
falls through, by reason of the fault or failure of the vendee.”
In the present case the deposit was made not of a sum of money
by the purchaser to be applied towards part payment of the price
when the contract was completed and till then as evidencing
an intention on the part of the purchaser to buy property or
goods. Here the plaintiff had deposited the amounts claimed
as security for guaranteeing due performance of the contracts.
Such deposits cannot be regarded as earnest money. ...
5. Forfeiture of earnest money under a contract for sale
of property — Movable or immovable — If the amount is
reasonable, does not fall within Section 74. That has been
decided in several cases: Kunwar Chiranjit Singh v. Har Swarup
(supra); Roshan Lal v. Delhi Cloth and General Mills Company
Ltd. Delhi, ILR 33 All. 166.; Muhammad Habibullah v. Muhammad
Shafi, ILR 41 All. 324.; Bishan Chand v. Radhakishan Das, ILR
19 All. 490. These cases are easily explained, for forfeiture of
reasonable amount paid as earnest money does not amount to
imposing a penalty. But if forfeiture is of the nature of penalty,
Section 74 applies. Where under the terms of the contract the
party in breach has undertaken to pay a sum of money or to
forfeit a sum of money which he has already paid to the party
complaining of a breach of contract, the undertaking is of the
nature of a penalty.”
(Emphasis supplied)
77. In Satish Batra v. Sudhir Rawal reported in (2013) 1 SCC 345,
this Court after a review of the entire case law starting from Fateh
Chand (supra), Videocon Properties Ltd. v. Dr. Bhalchandra
Laboratories & Ors. reported in (2004) 3 SCC 711 and Shree
Hanuman Cotton Mills & Ors. v. Tata Air Craft Limited reported
in (1969) 3 SCC 522, laid down the principles regarding earnest
money, which read as under: -
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“9. …
“21. From a review of the decisions cited above, the
following principles emerge regarding ‘earnest’:
‘(1) It must be given at the moment at which the contract
is concluded.
(2) It represents a guarantee that the contract will be fulfilled
or, in other words, “earnest” is given to bind the contract.
(3) It is part of the purchase price when the transaction
is carried out.
(4) It is forfeited when the transaction falls through by
reason of the default or failure of the purchaser.
(5) Unless there is anything to the contrary in the terms of
the contract, on default committed by the buyer, the seller
is entitled to forfeit the earnest.””
78. This Court in Satish Batra (supra) after taking note of the decisions
in Delhi Development Authority v. Grihshapana Cooperative
Group Housing Society Ltd. reported in 1995 Supp (1) SCC 751,
V. Lakshmanan v. B.R. Mangalagiri & Ors. reported in 1995 Supp
(2) SCC 33 and HUDA v. Kewal Krishnan Goel reported in 1996 (4)
SCC 249 concluded that only that deposit which has been given as
an earnest-money for the due performance of the obligation is liable
to be forfeited in the event of a breach. The relevant observations
read as under: -
“15. The law is, therefore, clear that to justify the forfeiture
of advance money being part of ‘earnest money’ the terms
of the contract should be clear and explicit. Earnest money
is paid or given at the time when the contract is entered
into and, as a pledge for its due performance by the
depositor to be forfeited in case of non-performance by
the depositor. There can be converse situation also that if
the seller fails to perform the contract the purchaser can
also get double the amount, if it is so stipulated. It is also
the law that part-payment of purchase price cannot be
forfeited unless it is a guarantee for the due performance
of the contract. In other words, if the payment is made only
towards part-payment of consideration and not intended
as earnest money then the forfeiture clause will not apply.”
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79. Since Rule 9 sub-rule (5) provides for the forfeiture of only the earnest-
money deposit of the successful auction purchaser i.e. only 25% of
the total amount, by no stretch of imagination it can be regarded as
a penal clause by virtue of the afore-stated decisions of this Court in
Fateh Chand (supra), Maula Bux (supra) and Satish Batra and as
such Section(s) 73 and 74 of the 1872 Act will have no application.
80. Even otherwise, what is discernible from the above referred decisions
of Fateh Chand (supra), Maula Bux (supra) and Satish Batra (supra)
is that there lies a difference between forfeiture of any amount and
forfeiture of earnest money with the former being a penal clause and
the latter a general forfeiture clause. A clause providing for forfeiture
of an amount could fundamentally be in the nature of a penalty clause
or a forfeiture clause in the strict sense or even both, and the same
has to be determined in the facts of every case keeping in mind the
nature of contract and the nature of consequence envisaged by it.
81. Ordinarily, a forfeiture clause in the strict sense will not be a penal
clause, if its consequence is intended not as a sanction for breach
of obligation but rather as security for performance of the obligation.
This is why Fateh Chand (supra) Maula Bux (supra) and Satish
Batra (supra) held that forfeiture of earnest-money deposit is not a
penal clause, as the deposit of earnest money is intended to signify
assent of the purchaser to the contract, and its forfeiture is envisaged
as a deterrent to ensure performance of the obligation.
82. We are conscious of the fact that in Maula Bux (supra) this Court
observed that the deposit of a sum by the purchaser as security for
guaranteeing due performance was held as a penalty. However, a
close reading would reveal that the reason why this Court held the
said deposit as a penal clause was because the said amount was
paid over and above the earnest-money deposit already paid by the
purchaser in the said case and more importantly the said sum was
not liable to be adjusted against the total consideration. Hence, this
Court held the same to be a penalty rather than earnest money. The
relevant observation read as under: -
“4. ... In the present case the deposit was made not of a
sum of money by the purchaser to be applied towards part
payment of the price when the contract was completed
and till then as evidencing an intention on the part of the
purchaser to buy property or goods. Here the plaintiff had
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deposited the amounts claimed as security for guaranteeing

due performance of the contracts. Such deposits cannot
be regarded as earnest money. …”
(Emphasis supplied)
83. The difference between an earnest or deposit and an advance part
payment of price is now well established in law. Earnest is something
given by the Promisee to the Promisor to mark the conclusiveness
of the contract. This is quite apart from the price. It may also avail
as a part payment if the contract goes through. But even so it
would not lose its character as earnest, if in fact and in truth it was
intended as mere evidence of the bargain. An advance is a part to
be adjusted at the time of the final payment. If the Promisee defaults
to carry out the contract, he loses the earnest but may recover the
part payment leaving untouched the Promisor’s right to recover
damages. Earnest need not be money but may be some gift or token
given. It denotes a thing of value usually a coin of the realm given
by the Promisor to indicate that the bargain is concluded between
them and as tangible proof that he means business. Vide Howe v.
Smith (1884) 27 Ch.D. 89.
84. The practice of giving earnest is current in the present day commercial
contracts. An advance is made and accepted by way of deposit or
guarantee for the due performance of the contract. The distinction
between a deposit and a part payment is thus described by Benjamin,
in his book “Treatise on the Law of Sale of Personal Property”, 1950,
8th Edition at page 946: -
“A deposit is not recoverable by the buyer, for a deposit
is a guarantee that the buyer shall perform his contract
and is forfeited on his failure to do so. As regards the
recovery of part payments, the question must depend
upon the terms of the particular contract. If the contract
distinguishes between the deposit and instalments of price
and the buyer is in default, the deposit is forfeited and that
is all. And in ordinary circumstances, unless the contract
otherwise provides, the seller, on rescission following the
buyer’s default, becomes liable to repay the part of the
part of the price paid.”
85. In Halsbury’s Laws of England, third edition, volume XXXIV, page
118 the distinction between the two is thus pointed out: -
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“Part of the price may be payable as a deposit. A part

payment is to be distinguished from a deposit or earnest.
A deposit is paid primarily as security that the buyer will
duly accept and pay for the goods, but, subject thereto,
forms part of the price. Accordingly, if the buyer is unable
or unwilling to accept and pay for the goods, the seller
may repudiate the contract and retain the deposit. If the
seller is unable or unwilling to deliver the goods, or to
pass a good title thereto, or the contract is voidable by the
buyer for any reason, the buyer may repudiate the contract
and recover the deposit. The buyer may also recover it
where, without the default of either party, the contract is
rescinded by either party pursuant to an express power
in the contract in that behalf.”
86. In G. C. Cheshire and C.H.S. Fifoot on the Law of Contracts (fifth
edition) at pages 496- 497, the position is thus summed up: -
“Where, therefore, it has been agreed that a sum of money
shall be paid by the one to the other immediately or at
certain stated intervals, the question whether in the event
of rescission repayment will be compelled depends upon
the proper construction of the contract. The object that
the parties had in view in providing for the payment must
first be ascertained.
Where the intention was that the money should form a
part payment of the full amount due, then, as we have
seen, if the contract is rescinded for the payer’s default
the payee is required at law to restore the money, subject
to a cross-claim for damages. If, on the other hand, the
intention was that the money should be deposited as
earnest or as a guarantee for the due performance of the
payer’s obligation, the rule at common law is that if the
contract is rescinded by reason of his default the deposit
is forfeited to the payer and cannot be recovered.
In the latter case, however, and also where it has been
expressly agreed that a part payment shall be forfeited in
the event of the payer’s default, equity is prepared within
limits to grant relief against the forfeiture.”
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87. The observations of Mellish, L.J., in Ex parte Barrell: [L.R.] In Re.

Parnell 10 Ch. App. 512 assume importance. The learned Judge
observed that even when there is no clause in the contract as to
the forfeiture of the deposit if the purchaser repudiates the contract,
he cannot have back the money if it was a deposit, as the contract
has gone off through his default. It is characteristic of a deposit to
entail forfeiture if the depositor commits breach of his obligation. On
the contrary it is inherent in a part payment of price in advance that
it should be returned to the buyer if the sale does not fructify. The
buyer is not disentitled to recover, even if he is the party in breach,
because breach of contract on the part of the buyer would only
entitle the seller to sue for damages but not to forfeit the advance.
A specific forfeiture clause might operate to defeat the buyer’s right
of recovery of even an advance payment. But equity might step in
to relieve the buyer from forfeiture. If the amount forfeited cannot
stand the test of a genuine pre-estimate of damages, it would be
unconscionable for the seller to retain it. The question whether the
amount is a deposit (earnest) or a part payment cannot be determined
by the presence or absence of a forfeiture clause. Whether the sum
in question is a deposit to ensure due performance of the contract or
not is not dependent on the phraseology adopted by the parties or
by the presence or otherwise of a forfeiture clause. The proportion
the amount bears to the total sale price, the need to take a deposit
intended to act in terrorem, the nature of the contract and other
circumstances which cannot be exhaustively listed have to be taken
into account in ascertaining the true nature of the amount. In essence
the question is one of proper interpretation of the terms of a contract.
88. We would like to refer to a decision of the Court of Appeal in England
in Stockloser v. Johnson reported in (1954) 1 All. E.R. 630 and
particularly to the observations of Denning, L.J., which, if we may
say so with respect, has set out the legal position succinctly and
with great clarity. The facts of that case need not be set out and
it would be sufficient to refer only to the principle of law laid down
by the Court of Appeal. At page 637 Denning L.J., observes thus:
“It seems to me that the cases show the law to be this. (i)
When there is no forfeiture clause, if money is handed over
in part payment of the purchase price, and then the buyer
makes default as to the balance, then, so long as the seller
keeps the contract open and available for performance,
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the buyer cannot recover the money, but once the seller
rescinds the contract or treats it as at an end owing to
the buyer’s default, then the buyer is entitled to recover
his money by action at law, subject to a cross-claim by
the seller for damages: see Palmer v. Temple 112 E.R.
1304, Mayson v. Clouet (1924) A.C. 980, Dies v. British
and International Mining and Finance Corporation Ltd.
(1939) 1 .K.B. 724 and Williams on Vendor and Purchaser
4th ed., vol. 2, p. 1006. (ii) But when there is a forfeiture
clause or the money is expressly paid as a deposit (which
is equivalent to a forfeiture clause) then the buyer who
is in default cannot recover the money at law at all. He
may, however, have a remedy in equity, for, despite the
express stipulation in the contract, equity can relieve the
buyer from forfeiture of the money and order the seller to
repay it on such terms as the Court thinks fit.”
89. Therefore, it is clear that the forfeiture can be justified if the terms
of the contract are clear and explicit. If it is found that the earnest
money was paid in accordance with the terms of the tender for the
due performance of the contract by the Promisee, the same can be
forfeited in case of non-performance by him or her.
90. We are conscious of the decision of this Court in Kailash Nath
Associates v. Delhi Development Authority & Anr. reported in
(2015) 4 SCC 136 wherein it was held that Section 74 of the 1872
Act will be applicable to cases of forfeiture of earnest-money deposit,
however, where such forfeiture takes place under the terms and
conditions of a public auction, Section 74 will have no application.
The relevant observations are reproduced below: -
“43.1. Where a sum is named in a contract as a liquidated
amount payable by way of damages, the party complaining
of a breach can receive as reasonable compensation
such liquidated amount only if it is a genuine pre-estimate
of damages fixed by both parties and found to be such
by the court. In other cases, where a sum is named in
a contract as a liquidated amount payable by way of
damages, only reasonable compensation can be awarded
not exceeding the amount so stated. Similarly, in cases
where the amount fixed is in the nature of penalty, only
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reasonable compensation can be awarded not exceeding

the penalty so stated. In both cases, the liquidated amount
or penalty is the upper limit beyond which the court cannot
grant reasonable compensation.
43.2. Reasonable compensation will be fixed on well-known
principles that are applicable to the law of contract, which
are to be found inter alia in Section 73 of the Contract Act.
43.3. Since Section 74 awards reasonable compensation
for damage or loss caused by a breach of contract, damage
or loss caused is a sine qua non for the applicability of
the Section.
43.4. The Section applies whether a person is a plaintiff
or a defendant in a suit.
43.5. The sum spoken of may already be paid or be
payable in future.
43.6. The expression “whether or not actual damage or loss
is proved to have been caused thereby” means that where
it is possible to prove actual damage or loss, such proof
is not dispensed with. It is only in cases where damage
or loss is difficult or impossible to prove that the liquidated
amount named in the contract, if a genuine pre-estimate
of damage or loss, can be awarded.
43.7. Section 74 will apply to cases of forfeiture of earnest
money under a contract. Where, however, forfeiture takes
place under the terms and conditions of a public auction
before agreement is reached, Section 74 would have no
application.”
(Emphasis supplied)
91. Since, the forfeiture under Rule 9(5) of the SARFAESI Rules is also
taking place pursuant to the terms & conditions of a public auction, we
need not dwell any further on the decision of Kailash Nath (supra)
and leave it at that. Suffice to say, in view of the above discussion,
Section(s) 73 and 74 of the 1872 Act will have no application
whatsoever, when it comes to forfeiture of the earnest-money deposit
under Rule 9 sub-rule (5) of the SARFAESI Rules.
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c. Law on the principle of ‘Reading-Down’ a provision:

92. We must deal with yet one another aspect that weighed with the High
Court while passing the Impugned Order. In the Impugned Order,
the High Court also took the view that Rule 9(5) of the SARFAESI
Rules must be read down so as to yield to the underlying principle
recognized in Section(s) 73 & 74 of the 1872 Act. This reading down
of the relevant rules in the opinion of the High Court was necessary,
as otherwise irrespective of whether the default is of the entire
balance amount or only one rupee, the same harsh consequence of
forfeiture would ensue in both the cases. The relevant observations
are reproduced below: -
“12. Rule 9(5) of the said Rules of 2002 has to be seen
as an enabling provision that permits forfeiture in principle.
However, such Rule cannot be conferred an exalted status
to override the underlying ethos of Section 73 of the
Contract Act. In other words, Rule 9(5) has to yield to the
principle recognised in Section 73 of the Contract Act or
it must be read down accordingly. Thus, notwithstanding
the wide words used in Rule 9(5) of the said Rules, a
secured creditor may not forfeit any more than the loss
or damage suffered by such creditor as a consequence of
the failure on the part of a bidder to make payment of the
consideration or the balance consideration in terms of the
bid. It is only if such principle as embodied in Section 73 of
the Contract Act, is read into Rule 9 (5) of the said Rules,
would there be an appropriate answer to the conundrum
as to whether a colossal default of the entirety of the
consideration or the mere default of one rupee out of the
consideration would result in the identical consequence
of forfeiture as indicated in the provision.”
(Emphasis supplied)
93. The principle of “reading down” a provision refers to a legal
interpretation approach where a court, while examining the validity
of a statute, attempts to give a narrowed or restricted meaning to
a particular provision in order to uphold its constitutionality. This
principle is rooted in the idea that courts should make every effort
to preserve the validity of legislation and should only declare a law
invalid as a last resort.
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94. When a court encounters a provision that, if interpreted according

to its plain and literal meaning, might lead to constitutional or legal
issues, the court may opt to read down the provision. Reading down
involves construing the language of the provision in a manner that
limits its scope or application, making it consistent with constitutional
or legal principles.
95. The rationale behind the principle of reading down is to avoid striking
down an entire legislation. Courts generally prefer to preserve the
intent of the legislature and the overall validity of a law by adopting
an interpretation that addresses the specific constitutional concerns
without invalidating the entire statute.
96. It is a judicial tool used to salvage the constitutionality of a statute
by giving a provision a narrowed or limited interpretation, thereby
mitigating potential conflicts with constitutional or legal principles.
97. In B.R. Enterprises v. State of U.P. & Ors. reported in (1999) 9
SCC 700, this Court observed that the principles such as “Reading
Down” emerge from the concern of the courts towards salvaging a
legislation to ensure that its intended objectives are achieved. The
relevant observations read as under: -
“81. … It is also well settled that first attempt should be
made by the courts to uphold the charged provision and
not to invalidate it merely because one of the possible
interpretations leads to such a result, howsoever attractive it
may be. Thus, where there are two possible interpretations,
one invalidating the law and the other upholding, the
latter should be adopted. For this, the courts have been
endeavouring, sometimes to give restrictive or expansive
meaning keeping in view the nature of legislation, maybe
beneficial, penal or fiscal etc. Cumulatively it is to subserve
the object of the legislation. Old golden rule is of respecting
the wisdom of legislature that they are aware of the law and
would never have intended for an invalid legislation. This
also keeps courts within their track and checks individual
zeal of going wayward. Yet in spite of this, if the impugned
legislation cannot be saved the courts shall not hesitate
to strike it down. Similarly, for upholding any provision, if
it could be saved by reading it down, it should be done,
unless plain words are so clear to be in defiance of the
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Constitution. These interpretations spring out because of

concern of the courts to salvage a legislation to achieve its
objective and not to let it fall merely because of a possible
ingenious interpretation. The words are not static but
dynamic. This infuses fertility in the field of interpretation.
This equally helps to save an Act but also the cause of
attack on the Act. Here the courts have to play a cautious
role of weeding out the wild from the crop, of course,
without infringing the Constitution. For doing this, the
courts have taken help from the Preamble, Objects, the
scheme of the Act, its historical background, the purpose
for enacting such a provision, the mischief, if any which
existed, which is sought to be eliminated. …”
(Emphasis supplied)
98. A similar view was reiterated by this Court in its decision in Calcutta
Gujarati Education Society & Anr. v. Calcutta Municipal Corpn.
& Ors. reported in (2003) 10 SCC 533, wherein this Court observed
that the rule of “Reading Down” is only for the limited purpose of
making a provision workable so as to fulfil the purpose and object
of the statute. The relevant observations read as under: -
“35. The rule of “reading down” a provision of law is now
well recognised. It is a rule of harmonious construction in
a different name. It is resorted to smoothen the crudities
or ironing out the creases found in a statute to make it
workable. In the garb of “reading down”, however, it is not
open to read words and expressions not found in it and
thus venture into a kind of judicial legislation. The rule
of reading down is to be used for the limited purpose of
making a particular provision workable and to bring it in
harmony with other provisions of the statute. It is to be
used keeping in view the scheme of the statute and to
fulfil its purposes. …”
(Emphasis supplied)
99. Thus, the principle of ‘Reading Down” a provision emanates from
a very well settled canon of law, that is, the courts while examining
the validity of a particular statute should always endeavour towards
upholding its validity, and striking down a legislation should always
be the last resort. “Reading Down” a provision is one of the many
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The Authorised Officer, Central Bank of India v. Shanmugavelu

methods, the court may turn to when it finds that a particular provision
if for its plain meaning cannot be saved from invalidation and so by
restricting or reading it down, the court makes it workable so as to
salvage and save the provision from invalidation. Rule of “Reading
Down” is only for the limited purpose of making a provision workable
and its objective achievable.
100. The High Court in its Impugned Order resorted to reading down Rule
9(5) of the SARFAESI Rules not because its plain meaning would
result in the provision being rendered invalid or unworkable or the
statute’s objective being defeated, but because it would result in the
same harsh consequence of forfeiture of the entire earnest-money
deposit irrespective of the extent of default in payment of balance
amount.
101. However, harshness of a provision is no reason to read down the
same, if its plain meaning is unambiguous and perfectly valid. A
law/rule should be beneficial in the sense that it should suppress
the mischief and advance the remedy. The harsh consequence of
forfeiture of the entire earnest-money deposit has been consciously
incorporated by the legislature in Rule 9(5) of the SARFAESI Rules
so as to sub-serve the larger object of the SARFAESI Act of timely
resolving the bad debts of the country. The idea behind prescribing
such a harsh consequence is not illusory, it is to attach a legal
sanctity to an auction process once conducted under the SARFAESI
Act from ultimately getting concluded.
102. Any dilution of the forfeiture provided under Rule 9(5) of the SARFAESI
Rules would result in the entire auction process under the SARFAESI
Act being set at naught by mischievous auction purchaser(s) through
sham bids, thereby undermining the overall object of the SARFAESI
Act of promoting financial stability, reducing NPAs and fostering a
more efficient and streamlined mechanism for recovery of bad debts.
103. This Court in Mardia Chemical (supra) observed that the provisions
of the SARFAESI Act & SARFAESI Rules must be interpreted keeping
in mind the economic object which is sought to be achieved by the
legislature, the relevant observations read as under: -
“34. Some facts which need to be taken note of are
that the banks and the financial institutions have heavily
financed the petitioners and other industries. It is also a
fact that a large sum of amount remains unrecovered.
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Normal process of recovery of debts through courts is

lengthy and time taken is not suited for recovery of such
dues. For financial assistance rendered to the industries
by the financial institutions, financial liquidity is essential
failing which there is a blockade of large sums of amounts
creating circumstances which retard the economic progress
followed by a large number of other consequential ill effects.
Considering all these circumstances, the Recovery of Debts
Due to Banks and Financial Institutions Act was enacted
in 1993 but as the figures show it also did not bring the
desired results. Though it is submitted on behalf of the
petitioners that it so happened due to inaction on the part
of the Governments in creating Debts Recovery Tribunals
and appointing presiding officers, for a long time. Even
after leaving that margin, it is to be noted that things in
the spheres concerned are desired to move faster. In the
present day global economy it may be difficult to stick to
old and conventional methods of financing and recovery
of dues. Hence, in our view, it cannot be said that a step
taken towards securitisation of the debts and to evolve
means for faster recovery of NPAs was not called for or
that it was superimposition of undesired law since one
legislation was already operating in the field, namely, the
Recovery of Debts Due to Banks and Financial Institutions
Act. It is also to be noted that the idea has not erupted
abruptly to resort to such a legislation. It appears that a
thought was given to the problems and the Narasimham
Committee was constituted which recommended for
such a legislation keeping in view the changing times
and economic situation whereafter yet another Expert
Committee was constituted, then alone the impugned law
was enacted. Liquidity of finances and flow of money is
essential for any healthy and growth-oriented economy. But
certainly, what must be kept in mind is that the law should
not be in derogation of the rights which are guaranteed to
the people under the Constitution. The procedure should
also be fair, reasonable and valid, though it may vary
looking to the different situations needed to be tackled
and object sought to be achieved.”
(Emphasis supplied)
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The Authorised Officer, Central Bank of India v. Shanmugavelu

104. Thus, the High Court committed an egregious error by proceeding

to read down Rule 9(5) of the SARFAESI Rules in the absence of
the said provision being otherwise invalid or unworkable in terms
of its plain and ordinary meaning without appreciating the purpose
and object of the said provision.

iii) Whether, the forfeiture of the entire earnest-money deposit

amounts to Unjust Enrichment?
105. The High Court whilst passing the impugned order thought fit to
reduce the extent of amount forfeited in view of the subsequent sale
of the Secured Asset by the appellant bank at much higher price
than the previous auction. This in the High Court’s opinion meant
that no loss had been caused to the appellant bank, as it had duly
recovered more than its dues from the subsequent sale and as such
was not entitled to forfeit the entire amount of deposit as doing so
would amount to unjust enrichment, which is not permissible by the
SARFAESI Act.
106. However, we are not in agreement with the aforesaid observations
of the High Court. When an auction fails and a fresh auction is
required to be conducted in respect of the Secured Asset, there
looms a degree of uncertainty as to the extent of bids that may be
received in the future auction or whether the fresh auction would
even be successful or not. More often than not, with the efflux of
time, the value of the Secured Asset erodes. In such a case it would
be preposterous to tie or limit the forfeiture under Rule 9(5) of the
SARFAESI Rules on an eventuality or a contingency of a subsequent
sale of the secured asset if any.
107. As regards whether, the forfeiture of the entire amount of deposit even
after having recovered the entire debt amounts to unjust enrichment
or not? It would be apposite to understand what is meant by ‘unjust
enrichment’.
108. In Sahakari Khand Udyog Mandal Ltd. v. Commissioner of Central
Excise & Customs reported in (2005) 3 SCC 738, the Court observed
that the doctrine of unjust enrichment is based on equity and refers
to the inequitable retention of a benefit. The relevant observations
are reproduced below: -
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“31. Stated simply, “unjust enrichment” means retention

of a benefit by a person that is unjust or inequitable.
“Unjust enrichment” occurs when a person retains money
or benefits which in justice, equity and good conscience,
belong to someone else.
32. The doctrine of “unjust enrichment”, therefore, is that
no person can be allowed to enrich inequitably at the
expense of another. A right of recovery under the doctrine
of “unjust enrichment” arises where retention of a benefit
is considered contrary to justice or against equity.
xxx xxx xxx
45. From the above discussion, it is clear that the doctrine
of “unjust enrichment” is based on equity and has been
accepted and applied in several cases. ...”
(Emphasis supplied)
109. Thus, from the aforesaid, it is clear that the concept of ‘Unjust
Enrichment’ is a by-product of the doctrine of equity and it is an
equally well settled cannon of law that equity always follows the law.
In other words, equity cannot supplant the law, equity has to follow
the law if the law is clear and unambiguous.
110. This Court in C. Natarajan (supra) had held that forfeiture of 25%
of the deposit does not constitute as an unjust enrichment with the
following relevant observations being reproduced below: -
“35. In the light of guidance provided by the above
decisions, what needs to be ascertained first is whether
the Bank received or derived any benefit or advantage
by forfeiture of 25% of the sale price. We do not think
that the Bank has been enriched, much less unjustly
enriched, by reason of the impugned forfeiture. Receipt
of 25% of the sale price by the Bank from the contesting
respondent was not the outcome of any private negotiation
or arrangement between them. It was pursuant to a public
auction, involving a process of offer and acceptance, and
it was in terms of statutory provisions contained in the
Rules, particularly rule 9(3), that money changed hands
for a definite purpose. Receipt of 25% of the sale price
does not constitute a benefit, a fortiori, retention thereof by
[2024] 2 S.C.R.  85

The Authorised Officer, Central Bank of India v. Shanmugavelu

forfeiture cannot be termed unjust or inequitable, so as to

attract the doctrine of unjust enrichment. The Bank, as a
secured creditor, is entitled in law to enforce the security
interest and in the process to initiate all such steps and
take all such measures for protection of public interest
by recovering the public money, lent to a borrower and
who has squandered it, in a manner authorized by law.
The contesting respondent participated in the auction
well and truly aware of the risk of having 25% of the sale
price forfeited in case of any default or failure on his part
to make payment of the balance amount of the sale price.
Question of the Bank being enriched by a forfeiture, which
is in the nature of a statutory penalty, does not and cannot
therefore arise in the circumstances.”
(Emphasis supplied)
111. The consequence of forfeiture of 25% of the deposit under Rule 9(5) of
the SARFAESI Rules is a legal consequence that has been statutorily
provided in the event of default in payment of the balance amount.
The consequence envisaged under Rule 9(5) follows irrespective
of whether a subsequent sale takes place at a higher price or not,
and this forfeiture is not subject to any recovery already made or to
the extent of the debt owed. In such cases, no extent of equity can
either substitute or dilute the statutory consequence of forfeiture of
25% of deposit under Rule 9(5) of the SARFAESI Rules.
112. This Court in National Spot Exchange Ltd. v. Anil Kohli, Resolution
Professional for Dunar Foods Ltd. reported in (2022) 11 SCC 761
after referring to a catena of its other judgments, had held that where
the law is clear the consequence thereof must follow. The High Court
has no option but to implement the law. The relevant observations
made in it are being reproduced below: -
“15.1. In Mishri Lal [BSNL v. Mishri Lal, (2011) 14 SCC 739 :
(2014) 1 SCC (L&S) 387], it is observed that the law prevails
over equity if there is a conflict. It is observed further that equity
can only supplement the law and not supplant it.
15.2. In Raghunath Rai Bareja [Raghunath Rai Bareja v. Punjab
National Bank, (2007) 2 SCC 230], in paras 30 to 37, this Court
observed and held as under : (SCC pp. 242-43)
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“30. Thus, in Madamanchi Ramappa v. Muthaluru Bojjappa

[AIR 1963 SC 1633] (vide para 12) this Court observed:
(AIR p. 1637)
‘12. … [W]hat is administered in Courts is justice
according to law, and considerations of fair play and
equity however important they may be, must yield to
clear and express provisions of the law.’
31. In Council for Indian School Certificate Examination
v. Isha Mittal [(2000) 7 SCC 521] (vide para 4) this Court
observed: (SCC p. 522)
‘4. … Considerations of equity cannot prevail and do
not permit a High Court to pass an order contrary
to the law.’
32. Similarly, in P.M. Latha v. State of Kerala [(2003) 3
SCC 541 : 2003 SCC (L&S) 339] (vide para 13) this Court
observed: (SCC p. 546)
‘13. Equity and law are twin brothers and law should
be applied and interpreted equitably but equity cannot
override written or settled law.’
33. In Laxminarayan R. Bhattad v. State of Maharashtra
[(2003) 5 SCC 413] (vide para 73) this Court observed:
(SCC p. 436)
‘73. It is now well settled that when there is a conflict
between law and equity the former shall prevail.’
34. Similarly, in Nasiruddin v. Sita Ram Agarwal [(2003) 2
SCC 577] (vide para 35) this Court observed: (SCC p. 588)
‘35. In a case where the statutory provision is plain
and unambiguous, the court shall not interpret the
same in a different manner, only because of harsh
consequences arising therefrom.’
35. Similarly, in E. Palanisamy v. Palanisamy [(2003) 1
SCC 123] (vide para 5) this Court observed: (SCC p. 127)
‘5. Equitable considerations have no place where the
statute contained express provisions.’
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The Authorised Officer, Central Bank of India v. Shanmugavelu

36. In India House v. Kishan N. Lalwani [(2003) 9 SCC

393] (vide para 7) this Court held that: (SCC p. 398)
‘7. … The period of limitation statutorily prescribed
has to be strictly adhered to and cannot be relaxed
or departed from for equitable considerations.’…”
113. Thus, the High Court erred in law by holding that forfeiture of the
entire deposit under Rule 9 sub-rule (5) of the SARFAESI Rules by
the appellant bank after having already recovered its dues from the
subsequent sale amounts to unjust enrichment.

iv) Whether Any Exceptional Circumstances exist to set aside

the forfeiture of the earnest money deposit?
114. The last aspect which remains to be determined is whether any
exceptional circumstances exist to set aside the forfeiture of the
respondent’s earnest money deposit?
115. This Court in its decision in Alisha Khan v. Indian Bank (Allahabad
Bank) & Ors. reported in 2021 SCC OnLine SC 3340 had directed
the refund of the earnest-money deposit after forfeiture to the
successful auction purchaser who was unable to pay the balance
amount on account of the Pandemic. The relevant observations are
being reproduced below:
“3. Having gone through the impugned judgment and
orders passed by the High Court, we are of the opinion
that the High Court ought to have allowed the refund
of the amount deposited being 25% of the auction sale
consideration. Considering the fact that though initially the
appellant deposited 25% of the auction sale consideration,
however, subsequently she could not deposit balance
75% due to COVID-19 pandemic. It is required to be
noted that subsequently the fresh auction has taken place
and the property has been sold. It is not the case of the
respondents that in the subsequent sale, lesser amount
is received. Thus, as such, there is no loss caused to the
respondents.
4. Considering the aforesaid facts and circumstances, we
allow these appeals and set aside the order of forfeiture
of 25% of the amount of auction sale consideration and
direct the respondent Bank to refund/return the amount
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earlier deposited by the appellant, deposited as the part

auction sale consideration (minus 50,000/- towards the
expenditure which were required to be incurred by the
respondent Bank for conducting the fresh auction) within
a period of four weeks from today.”
116. In C. Natarajan (supra), this Court while affirming the decision of
Alisha Khan (supra) observed that after the earnest-money deposit
is forfeited, the courts should ordinarily refrain from interfering unless
the existence of very rare and exceptional circumstances are shown.
The relevant observations read as under: -
“13. ... If, however, circumstances are shown to exist where
a bidder is faced with such a grave disability that he has
no other option but to seek extension of time on genuine
grounds so as not to exceed the stipulated period of ninety
days and the prayer is rejected without due consideration
of all facts and circumstances, refusal of the prayer for
extension could afford a ground for a judicial review of the
decision-making process on valid ground(s). One such
exceptional circumstance led to the decision in Alisha
Khan v. Indian Bank (Allahabad Bank) [2021 SCC OnLine
SC 3340], where this Court intervened and granted relief
because, due to COVID complications, the appellant had
failed to pay the balance amount.
xxx xxx xxx
24. The up-shot of the aforesaid discussion is that whenever
a challenge is laid to an order of forfeiture made by an
authorized officer under sub-rule (5) of rule 9 of the Rules
by a bidder, who has failed to deposit the entire sale
price within ninety days, the tribunals/courts ought to be
extremely reluctant to interfere unless, of course, a very
exceptional case for interference is set up. What would
constitute a very exceptional case, however, must be
determined by the tribunals/courts on the facts of each
case and by recording cogent reasons for the conclusion
reached. Insofar as challenge to an order of forfeiture that
is made upon rejection of an application for extension of
time prior to expiry of ninety days and within the stipulated
period is concerned, the scrutiny could be a bit more
intrusive for ascertaining whether any patent arbitrariness
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The Authorised Officer, Central Bank of India v. Shanmugavelu

or unreasonableness in the decision-making process

has had the effect of vitiating the order under challenge.
However, in course of such scrutiny, the tribunals/courts
must be careful and cautious and direct their attention
to examine each case in some depth to locate whether
there is likelihood of any hidden interest of the bidder to
stall the sale to benefit the defaulting borrower and must,
as of necessity, weed out claims of bidders who instead
of genuine interest to participate in the auctions do so
to rig prices with an agenda to withdraw from the fray
post conclusion of the bidding process. In course of such
determination, the tribunals/courts ought not to be swayed
only by supervening events like a subsequent sale at a
higher price or at the same price offered by the defaulting
bidder or that the secured creditor has not in the bargain
suffered any loss or by sentiments and should stay at a
distance since extending sympathy, grace or compassion
are outside the scope of the relevant legislation. In any
event, the underlying principle of least intervention by
tribunals/courts and the overarching objective of the
SARFAESI Act duly complimented by the Rules, which are
geared towards efficient and speedy recovery of debts,
together with the interpretation of the relevant laws by this
Court should not be lost sight of. Losing sight thereof may
not be in the larger interest of the nation and susceptible
to interference.”
(Emphasis supplied)
117. Thus, this Court held that where extraneous conditions exist that
might have led to the inability of the successful auction purchaser
despite best efforts from depositing the balance amount to no fault
of its own, in such cases the earnest-money deposited by such
innocent successful auction purchaser could certainly be asked to
be refunded.
118. In the case at hand, it is the respondent’s case that he was unable to
make the balance payment owing to the advent of the demonetisation.
The same led to a delay in raising the necessary finance. It has been
pleaded by the respondent that the appellant bank failed to provide
certain documents to him in time as a result of which he was not
able to secure a term loan.
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119. However, the aforesaid by no stretch can be said to be an

exceptional circumstance warranting judicial interference. We say
so because demonetization had occurred much before the e-auction
was conducted by the appellant bank. As regards the requisition
of documents, the sale was confirmed on 07.12.2016, and the
respondent first requested for the documents only on 20.12.2016,
and the said documents were provided to him by the appellant within
a month’s time i.e., on 21.01.2017. It may also not be out of place to
mention that the respondent was granted an extension of 90-days’
time period to make the balance payment, and was specifically
reminded that no further extension would be granted, in-spite of this
the respondent failed to make the balance payment.
120. The e-auction notice inviting bids along with the correspondence
between the appellant bank and the respondent are unambiguous
and clearly spelt out the consequences of not paying the balance
amount within the specified period.
121. Thus, what could be said is that the respondent being aware of his
financial capacity, willingly participated in the e-auction and offered
his bid fully knowing the reserve price of the Secured Asset and the
consequences of its failure in depositing the balance amount.
F. CONCLUSION
122. For all the foregoing reasons, we have reached to the conclusion
that the High Court committed an egregious error in passing the
impugned judgment and order. We are left with no other option but
to set aside the impugned judgment and order passed by the High
Court.
123. In the result, the appeals filed by the bank succeed and are hereby
allowed. The impugned judgment and order passed by the High
Court dated 27.10.2021 is hereby set aside. As a result, the SA No.
143 of 2018 filed by the respondent before the DRT-II also stands
dismissed.
124. The parties shall bear their own costs.
125. Pending application(s), if any, also stand disposed of.

Headnotes prepared by: Ankit Gyan Result of the case:

Appeals disposed of.
 [2024] 2 S.C.R. 91 : 2024 INSC 83

Union of India and Ors.

v.
M/S. B.T. Patil and Sons Belgaum (Construction) Pvt. Ltd.
(Civil Appeal Nos. 7238 of 2009)

05 February 2024
[Abhay S. Oka and Ujjal Bhuyan,* JJ.]

Issue for Consideration

Entitlement of the respondent to refund of duty drawback and
interest for delayed payment thereof.

Headnotes
Customs Act, 1962 – ss.75A, 27A – Central Excise Act, 1944
– Foreign Trade (Development and Regulation) Act, 1992 –
Foreign Trade (Regulation) Rules, 1993 – Customs, Central
Excise Duties and Service Tax Drawback Rules, 1995 – Exim
Policy of 1992-1997 – Duty Exemption Scheme – Duty Drawback
Scheme – Supplies in civil construction work, eligibility for
‘deemed export’ benefit under the Exim Policy – Respondent,
a class-I contractor specializing in the field of civil contract
works especially funneling and hydro-electric power projects
had completed the work awarded to it in 1996 in a project called
Koyna Hydro Electric Power Project, Maharashtra funded by
the International Bank for Reconstruction and Development, an
arm of the World Bank – Respondent claimed duty drawback
and interest for the delayed refund thereof – Entitlement:
Held: On a conjoint reading of the relevant provisions of the Exim
Policy, 1992-1997 in conjunction with the Central Excise Act and
the Customs Act, it is evident that supply of goods to the project
in question by the respondent was a case of ‘deemed export’ and
thus entitled to the benefit under the Duty Drawback Scheme – The
language employed in the policy made this very clear and there
was no ambiguity in respect of such entitlement – Even if there
was any doubt, the same was fully explained by the 1995 Rules –
It is not correct on the part of the appellants to contend that there
was no provision for payment of interest on delayed refund of
duty drawback – It is also untenable for the appellants to contend
that refund of duty drawback was granted to the respondent as a
concession, not to be treated as a precedent – Respondent entitled

* Author
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to refund of duty drawback as a deemed export under the Duty

Drawback Scheme – Applications for refund were made in 1996
– Decision to grant refund of duty drawback was taken belatedly
on 07.10.2002 whereafter the payments were made by way of
cheques on 31.03.2003 and 20.05.2003 – Admittedly, there was
considerable delay in refund of duty drawback – Under s.75A(1)
of the Customs Act, where duty drawback is not paid within three
months from the date of filing of claim, the claimant would be entitled
to interest in addition to the amount of drawback – It provides that
the interest would be at the rate fixed u/s.27A from the date after
expiry of the said period of three months till the payment of such
drawback – The interest rate prescribed u/s.27A at the relevant
point of time was not below ten percent and not exceeding thirty
percent per annum – The Central Board of Excise and Customs vide
its notification bearing No.32/1995 (NT)- Customs dtd. 26.5.1995
had fixed the rate of interest at fifteen percent for the purpose of
s.27A – Since there was belated refund of the duty drawback to
the respondent, it was entitled to interest at the rate which was
fixed by the Central Government at the relevant point of time being
fifteen percent – Order of the Division Bench of the High Court
not interfered with. [Paras 33-39]

Case Law Cited

S. S. Grewal v. State of Punjab [1993] 3 SCR 593 : 1993
Suppl. 3 SCC 234; Rajagopal Reddy (dead) by Lrs. v.
Padmini Chandrasekharan (dead) by Lrs. [1995] 1 SCR
715 : (1995) 2 SCC 630; Zile Singh v. State of Haryana
[2004] 5 Suppl. SCR 272 : (2004) 8 SCC 1 – referred to.

List of Acts
Central Excise Act, 1944; Customs Act, 1962; Finance Act,
1994, Imports and Exports (Control) Act, 1947; Foreign Trade
(Development and Regulation) Act, 1992; Foreign Trade
(Regulation) Rules, 1993; Customs, Central Excise Duties and
Service Tax Drawback Rules, 1995.

List of Keywords
Drawback; Duty drawback; Duty Drawback Scheme; Exim Policy
of 1992-1997; Duty Exemption Scheme; Deemed export; Delayed
refund of duty drawback; Interest; Multilateral or bilateral agencies;
International Bank for Reconstruction and Development; World Bank;
Central Board of Excise and Customs; Imports of duty free material;
Notification declaratory/clarificatory; Retrospective operation.
[2024] 2 S.C.R.  93

Union of India and Ors. v.

M/S. B.T. Patil and Sons Belgaum (Construction) Pvt. Ltd.

Case Arising From

CIVIL APPELLATE JURISDICTION : Civil Appeal No.7238 of 2009

From the Judgment and Order dated 22.08.2008 of the High Court
of Karnataka at Bangalore in WA No.356 of 2006
Appearances for Parties
V C Bharathi, Raj Bahadur Yadav, Shashank Bajpai, Mrs. Sweta
Singh Verma, A. K. Kaul, Praneet Pranab, Advs. for the Appellants.
Basuva Prabhu Patil, Sr. Adv., Amit Sharma, Dipesh Sinha, Ms.
Pallavi Barua, Ms. Aparna Singh, Advs. for the Respondent.
Judgment / Order of the Supreme Court
Judgment
Ujjal Bhuyan, J.
Appellants i.e., Union of India, Director General of Foreign Trade and
Joint Director General of Foreign Trade by means of this civil appeal
have taken exception to the judgment and order dated 22.08.2008
passed by a Division Bench of the High Court of Karnataka, Circuit
Bench at Dharwad in Writ Appeal No.356 of 2006 affirming the
judgment and order of the learned Single Judge dated 22.09.2005
allowing Writ Petition No.45525 of 2004 filed by the respondent.
2. Facts lie within a narrow compass. Nonetheless, for a determination
of the lis, it would be necessary to briefly narrate the relevant facts
as projected by the respondent in the related writ petition.
2.1. Respondent is a class-I contractor specializing in the field of
civil contract works especially funneling and hydro electric
power projects.
2.2. Central Government had approved funding of a project called
Koyna Hydro Electric Power Project, Maharashtra by the
International Bank for Reconstruction and Development, which
is an arm of the World Bank. In the said project, respondent
was awarded a sub-contract to execute civil works from Lake
Intake to the Emergency Valve Tunnel. Respondent has relied
upon a letter dated 08.08.1991 issued by the Chief Engineer
of the project. Relevant portion of the letter reads thus:-
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4.2. Information regarding the benefits available

under the “Deemed Export” concept for this World
Bank Aided (Loan) Project may please be obtained
by the contractors from their own sources and the
information gained by them may be utilised, while
quoting the rates.
2.3. A deemed export scheme was announced under the Exim
Policy, 1992-1997 by the Ministry of Commerce, Government
of India and the Director General of Foreign Trade under the
Foreign Trade (Development and Regulation) Act, 1992. Certain
benefits under ‘deemed export’ were also included in the said
Exim Policy.
2.4. Respondent completed the construction work awarded to it in
the month of March, 1996 and thereafter filed applications dated
25.03.1996, 13.09.1996 and 20.12.1996 claiming duty drawback
for Rs.35,75,679.00, Rs.88,98,206.00 and Rs.85,05,853.00
respectively.
2.5. By endorsements dated 10.11.1996, 06.12.1996 and 31.12.1996,
Director General of Foreign Trade (for short ‘DGFT’ hereinafter)
rejected the applications of the respondent for duty drawback
on the ground that supplies in civil construction work were not
eligible for ‘deemed export’ benefit.
2.6. Notwithstanding such rejection, respondent made representations
for reconsideration of such decision and sought for duty drawback
under the Exim Policy, 1992-1997. One such representation is
dated 05.02.1997. However, the same was rejected by the DGFT
vide the order dated 10.08.1997 stating that civil construction
work did not qualify for drawback.
2.7. On 20.08.1998, DGFT issued a circular under the successor
Exim Policy, 1997-2002 clarifying that supply of goods under
paragraph 10(2)(d) of the 1997-2002 Exim Policy would be
entitled for ‘deemed export’ benefit. It may be mentioned that
the Exim Policy of 1992-1997 had expired with effect from
31.03.1997.
2.8. On 05.12.2000, DGFT issued a circular that drawback was to
be paid in respect of excise duty on supply of goods to projects
funded by multilateral agencies.
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Union of India and Ors. v.

M/S. B.T. Patil and Sons Belgaum (Construction) Pvt. Ltd.

2.9. In the above scenario, respondent once again addressed

a letter dated 28.08.2001 to the DGFT to finalize the issue.
However, DGFT rejected the claim vide the communication
dated 21.06.2002.
2.10. Notwithstanding the same, a Policy Interpretation Committee
was constituted which examined the case of the respondent in
its meeting held on 07.10.2002. It was decided that the benefit
of duty drawback under the ‘deemed export’ scheme would be
extended to the respondent. Consequently, in supersession of
the earlier rejection order dated 21.06.2002 and in the light of the
decision of the Policy Interpretation Committee dated 07.10.2002,
DGFT vide the order dated 01.11.2002 permitted duty drawback
of Rs.2,05,79,740.00 to the respondent. Thereafter cheques
for Rs.25,00,000.00, Rs.63,23,575.00, Rs.81,05,583.00 and
Rs.56,50,312.00, totalling Rs.2,25,79,470.00 vide endorsements
dated 31.03.2003 and 20.05.2003 were issued. However, it was
clarified that duty drawback granted to the respondent would
not be treated as a precedent.
2.11. Respondent thereafter submitted representation addressed
to the appellants dated 06.06.2003, 14.06.2003, 17.07.2003,
29.10.2003 and 10.08.2004 seeking interest on the duty
drawback amount paid on the ground of delayed payment.
However, the request for interest made by the respondent was
rejected by the DGFT.
3. Aggrieved by rejection of the request for interest on the amount
of duty drawback paid, respondent preferred a writ petition before
the High Court which was registered as Writ Petition No.45525 of
2004. After hearing the parties, a learned Single Judge of the High
Court vide the judgment and order dated 22.09.2005 referred to the
notification dated 05.12.2000 and held that respondent was entitled
for duty drawback. After observing that there was delay in payment
of duty drawback, learned Single Judge held that respondent would
be entitled to interest for delayed payment of duty drawback. Since
Customs Act, 1962 provides that interest has to be paid in such a
case in the range of five percent to thirty percent, learned Single
Judge awarded interest at the rate of fifteen percent. Consequently,
directions were issued to the appellants to consider the claim of
the respondent for payment of interest on delayed refund from the
date of notification dated 05.12.2000 till the date of payment to the
respondent within a period of three months.
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4. This judgment and order of the learned Single Judge came to be

assailed by the appellants before the Division Bench of the High Court
which was registered as Writ Appeal No.356 of 2006. Respondent
also filed Writ Appeal No.3699 of 2005 assailing the direction of
the learned Single Judge to pay interest only from 05.12.2000. The
Division Bench took note of the fact that since duty drawback was
refunded by the appellants to the respondent, the only question to
be considered was the entitlement of the respondent to interest for
the delayed refund. In this connection, the Division Bench examined
the notification dated 20.08.1998 and observed that this notification
had clarified that ‘deemed export’ would include goods and services
of civil construction projects. Thus, duty drawback under the Exim
Policy in force was extended even to civil construction. This position
was further clarified by the subsequent notification dated 05.12.2000.
Such notification was held by the Division Bench to be clarificatory
in nature, thus having retrospective effect. After referring to Sections
27A and 75A of the Customs Act, 1962, the Division Bench held that
respondent would be entitled to interest after expiry of three months
from the date of making the applications for refund of duty drawback.
Vide the judgment and order dated 22.08.2008, the Division Bench
opined that respondent would be entitled to interest from the date
of expiry of three months after submitting the applications for refund
of duty drawback in the year 1996 at the rate of fifteen percent
as awarded by the learned Single Judge. While the writ appeal of
the respondent was allowed, the writ appeal of the appellants was
dismissed.
5. Mr. V. C. Bharathi, learned counsel for the appellants submitted a short
list of dates and events. He pointed out therefrom that applications
filed by the respondent for duty drawback were repeatedly rejected
by the DGFT. Notwithstanding such rejection, respondent continued
to file one representation after the other claiming duty drawback.
It is in such circumstances that a Policy Interpretation Committee
was constituted by the DGFT which examined the case of the
respondent and vide its decision dated 07.10.2002 decided to extend
the benefit of duty drawback to the respondent as a special case. It
is in this backdrop that DGFT had passed order dated 01.11.2002
emphasizing that the duty drawback paid to the respondent would
not be treated as a precedent. He submitted that duty drawback was
extended to the respondent as a special case which was not available
to the respondent under the Exim Policy of 1992-1997. In such
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Union of India and Ors. v.

M/S. B.T. Patil and Sons Belgaum (Construction) Pvt. Ltd.

circumstances, question of awarding any interest to the respondent

on the ground of alleged delay in payment of duty drawback did not
arise. There was no provision under the Exim Policy of 1992-1997
for payment of such interest. Therefore, learned Single Judge erred
in awarding interest to the respondent, that too, at the high rate of
fifteen percent.
5.1. He further argued that the Division Bench had fallen in error taking
the view that circulars dated 20.08.1998 and 05.12.2000 were
clarificatory in nature and therefore would have retrospective
effect covering the case of the respondent. According to him,
these circulars were issued under the successor Exim Policy,
1997-2002 and thus could not be applied to cases like that of
the respondent under the Exim Policy 1992-1997. He, therefore,
submitted that the present is a fit case for interfering with the
decision of the learned Single Judge as affirmed by the Division
Bench.
6. Per-contra, Mr. Basuva Prabhu Patil, learned senior counsel for the
respondent supported the orders of the learned Single Judge and
that of the Division Bench. He submitted that the appellants having
granted the benefit of duty drawback to the respondent though
belatedly, it is not open to them to now contend that respondent
was not entitled to such duty drawback which was only granted as a
concession. Admittedly, there was delay in refund of duty drawback.
Respondent is, therefore, entitled to interest on such delayed refund
which was rightly awarded by the High Court.
6.1. Referring to the provisions of Section 27A of the Customs Act,
1962 (referred to as the ‘Customs Act’ hereinafter), learned
senior counsel submitted that the High Court had taken a rather
conservative figure considering the legislative scheme while
awarding interest at the rate of fifteen percent to the respondent.
He, therefore, submitted that no interference would be called
for in the orders of the High Court and that the civil appeal filed
by the appellants should be dismissed.
7. Submissions made by learned counsel for the parties have received
the due consideration of the Court.
8. Before we examine the decisions of the High Court, it would be
apposite to briefly highlight the statutory framework and the concerned
Exim Policy.
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9. Section 11A of the Central Excise Act, 1944 (briefly ‘Central Excise
Act’ hereinafter) deals with recovery of duties not levied or not paid
or short-levied or short paid or erroneously refunded. Relevant for
our purpose is sub-section (1) which says that where any duty of
excise has not been levied or not paid or has been short levied or
short paid or erroneously refunded, for any reason other than the
reason of fraud or collusion etc. with intent to evade payment of
duty, the Central Excise Officer shall serve notice on the person so
chargeable within two years from the relevant date requiring him
to show cause why he should not pay the amount specified in the
notice. The person chargeable with duty may either before service
of notice pay on the basis of his own ascertainment or the duty
ascertained by the Central Excise Officer, the amount of duty along
with interest payable thereon under Section 11AA. In the event of
fraud, collusion etc. the notice period gets extended to five years.
9.1. Duty is cast upon the person liable to pay duty either voluntarily
or after determination under Section 11A to pay interest in
addition to the duty under sub-section (1) of Section 11AA.
As per sub-section (2), such interest shall not be below ten
percent and shall not exceed thirty six percent per annum,
as the Central Government may by notification in the Official
Gazette fix. Such interest shall be calculated from the date on
which the duty becomes due up to the date of actual payment
of the amount due.
9.2. Section 11B of the Central Excise Act entitles any person
claiming refund of any duty of excise and interest to make an
application for refund of such duty and interest before the expiry
of one year from the relevant date (prior to 12.05.2000, it was
six months instead of one year).
9.3. Section 11BB provides for interest on delayed refund. It says
that if any duty ordered to be refunded under sub-section (2)
of Section 11B to any applicant is not refunded within three
months from the date of receipt of the application under sub-
section (1) of that section, there shall be paid to such applicant
interest at such rate not below five percent and not exceeding
thirty percent per annum as for the time being fixed by the
Central Government, by notification in the Official Gazette. Prior
to 11.05.2001, the rate of interest was not below ten percent.
[2024] 2 S.C.R.  99

Union of India and Ors. v.

M/S. B.T. Patil and Sons Belgaum (Construction) Pvt. Ltd.

The applicant would be entitled to interest after expiry of three

months from the date of receipt of such application till the date
of refund of such duty.
10. Section 27 of the Customs Act deals with claim for refund of duty.
As per sub-section (1), any person claiming refund of any duty or
interest paid by him or borne by him, may make an application in
the prescribed form and manner, for such refund addressed to the
designated authority before the expiry of one year from the date of
payment of such duty or interest. Explanation below sub-section (1)
clarifies that for the purpose of sub-section (1), the date of payment
of duty or interest in relation to a person, other than an importer,
shall be construed as the date of purchase of goods by such person.
10.1. Sub-section (2) says that if on the receipt of such application
the designated authority is satisfied that the whole or any part
of the duty and interest, if any, paid on such duty, paid by the
applicant is refundable, he may make an order accordingly and
the amount so determined shall be credited to the Consumer
Welfare Fund established under Section 12C of the Central
Excise Act. However, as per the proviso, the amount of duty and
interest so determined shall be paid to the applicant instead of
being credited to the Consumer Welfare Fund if such amount is
relatable, amongst others, to drawback of duty payable under
Sections 74 and 75 of the Customs Act.
11. Section 27A of the Customs Act provides for interest on delayed
refund. It says that, if any duty ordered to be refunded under sub-
section (2) of Section 27 to an applicant is not refunded within three
months from the date of receipt of the application, there shall be paid
to that applicant interest at such rate not below five percent and not
exceeding thirty percent per annum as is for the time being fixed
by the Central Government, by notification in the Official Gazette,
on such duty from the date immediately after the expiry of three
months from the date of receipt of such application till the date of
refund of such duty.
12. Chapter X of the Customs Act comprising of Sections 74 to 76 deals
with drawback. While Section 74 allows drawback on re-export of
duty-paid goods, Section 75 provides for drawback on imported
materials used in the manufacture of goods which are exported. On
the other hand, Section 75A deals with interest on drawback. Sub-
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section (1) of Section 75A says that, where any drawback payable
to a claimant under Section 74 or Section 75 is not paid within a
period of one month (earlier it was two months and prior thereto
it was three months) from the date of filing a claim for payment of
such drawback, there shall be paid to that claimant in addition to
the amount of drawback, interest at the rate fixed under Section 27A
from the date after the expiry of the said period of one month till the
date of payment of such drawback.
13. In exercise of the powers conferred under Section 3 of the Imports
and Exports (Control) Act, 1947, the Central Government notified the
Export and Import (Exim) Policy for the period 1992-1997. It came
into effect from 01.04.1992 and remained in force for a period of
five years up to 31.03.1997.
14. After the enactment of The Foreign Trade (Development and
Regulation) Act, 1992, the Exim Policy, 1992-1997 was deemed to
have been made under the aforesaid Act. That being the position,
we will briefly refer to the said enactment.
15. The Foreign Trade (Development and Regulation) Act, 1992 (briefly
‘the 1992 Act’ hereinafter) is an act to provide for the development
and regulation of foreign trade by facilitating imports into and
augmenting exports from India and for matters connected therewith
or incidental thereto.
15.1. Section 4 declares that all orders made under the Imports and
Exports (Control) Act, 1947 and in force immediately before the
commencement of the 1992 Act shall so far as they are not
inconsistent with the provisions of the 1992 Act would continue
to be in force and shall be deemed to have been made under
the 1992 Act.
15.2. Thus, by virtue of Section 4 of the 1992 Act, the Exim Policy of
1992-1997 continued to be in force and was deemed to have
been made under the 1992 Act.
16. Section 5 of the 1992 Act, as it stood at the relevant point of time,
dealt with export and import policy. As per Section 5, the Central
Government may from time to time formulate and anounce by
notification in the Official Gazette, the export and import policy and
may also, in the like manner, amend that policy.
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Union of India and Ors. v.

M/S. B.T. Patil and Sons Belgaum (Construction) Pvt. Ltd.

17. Rule 2(e) of the Foreign Trade (Regulation) Rules, 1993, framed
under the 1992 Act, defines the word ‘policy’ to mean export and
import policy formulated and announced by the Central Government
under Section 5.
18. Let us now revert back to the Exim Policy, 1992 – 1997. Section 7
of the said policy ascribes meaning to the words and expressions for
the purpose of the policy. As per Section 7(13), ‘drawback’ in relation
to any goods manufactured in India and exported means the rebate
of duty chargeable on any imported materials or excisable materials
used in the manufacture of such goods in India.
19. Chapter VII of the policy provides for ‘Duty Exemption Scheme’.
Section 47, which is the first section in Chapter VII, mentions
that under the Duty Exemption Scheme, imports of duty free raw
materials, components, intermediates, consumables, parts, spares
including mandatory spares and packing materials required for the
purpose of export production may be permitted by the competent
authority under the five categories of licences mentioned in the
said chapter, including special imprest licence. As per Section
56 (ii)(3), supplies made to projects financed by multilateral or
bilateral agencies like the International Bank for Reconstruction and
Development would be entitled to duty free import of raw materials,
components, intermediates, consumables, parts, spares including
mandatory spares and packing materials to main/sub-contractors for
the manufacture and supply of products to such projects.
20. Chapter X introduced the concept of ‘deemed exports’. Section 120
defines ‘deemed exports’ to mean those transactions in which the
goods supplied did not leave the country and the payment for the
goods was received by the supplier in Indian rupees but the supplies
earned or saved foreign exchange for the country.
21. Under Section 121 (f), supply of goods to projects financed by
multilateral or bilateral agencies, such as, the International Bank
for Reconstruction and Development under international competitive
bidding or under limited tender system would be regarded as ‘deemed
exports’ under the Exim Policy of 1992-1997.
22. Section 122 provides that ‘deemed exports’ shall be eligible for the
benefits in respect of manufacture and supply of goods qualifying
as ‘deemed exports’, including under the Duty Drawback Scheme.
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23. In exercise of the powers conferred by Section 75 of the Customs

Act, Section 37 of the Central Excise Act and Section 93A read with
Section 94 of the Finance Act, 1994, the Central Government has
made a set of rules called the Customs, Central Excise Duties and
Service Tax Drawback Rules, 1995. Rule 2(a) defines ‘drawback’ in
relation to any goods manufactured in India and exported, to mean
the rebate of duty or tax as the case may be, chargeable on any
imported materials or excisable materials used or taxable services
used as input services in the manufacture of such goods. ‘Excisable
material’ has been defined under Rule 2(b) to mean any material
produced or manufactured in India subject to a duty of excise under
the Central Excise Act. Likewise, the expression ‘imported material’
has been defined under Rule 2(d) to mean any material imported
into India and on which duty is chargeable under the Customs Act.
23.1. Rule 3 provides for allowance of drawback. Sub-rule (1) says
that subject to the provisions of the Customs Act, Central
Excise Act, the Finance Act, 1994 and the rules made under
the aforesaid three enactments, a drawback may be allowed
on the export of goods at such amount or at such rates as may
be determined by the Central Government.
23.2. Rule 14 deals with payment of drawback and interest. Sub-
rule (1) says that the drawback under the Customs, Central
Excise Duties and Service Tax Drawback Rules, 1995 (briefly
‘the 1995 Rules’ hereinafter) and interest, if any, shall be paid
by the proper officer of customs to the exporter or to the agent
specially authorized by the exporter to receive the said amount
of drawback and interest. Sub-rule (2) clarifies that the officer
of customs may combine one or more claims for the purpose of
payment of drawback and interest, if any, as well as adjustment
of any amount of drawback and interest already paid and may
issue a consolidated order for payment. As per sub-rule (3),
the date of payment of drawback and interest, if any, shall be
deemed to be, in the case of payment by cheque, the date of
issue of such cheque; or by credit in the exporter’s account
maintained with the Custom House, the date of such credit.
24. At this stage, we may mention that in exercise of the powers conferred
by Section 27A of the Customs Act, the Central Board of Excise and
Customs had issued notification bearing No.32/1995 (NT)-Customs
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M/S. B.T. Patil and Sons Belgaum (Construction) Pvt. Ltd.

dated 26.05.1995 fixing the rate of interest at fifteen percent for the
purposes of Section 27A of the Customs Act. This was notified by
the Central Government in the Ministry of Finance, Department of
Revenue in the Official Gazette of India dated 26.05.1995.
25. Likewise, in exercise of the powers conferred by Section 11BB of the
Central Excise Act, the Central Board of Excise and Customs issued
notification No.22/95-Central Excises (NT) dated 29.05.1995 fixing
the rate of interest at fifteen percent per annum for the purposes of
the said section. This was also notified by the Central Government
in the Official Gazette of India on 29.05.1995.
26. Though it may not be necessary, still we may refer to the circulars
dated 20.08.1998 and 05.12.2000 issued by the DGFT. Circular
dated 20.08.1998 says that representations had been received from
individual exporters as well as clarifications sought for by different
regional licencing authorities with regard to availability of deemed
export benefit for supply of goods and services to civil construction
projects. Circular dated 20.08.1998 says that the issue as to whether
supply of goods and services to civil construction projects would be
entitled for deemed export benefit or not had been examined in detail,
whereafter it was clarified that supply of goods under paragraph 10(2)
(d) of the Exim Policy would be entitled to deemed export benefit.
Therefore, if within the scope of a work of turn-key civil construction
project, supply of goods is included then supply of such goods would
be entitled to deemed export benefit.
26.1. It appears that representations were continued to be received
by the DGFT regarding admissibility of duty drawback on
supplies made to turn-key projects, considered as deemed
export in terms of the Exim Policy. Circular dated 05.12.2000
mentions that the matter was deliberated upon by the Policy
Review Committee. It was noted that it was not possible for a
single contractor to manufacture himself all the items required
for execution of such projects. Hence certain items, either
imported or indigenous, had necessarily to be procured from
other sources. It was, therefore, clarified that all such directly
supplied items, whether imported or indigenous, and used in the
projects, the condition ‘manufactured in India’, a pre-requisite
for grant of deemed export benefit, was satisfied in view of
the fact that such activities being undertaken at the project
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site constituted ‘manufacture’ as per the definition provided in

the Exim Policy. Accordingly, it was clarified that the duties,
customs and central excise, suffered on such goods should
be refunded through the duty drawback route. Referring to the
previous circular dated 20.08.1998, it was further clarified that
excise duty paid on supply of inputs, such as, cement, steel
etc., would be refunded through the duty drawback route in the
same manner as in any other case of excisable goods being
supplied to any other project qualifying for deemed export
benefit, subject to the project authority certifying the receipt
and use of such inputs in the project.
27. As already noted above, a Policy Interpretation Committee was
constituted. The said committee held a meeting on 07.10.2002,
chaired by the DGFT. One of the agenda items deliberated upon
in the said meeting was the claim of the respondent regarding
inclusion of excise duty component in the price quoted before the
project authority as a case of deemed export and refund of the
same through the duty drawback route. The Policy Interpretation
Committee discussed the case of the respondent and opined that in
case any such firms were still competitive and able to supply goods
at international prices despite including the component of excise duty
in the price quoted before the project authority, the deemed export
benefit could not be denied to such firms. Hence, the committee
decided to permit deemed export benefit even in cases where the
excise duty component was factored in the pricing quoted provided
other conditions of deemed export benefit were adhered to.
27.1. From a perusal of the minutes of the meeting of the Policy
Interpretation Committee held on 07.10.2002, it is evident
that the committee had opined to extend the deemed export
benefit to those firms which included excise duty component
in the tender pricing quoted before the project authority such
as the respondent. There is nothing in the minutes to indicate
that such benefit was being extended to the respondent as a
one off case or by way of concession.
28. Based on the minutes of the Policy Interpretation Committee meeting
held on 07.10.2002, DGFT issued letter dated 01.11.2002, a copy
of which was marked to the respondent, superseding the previous
rejection order dated 21.06.2002 and allowing duty drawback to be
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Union of India and Ors. v.

M/S. B.T. Patil and Sons Belgaum (Construction) Pvt. Ltd.

paid to the respondent for materials/goods, such as, steel, cement

etc., used in the civil works of Koyna Hydro Electric Project. The
amount of drawback refundable to the respondent was quantified
at Rs.2,05,79,740.00. In the said letter, it was, however, mentioned
that grant of drawback should not be treated as a precedent. It was
thereafter that cheques were issued paying the aforesaid amount of
duty drawback to the respondent. At that stage, respondent submitted
representations contending that there was delay in the refund of
drawback and therefore, it was entitled to interest from the relevant
date at the rate of fifteen percent in terms of the notification No.22/95
dated 29.05.1995 (we may mention that the respondent had placed
reliance on the aforesaid notification which fixed interest at the rate
of fifteen percent for delayed refund of duty under Section 11BB of
the Central Excise Act). However, such representations were rejected
by the DGFT on 10.07.2003 and 06.08.2003 respectfully. In the
rejection letter dated 10.07.2003, respondent was informed by the
office of DGFT that there was no provision for payment of interest
on the deemed export duty drawback. Therefore, the request for
payment of interest could not be agreed upon.
29. Learned Single Judge referred to the circular dated 05.12.2000 and
observed that pursuant thereto appellants had paid the duty drawback
to the respondent. However, there was delay in payment of duty
drawback at least from the date of the clarificatory circular dated
05.12.2000. Therefore, respondent would be entitled to interest from
the date of the clarification till the date of payment. After observing
that the Customs Act provides for interest on delayed refund within
the range from five percent to thirty percent, learned Single Judge
directed the appellants to pay interest on the delayed refund from
the date of the clarificatory circular dated 05.12.2000 till the date of
payment within a period of three months.
30. Appellants filed Writ Appeal No.356 of 2006 assailing the aforesaid
decision of the learned Single Judge. On the other hand, respondent
also filed a writ appeal being Writ Appeal No.3699 of 2005 assailing
the directions of the learned Single Judge to pay interest only from
the date of the circular dated 05.12.2000.
30.1. Before the Division Bench, it was contended on behalf of the
appellants that it was only under the Foreign Trade Policy,
2004-2009 that for the first time payment of simple interest
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at the rate of six percent per annum in the event of delay in

refund of duty drawback was provided. There was no provision
for payment of interest on delayed refund of duty drawback on
deemed export prior thereto. Therefore, respondent was not
entitled to interest even from 05.12.2000 as directed by the
learned Single Judge. It was canvassed before the Division
Bench on behalf of the appellants that only due to magnanimity
on the part of the Central Government refund of duty drawback
under deemed export was paid to the respondent. As such,
refund would not carry any interest.
30.2. The Division Bench repelled such contentions advanced on
behalf of the appellants and held that in view of the circular
dated 05.12.2000, it was clarified that even civil construction
works were entitled to the benefit of deemed export under the
Exim Policy. After saying so, the Division Bench noted that as
a matter of fact, an amount of Rs.2,05,79,740.00 was paid
to the respondent as duty drawback. Thereafter, the Division
Bench analysed the circular dated 05.12.2000 and upon such
analysis it was observed that the position vis-à-vis refund of
duty drawback in civil construction work treating it as deemed
export was clarified in an earlier circular dated 20.08.1998.
Thus, according to the Division Bench, by the year 1998 itself,
DGFT had clarified that civil construction work was entitled to
the benefit of duty drawback as deemed export. Having held
so, the Division Bench posed a question as to whether the
respondent would be entitled to interest after expiry of three
months from the date of the applications for refund of duty
drawback? Corollary to the above question was an ancillary
question as to whether a clarificatory or declaratory notification
or circular would have retrospective operation? After referring to
decisions of this Court reported in 1993 Supplementary (3) SCC
234 S. S. Grewal versus State of Punjab, (1995) 2 SCC 630
Rajagopal Reddy (dead) by Lrs. Vs. Padmini Chandrasekharan
(dead) by Lrs., and (2004) 8 SCC 1 Zile Singh versus State of
Haryana, the Division Bench opined that the minute the Exim
Policy came into force the benefit of duty drawback automatically
became available to the respondent and that the clarification
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Union of India and Ors. v.

M/S. B.T. Patil and Sons Belgaum (Construction) Pvt. Ltd.

was only with regard to the doubts expressed in some quarters

as to whether civil construction works were also entitled to
such benefit. By virtue of the two circulars dated 20.08.1998
and 05.12.2000, no new right or benefit came to be created;
those two circulars were clarificatory in nature only clarifying
that the benefit under the Exim Policy 1992-1997 was available
to civil construction as well. Therefore, such benefit would
take effect from the date of the Exim Policy. It was thereafter
that the Division Bench posed the further question as to what
would be the rate of interest on the delayed refund. In this
connection, the Division Bench referred to Sections 27A and
75A of the Customs Act and came to the conclusion that the
date of payment of interest would have to be on expiry of the
period of three months from the date of making an application
for refund of duty drawback. The Division Bench held that the
respondent would be entitled to interest from the date of expiry
of three months after submission of applications for refund back
in the year 1996 till the time the payment was made at the rate
of fifteen percent as awarded by the learned Single Judge.
Consequently, the appeal of the appellants was dismissed
while the appeal of the respondent was allowed.
31. Reverting back to the Exim Policy of 1992-1997, we have already
noted about the Duty Exemption Scheme. We have noted that under
the Duty Exemption Scheme, import of duty free raw materials,
components, intermediates, consumables, parts, spares including
mandatory spares and packing materials required for the purpose of
export production could be permitted by the competent authority under
five categories of licences mentioned in Chapter VII including special
imprest licence. Section 56 provided that a special imprest licence
was granted for the duty free import of raw materials, components,
consumables, parts, spares including mandatory spares and packing
materials to main/sub-contractors for the manufacture or supply
of products when such supply were made to projects financed by
multilateral or bilateral agencies, such as, the International Bank for
Reconstruction and Development under international competitive
bidding or under limited tender system.
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31.1. In Chapter X ‘deemed export’ has been defined. It is a transaction

in which the goods supplied do not leave the country and the
payment for the goods is received by the supplier in Indian
rupees, but the supplies earn or save foreign exchange for
the country. Section 121 declares that the categories of supply
of goods mentioned in the said section would be regarded as
‘deemed export’ under the Exim Policy provided the goods
were manufactured in India and the payment was received
in Indian rupees. This included supply of goods to projects
financed by multilateral or bilateral agencies or any other
agency that may be notified by the Central Government, such
as, the International Bank for Reconstruction and Development
under international competitive bidding or under limited tender
system in accordance with the procedures of those agencies.
31.2. Section 122 clarifies that deemed export would be eligible
for benefits under the Duty Drawback Scheme in respect of
manufacture and supply of goods by treating those as deemed
export.
32. That apart, as already mentioned in the earlier part of the judgement,
the Explanation below sub-section (1) of Section 27 of the Customs
Act clarifies that the expression ‘the date of payment of duty or interest’
in relation to a person other than an importer shall be construed as
‘the date of purchase of goods’ by such person.
33. Therefore, on a conjoint and careful reading of the relevant provisions
of the Exim Policy, 1992-1997 in conjunction with the Central Excise
Act and the Customs Act, it is evident that supply of goods to the
project in question by the respondent was a case of ‘deemed export’
and thus entitled to the benefit under the Duty Drawback Scheme.
The language employed in the policy made this very clear and there
was no ambiguity in respect of such entitlement.
34. Even if there was any doubt, the same was fully explained by the
1995 Rules. In fact, under the definition clause of the 1995 Rules,
duty drawback, in relation to any goods manufactured in India
and exported has been defined to mean the rebate of duty or tax
chargeable on any imported materials or excisable materials used
[2024] 2 S.C.R.  109

Union of India and Ors. v.

M/S. B.T. Patil and Sons Belgaum (Construction) Pvt. Ltd.

or taxable services used in the manufacture of such goods. In the

preceding paragraphs, we have noted the meaning of the expressions
‘excisable materials’ and ‘manufacture’.
34.1. Rule 3 of the 1995 Rules makes it abundantly clear that a
drawback may be allowed on the export of goods at such
amount or at such rates as may be determined by the Central
Government. Further, Rule 14 provides for payment of drawback
and interest.
35. It was, therefore, not correct on the part of the appellants to contend
that there was no provision for payment of interest on delayed refund
of duty drawback. That apart, it is wholly untenable for the appellants
to contend that refund of duty drawback was granted to the respondent
as a concession, not to be treated as a precedent. As we have seen,
respondent is entitled to refund of duty drawback as a deemed export
under the Duty Drawback Scheme. The applications for refund were
made in 1996. Decision to grant refund of duty drawback was taken
belatedly on 07.10.2002 whereafter the payments were made by
way of cheques on 31.03.2003 and 20.05.2003. Admittedly, there
was considerable delay in refund of duty drawback.
36. As we have already examined, under sub-section (1) of Section 75A
of the Customs Act, where duty drawback is not paid within a period
of three months from the date of filing of claim, the claimant would be
entitled to interest in addition to the amount of drawback. This section
provides that the interest would be at the rate fixed under Section
27A from the date after expiry of the said period of three months
till the payment of such drawback. If we look at Section 27A, the
interest rate prescribed thereunder at the relevant point of time was
not below ten percent and not exceeding thirty percent per annum.
37. The Central Board of Excise and Customs vide its notification bearing
No.32/1995 (NT) – Customs dated 26.5.1995 had fixed the rate
of interest at fifteen percent for the purpose of Section 27A of the
Customs Act. The High Court while awarding interest at the rate of
fifteen percent per annum, however, did not refer to such notification;
rather, there was no discussion at all as to why the rate of interest
on the delayed refund should be fifteen percent. Therefore, at the
first glance, the rate of interest awarded by the High Court appeared
to be on the higher side and without any reason.
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38. Be that as it may, having regard to our discussions made above,

we have no hesitation in holding that the respondent was entitled
to refund of duty drawback. Appellants had belatedly accepted the
said claim and made the refund. Since there was belated refund of
the duty drawback to the respondent, it was entitled to interest at
the rate which was fixed by the Central Government at the relevant
point of time being fifteen percent.
39. That being the position, we find no good reason to interfere with the
judgment and order of the Division Bench of the High Court dated
22.8.2008. There is no merit in the appeal, which is accordingly
dismissed. No costs.

Headnotes prepared by: Divya Pandey Result of the case: Appeal dismissed.
 [2024] 2 S.C.R. 111 : 2024 INSC 82

Bhaggi @ Bhagirath @ Naran

v.
The State of Madhya Pradesh
(Special Leave Petition (Crl). 2888 of 2023)
05 February 2024
[C.T. Ravikumar and Rajesh Bindal, JJ.]

Issue for Consideration

The capital punishment awarded to the petitioner-convict for the
conviction u/s. 376 AB, IPC was not confirmed and it was commuted
to imprisonment for life, which, going by the provisions thereunder,
means imprisonment for the remainder of the convict’s natural life.
The only question is whether the commutation of capital punishment
to sentence of life imprisonment requires further interference.

Headnotes
Sentence/Sentencing – Modification of sentence – Allegation
that petitioner-convict took 7 year old girl to a temple and raped
her – Trial Court convicted petitioner u/s. 376 AB – Though,
the petitioner was also convicted u/s. 376 (2) (i) and u/ss.
3/4, s. 5(d)/6 of the POCSO Act taking note of his conviction
u/s. 376 AB, IPC, no separate sentences were awarded for
the aforesaid offences by the trial Court – The High Court
commuted it to imprisonment for life – Propriety:
Held: The evidence would reveal that unmindful of the holiness of
the place petitioner disrobed victim and himself and raped her –
When such an act was done by the petitioner, who was then aged
40 years and X who was then aged only 7 years and the evidence
that when PW-2 and PW-14 reached the place of occurrence,
blood was found oozing from the private parts of the disrobed
child – The High Court had rightly considered the aggravating and
mitigating circumstances while commuting the capital sentence
into life imprisonment which going by the provisions u/s. 376 AB,
IPC means rest of the convict’s natural life – For effecting such
commutation, the High Court also considered the question whether
there is possibility for reformation and rehabilitation of the petitioner
and opined that it is not a case in which the alternative punishment
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would not be sufficient in the facts of the case – But then, it is

noted that if the victim is religious every visit to any temple may
hark back to her the unfortunate, barbaric action to which she was
subjected to – So also, the incident may haunt her and adversely
impact in her future married life – On consideration of all such
aspects, a fixed term of sentence of 30 years, which shall include
the period already undergone, must be the modified sentence of
imprisonment – The convict is also liable to suffer a sentence of fine
which shall be just and reasonable to meet the medical expenses
and rehabilitation of the victim which is quantified as Rupees One
Lakh and the same shall be paid to the victim with respect to the
conviction u/s. 363, IPC. [Paras 15, 16, 17]

Case Law Cited

Union of India v. V. Sriharan alias Murugan and Ors.,
[2015] 14 SCR 613 :(2016) 7 SCC 1 – followed.
Mulla v. State of U.P, [2010] 2 SCR 633 : (2010) 3
SCC 508; Shiva Kumar @ Shiva @ Shivamurthy v.
State of Karnataka, [2023] 4 SCR 669 : (2023) 9 SCC
817 – relied on.
Bantu alias Naresh Giri v. State of M.P., [2001] 4 Suppl.
SCR 298 : (2001) 9 SCC 615; Amrit Singh v. State of
Punjab, [2006] 8 Suppl. SCR 889 : (2006) 12 SCC
79; Rameshbhai Chandubhai Rathod (2) v. State of
Gujarat, [2011] 1 SCR 829 : (2011) 2 SCC 764; Swamy
Shraddananda (2) alias Murali Manohar Mishra v. State
of Karnataka, [2008] 11 SCR 93 : (2008) 13 SCC 767
– referred to.

List of Acts
Penal Code, 1860; Code of Criminal Procedure, 1973; Protection
of Children from Sexual Offences Act, 2012

List of Keywords
Sentence; Sentencing; Modification of sentence; Fixed term of
sentence; Capital Punishment; Capital Punishment commuted to
imprisonment for life; Rape of a minor; Fine; Medical expenses
and rehabilitation of the victim.
[2024] 1 S.C.R.  113

Bhaggi @ Bhagirath @ Naran v. The State of Madhya Pradesh

Case Arising From

CRIMINAL APPELLATE JURISDICTION : Special Leave Petition

(Crl.) No.2888 of 2023
From the Judgment and Order dated 11.10.2018 of the High Court of
M.P. Principal Seat at Jabalpur in CRA No.5725 of 2018
Appearances for Parties
Mrs. K. Sarada Devi, R. Vijay Nandan Reddy, V. Krishna Swaroop,
Advs. for the Appellants.
Mrs. Ankita Chaudhary, AAG, Ms. Mrinal Gopal Elker, Abhimanyu
Singh-G.A., Abhijeet Pandove, Advs. for the Respondent.
Judgment / Order of the Supreme Court
Order
1. The petitioner-convict seeks to assail the judgment dated 11.10.2018
of the High Court of Madhya Pradesh at Jabalpur in Criminal Appeal
No. 5725 of 2018.
2. In troth, it is a common judgment in Criminal Reference No.6/2018
submitted by the Trial Court under Section 366 of the Code of Criminal
Procedure, 1973 (Cr.PC) for confirmation of the conviction under
Section 376 AB of the Indian Penal Code, 1860 (IPC) as amended
by Act No. 22 of 2018 and in Criminal Appeal No. 5725 of 2018
filed by the petitioner-convict herein aggrieved by the conviction and
sentence imposed against him for certain other offences under the
IPC, as also against the conviction under the Protection of Children
from Sexual Offences Act, 2012 (for short, ‘POCSO Act’). As per the
impugned judgment, the capital punishment awarded for the conviction
under Section 376 AB, IPC was not confirmed and it was commuted
to imprisonment for life, which, going by the provisions thereunder,
means imprisonment for the remainder of the convict’s natural life.
3. Heard the learned counsel appearing for the petitioner-convict and
the learned Additional Advocate General for the State of Madhya
Pradesh.
4. It is to be noted that in the instant case, after condoning the delay,
limited notice on the question of sentence alone was issued on
24.02.2023. Since we do not find any reason to enlarge the scope,
the parties confined their arguments within the permissible scope.
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5. We are of the considered view that for considering the aforesaid

question it is apposite to refer succinctly to the facts of the case.
On 21.05.2018, the complainant Munni Bai (PW-8) who is the
grandmother of the victim lodged a report that her granddaughter
X, who was examined as PW-1, aged 7 years was kidnapped and
raped by the petitioner-convict. After the trial, the Trial Court found
that the prosecution had succeeded in bringing damning evidence
to establish that the victim, aged 7 years was taken to Rajaram
Baba Thakur Mandir by the petitioner-convict and there upon making
her and himself nude he committed rape. Upon her screaming, the
prosecution witnesses who went there found the convict, belonging
to the same village, laying over and violating the victim and at
their sight running away from there. The oral testimonies of the
prosecution witnesses (PWs-1, 2 and 14) on the culpability of the
convict got credence from the medical evidence unerringly pointing
to his guilt. The consequential conviction inter alia, under Section
376 AB, IPC as amended by Act No. 22 of 2018, originally, brought
him capital sentence. Though, the petitioner was also convicted
under Section 376 (2) (i) and under Sections 3/4, Sections 5(d)/6
of the POCSO Act taking note of his conviction under Section 376
AB, IPC, no separate sentences were awarded for the aforesaid
offences by the trial Court. In view of the commutation of capital
punishment awarded for the conviction under Section 376 AB,
IPC it is also a matter to be considered if we interfere with the
sentence of life imprisonment for the offence under Section 376
AB, IPC as amended under the Act No. 22 of 2018.
6. As noticed hereinbefore, on appreciating the evidence on record
and coming to the conclusion that the guilt of the petitioner under
Section 376 AB, IPC has been conclusively proved, but capital
punishment imposed therefor, is to be commuted while confirming the
conviction under Section 376 AB, IPC. The High Court commuted it
to imprisonment for life though another alternative punishment was
also possible viz. rigorous imprisonment for a term not less than 20
years with fine.
7. In the decision in Mulla v. State of U.P.1, this Court held:-

1 [2010] 2 SCR 633 : (2010) 3 SCC 508

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Bhaggi @ Bhagirath @ Naran v. The State of Madhya Pradesh

“85……...It is open to the sentencing court to prescribe

the length of incarceration. This is especially true in
cases where death sentence has been replaced by life
imprisonment…...”
8. Evidently, the decision in Mulla’s case (supra) and a catena of
decisions where death sentence was commuted to the imprisonment
for life including the decisions in Bantu alias Naresh Giri v. State
of M.P. 2, Amrit Singh v. State of Punjab 3 and Rameshbhai
Chandubhai Rathod (2) v. State of Gujarat4 were considered by
the High Court while commuting capital sentence to imprisonment
for life. A bare perusal of all those decisions would reveal that those
are cases involving rape and murder of young girls aged between 4
to 12 years. It is true that after referring to those decisions the High
Court, in the instant case held in paragraph 34 of the impugned
judgment thus:-
“ln the present case the important consideration is the
manner in which the alleged offence is committed. The
evidence of Dr. Saroj Bhuriya (PW -3) is relevant. She
stated that there was no external injury on the person of the
prosecutrix, specially on her neck, chick, chest, abdomen
and thigh. She also did not find any injuries on the outer
part of the genital part of the prosecutrix. She has found
the hymen was ruptured recently and there was bleeding.
The injury was ordinary in nature. She further stated that
the same could have been possibly be caused by hard
and blunt object as well. The evidence has established
that a minor child was violated by the accused. However,
there was no other injury inflicted him either on the other
parts of the body and also on the private part. Thus the
manner in which the offence is committed is not barbaric
and brutal. We have given our anxious consideration to
the material on record and find that though the offence is
condemnable, reprehensible, vicious and a deplorable act
of violence but the same does not fall within the aggravating

2 [2001] 4 Suppl. SCR 298 : (2001) 9 SCC 615

3 [2006] 8 Suppl. SCR 889 : (2006) 12 SCC 79
4 [2011] 1 SCR 829 : (2011) 2 SCC 764
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circumstances namely extreme depravity and the barbaric

manner in which the crime was committed. Taking into
consideration the totality of the facts, nature, motive and
the manner of the offence and further that nothing has been
brought on record by the prosecution that the accused was
having any criminal antecedent and the possibility of being
rehabilitation and reformation has abo not been ruled out.
Nothing is available on record to suggest that he cannot
be useful for the society. In our considered opinion, it is
not a ease in which the alternative punishment would not
be sufficient to the facts of the case.”
9. Now, we will refer to the rival contentions. The contention of the
learned counsel for the petitioner is that at the time of commission
of offence, the petitioner was aged only 40 years. The High Court
after taking note of the manner in which the alleged offence was
committed observed that it was not barbaric and brutal and further
that owing to the absence of anything on record to suggest that the
convict is having criminal antecedents the possibility of rehabilitation
and chances for his reformation could not be ruled out and opined
that the case is not one where the alternative punishment would not
be sufficient. The alternative punishment provided under Section
376 AB, IPC viz., sentence of rigorous imprisonment not less than
20 years and with fine alone may be imposed after altering the life
imprisonment for the conviction under Section 376 AB, IPC and
no separate sentence be awarded for the conviction under the
other offences mentioned above. According to the learned counsel,
rigorous imprisonment for 20 years with a minimal fine will be the
comeuppance. Per contra, the learned counsel appearing for the
respondent State would submit that the question as to what extent the
capital sentence could be commuted, in the facts and circumstances
of the case was considered in detail with reference to the decisions
mentioned in the impugned judgment by the High Court and no case
has been made out by the petitioner for further interference qua the
quantum of sentence imposed on the petitioner.
10. We have taken note of the observation of the High Court made after
referring to the manner of commission of the crime concerned that it
was not barbaric and brutal. We are of the concerned view that when
the words ‘barbaric’ and ‘brutal’ are used simultaneously they are not
to take the character of synonym, but to take distinctive meanings.
[2024] 1 S.C.R.  117

Bhaggi @ Bhagirath @ Naran v. The State of Madhya Pradesh

In view of the manner in which the offence was committed by the

petitioner-convict, as observed by the High Court under the above
extracted recital, according to us, one can only say that the action
of the petitioner-convict is barbaric though he had not acted in a
brutal manner. We will take the meanings of the words ‘barbaric’,
‘barbarians’ and ‘brutal’ to know the distinctive meanings of the
words ‘barbaric’ and ‘brutal’. As per the New International Webster’s
Comprehensive Dictionary of the English Language, Encyclopedia
Edition they carry the following meanings:
‘Barbaric’ (adj): 1. of or characteristic of barbarians.
2. Wild; uncivilized; crude
‘Barbarians’ : (n) 1. One whose state of culture is between
savagery and civilization;
2. Any rude, brutal or uncultured person.
‘Brutal’ (adj) : Characteristic of or like a brute; cruel; savage.
In the light of the evidence on record and rightly noted by the High
Court in the above-extracted paragraph 34 of the impugned judgment
it may be true to say that the petitioner-convict had committed the
offence of rape brutally, but then, certainly his action was barbaric.
In the instant case, the petitioner-convict was aged 40 years on the
date of occurrence and the victim was then only a girl, aged 7 years.
Thus, the position is that he used a lass aged 7 years to satisfy
his lust. For that the petitioner-convict took the victim to a temple,
unmindful of the holiness of the place disrobed her and himself and
then committed the crime. We have no hesitation to hold that the fact
he had not done it brutally will not make its commission non-barbaric.
11. In the circumstances obtained in this case there can be no doubt
regarding the requirement of deterrent punishment for the conviction
under Section 376 AB, IPC. The only question is whether the
commutation of capital punishment to sentence of life imprisonment
requires further interference. There can be no doubt with respect to
the position that on such commutation of sentence for the conviction
under Section 376 AB, IPC, the other alternative available is only
imprisonment for a period not less than 20 years with fine. This
position is clear from the provision under Section 376 AB, IPC which
reads thus:-
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“376AB. Punishment for rape on woman under twelve

years of age.—Whoever, commits rape on a woman
under twelve years of age shall be punished with rigorous
imprisonment for a term which shall not be less than
twenty years, but which may extend to imprisonment for
life, which shall mean imprisonment for the remainder of
that person’s natural life, and with fine or with death:
Provided that such fine shall be just and reasonable to
meet the medical expenses and rehabilitation of the victim:
Provided further that any fine imposed under this section
shall be paid to the victim.”
12. Thus, a bare perusal of Section 376 AB, IPC would reveal that
imprisonment for life thereunder means imprisonment for the
remainder of the convict’s natural life and the minimum term of
imprisonment under the Section is 20 years. Now, while considering
the question whether further interference with the sentence handed
down for the conviction of the offence under Section 376 AB,
IPC is warranted, it is only appropriate to refer to a decision of
this Court in Shiva Kumar @ Shiva @ Shivamurthy v. State of
Karnataka5. In Shiva Kumar’s case (supra) this Court referred to
the decision of a Constitution Bench of this Court in Union of India
v. V. Sriharan alias Murugan and Ors.6 and also the decision in
Swamy Shraddananda (2) alias Murali Manohar Mishra v. State
of Karnataka7. Evidently, this Court in V. Sriharan’s case (supra),
upon considering the question whether imprisonment for life in terms
of Section 53 read with Section 45 IPC means imprisonment for
rest of life of the prisoner or a convict undergoing life imprisonment
has a right to claim remission, held after referring to the decision
in Swamy Shraddananda (2) (supra) that the power derived from
the Penal Code for any modified punishment within the punishment
provided for in the Penal Code for any specified offence could only
be exercised by the High Court and in the event of further appeal
only by the Supreme Court. Furthermore, in paragraph 105 of the
said decision it was held:- “to put it differently, the power to impose

5 [2023] 4 SCR 669 : (2023) 9 SCC 817

6 [2015] 14 SCR 613 : (2016) 7 SCC 1
7 [2008] 11 SCR 93 : (2008) 13 SCC 767
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Bhaggi @ Bhagirath @ Naran v. The State of Madhya Pradesh

modified punishment providing for any specific term of incarceration

or till the end of the convict’s life as an alternate to death penalty,
can be exercised only by the High Court and the Supreme Court
and not by any other inferior Court.” In Shiva Kumar’s case (supra)
this Court further took note of what was held by the Constitution
Bench in V. Sriharan’s case (supra) paragraph 104 as well, which
reads thus: -
“104. That apart, in most of such cases where death
penalty or life imprisonment is the punishment imposed by
the trial court and confirmed by the Division Bench of the
High Court, the convict concerned will get an opportunity
to get such verdict tested by filing further appeal by way
of special leave to this Court. By way of abundant caution
and as per the prescribed law of the Code and the criminal
jurisprudence, we can assert after the initial finding of
guilt of such specified grave offences and the imposition
of penalty either death or life imprisonment, when comes
under the scrutiny of the Division Bench of the High Court,
it is only the High Court which derives the power under
the Penal Code, which prescribes the capital and alternate
punishment, to alter the said punishment with one either
for the entirety of the convict’s life or for any specific period
of more than 14 years, say 20, 30 or so on depending
upon the gravity of the crime committed and the exercise
of judicial conscience befitting such offence found proved
to have been committed.”
13. After referring to the relevant paragraphs from the said decisions in
Shiva Kumar this Court held as follows: -
“13.Hence, we have no manner of doubt that even in a
case where capital punishment is not imposed or is not
proposed, the Constitutional Courts can always exercise
the power of imposing a modified or fixed-term sentence
by directing that a life sentence, as contemplated by
“secondly” in Section 53 of the IPC, shall be of a fixed
period of more than fourteen years, for example, of twenty
years, thirty years and so on. The fixed punishment cannot
be for a period less than 14 years in view of the mandate
of Section 433A of Cr.P.C.”
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14. In view of the decisions referred (supra) and taking note of the
position that when once the conviction is sustained under Section 376
AB, IPC the fixed term punishment could not be for a period of less
than 20 years. Evidently, the High Court had referred, in paragraph
33 of the impugned judgment, to decisions where minor girls were
raped and murdered, but did not pointedly consider whether for the
conviction under Section 376 AB, IPC involving commission of rape
of victim, aged 7 years not coupled with murder what would be the
comeuppance, after deciding to commute the capital sentence.
15. We have taken note of the hapless situation of the victim after being
taken to a temple by the petitioner-convict. The evidence would reveal
that unmindful of the holiness of the place he disrobed her and himself
and raped her. When such an act was done by the petitioner, who
was then aged 40 years and X who was then aged only 7 years
and the evidence that when PW-2 and PW-14 reached the place of
occurrence, blood was found oozing from the private parts of the
disrobed child. The High Court had rightly considered the aggravating
and mitigating circumstances while commuting the capital sentence
into life imprisonment which going by the provisions under Section
376 AB, IPC means rest of the convict’s natural life. For effecting such
commutation, the High Court also considered the question whether
there is possibility for reformation and rehabilitation of the petitioner
and opined that it is not a case in which the alternative punishment
would not be sufficient in the facts of the case. But then, it is noted
that if the victim is religious every visit to any temple may hark back
to her the unfortunate, barbaric action to which she was subjected
to. So also, the incident may haunt her and adversely impact in her
future married life.
16. Then, we are also to take into account the present age of the petitioner
and the fact that he has already undergone the incarceration. On
consideration of all such aspects, we are of the considered view that
a fixed term of sentence of 30 years, which shall include the period
already undergone, must be the modified sentence of imprisonment.
17. We have already taken note of the fact that while commuting the
capital sentence to life imprisonment, the High Court had lost
sight of the fact that despite conviction under Section 376 (2) (i)
and under Sections 3/4, Sections 5(d)/6 of the POCSO Act, no
separate sentences were imposed on the petitioner for the offence
under Section 3/4 and 5(m)/6 of the POCSO Act by the Trial Court,
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Bhaggi @ Bhagirath @ Naran v. The State of Madhya Pradesh

evidently, only on the ground that capital sentence is imposed on the

petitioner for the offence under Section 376 AB, IPC. However, it is
a fact that the said aspect escaped the attention of the High Court.
That apart, in terms of the provisions under Section 376 AB, IPC
when a sentence of imprisonment for a term not less than 20 years
which may extend upto life imprisonment is imposed, the convict
is also liable to suffer a sentence of fine which shall be just and
reasonable to meet the medical expenses and rehabilitation of the
victim which we quantify as Rupees One Lakh and the same shall
be paid to the victim with respect to the conviction under Section
363, IPC. In that regard also, there is absolutely no consideration
in the impugned judgment.
18. It is submitted by the learned counsel, with reference to paragraph
1 of the impugned judgment that the order in paragraph 35 of the
impugned judgment that the conviction and sentence under Section
366, IPC is maintained, can also be in relation to the conviction under
Section 363, IPC and the sentence imposed therefor.
19. We fully endorse the said contention as paragraph 1 of the impugned
judgment itself would reveal that the High Court had actually taken
into consideration the fact that the petitioner-convict was convicted
only under Section 376 AB, IPC as amended by Act No.22 of 2018
and under Section 363 IPC. In such circumstances, the conviction
and sentence imposed on the petitioner-convict is confirmed. We
have taken note of the fact that though the petitioner-convict was
convicted for the offence under Section 3/4 and 5 (m)/6 of the POCSO
Act, no separate sentence was imposed on the petitioner-convict by
the Trial Court taking note of the provision under Section 42 of the
POCSO Act. The said provision reads thus:-
“42. Alternate punishment.—Where an act or omission
constitutes an offence punishable under this Act and also
under sections 166A, 354A, 354B, 354C, 354D, 370, 370A,
375, 376, [376A, 376AB, 376B, 376C, 376D, 376DA,
376DB], [376E, section 509 of the Indian Penal Code or
section 67B of the Information Technology Act, 2000 (21
of 2000)], then, notwithstanding anything contained in any
law for the time being in force, the offender found guilty
of such offence shall be liable to punishment only under
this Act or under the Indian Penal Code as provides for
punishment which is greater in degree.”
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20. Since, even after the interference with the sentence imposed for
the conviction of the petitioner-convict under Section 376 AB, IPC
and modified sentence imposed on commutation by the High Court,
we have awarded 30 years of rigorous imprisonment with a fine of
Rupees One Lakh, no separate sentence for the aforesaid offence
under POCSO Act is to be imposed on the petitioner-convict. While
maintaining the conviction of the petitioner-convict under Section
376 AB, IPC, the sentence imposed thereunder is modified to a
sentence of rigorous imprisonment for a term of 30 years, making
it clear that this will also include the period of sentence already
undergone and the period, if any ordered by the Trial Court for set
off. The imprisonment awarded for the conviction under Section 363,
IPC shall run concurrently. The amount of fine imposed thereunder
shall be added to the fine imposed by us viz., Rupees One Lakh.
21. We further direct that the petitioner-convict shall not be released from
jail before completion of actual sentence of 30 years, subject to the
observation made in the matter of its computation, as mentioned
above.
22. The Special Leave Petition is partly allowed, as above.

Headnotes prepared by: Ankit Gyan Result of the case: Special Leave Petition
Partly allowed.
 [2024] 2 S.C.R. 123 : 2024 INSC 86

Jagmohan and Another

v.
Badri Nath And Others
(Civil Appeal No. 1753 of 2024)
06 February 2024
[C.T. Ravikumar and Rajesh Bindal,* JJ.]

Issue for Consideration

Exemption of pre-emption as granted vide notification dated
08.10.1985, if available to the urban immovable property on which
right of pre-emption was sought to be exercised by the tenants.

Headnotes
Punjab Pre-emption Act, 1913 – ss. 16, 8(2), 3(1), (3) – Person
in whom right of pre-emption vests in an urban immovable
property – Tenants were in the property from the year 1949
onwards where the rolling mill had been set up – Property
was an urban immovable property, located in a municipal
area of Jagadhri – Owners of the property sold the property
to the vendee by way of sale deed – Suit filed by the tenant
exercising right of pre-emption of sale, claiming preferential
right to purchase the property – Vendee’s case that pre-emption
did not apply – Suit allowed by the courts below – Exemption
of pre-emption as granted vide notification dated 08.10.1985,
if available to the said property:
Held: If the said notification is read with reference to the powers
available with the State Government to grant exemption from
pre-emption, it is evident that the same has been granted with
reference to land only and not the immovable property – s. 8(2)
uses two terms independently, clearly suggests that the land and
the immovable property have different meanings – s. 15 also
provides right of pre-emption in respect of agricultural land and
village immovable property – Thus, the provisions of the 1913 Act,
if read with the Scheme of the Act, makes it clear that the land
and the immovable property are two different terms – Immovable
property is more than the land on which certain construction has
been made – As the notification limits its application for taking
away the right of pre-emption only with reference to sale of land

* Author
124 [2024] 2 S.C.R.

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falling in the areas of any municipality, the same will not come to
the rescue of the vendee – It is sale of immovable property, which
is more than the land as a rolling mill had already been set up on
the land, which was in occupation of the tenants – Also, the issue
regarding limitation for filing of the suit is misconceived – Thus,
orders of the courts below upheld. [Paras 14-19]
Punjab Pre-emption Act, 1913 – s. 3(3) and 2(3) – Term ‘land’
and ‘immovable property’ – Distinction between:
Held: Provisions of the 1913 Act, if read with the Scheme of the
Act, it is clear that the land and the immovable property are two
different terms – s. 8(2) uses two terms independently, clearly
suggests that the land and the immovable property have different
meanings – Immovable property is more than the land on which
certain construction has been made – Definition of immovable
property, in s. 3(26) of the 1897 Act, which includes land, means
something more than the land. [Paras 15, 16]
Punjab Pre-emption Act, 1913 – s. 3(1), (3) – Term ‘agricultural
land’ and ‘urban immovable property’ – Definition of. [Para 12]
Punjab Alienation of Land Act, 1900 – s. 2(3) – Term ‘land’ –
Definition of. [Para 12]
General Clauses Act, 1897 – s. 3(26) – Term ‘immovable
property’ – Definition of. [Para 16]

Case Law Cited

Shyam Sunder and others v. Ram Kumar and another,
[2001] 1 Suppl. SCR 115 : (2001) 8 SCC 24; Sandeep
Bansal v. M. L. Hans and others R.S.A. No. 2109 of
1998 – referred to.

List of Acts
Punjab Pre-emption Act, 1913; Punjab Alienation of Land Act, 1900;
General Clauses Act, 1897; Limitation Act, 1963.

List of Keywords
Pre-emption; Exemption of pre-emption; Right of pre-emption;
Custom of pre-emption; Notification dated 08.10.1985; Tenants;
Preferential right to purchase the property; Urban immovable
property; Land; Immovable property; Agricultural land; Village
immovable property; Rolling mill; Limitation.
[2024] 2 S.C.R.  125

Jagmohan and Another v. Badri Nath and Others

Case Arising From

CIVIL APPELLATE JURISDICTION : Civil Appeal No.1753 of 2024

From the Judgment and Order dated 25.02.2015 of the High Court of
Punjab & Haryana at Chandigarh in RSA No.2023 of 1992
Appearances for Parties
Shish Pal Laler, Hitesh Kumar, Atul, Vedant Pradhan, Mrs. Kadambini,
Ravi Panwar, Advs. for the Appellants.
Neeraj Kumar Jain, Sr. Adv., Sanjay Singh, Siddharth Jain, Umang
Shankar, Advs. for the Respondents.

Judgment / Order of the Supreme Court

Judgment
Rajesh Bindal, J.
Leave granted.
2. The defendants are before this Court challenging the concurrent
findings of fact recorded by all the courts below.
3. It is a case in which the respondents had filed a suit1 on 25.01.1984
for possession by pre-emption of the plot measuring 719 square
yards, situated at Light Railway Bazar, Jagadhri (hereinafter referred
to as ‘the property in dispute’). The Trial Court2 decreed the suit.
The judgment and decree3 of the Trial Court was upheld upto
the High Court4.
4. The facts in brief are that the respondents (plaintiffs in the suit)
claimed themselves to be the tenants in the property in dispute
since 1949. The property in dispute was owned by Anarkali
and others. The same was sold by the owners thereof to the
appellants (defendants in the suit) by way of a registered sale-
deed dated 25.01.1983. The respondents filed the suit exercising
their right of pre-emption of the sale claiming that in terms of the

1 Civil Suit No. 309

2 Additional Senior Sub Judge, Jagadhri
3 Judgment and decree dated 27.05.1989
4 High Cour of Punjab and Haryana at Chandigarh
126 [2024] 2 S.C.R.

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provisions of the 1913 Act5, they had preferential right to purchase

the property. They offered to pay same sale consideration of
₹43,000/-. The Trial Court decreed the suit subject to payment of
₹50,238/- to the vendee after deducting 1/5th of the pre-emption
amount deposited in the Court at the time of filing of the suit.
The amount so directed by the Trial Court was including stamp
duty, registration fee and miscellaneous expenses incurred on
registration of the sale-deed6.
5. Challenging the judgment of the High Court, learned counsel for
the appellants submitted that in view of the notification 08.10.1985,
issued by the State in exercise of powers under section 8(2) of
the 1913 Act, the suit filed by the respondents deserved to be
dismissed as the right of preemption did not exist for sale of
land falling in the areas of any municipality in Haryana. It is not
a matter of dispute that the sale in question was pertaining to
the property located within the municipal limits of Jagadhri (State
of Haryana). In terms of the Constitution Bench judgment of this
Court in Shyam Sunder and others v. Ram Kumar and another7,
the right of pre-emption has to exist on the date of registration
of the sale-deed, on the date of filing of suit and also on the
date the same is decreed by the first Court. In the case in hand,
no doubt, the suit was pending when the aforesaid notification
was issued, however, the Trial Court had decided the same on
27.05.1989, hence the decree could not have been passed. The
courts below have failed to appreciate that aspect of the matter.
6. He further submitted that the sale deed was registered in favour
of the appellants on 25.01.1983, the suit having been filed on
25.01.1984 was time-barred as the limitation thereof is one year,
which expired on 24.01.1984. It was further argued that the courts
below have wrongly appreciated the issue regarding the custom
of pre-emption prevailing in the area. It was not a matter of
dispute that the area in which the property is situated, falls within
the extended area of municipal limits of Jagadhri. Though some

5 The Punjab Pre-emption Act, 1913

6 Sale-deed dated 25.01.1983
7 [2001] 1 Suppl. SCR 115 : (2001) 8 SCC 24
[2024] 2 S.C.R.  127

Jagmohan and Another v. Badri Nath and Others

evidence was led pertaining to the custom prevailing in the urban

area of municipal limits of Jagadhri, however, for the extended
area, no evidence was produced. In terms of the judgment of
the High Court in Sandeep Bansal v. M. L. Hans and others8,
decided on 24.08.2009, the same custom cannot be relied upon
for any transaction of sale in the extended area.
7. On the other hand, learned counsel for the respondents submitted
that though issue of limitation was raised by the appellants before
the Trial Court, however, the same was not seriously contested
for the reason that the suit filed by the respondents was within
limitation. The Schedule attached to the 1963 Act9 provides for
a period of one year for filing of suit for pre-emption. If the same
is read along with Section 12 of the aforesaid Act, in terms of
which the date of registration of sale deed is to be excluded, the
suit filed by the respondents was within limitation. It was for this
reason that the appellants did not press the aforesaid issue before
the lower Appellate Court10 or the High Court.
8. It was further submitted that the notification dated 08.10.1985,
as is sought to be relied upon by the appellants, will not be
applicable in the case in hand. From a perusal thereof, it is
evident that the exemption is only with reference to sale of land
within the municipal area. In the case in hand, it is not the sale
of land, rather immovable property in the form of a rolling mill,
which cannot be termed to be land. The aforesaid notification
has been issued in exercise of powers under Section 8(2) of
the 1913 Act which enables the State Government to exclude
any transaction of sale of any land or property or class of land
or property for exercise of right of pre-emption. The right to the
respondents flows from Section 16 of the 1913 Act which provides
that right of pre-emption in respect of urban immovable property
vests in the tenant. The term ‘urban immovable property’ has
been defined in Section 3(3) of the 1913 Act to mean immovable
property within the limits of town, other than agricultural land.

8 R.S.A. No. 2109 of 1998

9 The Limitation Act, 1963
10 Additional District Judge, Yamuna Nagar at Jagadhri
128 [2024] 2 S.C.R.

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Section 3(1) thereof defines any agricultural land to mean land

as defined in 1900 Act11. Section 3(2) defines ‘village immovable
property’ to mean immovable property within the limits of a village,
other than agricultural land.
9. The expression ‘land’ is defined in 1900 Act to mean the land
which is not occupied by site of any building in a town or village
and is occupied or let out for agricultural purposes or for purposes
subservient to agriculture. He also referred to the definition of
‘immovable property’, as provided for in Section 3(26) of the
1897 Act12. As the sale in the case in hand was pertaining to not
the land situated within the municipal limits but of a constructed
area which was being used a rolling mill, the exemption as
granted vide notification dated 08.10.1985 will not be applicable
in the case of the appellants. Very fairly, he did not dispute the
proposition of law as laid down by the Constitution Bench of this
Court in Shyam Sunder and others’ case (supra). However, he
submitted that the same will not be applicable in the facts and
circumstances of the case as the notification does not come to
the rescue of the appellants.
10. Heard learned counsel for the parties and perused the relevant
referred record.
11. The relevant provisions of the 1900 Act and 1913 Act are extracted
below:
“Sections 3(1) (2) and (3), 8, 15 and 16 of the Punjab
Pre-emption 1913 Act
3. Definitions. - In this Act, unless a different intention
appears from the subject or context, -
(1) ‘agricultural land’ shall mean land as defined in
Punjab Alienation of Land Act, 1900 (XIII of 1900)
(as amended by act, 1 of 1907), but shall not include
the rights of a mortgage, whether usufructuary or not
in such land:

11 Punjab Alienation of Land Act, 1900

12 The General Clauses Act, 1897
[2024] 2 S.C.R.  129

Jagmohan and Another v. Badri Nath and Others

(2) ‘village immovable property’ shall mean immovable

property within the limits of a village, other than
agricultural land:
(3) ‘urban immovable property’ shall mean immovable
property within the limits of town, other than agricultural
land. For the purposes of this Act a specified place
shall be deemed to be a town (a) If so declared by
the State Government by notification in the Official
Gazette or (b) if so found by the Courts:
xx xx xx
8. State Government may exclude areas from pre-
emption- (1) Except as may otherwise be declared in the
case of any agricultural land in a notification by the State
Government, no right of pre-emption shall exist within any
cantonment.
(2) The State Government may declare by notification that
in any local area or with respect to any land or property
or class of land or property or with respect to any sale or
class of sales, no right of pre-emption or only such limited
right as that the State Government may specify, shall exist.
xx xx xx
15. Persons in whom right of pre-emption vests
in respect of sales of agricultural land and village
immovable property. (1) The right of pre-emption in
respect of agricultural land and village immovable property
shall vest-
(a) where the sale is by sole owner-
First, in the son or daughter or son’s son or daughter’s
son of the vendor;
Secondly, in the brother or brother’s son of the vendor;
Thirdly, in the father’s brother or father’s brother’s
son of the vendor;
Fourthly, in the tenant who holds under tenancy of
vendor the land or property sold or apart thereof.
130 [2024] 2 S.C.R.

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(b) Where the sale is of a share out of joint land or

property made by all the co-sharers jointly-
First in the sons or daughters or sons’ sons or
daughters’ sons of the vendor or vendors;
Secondly, in the brothers or bother’s sons of the
vendor or vendors;
Thirdly, in the father’s brother or father’s brother’s
sons of the vendor or vendors;
Fourthly, in the other co-sharer’s;
Fifthly, in the tenants who hold under tenancy of the
vendor or vendor the land or property sold or a part
thereof;
(c) where the sale is of land or property owned jointly
and is made by all the co-sharers jointly-
First, in the sons or daughters or son’s sons or
daughter’s sons of the vendors;
Secondly, in the brothers or bother’s sons of the
vendors;
Thirdly, in the father’s brother’s or father’s brother’s
sons of vendors;
Fourthly, in the tenants who hold under tenancy of
the vendors or any one of them the land or property
sold or a part thereof.
(2) Notwithstanding anything contained in subsection (1):-
(a) where the sale is by a female of land or property to
which she has succeeded through her father or brother
or the sale in respect of such land or property is by the
son daughter of such female after inheritance, the right
of pre-emption shall vest:-
(i) if the sale is by such female in her brother or brother’s
son:
(ii) if the sale is by the son or daughter of such female
in the mother’s brother or the mother’s brother’s son
of the vendor or vendors;
[2024] 2 S.C.R.  131

Jagmohan and Another v. Badri Nath and Others

b. where the sale is by a female of land or property to

which she has succeeded through her husband, or through
her son in case the son has inherited the land or property
sold from his father, the right or pre-emption shall vest-
First, in the son or daughter of such husband of the
female;
Secondly, in the husband’s brother or husband’s
brother’s son of such female.
16. Person in whom right of pre-emption vests in an
urban immovable property- The right of pre-emption
in respect of urban immovable property shall vest in the
tenant who holds under tenancy of the vendor the property
sold or apart thereof.”
Section 2(3) of the 1900 of Punjab Alienation of Land
Act, 1900
2. In this Act, unless there is anything repugnant in the
subject or context, -
xx xx xx
(3) the expression “land” means land which is not occupied
as the site of any building in a town or village and is
occupied or let for agricultural purposes or for purposes
subservient to agriculture or for pasture, and includes—
(a) the sites of buildings and other structures on such
land;
(b) a share in the profits of an estate or holding;
(c) any dues or any fixed percentage of the land-revenue
payable by an inferior landowner to a superior land-
owner;
(d) a right to receive rent; and
(e) any right to water enjoyed by the owner or occupier
of land as such:
12. The right of the respondents/tenants in the property flows from
Section 16 of the 1913 Act. It is not a matter of dispute that the
respondents were tenants in the property from the year 1949 onwards
132 [2024] 2 S.C.R.

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where the rolling mill had been set up. The term ‘urban immovable
property’ has been defined in Section 3(3) of the 1913 Act to mean
immovable property within the limits of town, other than agricultural
land. Section 3(1) defines any agricultural land to mean land as
defined in 1900 Act. The term ‘land’ as defined in Section 2(3) of
the 1900 Act excludes any site of any building in a town or village.
Meaning thereby that the immovable property would be more than
the land only or the land on which the construction has already been
made. The fact that the property in dispute is located in a municipal
area of Jagadhri is not in dispute.
13. After coming to the conclusion that the property in dispute on which
right of pre-emption was sought to be exercised by the respondents
was an urban immovable property, the only issue which requires
consideration by this Court is as to whether the exemption of pre-
emption as granted vide notification dated 08.10.1985 would be
available to the property in dispute.
14. A perusal of the notification shows that it has been issued in exercise
of powers conferred under Section 8(2) of the 1913 Act, which
enables the State Government to declare by notification either no
right of pre-emption or only limited right will exist in any local area
or with respect to any land or property or class of land or property.
The notification provides that right of pre-emption shall not exist in
respect of sale of land falling in the areas of municipalities in Haryana.
15. As we have already noticed above, the term ‘land’ as such has not
been defined in the 1913 Act as it is only the agricultural land which
is defined. If the aforesaid notification is read with reference to the
powers available with the State Government to grant exemption
from pre-emption, it is evident that the same has been granted with
reference to land only and not the immovable property. The fact that
Section 8(2) of the 1913 Act uses two terms independently, clearly
suggests that the land and the immovable property have different
meanings. It is evident even from the language of Section 15 of
the 1913 Act, which also provides right of pre-emption in respect of
agricultural land and village immovable property. ‘Village immovable
property’ has been defined to mean immovable property within the
limits of a village other than the agricultural land.
[2024] 2 S.C.R.  133

Jagmohan and Another v. Badri Nath and Others

16. From the aforesaid provisions of the 1913 Act, if read Scheme of the
Act, it is abundantly clear that the land and the immovable property
are two different terms. The immovable property is more than the land
on which certain construction has been made. Guidance can also
be taken from the definition of immovable property, as provided in
Section 3(26) of the 1897 Act, which includes land, means something
more than the land.
17. As the notification dated 08.10.1985 limits its application for taking
away the right of pre-emption only with reference to sale of land
falling in the areas of any municipality, the same will not come to
the rescue of the appellants. In the case in hand, admittedly it is
sale of immovable property, which is more than the land as a rolling
mill had already been set up on the land, which was in occupation
of the respondents as tenants.
18. The issue regarding limitation for filing of the suit is also misconceived
if considered in the light of the facts of the case, the provisions of the
1961 Act and also that the same was not raised by the appellants
before the lower Appellate Court or the High Court.
19. For the reasons mentioned above, we do not find any merit in the
present appeal. The same is, accordingly, dismissed.

Headnotes prepared by: Nidhi Jain Result of the case: Appeal dismissed.
 [2024] 2 S.C.R. 134 : 2024 INSC 92

Gurwinder Singh
v.
State of Punjab & Another
(Criminal Appeal Nos. 704 of 2024)
07 February 2024
[M.M Sundresh and Aravind Kumar,* JJ.]

Issue for Consideration

Whether the High Court was justified in upholding the order passed
by the Special Judge, rejecting the application filed u/s. 439 CrPC
by the appellant seeking regular bail in a case registered under the
Unlawful Activities (Prevention) Act, 1967 alongwith other charges
under the Penal Code and the Arms Act.

Headnotes
Unlawful Activities (Prevention) Act, 1967 – ss. 43D (5), 17,
18, 19 – Rejection of bail – On facts, charges u/ss. 17, 18, 19
of the UAP Act, u/ss. 124A, 153A, 153B, 120-B IPC and u/ss.
25 and 54 of Arms Act against the appellant along with other
co-accused for raising funds for terrorist act, for conspiracy
and for organising of terrorist camps – Bail application u/s.
439 CrPC by the appellant – Rejected by the Special Judge
as also the High Court – Correctness:
Held: Material available on record indicates the involvement of the
appellant in furtherance of terrorist activities backed by members of
banned terrorist organization involving exchange of large quantum
of money through different channels which needs to be deciphered
– In such a scenario if the appellant is released on bail there is
every likelihood that he would influence the key witnesses of the
case which might hamper the process of justice – Furthermore,
mere delay in trial pertaining to grave offences cannot be used
as a ground to grant bail – Also mere fact that the accused has
not received any funds or nothing incriminating was recovered
from his mobile phone does not absolve him of his role in the
instant crime – Thus, the material on record prima facie indicates
the complicity of the accused as a part of the conspiracy since
he was knowingly facilitating the commission of a preparatory act

* Author
[2024] 2 S.C.R.  135

Gurwinder Singh v. State of Punjab & Another

towards the commission of terrorist act u/s. 18 – Bail application

of the appellant is rejected – Penal Code, 1860 – ss. 124A, 153A,
153B, 120-B – Arms Act, 1959 – ss. 25 and 54. [Paras 32-34]
Unlawful Activities (Prevention) Act, 1967 – s. 43D (5) – Scope
and limitations of bail under :
Held: s. 43D(5) modifies the application of the general bail provisions
in respect of offences punishable under Chapter IV and Chapter VI
of the Act – Discretion of Courts must tilt in favour that bail is the
rule, jail is the exception unless circumstances justify otherwise
does not find any place while dealing with bail applications under
UAP Act – Exercise of the general power to grant bail under the
UAP Act is severely restrictive in scope – Words used in proviso
to s. 43D (5) ‘shall not be released’ in contrast with the words as
found in s. 437(1) CrPC ‘may be released’ suggests the intention
of the Legislature to make bail, the exception and jail, the rule –
Thus, the courts are burdened with a sensitive task on hand – In
dealing with bail applications under UAP Act, the courts are merely
examining if there is justification to reject bail – ‘Justifications’ must
be searched from the case diary and the final report submitted
before the Special Court – Bail must be rejected as a ‘rule’, if
after hearing the public prosecutor and after perusing the final
report or Case Diary, the court arrives at a conclusion that there
are reasonable grounds for believing that the accusations are
prima facie true – It is only if the test for rejection of bail is not
satisfied, the courts would proceed to decide the bail application in
accordance with the ‘tripod test’-flight risk, influencing witnesses,
tampering with evidence. [Paras 16, 18-20]
Unlawful Activities (Prevention) Act, 1967 – Bail applications
– Test for rejection – Guidelines on the approach that Courts
must partake in – Reiterated. [Para 23]

Case Law Cited

NIA v. Zahoor Ahmad Shah Watali, [2019] 5 SCR 1060:
(2019) 5 SCC 1 – relied on.
Union of India v. KA Najeeb, [2021] 1 SCR 443 : (2021)
3 SCC 713; Devender Gupta v. National Investigating
Agency : 2014 (2) ALD Cri. 251; Kekhriesatuo Tep and
136 [2024] 2 S.C.R.

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Ors. v. National Investigation Agency [2023] 3 SCR

523: (2023) 6 SCC 58; Sudesh Kedia v. Union of India
: (2021) 4 SCC 704- referred to.

List of Acts
Code of Criminal Procedure, 1973; Penal Code, 1860; Unlawful
Activities (Prevention)Act, 1967; Arms Act, 1959.

List of Keywords
Banned terrorist organization “Sikh for Justice”; Further investigation;
National Investigation Agency; Hawala; Khalistan; Terror activities;
Separatist movement; ISI handler; Disclosure statement; Bail
application; Incriminating conversations; Communication Data
Records; Funding Link with ISI; Voluntary disclosure statement;
Proscribed Terrorist; Bail jurisprudence; Penal offences; Shall not
be released; May be released; Standard of ‘strong suspicion’;
Application for ‘discharge’; Final report or Case Diary; Tripod
test; Flight risk; Influencing witnesses; Tampering with evidence;
Rejection of the bail; Raising funds for terrorist organization; Scrutiny
report; Procurement of weapons; Revenge of the Sacrilege of
Guru Granth Sahib; Involvement of a terrorist gang; Delay in trial;
Complicity of the accused; Conspiracy.

Case Arising From

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.704 of

2024

From the Judgment and Order dated 24.04.2023 of the High Court of
Punjab & Haryana at Chandigarh in CRAD No.144 of 2022

Appearances for Parties

Colin Gonsalves, Sr. Adv., Satya Mitra, Ms. Mugdha, Kamran

Khawaja, Advs. for the Appellant.
Suryaprakash V Raju, A.S.G., Vivek Jain, DAG, Ajay Pal, Kanu
Agarwal, Annam Venkatesh, Mayank Pandey, Arvind Kumar
Sharma, Dr. Reeta Vasishta, Karan Sharma, Rishabh Sharma,
Advs. for the Respondents.
[2024] 2 S.C.R.  137

Gurwinder Singh v. State of Punjab & Another

Judgment / Order of the Supreme Court

Judgment
Aravind Kumar J.
1. Leave granted.
2. The present appeal impugns the order dated 24.04.2023 passed by
the High Court of Punjab and Haryana at Chandigarh in CRA-D No.
144 of 2022 (O&M) whereby the High Court has upheld the order
dated 16.12.2021 passed by the Special Judge, NIA Court, SAS
Nagar, Mohali in an application filed under Section 439 of the Code
of Criminal Procedure, 1973 (Cr.P.C) filed by the Appellant herein-
Gurwinder Singh along with other co-accused seeking regular bail
in NIA Case RC.19/2020/NIA/DLI, registered under Sections 124A,
153A, 153B, 120-B of the Indian Penal Code, 1860 (IPC), Section(s)
17, 18, 19 of the Unlawful Activities (Prevention) Act, 1967 (UAP
Act) and Sections 25 and 54 of the Arms Act, 1959, which came to
be rejected.
3. The factual matrix relevant to dispose the present petition are
summarized as under:
3.1. On 19.10.2018, Sh. Varinder Kumar, Inspector, CIA Staff,
received secret information that two persons are hanging
cloth banners on which “Khalistan Jindabad” and “Khalistan
Referendum 2020”, was written, at Pillars Kot Mit Singh Flyover,
Amritsar. The Police team apprehended one Sukhraj Singh @
Raju and Malkeet Singh @ Meetu on the spot and a case was
registered vide FIR No.152 dated 19.10.2018 under section(s)
124A, 153A, 153B and 120B of IPC against both the arrested
accused. During the course of Investigation, entire module of
the banned terrorist organization named “Sikh for Justice” was
busted and other accused persons involved in the said module
namely, Bikramjit Singh @ Vicky, Manjit Singh @ Manga, Jatinder
Singh @ Goldy, Harpreet Singh @ Happy, Gurwinder Singh
@ Gurpreet Singh @ Gopi-the present Appellant, Harmeet
Singh @ Raju, Roofel @ Raful @ Rahul Gill, Sukhmander
Singh @ Gopi and Kuldeep Singh @ Kuldip Singh @ Keepa
were arrested by Punjab Police.
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3.2. The investigation was completed and final report was presented
on 16.04.2019 before the Trial Court against eleven accused
persons under Sections 117, 112, 124A, 153A, 153B, 120-B of
IPC, Sections 17, 18, 19 of UAP Act and Section 25 of Arms
Act. On further investigation, the police submitted supplementary
reports.
3.3. Due to degree of severity in the charges involved, the
investigation in the present matter was transferred to the National
Investigation Agency (NIA), which took over the investigation of
this case as per the directions of Government of India, Ministry
of Home Affairs issued vide Order F.No.11011/30/2020/NIA dated
04.04.2020 and registered the original case as RC.19/2020/
NIA/DLI dated 05.04.2020. 3rd supplementary chargesheet was
filed by NIA dated 18.12.2020 and Charges were framed by the
Learned Special Judge, NIA Punjab on 09.12.2021.
3.4. The investigation revealed that the accused persons received
funds through illegal means sent by members of the banned
terrorist organization “Sikhs For Justice”, those funds were
channeled through illegal means such as “Hawala” and were
sent to be used for furthering separatist ideology of demanding
a separate State for Sikhs popularly called “Khalistan”, and to
carry out terror activities and other preparatory acts i.e., attempts
to procure weapons to spread terror in India in furtherance of
such separatist movement. The investigation further revealed
the hand of an ISI handler named Javed Khan, to be behind
the operations of this module busted by Punjab Police and NIA.
3.5. The prima facie involvement of the present Appellant has
cropped up in the disclosure statement of the co-accused
Bikramjit Singh @ Vicky (Accused No. 3) recorded on 09.06.2020
while he was in the custody of NIA.
3.6. The said disclosure statement revealed that on 08.07.2018,
the Appellant herein-Gurwinder Singh accompanied Bikramjit
Singh (Accused No. 3) and Harpreet Singh @Happy (Accused
No.7) to Srinagar in a car where they had planned to purchase
a pistol. There they met Sandeep Singh @ Sana and further
went to a JK-Li Camp in Srinagar. Sandeep Singh entered the
Army camp and after half an hour he came out and stated that
pistol was not available. Then they came back to Gurudwara
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Gurwinder Singh v. State of Punjab & Another

Sahib, where Sandeep offered them to purchase RDX instead,

but they declined and all three returned back to Punjab, where
Bikramjit Singh (Accused No. 3) was dropped off mid-way at
Jandialaguru while both, the present Appellant and Harpreet
Singh @ Happy, returned back to their village in Punjab.
3.7. The Appellant’s disclosure statement recorded on 12.06.2020
revealed a similar story as that of Bikramjit Singh. The Appellant
stated that he and Harpreet Singh were childhood friends. In the
1st week of July 2018, Harpreet proposed to visit Srinagar for
Religious Service and asked the Appellant to accompany. The
Appellant in his disclosure statement further stated that he initially
denied to go with them however later agreed to accompany
them when Harpreet Singh continuously insisted him.
3.8. The trial court vide its order dated 16.12.2023 in CIS No.
BA/2445/2021 dismissed the Appellant’s bail application under
Section 439 CrPC on the ground that there were reasonable
grounds to believe the accusation against the Appellant to be
true. The said order was impugned by way of an appeal before
the High Court of Punjab and Haryana and meanwhile on
10.04.2023, 4th supplementary charge sheet was filed by NIA
along with the List of witnesses and list of documents.
3.9. Vide the Impugned order the High Court rejected the grant of
bail to Appellant on the ground of seriousness of the nature
of offence and that none of the protected witnesses had been
examined.
SUBMISSION ON BEHALF OF THE PARTIES
4. The Learned Senior Counsel, Mr. Colin Gonsalves, appearing on
behalf of the Appellant made the following submissions in support
of the Appellant’s bail application:
5. Mr. Gonsalves, learned Senior Counsel contended that the Appellant
has been denied bail by the Hon’ble High Court and the Ld. Special
Judge by relying upon the disclosure statement of Bikramjit Singh
alias Vicky and argued that the said disclosure statement cannot be
used to implicate the present Appellant.
6. Learned Senior Counsel further raised contentions about the lack of
scrutiny of the Appellant’s mobile phone, marked as M-4 to indicate
that the phone number did not belong to the Appellant. He argued
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that the absence of incriminating conversations in the Communication

Data Records (CDR) related to the Appellant’s phone supports the
case for bail. He further contended that the Appellant has been in
custody since the last Five years facing charges of UAP Act which
is contrary to the law laid down in KA Najeeb v. Union of India.1
7. He further submitted that only 19 out of 106 witnesses have been
examined in the last five-year period. He also drew our attention to
terror funding chart to demonstrate that the name of the Appellant
does not find place in the same. Mr. Gonsalves also questioned the
omission of the alleged main conspirator, Nihal Singh, as an accused,
emphasizing that the Appellant did not procure any weapons.
8. He further sought our attention to the 4th supplementary chargesheet,
aimed at establishing a funding link with ISI, to illustrate the Appellant’s
exclusion from relevant documentation. Lastly, he stated that out of
Nine protected witnesses that have been examined, eight have not
mentioned the name of Appellant. Hence, he prayed to set aside
the impugned order and grant bail to the Appellant.
9. Per contra, Mr. Suryaprakash V. Raju, learned Additional Solicitor
General, on behalf of the Respondent, submitted that there is sufficient
evidence on record to prove the incriminating role of the Appellant
and the same is revealed by the statements of Protected witnesses.
10. He further submitted that the Appellant-accused along with co-
accused Bikarmjit Singh @ Vicky (Accused No. 3) were involved in
the activities of “Sikhs for Justice”, a banded terrorist organisation,
whose chief proponent is Gurpatwant Singh Pannu (Accused No. 12)
and Bikramjit Singh @ Vicky (Accused No. 3) had asked their known
persons to arrange weapons from Kashmir. In furtherance of their
activities to procure arms and ammunition, the Appellant-accused
along with co-accused Bikarmjit Singh @ Vicky and Harpreet Singh
@ Happy (Accused No. 7) had visited Srinagar.
11. He further submitted that Appellant in his voluntary disclosure
statement admitted that on gaining knowledge of purpose of visit to
Srinagar, he voluntarily continued the journey. In fact, the Appellant
suggested an alternative to the co-accused and advised them to
procure the weapon from Western Uttar Pradesh.

1 [2021] 1 SCR 443 : (2021) 3 SCC 713

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12. Further, he submitted that the provisions of section 43D(5) of

Unlawful Activities (Prevention) Act, 1967 are completely applicable
in this case and as such the High court has rightly denied bail to
the Appellant-accused.
13. He also contended that the case is presently under trial and so far
22 witnesses have been examined. The accused is facing charges
of grave nature pertaining to crimes that are not attributable to an
individual but members of a terrorist gang operating at the behest of
Gurpatwant Singh Pannu (Accused No. 12), a proscribed terrorist.
If the Appellant is released on bail, there is every likelihood that he
will influence the key witnesses of the case hampering the process
of justice. Hence, he prayed that the bail petition should be rejected.
DISCUSSION AND CONCLUSION
14. We have heard the learned counsel on behalf of both the parties and
have perused the records of the case. The present case involves
the charges under the UAP Act along with other charges under the
IPC and Arms Act therefore, it is apt to consider the bail provision
envisaged under section 43D of the UAP Act before we delve to
analyze the facts.
Bail under UAP Act: Section 43D (5)
15. In the course of oral argument, both sides have laid great
emphasis on the interpretation of section 43D(5) of the 1967
Act. We will begin our analysis with a discussion on the scope and
limitations of bail under Section 43D(5) UAP Act.
We shall extract Section 43D(5) for easy reference:
“Section 43D - Modified application of certain provisions
of the Code
(1)......
................
(5) Notwithstanding anything contained in the Code,
no person accused of an offence punishable under
Chapters IV and VI of this Act shall, if in custody, be
released on bail or on his own bond unless the Public
Prosecutor has been given an opportunity of being
heard on the application for such release:
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Provided that such accused person shall not be

released on bail or on his own bond if the Court, on
a perusal of the case diary or the report made under
section 173 of the Code is of the opinion that there are
reasonable grounds for believing that the accusation
against such person is prima facie true.
(6) The restrictions on granting of bail specified in sub-
section (5) is in addition to the restrictions under the Code
or any other law for the time being in force on granting
of bail.
(7) Notwithstanding anything contained in Sub-sections
(5) and (6), no bail shall be granted to a person accused
of an offence punishable under this Act, if he is not an
Indian citizen and has entered the country unauthorizedly
or illegally except in very exceptional circumstances and
for reasons to be recorded in writing.”
16. The source of the power to grant bail in respect of non-bailable
offences punishable with death or life imprisonment emanates from
Section 439 CrPC. It can be noticed that Section 43D(5) of the
UAP Act modifies the application of the general bail provisions in
respect of offences punishable under Chapter IV and Chapter VI of
the UAP Act.
17. A bare reading of Sub-section (5) of Section 43D shows that apart
from the fact that Sub-section (5) bars a Special Court from releasing
an accused on bail without affording the Public Prosecutor an
opportunity of being heard on the application seeking release of an
accused on bail, the proviso to Sub-section (5) of Section 43D puts
a complete embargo on the powers of the Special Court to release
an accused on bail. It lays down that if the Court, ‘on perusal of
the case diary or the report made under Section 173 of the Code
of Criminal Procedure’, is of the opinion that there are reasonable
grounds for believing that the accusation, against such person, as
regards commission of offence or offences under Chapter IV and/or
Chapter VI of the UAP Act is prima facie true, such accused person
shall not be released on bail or on his own bond. It is interesting
to note that there is no analogous provision traceable in any other
statute to the one found in Section 43D(5) of the UAP Act. In that
sense, the language of bail limitation adopted therein remains unique
to the UAP Act.
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Gurwinder Singh v. State of Punjab & Another

18. The conventional idea in bail jurisprudence vis-à-vis ordinary penal

offences that the discretion of Courts must tilt in favour of the
oft-quoted phrase - ‘bail is the rule, jail is the exception’ – unless
circumstances justify otherwise - does not find any place while dealing
with bail applications under UAP Act. The ‘exercise’ of the general
power to grant bail under the UAP Act is severely restrictive in scope.
The form of the words used in proviso to Section 43D (5)– ‘shall
not be released’ in contrast with the form of the words as found in
Section 437(1) CrPC - ‘may be released’ – suggests the intention of
the Legislature to make bail, the exception and jail, the rule.
19. The courts are, therefore, burdened with a sensitive task on hand. In
dealing with bail applications under UAP Act, the courts are merely
examining if there is justification to reject bail. The ‘justifications’
must be searched from the case diary and the final report submitted
before the Special Court. The legislature has prescribed a low, ‘prima
facie’ standard, as a measure of the degree of satisfaction, to be
recorded by Court when scrutinising the justifications [materials on
record]. This standard can be contrasted with the standard of ‘strong
suspicion’, which is used by Courts while hearing applications for
‘discharge’. In fact, the Supreme Court in Zahoor Ali Watali2 has
noticed this difference, where it said:
“In any case, the degree of satisfaction to be recorded
by the Court for opining that there are reasonable
grounds for believing that the accusation against
the accused is prima facie true, is lighter than the
degree of satisfaction to be recorded for considering a
discharge application or framing of charges in relation
to offences under the 1967 Act.”
20. In this background, the test for rejection of bail is quite plain. Bail
must be rejected as a ‘rule’, if after hearing the public prosecutor and
after perusing the final report or Case Diary, the Court arrives at a
conclusion that there are reasonable grounds for believing that the
accusations are prima facie true. It is only if the test for rejection of
bail is not satisfied – that the Courts would proceed to decide the bail
application in accordance with the ‘tripod test’ (flight risk, influencing
witnesses, tampering with evidence). This position is made clear by

2 [2019] 5 SCR 1060 : (2019) 5 SCC 1

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Sub-section (6) of Section 43D, which lays down that the restrictions,
on granting of bail specified in Sub-section (5), are in addition to the
restrictions under the Code of Criminal Procedure or any other law
for the time being in force on grant of bail.
21. On a textual reading of Section 43 D(5) UAP Act, the inquiry that
a bail court must undertake while deciding bail applications under
the UAP Act can be summarised in the form of a twin-prong test :
1) Whether the test for rejection of the bail is satisfied?
1.1 Examine if, prima facie, the alleged ‘accusations’ make out
an offence under Chapter IV or VI of the UAP Act
1.2 Such examination should be limited to case diary and final
report submitted under Section 173 CrPC;
2) Whether the accused deserves to be enlarged on bail in light
of the general principles relating to grant of bail under Section
439 CrPC (‘tripod test’)?
On a consideration of various factors such as nature of offence,
length of punishment (if convicted), age, character, status of
accused etc., the Courts must ask itself :
2.1 Whether the accused is a flight risk?
2.2 Whether there is apprehension of the accused tampering
with the evidence?
2.3 Whether there is apprehension of accused influencing
witnesses?
22. The question of entering the ‘second test’ of the inquiry will not
arise if the ‘first test’ is satisfied. And merely because the first
test is satisfied, that does not mean however that the accused is
automatically entitled to bail. The accused will have to show that he
successfully passes the ‘tripod test’.
Test for Rejection of Bail: Guidelines as laid down by Supreme
Court in Watali’s Case
23. In the previous section, based on a textual reading, we have
discussed the broad inquiry which Courts seized of bail applications
under Section 43D(5) UAP Act r/w Section 439 CrPC must indulge
in. Setting out the framework of the law seems rather easy, yet the
application of it, presents its own complexities. For greater clarity in
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Gurwinder Singh v. State of Punjab & Another

the application of the test set out above, it would be helpful to seek
guidance from binding precedents. In this regard, we need to look no
further than Watali’s case which has laid down elaborate guidelines
on the approach that Courts must partake in, in their application of
the bail limitations under the UAP Act. On a perusal of paragraphs
23 to 29 and 32, the following 8-point propositions emerge and they
are summarised as follows:
● Meaning of ‘Prima facie true’ [para 23]: On the face of it,
the materials must show the complicity of the accused in
commission of the offence. The materials/evidence must be
good and sufficient to establish a given fact or chain of facts
constituting the stated offence, unless rebutted or contradicted
by other evidence.
● Degree of Satisfaction at Pre-Chargesheet, Post Chargesheet
and Post-Charges – Compared [para 23]: Once charges
are framed, it would be safe to assume that a very strong
suspicion was founded upon the materials before the Court,
which prompted the Court to form a presumptive opinion as to
the existence of the factual ingredients constituting the offence
alleged against the accused, to justify the framing of charge. In
that situation, the accused may have to undertake an arduous
task to satisfy the Court that despite the framing of charge, the
materials presented along with the charge-sheet (report under
Section 173 CrPC), do not make out reasonable grounds for
believing that the accusation against him is prima facie true.
Similar opinion is required to be formed by the Court whilst
considering the prayer for bail, made after filing of the first report
made under Section 173 of the Code, as in the present case.
● Reasoning, necessary but no detailed evaluation of
evidence [para 24]: The exercise to be undertaken by the
Court at this stage--of giving reasons for grant or non-grant of
bail--is markedly different from discussing merits or demerits of
the evidence. The elaborate examination or dissection of the
evidence is not required to be done at this stage.
● Record a finding on broad probabilities, not based on proof
beyond doubt [para 24]: “The Court is merely expected to
record a finding on the basis of broad probabilities regarding
the involvement of the accused in the commission of the stated
offence or otherwise.”
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● Duration of the limitation under Section 43D(5) [para 26]:

The special provision, Section 43-D of the 1967 Act, applies
right from the stage of registration of FIR for the offences under
Chapters IV and VI of the 1967 Act until the conclusion of the
trial thereof.
● Material on record must be analysed as a ‘whole’; no
piecemeal analysis [para 27]: The totality of the material
gathered by the investigating agency and presented along
with the report and including the case diary, is required to be
reckoned and not by analysing individual pieces of evidence
or circumstance.
● Contents of documents to be presumed as true [para 27]:
The Court must look at the contents of the document and take
such document into account as it is.
● Admissibility of documents relied upon by Prosecution
cannot be questioned [para 27]: The materials/evidence
collected by the investigation agency in support of the
accusation against the accused in the first information report
must prevail until contradicted and overcome or disproved by
other evidence…….In any case, the question of discarding the
document at this stage, on the ground of being inadmissible in
evidence, is not permissible.
24. It will also be apposite at this juncture to refer to the directions issued
in Devender Gupta v. National Investigating Agency3 wherein a
Division Bench of the High Court of Andhra Pradesh strove to strike
a balance between the mandate under Section 43D on one hand
and the rights of the accused on the other. It was held as follows:
“The following instances or circumstances, in our view,
would provide adequate guidance for the Court to form
an opinion, as to whether the accusation in such cases
is “prima facie true”:
1) Whether the accused is/are associated with any
organization, which is prohibited through an order
passed under the provisions of the act;

3 2014 (2) ALD Cri. 251

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Gurwinder Singh v. State of Punjab & Another

2) Whether the accused was convicted of the offenses

involving such crimes, or terrorist activities, or though
acquitted on technical grounds; was held to be
associated with terrorist activities;
3) Whether any explosive material, of the category used
in the commission of the crime, which gave rise to the
prosecution; was recovered from, or at the instance
of the accused;
4) Whether any eye witness or a mechanical
device, such as CC camera, had indicated the
involvement, or presence of the accused, at or
around the scene of occurrence; and
5) Whether the accused was/were arrested, soon after
the occurrence, on the basis of the information, or
clues available with the enforcement or investigating
agencies.”
25. In the case of Kekhriesatuo Tep and Ors. v. National Investigation
Agency4 the Two-Judge Bench (Justice B.R. Gavai & Justice Sanjay
Karol) while dealing with the bail application for the offence of
supporting and raising funds for terrorist organization under section
39 and 40 of the UAP Act relied upon NIA v. Zahoor Ahmad Shah
Watali5 and observed that:
“while dealing with the bail petition filed by the accused
against whom offences under chapter IV and VI of UAPA
have been made, the court has to consider as to whether
there are reasonable grounds for believing that the
accusation against the accused is prima facie true. The
bench also observed that distinction between the words
“not guilty” as used in TADA, MCOCA and NDPS Act as
against the words “prima facie” in the UAPA as held in
Watali’s Case (supra) to state that a degree of satisfaction
required in the case of “not guilty” is much stronger than
the satisfaction required in a case where the words used
are “prima facie”

4 [2023] 3 SCR 523 : (2023) 6 SCC 58

5 [2019] 5 SCR 1060 : (2019) 5 SCC 1
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26. In the case of Sudesh Kedia v. Union of India6 the Bench of

Justice Nageswara Rao and Justice S. Ravindra Bhat while dealing
with a bail application for the offence u/s. 17, 18 and 21 of the UAP
Act relied upon the principle propounded in Watali’s case (supra)
and observed that:
“the expression “prima facie” would mean that the materials/
evidence collated by the investigating agency in reference
to the accusation against the accused concerned must
prevail until contradicted and overcome or disproved by
other evidence, and on the face of it, shows that complicity
of such accused in the commission of the stated offence.
It must be good and sufficient on its face to establish a
given fact or the chain of facts constituting the stated
offence, unless rebutted or contradicted.”
27. In the light of these guiding principles, we shall now proceed to decide
whether the additional limitations found in Section 43D(5) UAP Act
are attracted in the facts of the present case. In other words, we
shall inquire if the first test (as set out above), i.e., test for rejection of
bail, is satisfied. For this purpose, it will, firstly, have to be examined
whether the allegations/accusations against the Appellants contained
in charge-sheet documents and case diary, prima facie, disclose the
commission of an offence Section 17,18 and 19 of the UAP Act.
Section 17 of the UAP Act states:
17. Punishment for raising funds for terrorist act.
—Whoever, in India or in a foreign country, directly or
indirectly, raises or collects funds or provides funds to
any person or persons or attempts to provide funds to any
person or persons, knowing that such funds are likely to be
used by such person or persons to commit a terrorist act,
notwithstanding whether such funds were actually used or
not for commission of such act, shall be punishable with
imprisonment for a term which shall not be less than five
years but which may extend to imprisonment for life, and
shall also be liable to fine.

6 (2021) 4 SCC 704

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Section 18 of the UAP Act states:

18. Punishment for conspiracy, etc.—Whoever conspires
or attempts to commit, or advocates, abets, advises or
[incites, directly or knowingly facilitates] the commission of,
a terrorist act or any act preparatory to the commission of
a terrorist act, shall be punishable with imprisonment for
a term which shall not be less than five years but which
may extend to imprisonment for life, and shall also be
liable to fine.
Section 19 of the UAP Act states:
19. Punishment for harbouring, etc.—Whoever
voluntarily harbours or conceals, or attempts to harbour
or conceal any person knowing that such person is a
terrorist shall be punishable with imprisonment for a term
which shall not be less than three years but which may
extend to imprisonment for life, and shall also be liable to
fine: Provided that this section shall not apply to any case
in which the harbour or concealment is by the spouse of
the offender.”
28. Having examined the provisions of law, let us now consider the
material available on record to ascertain whether the case of the
Appellant satisfies the tests as mentioned herein above.
29. The Appellant’s counsel contended that the Appellant’s mobile phone
has not undergone scrutiny, and therefore, no conclusive connection
to the charged offenses could be established. However, the scrutiny
report of Bikramjit Singh @ Vicky’s (Accused No. 3) mobile phone,
marked as M-5 reveals at serial no. 10, that the present Appellant
was in communication with Accused No.3 multiple times. The Call
Detail Records (CDRs) unveils a consistent pattern of communication
between the Appellant and Bikramjit Singh (Accused No.3) even
prior to their trip to Srinagar for procurement of weapons. Detailed
scrutiny of the CDRs indicates that the Appellant had engaged in
communication with Bikramjit Singh (Accused No.3) approximately
26 times, spanning from June 22, 2018 to October 19, 2018, the
day of his arrest.
30. The Appellant’s counsel has objected to the denial of bail by the High
Court and Special Court upon relying on the disclosure statements of
Bikarmjit Singh @ Vicky (Accused No.3) and the Appellant himself.
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Accused No.3 in his disclosure statement (Annexure P3) has stated

that on 08.07.2018, he along with Harpreet Singh @ Happy and
Gurwinder Singh @ Gurpreet Singh Gopi (the present Appellant)
went to Srinagar for the purchase of pistol which was sought to
be used by them to take revenge of the Sacrilege of Guru Granth
Sahib. Further, the disclosure Statement of the present Appellant
(Annexure P4) corroborated the disclosure Statement of Accused
No.3 wherein he stated that he went with Accused No.3 and Harpreet
Singh @ Happy to Srinagar. Though the present Appellant has taken
the stance of not knowing the purpose of the visit to Srinagar, in his
disclosure statement, he has admitted to the fact that he suggested
both Bikramjit Singh (Accused No.3) and Harpreet Singh (Accused
No.7) to purchase the weapon from western Uttar Pradesh.
31. The Appellant’s counsel has stated that in the terror funding chart the
name of the Appellant does not find place. It is pertinent to mention
that the charges in the present case reveals the involvement of a
terrorist gang which includes different members recruited for multiple
roles. Hence, the mere fact that the accused has not received any
funds or nothing incriminating was recovered from his mobile phone
does not absolve him of his role in the instant crime.
32. The Appellant’s counsel has relied upon the case of KA Najeeb
(supra) to back its contention that the appellant has been in jail for
last five years which is contrary to law laid down in the said case.
While this argument may appear compelling at first glance, it lacks
depth and substance. In KA Najeeb’s case this court was confronted
with a circumstance wherein except the respondent-accused, other
co-accused had already undergone trial and were sentenced to
imprisonment of not exceeding eight years therefore this court’s
decision to consider bail was grounded in the anticipation of the
impending sentence that the respondent-accused might face upon
conviction and since the respondent-accused had already served
portion of the maximum imprisonment i.e., more than five years,
this court took it as a factor influencing its assessment to grant bail.
Further, in KA Najeeb’s case the trial of the respondent-accused was
severed from the other co-accused owing to his absconding and he
was traced back in 2015 and was being separately tried thereafter
and the NIA had filed a long list of witnesses that were left to be
examined with reference to the said accused therefore this court
was of the view of unlikelihood of completion of trial in near future.
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However, in the present case the trial is already under way and 22
witnesses including the protected witnesses have been examined.
As already discussed, the material available on record indicates the
involvement of the appellant in furtherance of terrorist activities backed
by members of banned terrorist organization involving exchange of
large quantum of money through different channels which needs
to be deciphered and therefore in such a scenario if the appellant
is released on bail there is every likelihood that he will influence
the key witnesses of the case which might hamper the process of
justice. Therefore, mere delay in trial pertaining to grave offences
as one involved in the instant case cannot be used as a ground to
grant bail. Hence, the aforesaid argument on the behalf the appellant
cannot be accepted.
33. Hence, we are of the considered view that the material on record
prima facie indicates the complicity of the accused as a part of the
conspiracy since he was knowingly facilitating the commission of a
preparatory act towards the commission of terrorist act under section
18 of the UAP Act.
34. For the aforementioned reasons the bail application of the Appellant
is rejected and consequently the appeal fails. Needless to say, that
any observation made hereinabove is only for the purpose of deciding
the present bail application and the same shall not be construed
as an expression on the merits of the matter before the trial court.

Headnotes prepared by: Nidhi Jain  Result of the case: Appeal Dismissed.
 [2024] 2 S.C.R. 152 : 2024 INSC 96

Rajasekar
v.
The State Rep. by The Inspector of Police
(Criminal Appeal No. 756 of 2024)
5 February 2024
[Vikram Nath and Satish Chandra Sharma, JJ.]

Issue for Consideration

The appellant who was convicted for offence u/ss. 3(a) r/w s. 4
of the POCSO Act, and was awarded the sentence of ten years
RI alongwith a fine, the quantum of sentence awarded, if justified.

Headnotes
Protection of Children from Sexual Offences Act, 2012 – ss. 3(a)
r/w s. 4 – Quantum of sentence – Conviction of the appellant for
offences u/ss. 3(a)/4 and sentenced to ten years RI alongwith a
fine of Rs. 5,000/- with a default clause to undergo SI for three
months alongwith the compensation of Rs One Lakh to the
victim by the courts below – In appeal before this Court, the
appellant’s plea that at the time of conviction, the minimum
sentence prescribed u/s. 4 was seven years and as on date,
the appellant have already served more than seven years of
his sentence; and that the appellant is providing for the day-
to-day expenses of the victim and her child:
Held: Considering the totality of the circumstances of the case,
to meet the ends of justice, the period of imprisonment awarded
is reduced to the period already undergone by the appellant –
However, the conviction u/s. 3(a) r/w s. 4 is upheld – Sentence/
sentencing. [Para 6]

List of Acts
Protection of Children from Sexual Offences Act, 2012.

List of Keywords
Protection of Children from Sexual Offences; Quantum of sentence;
Compensation; Minimum sentence; Sentence modified; Sentence
reduced.
[2024] 2 S.C.R.  153

Rajasekar v. The State Rep. by The Inspector of Police

Case Arising From

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.756 of

2024

From the Judgment and Order dated 26.10.2021 of the High Court of
Judicature at Madras in CRLA No.176 of 2017

Appearances for Parties

B Karunakaran, Mrs. K Balambihai, Ajith Williyam S, V M Eashwar,

S. Gowthaman, Advs. for the Appellant.
Judgment / Order of the Supreme Court
Order
Leave granted.
2. The Appellant before us is aggrieved by the judgement dated
26.10.2021 passed by the High Court of Judicature at Madras in
Criminal Appeal No. 176 of 2017 whereby the High Court dismissed
the appeal preferred by the Appellant and confirmed the judgement
dated 03.02.2017, passed by the Sessions Court--convicting the
Appellant for offences u/S. 3(a) r/w Sec. 4 of the Protection of
Children from Sexual Offences (‘POCSO’) Act, 2012.
3. At the outset, it must be noted that vide order dated 12.07.2022,
this Court issued notice only on the quantum of sentence awarded
to the Appellant. Therefore, only that limited question is required to
be considered by this Court.
4. Vide the judgement of the Sessions Court, the Appellant was
sentenced to undergo ten years RI along with a fine of INR 5,000
with a default clause to undergo SI for three months. The State
Government was also directed to pay INR 1,00,000 to the victim
as compensation under Rule 7(2) of the POCSO Rules, 2012. The
sentence imposed by the Sessions Court was confirmed by the High
Court without any modification.
5. Learned Counsel for the Appellant submits that at the time of
conviction, the minimum sentence prescribed u/Sec. 4 of the POCSO
Act was seven years and as on date, the Appellant has already
served more than seven years of his sentence. It is also submitted
154 [2024] 2 S.C.R.

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that the Appellant is providing for the day-to-day expenses of the

victim and her child and therefore, further imprisonment will impact
not only his family but also the victim’s. On these grounds, Learned
Counsel presses for leniency.
6. Having heard the Learned Counsel for the parties and considering the
totality of the circumstances of the case, we are of the view that the
ends of justice would be met if the period of imprisonment awarded
against the Appellant is reduced to the period already undergone by
him. Accordingly, the appeal is allowed in part. The conviction of the
Appellant u/s. u/S. 3(a) r/w Sec. 4 of the POCSO Act, 2012 is hereby
confirmed. However, the sentence imposed by the Sessions Court
and confirmed by the High Court is hereby modified and reduced
to the period already undergone by the Appellant.
7. The Appellant be set at liberty forthwith in case he is not required
in any other case.
8. With the aforesaid, the appeal stands disposed of. Pending
application(s), if any, shall also stand disposed of.

Headnotes prepared by: Nidhi Jain  Result of the case: Appeal partly allowed.
 [2024] 2 S.C.R. 155 : 2024 INSC 100

Vinod Kanjibhai Bhagora

v.
State of Gujarat & Anr.
(Civil Appeal No. 1571 of 2024)

02 February 2024
[Vikram Nath and Satish Chandra Sharma, JJ.]

Issue for Consideration

Whether the Appellant’s subsequent employment with the State
Government could be construed to mean that the Appellant had
been ‘absorbed’ by the State Government, such that the Appellants’
prior service with the Central Government would be considered as
a part of ‘qualifying service’ in terms of Rule 25(ix) of the Gujarat
Civil Services (Pension) Rules, 2022.

Headnotes
Gujarat Civil Services (Pension) Rules, 2022 – r.25(ix) –
Interpretation – Qualifying Service – Inclusion of the period
of service rendered to the Central Government as a part of
‘qualifying service’ under the State Government’s Pension Rules:
Held: Pension schemes floated by the State Government form a
part of delegated beneficial legislation; and ought to be interpreted
widely subject to such interpretation not running contrary to the
express provisions of the Pension Rules – State Government is
a model employer; and ought to uphold principles of fairness and
clarity –The interpretation sought to be advanced is narrow and
restrictive so as to limit the benefit of r.25(ix) only to such person(s)
who may have explicitly been absorbed by the State Government
as against persons such as the Appellant herein who had most
certainly, implicitly been absorbed by the State Government i.e.,
the Appellants’ participation in the selection process was prefaced
by an NOC from the Central Government; and subsequently was
followed by the tender of a technical resignation to the Central
Government upon securing employment with the State Government
– High Court erred in its interpretation of r.25(ix) and unfairly
deprived the Appellant from seeking inclusion of the period of
service rendered to the Central Government as a part of ‘qualifying
service’ under the Pension Rules – Respondent No.1 to consider
the service rendered by the Appellant to the Central Government
in his capacity as Postal Assistant in the Gandhinagar Postal
156 [2024] 2 S.C.R.

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Division to be considered as qualifying service and re-calculate

the terminal benefits/pensionary benefits – Impugned order set
aside. [Paras 17-20, 22]
Service Law – Pension – Grant of – raison d’etre – Discussed.
[Para 10]

Case Law Cited

LIC v. Shree Lal Meena, [2019] 5 SCR 391 : (2019) 4
SCC 479 – referred to.

List of Acts
Gujarat Civil Services (Pension) Rules, 2022; Constitution of India.

List of Keywords
Pension; Subsequent employment; Absorbed; Prior service;
Qualifying service; Technical resignation; Terminal benefits/
pensionary benefits.

Case Arising From

CIVIL APPELLATE JURISDICTION : Civil Appeal No.1571 of 2024

From the Judgment and Order dated 08.03.2018 of the High Court
of Gujarat at Ahmedabad in SCA No.22341 of 2017

Appearances for Parties

Rishabh Parikh, E. C. Agrawala, Advs. for the Appellant.
Ms. Aishwarya Bhati, A.S.G., Ms. Swati Ghildiyal, Ms. Devyani
Bhatt, Gurmeet Singh Makker, Ms. Ruchi Kohli, Ms. Archana Pathak
Dave, Ms. Suhasini Sen, S S Rebello, Shyam Gopal, Raghav
Sharma, Sughosh Subramanyam, Ms. Rekha Pandey, Advs. for the
Respondents.

Judgment / Order of the Supreme Court

Order
1. Leave granted. The decision of the High Court of Gujarat (the “High
Court”) in Special Civil Application No. 22341 of 2017 whereunder,
the High Court declined to exercise its jurisdiction under Article 226
of the Constitution of India, is assailed before us (the “Impugned
Order”).
[2024] 2 S.C.R.  157

Vinod Kanjibhai Bhagora v. State of Gujarat & Anr.

2. The Appellant was engaged by the Central Government as a Postal

Assistant in the Gandhinagar Postal Division on 12.08.1983 and
thereafter continued to serve in the aforesaid role up until 16.07.1993.
3. In the interregnum, an invitation for application(s) for recruitment to
the post of Senior Assistant in the Ministry of Health and Medical
Services, Government of Gujarat (the “State Government”) came to
be issued. Accordingly, the Appellant herein obtained a No-Objection
Certificate (“NoC”) dated 18.06.1993 from the Superintendent of
Post Office, Gandhinagar Division and thereafter participated in the
aforesaid selection process.
4. On 16.07.1993, the Appellant having been selected as Senior
Assistant in the State Government, tendered a technical resignation
in qua his employment as a Postal Assistant in the Gandhinagar
Postal Division.
5. On 18.08.1993, the Appellant joined as a Senior Assistant in the
State Government; and thereafter went on to serve the State
Government for a period extending to 23 (twenty-three) years up
until his superannuation (the “Subject Period”). Thereafter, the State
Government only paid the Appellant terminal benefits/pensionary
benefits to the extent of the Subject Period (the “Impugned Action”).
6. Aggrieved by Impugned Action of the State Government, the Appellant
made a representation before the Chief Postmaster General, Gujarat
Circle seeking the inclusion of the period of his service with the
Central Government i.e., as a Postal Assistant in the Gandhinagar
Postal Division between ‘1983 and ‘1993 to be considered in the
grant of terminal benefits / pensionary benefits as per Rule 25 of
the Gujarat Civil Services (Pension) Rules, 2022 (the “Pension
Rules”). However, vide an order dated 30.06.2014, the aforesaid
representation came to be rejected on the sole ground that the
Appellant had tendered an unconditional resignation.
7. In the aforesaid circumstances, the Appellant was constrained to
prefer a writ petition before the High Court. Vide the Impugned Order,
the High Court dismissed the aforesaid writ petition and observed inter
alia that the Appellants’ case would not attract the benefit envisaged
under Rule 25 of the Pension Rules. The operative paragraph(s) of
the decision of the High Court are reproduced hereunder:
158 [2024] 2 S.C.R.

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“6. The petitioner has claimed the pensionary benefits from

the State Government for the period he worked as Central
Government for the year 1983 to 1993. Reliance is placed
upon Rule 25 of the above Rules. However, considering
Rule 25 of the above Rules, we are of the opinion that the
same shall not be applicable to the facts and circumstances
of the case on the hand. Rule 25 of the said Rules is
with respect to the qualifying service. The employee who
has rendered his service with the Central Government is
thereafter absorbed in the State Government. Thereafter, it
was found that he has not completed the qualifying service
while working with the State Government. In that case for
the purpose of qualifying service, the service rendered by
him as a Central Government employee is required to be
counted and that too for the purpose of qualifying service.
7. Therefore, in the facts and circumstances of the case,
Rule 25 of the above Rules would not be applicable.
8. Under the circumstances, as observed hereinabove, the
petitioner has been paid the pension/pensionary/terminal
benefits of the State Government where he last worked,
considering the service rendered by him with the State
Government.”
8. Mr. Rishabh Parikh, Ld. Counsel appearing on behalf of the
Appellant has drawn the attention of the Court to Rule 25(ix) of the
Pension Rules. In the aforesaid context, he has submitted that the
Appellant has served as Postal Assistant in the Gandhinagar Postal
Division between ‘1983 and ‘1993 i.e., service under the Central
Government having a pension scheme, and thereafter served the
State Government for the Subject Period. Accordingly, it was his
principal contention that the Appellant was absorbed by the State
Government and consequently, in terms of Rule 25(ix) of the Pension
Rules, the Appellants’ terminal benefits / pensionary benefits could
not be limited to merely the Subject Period but must also include 10
(ten) years of service rendered by him to the Central Government.
9. On the other hand, Ms. Swati Ghildiyal, AOR appearing on behalf of
Respondent No. 1 i.e., the State of Gujarat has vehemently opposed
the aforesaid submission(s). The main thrust of her argument(s)
before this Court is that that the Appellant was not entitled to seek
[2024] 2 S.C.R.  159

Vinod Kanjibhai Bhagora v. State of Gujarat & Anr.

the benefit of Rule 25(ix) of the Pension Rules on account of the

Appellants’ appointment in the State Government emanating from
a fresh recruitment i.e., pursuant to an invitation for application(s)
to the post of Senior Assistant in the Ministry of Health and Medical
Services issued by the State Government.
10. As a precursor, it would be relevant to consider the raison d’etre
qua the grant of pension. Similarly, it would be equally important
to clarify that pension is earned by a government servant in lieu of
tireless service rendered by him / her (as the case may be) during the
course of their employment; and often is an important consideration
for person(s) seeking government employment. Accordingly, in our
considered opinion, the raison d’etre qua the grant of pension by
the State Government would inextricably be linked to a concentrated
effort by the State Government to enable its former employee(s) to
tide over the vagaries and vicissitudes associated with old age vide
a pension scheme.
11. In this context, we must now examine Rule 25(ix) of the Pension
Rules. For ease of reference the same is reproduced as under:
“Rule 25. Qualifying Service : Subject to the provisions of
these rules, qualifying service of a Government employee,
means and includes -
xxx xxx xxx
(ix) services rendered under Central Government/
Central Government Autonomous bodies having pension
scheme, by a Government employee who is absorbed in
Government”
12. The fulcrum of the dispute before this Court pertains to whether the
Appellants’ subsequent employment with the State Government could
be construed to mean that the Appellant had been ‘absorbed’ by the
State Government, such that the Appellants’ prior service with the
Central Government would be considered as a part of ‘qualifying
service’ in terms of Rule 25(ix) of the Pension Rules.
13. Admittedly, the Appellant served the Central Government as a
Postal Assistant in the Gandhinagar Postal Division between ‘1983
– ‘1993 i.e., for a period spanning close to a decade. Subsequently,
pursuant to an invitation of application(s) for recruitment to the post
160 [2024] 2 S.C.R.

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of Senior Assistant in the Ministry of Health and Medical Services,

Government of Gujarat, the Appellant herein after obtaining an NOC
from the Central Government, applied for and subsequently came
to be appointed to the aforesaid post. Thereafter, the Appellant
volunteered a technical resignation in order to be able to serve the
State Government.
14. On a perusal of Rule 25(ix) of the Pension Rules we note that,
qualifying service for the purpose of calculating terminal benefits /
pensionary benefits under the Pension Rules would include prior
services rendered by such an person under inter alia the Central
Government provided that (i) the employment of such person under the
Central Government encompassed an underlying pension scheme;
and (ii) such person came to be absorbed by the State Government.
15. In the present case, it is an admitted and undisputed fact that the
prior employment of the Appellant under the Central Government
contemplated an underlying pension and thus, the dispute before
us is only limited to whether the Appellant came to be ‘absorbed’
by the State Government.
16. Respondent No. 1’s stance is premised on the fact that that the
Appellant joined the services of the State Government pursuant to a
fresh recruitment i.e., pursuant to an invitation for applications issued
by the State Government; and, merely because the Appellant was a
Central Government employee in his previous avatar, he could not
be considered to have been absorbed by the State Government.
17. It is well settled that pension scheme(s) floated by the State
Government form a part of delegated beneficial legislation; and ought
to be interpreted widely subject to such interpretation not running
contrary to the express provisions of the Pension Rules1. Furthermore,
it would be relevant to underscore that the State Government is a
model employer; and ought to uphold principles of fairness and clarity.
18. In the aforesaid context, we have carefully considered the Pension
Rules, and we find that the interpretation sought to be advanced by
Ms. Ghildiyal is narrow and restrictive so as to limit the benefit of Rule
25(ix) of the Pension Rules only to such person(s) who may have
explicitly been absorbed by the State Government as against persons

1 Senior Divisional Manager, LIC v. Shree Lal Meena, [2019] 5 SCR 391 : (2019) 4 SCC 479
[2024] 2 S.C.R.  161

Vinod Kanjibhai Bhagora v. State of Gujarat & Anr.

such as the Appellant herein who has most certainly, implicitly been
absorbed by the State Government i.e., the Appellants’ participation
in the selection process was prefaced by an NOC from the Central
Government; and subsequently was followed by the tender of a
technical resignation to the Central Government upon securing
employment with the State Government. Pertinently, neither can
the aforementioned interpretation sought to be advance on behalf
of Respondent No. 1 be said to be echoed by any express provision
of the Pension Rules nor has any convincing rationale to adopt such
an interpretation, been placed before us.
19. We thus find that the High Court erred in its interpretation of Rule
25(ix) of the Pension Rules; and consequently, unfairly deprived the
Appellant from seeking inclusion of the period of service rendered
to the Central Government as a part of ‘qualifying service’ under
the Pension Rules.
20. Accordingly, we direct Respondent No. 1 to consider the service
rendered by the Appellant to the Central Government in his
capacity as Postal Assistant in the Gandhinagar Postal Division to
be considered as qualifying service; and thereafter (i) re-calculate
the terminal benefits / pensionary benefits accruing in favour of
the Appellant; and (ii) transmit the arrears (if any) of such terminal
benefits / pensionary benefits to the Appellant within 6 (six) weeks
from today i.e., 02.02.2024.
21. Upon making the aforementioned payment, Respondent No. 1 shall be
free to seek pro-rata re-imbursement / contribution from Respondent
No. 2 in respect of terminal benefits / pensionary benefits paid by
Respondent No. 1 for the period pertaining to service rendered by
the Appellant for the Central Government.
22. The Impugned Order is set aside; and the appeal stands allowed in
the aforesaid terms. Pending application(s), if any, stand disposed
of. No order as to costs.

Headnotes prepared by: Divya Pandey Result of the case:

Appeal allowed.
 [2024] 2 S.C.R. 162 : 2024 INSC 99

Abdul Jabbar
v.
The State of Haryana & Ors.
(Criminal Appeal No. 748 of 2024)

5 February 2024
[Vikram Nath and Satish Chandra Sharma, JJ.]

Issue for Consideration

Matter pertains to conviction of the appellant for offences punishable
u/s. 323/34 IPC and imposition of three months imprisonment,
as also conviction u/s. 325/34 IPC and imposition of one year
imprisonment with Rs 500/- fine which was modified to three months
imprisonment with Rs 5000/- fine by the High Court.

Headnotes
Sentence/Sentencing – Reduction of sentence – Conviction
of the appellant for offences punishable u/s. 323/34 and u/s.
325/34 – Imposition of three months imprisonment and one
year imprisonment with Rs 500/- fine respectively – High
Court modified the sentence of one year imprisonment with
Rs 500/- fine to three months imprisonment with Rs 5000/-
fine – Correctness:
Held: Considering the totality of circumstances, that the appellant
has undergone almost 1/3rd of his sentence and that the underlying
incident occurred in 2010, the period of almost 13 years gone in
the trial, the appellants’ sentence is reduced to the period already
undergone, one month and three days – Impugned order modified
– Penal Code, 1860 – s. 323/34 and s. 325/34. [Para 5, 6]

List of Acts
Penal Code, 1860.

List of Keywords
Reduction of sentence; Modification of sentence.

Case Arising From

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.748

of 2024
[2024] 2 S.C.R.  163

Omdeo Baliram Musale & Ors. v. Prakash Ramchandra Mamidwar & Ors.

From the Judgment and Order dated 01.05.2023 of the High Court
of Punjab & Haryana at Chandigarh in CRR No.3005 of 2013

Appearances for Parties

Deepkaran Dalal, Karan Singh Dalal, Raunaq Dalal, Advs. for the
Appellant.
Raj Singh Rana, AAG, Samar Vijay Singh, Keshav Mittal, Ms.
Sabarni Som, Fateh Singh, Ms. Nilakashi Choudhury, Advs. for the
Respondents.

Judgment / Order of the Supreme Court

Order
1. Leave granted.
2. The decision of the High Court of Punjab & Haryana (the “High
Court”) in Criminal Revision Petition bearing number CRR No. 3005
of 2013 is assailed before us.
3. The Appellant was prosecuted along with 3 (three) other persons
for offences punishable under Section 452, Section 323 and Section
325 of the Indian Penal Code (the “IPC”). Thereafter, vide an order
dated 22.04.2013, the Appellant came to be convicted by the Chief
Judicial Magistrate, Nuh, Haryana (the “Trial Court”) in relation to
offences punishable under (i) Section 323 read with Section 34; and
(ii) Section 325 read with Section 34 of the IPC. Accordingly, the
Trial Court sentenced the Appellant as under:

Offence(s) Period of Sentence Fine Imposed

323/34 IPC 03 Months -
325/34 IPC 01 Year INR 500
(the “Trial Court Order”).
4. The Trial Court Order was assailed before the Additional Session
Judge, Nuh unsuccessfully, and thereafter challenged before the
High Court. Vide an order dated 01.05.2023, the High Court partly
allowed the Criminal Revision Petition i.e., upheld the conviction
recorded by the Trial Court, however, on account of substantial
delay i.e., extending to a period of almost 13 (thirteen) years in the
underlying trial, modified the sentence imposed by Trial Court on
the Appellant, as under:
164 [2024] 2 S.C.R.

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Offence(s) Period of Sentence Fine Imposed

323/34 IPC 03 Months -
325/34 IPC 03 Months INR 5000
(the “Impugned Order”).
5. Mr. Deepkaran Dayal, learned counsel appearing on behalf of the
Appellant has drawn the attention of this Court to the fact that the
Appellant has undergone almost 1/3rd of his sentence i.e., a period
extending to 1 (one) month; and 3 (three) days. Furthermore, he
has submitted that the underlying offence pertains to 2010 and that
the Appellant was made to suffer the agony of a protracted trial
spanning over 13 (thirteen) years. Accordingly, it was urged before
us that the sentence awarded to the Appellant be reduced to the
period already undergone.
6. Taking into consideration the totality of circumstances, coupled with
the fact that underlying incident occurred in 2010, the appeal is
allowed in part and the Impugned Order is modified to the extent that
the Appellants’ sentence is reduced to the period already undergone
i.e., 1 (one) month; and 3 (three) days.
7. In view of the aforesaid, I.A. No. 126067 of 2023 i.e., an application
seeking declaration of the Appellant as a juvenile at the time of the
underlying offence, does not require any consideration by this Court.
8. Pending application(s), if any, shall stand disposed of. No order as
to costs.

Headnotes prepared by: Nidhi Jain Result of the case:

Appeal partly allowed.
 [2024] 2 S.C.R. 165 : 2024 INSC 90

Sudhir Vilas Kalel & Ors.

v.
Bapu Rajaram Kalel & Ors.

(Civil Appeal Nos. 1776 of 2024)

07 February 2024
[Vikram Nath and K.V. Viswanathan,* JJ.]

Issue for Consideration

Whether Appellant No.1 was entitled to the protection of ss.3 and
4, Maharashtra Temporary Extension of Period for Submitting
Validity Certificate (for certain elections to Village Panchayats,
Zilla Parishads and Panchayat Samitis) Act, 2023; whether the
proceedings of 19.06.2023 holding the No Confidence Motion
against Appellant No.2 as not carried for want of the requisite
votes is tenable.

Headnotes
Maharashtra Temporary Extension of Period for Submitting
Validity Certificate (for certain elections to Village Panchayats,
Zilla Parishads and Panchayat Samitis) Act, 2023 – ss.3, 4 –
Maharashtra Village Panchayats Act, 1959 – ss.35, 10(1A),
30(1A) – Maharashtra Scheduled Castes, Scheduled Tribes,
Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other
Backward Classes and Special Backward Category (Regulation
of Issuance and Verification of) Caste Certificate Act, 2000 –
ss.3, 4 of the 2023 Act – Protection under – When not available
– No Confidence Motion against Appellant No.2-Sarpanch
of the Gram Panchayat – Validity – Appellant No.1 if was a
member of the Panchayat entitled to vote and covered by the
protective umbrella u/ss.3 and 4:
Held: Temporary Extension Act was enacted since the Scrutiny
Committees were overburdened with the work of verification of
Caste Certificates and the elected members were facing difficulties
in obtaining the Validity Certificates within the prescribed time –
It aimed to protect the applicants whose applications were still
pending before the Scrutiny Committee – The idea was that such
elected candidates ought not to be deprived merely because of

* Author
166 [2024] 2 S.C.R.

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non-issuance of Validity Certificates when the applications are

still pending – Appellant No.1 stood automatically disqualified as
a Member since he failed to produce the Validity Certificate within
12 months from the date of his election – The protective umbrella
of s.3 of the Temporary Extension Act, 2023 will not be available
to Appellant No.1 since he is hit by s.3(2)(b), as there was no
valid application pending on the date of the commencement of
the said Act – Appellant No.1 ceased to be a member because of
the automatic disqualification – The contention that there was no
rejection and that it was only a “filing” or “lodgment” of the application
by the Scrutiny Committee, not accepted – The rejection in s.3(2)(b)
will also include those cases where applications came to be rejected
on account of defaults committed at the end of the applicants
themselves – Proceedings of the Tahsildar dtd.19.06.2023 rejecting
the No Confidence Motion on the ground that the voting requirement
of three-fourth of the members “entitled to sit and vote”, was not
fulfilled, cannot be sustained and was rightly set aside by the High
Court – High Court also rightly set aside the rejection of the No
Confidence Motion holding that the No Confidence Motion against
Appellant No. 2-Sarpanch, was duly carried – Order of the High
Court affirmed. [Paras 31, 39, 40, 42-44]
Maharashtra Temporary Extension of Period for Submitting
Validity Certificate (for certain elections to Village Panchayats,
Zilla Parishads and Panchayat Samitis) Act, 2023 – s.3(1)(b),
(2)(b):
Held: s.3 covers the cases of persons who had applied to the
Scrutiny Committee for verification of their Caste Certificate before
the date of filing of the nomination papers and who were elected
on the reserved seat; and whose applications were pending before
the Scrutiny Committee on the date of commencement of the Act–
It is mandated that they can produce the certificate within twelve
months from the date of commencement of the Temporary Extension
Act, 2023 i.e. till 09.07.2024 – Under s.3(1), the further period of
twelve months from 10.07.2023 was for those whose applications
were validly filed and pending and where their applications have
been submitted before the date of nomination – Sub-section (2)
(b) clearly states that the provisions of sub-section (1) shall not
apply where the member whose application of Validity Certificate
had been rejected by the Scrutiny Committee. [Paras 31, 38]
[2024] 2 S.C.R.  167

Sudhir Vilas Kalel & Ors. v. Bapu Rajaram Kalel & Ors.

Case Law Cited

Shankar S/o Raghunath Devre (Patil) Vs. State of
Maharashtra & Others. (2019) 3 SCC 220 – referred to.
Anant H. Ulahalkar & Anr. Vs. Chief Election Commissioner
& Ors. 2017 (1) Mh.L.J. 431; Mandakani Kachru Kokane
alias Mandakani Vishnu Godse Vs State of Maharashtra
& Ors. 2021 (3) Mh.L.J. 221 – referred to.

List of Acts
Maharashtra Temporary Extension of Period for Submitting
Validity Certificate (for certain elections to Village Panchayats,
Zilla Parishads and Panchayat Samitis) Act, 2023; Maharashtra
Village Panchayats Act, 1959; Maharashtra Scheduled Castes,
Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic
Tribes, Other Backward Classes and Special Backward Category
(Regulation of Issuance and Verification of) Caste Certificate Act,
2000; Maharashtra Scheduled Castes, Denotified Tribes (Vimukta
Jatis), Nomadic Tribes, Other Backward Classes and Special
Backward Category (Regulation of Issuance and Verification of)
Caste Certificate Rules, 2012; Maharashtra Municipal Councils,
Nagar Panchayats and Industrial Townships Act, 1965.

List of Keywords
Caste Certificate; Verification of Caste Certificates; Validity
Certificate; Scrutiny Committees; No Confidence Motion; Automatic
disqualification; Sarpanch.

Case Arising From

CIVIL APPELLATE JURISDICTION : Civil Appeal No.1776 of 2024

From the Judgment and Order dated 20.09.2023 of the High Court
of Judicature at Bombay in WP No.7924 of 2023
Appearances for Parties
Gaurav Agrawal, Manav, Mr./Ms. Suman Sharma, Muesh Kumar
Tripathy, Ms. Swati Vaibhav, Advs. for the Appellants.
Vinay Navare, Sr. Adv., Anand Dilip Landge, Siddheshwar Kalel,
Vivek Salunkhe, Aniruddha Joshi, Siddharth Dharmadhikari,
Aaditya Aniruddha Pande, Bharat Bagla, Sourav Singh, Aditya
Krishna, Ms. Raavi Sharma, Advs. for the Respondents.
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Judgment / Order of the Supreme Court

Judgment
K.V. Viswanathan, J.
1. Leave Granted.
2. The ‘war’ in this case is over the validity of a No Confidence Motion
against Appellant No. 2 – Sushila Sitaram Kalel, the Sarpanch
(Village head) of Jambulani Gram Panchayat. However, there is a
‘battle’ within, which entirely determines the result of the war. It is
on the validity of the membership of Appellant No. 1 – Sudhir Vilas
Kalel in the Panchayat. A Motion of No Confidence is to be carried
by not less than three-fourth of the total number of members who
are entitled, to ‘sit’ and ‘vote’. If the Appellant No. 1 was entitled to
‘Sit’ as a member on 19.06.2023, then the No Confidence Motion
against Appellant No.2 cannot ‘Stand’, to deploy a Denning-esque
phrase. The High Court has found against the appellants. Aggrieved,
they are before us in appeal.
3. Was the Appellant No.1, in law, a member of the Panchayat,
entitling him to vote, is the question that arises for consideration in
this case. Is the Appellant No. 1 covered by the protective umbrella
under Sections 3 and 4 of the Maharashtra Temporary Extension
of Period for Submitting Validity Certificate (for certain elections to
Village Panchayats, Zilla Parishads and Panchayat Samitis) Act, 2023
[hereinafter referred to as the “Temporary Extension Act, 2023”]?
If the answer is in the affirmative, the election of the Appellant No.
1 as a reserved Member in the election of the Gram Panchayat
of Village Jambulani would stand validated. Consequently, the No
Confidence Motion expressing No Confidence in the Appellant No.
2 – Sushila Sitaram Kalel (the Sarpanch) would also stand nullified.
If Appellant No. 1 is held not to be entitled to the benefit of Section 3
of the Temporary Extension Act, 2023, then he would be deemed to
have vacated his seat and consequently, the No Confidence Motion
would stand carried. For a fuller understanding, the background facts
and the statutory regime need to be set out in some detail.
Brief facts and the Legislative Regime:
4. On 30.12.2020, the Appellant No. 1 filed his nomination papers
for contesting elections as a Member of the Panchayat of Village
Jambulani, District Satara on a seat reserved for the OBC category.
[2024] 2 S.C.R.  169

Sudhir Vilas Kalel & Ors. v. Bapu Rajaram Kalel & Ors.

As early as on 03.02.2013 itself, the Appellant No. 1 was issued a

Caste Certificate by the Sub Divisional Officer, District Satara certifying
that he belongs to ‘Lonari’ Caste which is an Other Backward Class.
He had on the same day of filing his nomination papers i.e. on
30.12.2020 applied for a Validity Certificate. This Validity Certificate is
an essential requirement under the Maharashtra Scheduled Castes,
Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic
Tribes, Other Backward Classes and Special Backward Category
(Regulation of Issuance and Verification of) Caste Certificate Act, 2000
[hereinafter referred to as the “Caste Certificate Act, 2000”]. There
are elaborate rules framed under this Act which will be discussed
later in the judgment.
5. Under Section 3 of this Act, any person belonging to Other Backward
Class for the purpose of contesting for any elective post in any local
authority, should apply in such form and in such manner as may be
prescribed, to the Competent Authority for the issuance of a Caste
Certificate. Under Section 4 of this Act, the Competent Authority is
entitled to issue a Caste Certificate. This is a Certificate which the
Appellant No. 1 possessed on 03.02.2013. However, this alone is
not conclusive. Under Section 4(2), the Caste Certificate issued by
the Competent Authority would be valid subject to the verification
and grant of Validity Certificate by the Scrutiny Committee. Under
Section 6 of this Act, the Government is authorized to constitute a
Scrutiny Committee and prescribe the area of its jurisdiction. Under
Section 6(2) of this Act, after obtaining the Caste Certificate from the
Competent Authority, any person, desirous of availing of the benefits
or concessions provided to the said caste, is authorized to make an
application, well in time, in such form and in such manner as may be
prescribed to the concerned Scrutiny Committee for the verification
of such Caste Certificate and issue of a Validity Certificate. Under
Section 6(4) of this Act, the Scrutiny Committee was to follow such
procedure for verification of the Caste Certificate and adhere to the
time limit for verification and grant of Validity Certificate as prescribed.
6. The Rules called the Maharashtra Scheduled Castes, De-notified
Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and
Special Backward Category (Regulation of Issuance and Verification
of) Caste Certificate Rules, 2012 [hereinafter referred to as the “2012
Rules”] have been framed. Rule 11 prescribes the constitution of
the Scrutiny Committee. Rule 14 sets out that any person desirous
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of availing of the benefits and concessions provided to the reserved

category shall submit an application in the prescribed form with an
affidavit to the concerned Scrutiny Committee for verification of his
caste claim and issuance of Caste Validity Certificate well in time.
Rule 15 mandates that the application for verification of Caste
Certificate under Rule 14 shall be filed or submitted well in time in
such form and in such manner as may be prescribed in Rule 17.
Further Rule 16 provides for the information to be supplied by the
applicant. It states that to enable the Scrutiny Committee to decide the
application expeditiously, the documents/information set out therein,
was to be produced. Apart from setting out certain documents, sub-
clause (f) provides for the furnishing of other relevant evidence, if
any, subject to admissibility. Explanation 2 of Rule 16 speaks of the
applicant undertaking the production of original documents as and
when required by the Scrutiny Committee.
7. Rule 17, which prescribes the procedure of Scrutiny Committee, is
significant for this case. Sub-Rules 1 to Sub- Rules 3 of Rule 17 are
extracted herein below:
“17 (1) On receipt of application, the Scrutiny Committee
shall ensure that the application and the information
supplied therewith is complete in all respects and to carry
out scrutiny of the application.
(2) Notwithstanding anything contained in these rules, the
claimant or applicant or complainant shall be personally
responsible for removal of objections raised by Scrutiny
Committee, if any, within two weeks or within such
extended period, which shall not be more than six weeks,
failing which the claim or application or complaint shall be
disposed of, by appreciating available records and such
decision may be communicated to the applicant by the
Scrutiny Committee.
(3) The incomplete application may be rejected by recording
reasons.”
8. As is clear from the above, Rule 17 (2) states that applicant was
personally responsible for removal of objections raised by the
Scrutiny Committee within the time prescribed. Sub-Rule 3 of Rule
17 categorically states that incomplete application may be rejected
by recording reasons.
[2024] 2 S.C.R.  171

Sudhir Vilas Kalel & Ors. v. Bapu Rajaram Kalel & Ors.

9. For the purpose of adjudicating this case, alongside the above

statutes, certain provisions of the Maharashtra Village Panchayats
Act, 1959 [hereinafter referred to as the “Panchayats Act”] which
come into play, need to be set out and analyzed. Section 10-1A,
reads as follows:
“10-1A. Person contesting election for reserved seat
to submit Caste Certificate and Validity Certificate.
- Every person desirous of contesting election to a seat
reserved for Scheduled Castes, Scheduled Tribes or,
as the case may be, Backward Class of Citizens, shall
be required to submit, alongwith the nomination paper,
Caste Certificate issued by the Competent Authority and
the Validity Certificate issued by the Scrutiny Committee
in accordance with the provisions of the Maharashtra
Scheduled Castes, Scheduled Tribes, De-notified Tribes
(Vimukta Jatis), Nomadic Tribes, other Backward Classes
and Special Backward Category (Regulation of Issuance
and Verification of) Caste Certificate Act, 2000:
Provided that, for the General or by-elections for which
the last date of filing of nomination falls on or before the
31st December 20231, in accordance with the election
programme declared by the State Election Commission,
a person who has applied to the Scrutiny Committee for
verification of his Caste Certificate before the date of filing
of the nomination papers but who has not received the
Validity Certificate on the date of filing of the nomination
papers shall submit, along with the nomination papers, -
(i) a true copy of the application preferred by him to
the Scrutiny Committee for issuance of the Validity
Certificate or any other proof of having made such
application to the Scrutiny Committee; and
(ii) an undertaking that he shall submit, within a period of
twelve months from the date on which he is declared
elected, the Validity Certificate issued by the Scrutiny
Committee:

1 (This date was originally 28.02.2021, at the time of the election in question)
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Provided further that, if such person fails to produce the

Validity Certificate within a period of twelve months from
the date on which he is declared elected, his election shall
be deemed to have been terminated retrospectively and
he shall be disqualified for being a member.’’
A similar provision in the form of Section 30(1A) exists for persons
contesting for the reserved office of Sarpanch.
10. In view of the above provision, every person desirous of contesting
election to a membership in the reserved category, shall submit
alongwith the nomination paper, Caste Certificate issued by the
Competent Authority and the Validity Certificate issued by the
Scrutiny Committee in accordance with Caste Certificate Act, 2000.
The proviso sets out that for elections for which the last date of filing
of nomination fell on or before the date prescribed in the proviso, a
person who has applied to the Scrutiny Committee for verification
of his Caste Certificate before the date of filing of the nomination
papers but who has not yet received the Validity Certificate shall
submit, along with the nomination papers, an undertaking that he
shall submit the same, within a period of twelve months from the date
on which he is declared elected. The further proviso sets out that if
such person fails to produce the Validity Certificate within a period
of twelve months from the date on which he is declared elected, his
election shall be deemed to have been terminated retrospectively
and the person was to be disqualified for being a member.
11. In pari materia provision exists in the Maharashtra Municipal Councils,
Nagar Panchayats and Industrial Townships Act, 1965 in the form
of Section 9A therein.
12. A raging legal debate arose in Maharashtra about the nature of these
provisions – are they mandatory or are they directory? The issue
was settled by a Full Bench of the Bombay High Court in the case
of Anant H. Ulahalkar & Anr. Vs. Chief Election Commissioner
& Ors. [2017 (1) Mh.L.J. 431]. This judgment of the Full Bench was
affirmed by this Court in the case of Shankar S/o Raghunath Devre
(Patil) Vs. State of Maharashtra & Others.[ (2019) 3 SCC 220].
13. There were earlier divergent views in the High Court. The parties
contending that the provisions were “directory”, primarily argued that
the time taken for disposal by the Scrutiny Committee was not in
[2024] 2 S.C.R.  173

Sudhir Vilas Kalel & Ors. v. Bapu Rajaram Kalel & Ors.

their control. According to them, as long as the Validity Certificate

was produced within a reasonable time, the strict time limit provided
in the statute should be construed as directory and that elections
should not be invalidated for the said reason. On the other hand,
the proponents of the theory that the provision was mandatory
contended that the statute is couched in mandatory terms, with the
use of the word ‘shall’ and that consequences had been provided
for non-compliance. The Full Bench, after considering the statutory
provision and the decided cases, in para 45 and 46 of the judgment
first held the following:
“45. In case of Sujit Vasant Patil (supra), the Full Bench
of this Court, in the context of inter play between similar
Municipal Legislations and the Caste Act, 2000, has held
that the legislature expects a person to claim benefit of
contesting to a reserved post only after obtaining Validity
Certificate from the Scrutiny Committee, though it also
permits a person to claim such benefit on the basis of
a tentative caste certificate issued by the Competent
Authority, if such a person is willing to take the risk. Such
reasoning is reflected in paragraphs 12A, 12B and 12C.
Since paragraph 12B is most relevant, it is transcribed
below for reference of convenience:—
“12B. Thus the scheme is that a person who obtains a caste
certificate has to himself apply to the Scrutiny Committee
for scrutiny of his caste certificate, so that he can secure
a valid certificate from the Scrutiny Committee, and it is
only after the Scrutiny Committee issuing a valid certificate
that the caste certificate issued in favour of the person by
the Competent Authority becomes final. In our opinion, the
scheme of subsection (2) of section 6 is that any candidate
who desires to avail of any benefit available to backward
class has to get a caste certificate as also the validity
certificate before he makes a claim for the benefits. But if
a candidate chooses to make claim to the benefits on the
basis of a tentative certificate namely a certificate issued
by the Competent Authority, he takes the risk of his losing
the benefits that he has claimed and obtained and also
being visited with penal consequences on the refusal of
the Scrutiny Committee to validate his caste claim. The Act
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contemplates conscious decision being made by a person

at the time of claiming benefits. The Legislature expects
a person to claim the benefits only after obtaining the
validity certificate, but the Legislature also permits a
person to claim the benefits on the basis of a tentative
certificate issued by the Competent Authority, if he
is willing to take the risk mentioned above. In our
opinion, therefore, the validity certificate is one of the
essential ingredient of the candidate being qualified
to contest for the reserved seat….”
(emphasis supplied)
46. According to Sujit Vasant Patil (supra), therefore, a
person who seeks to contest election to reserved posts
without compliance with the general rule of producing
Validity Certificate along with nomination papers, ‘takes a
risk’. The first proviso to section 9-A, in such a case, makes
this position quite clear by requiring such person to furnish
a statutory undertaking to produce Validity Certificate within
six months from the date of election. The second proviso,
in terms, provides for consequence in case of breach. Such
person, having taken the risk, cannot, in the absence of
any ambiguity in the provision, be permitted to wriggle out
from the consequences of breach so clearly and statutorily
provided in the provision itself. Otherwise, such person,
will avail of a conditional concession, without, fulfilling the
condition subject to which such concession came to be
granted in the first place by the provision.”
The Legislature expects a person claiming the benefit of contesting
in a reserved post to be in possession of both the Caste Certificate
and the Validity Certificate at the time of filing the nomination. The
allowance to contest by submitting the Caste Certificate alone was
with the undertaking that he would produce the Validity Certificate
within the stipulated time, and this was the risk that the candidate
was taking. It was a ‘risk’ because a Validity Certificate which he
ought to have ordinarily possessed on the date of nomination being
unavailable, he or she is granted the concession of contesting,
subject to the undertaking. In the event of non-production within
the stipulated time, even an elected candidate would automatically
stand disqualified.
[2024] 2 S.C.R.  175

Sudhir Vilas Kalel & Ors. v. Bapu Rajaram Kalel & Ors.

14. Thereafter, the Full Bench went on to hold as follows in para 80 and
81, while construing the nature of the time limit for production of the
Validity Certificate, as it then stood.
“80. ...If the legislature, for a limited period of time, taking
into consideration pendency of applications for issuance of
Validity Certificate before the Scrutiny Committee grants
some exemptions or concession to persons who have
applied for issue of Validity Certificate before the date
of filing nomination papers, but who have not received
such Validity Certificate on the date of filing of nomination
papers, subject to such persons producing the Validity
Certificate “within period of six months from the date of
election”, there is no reason to treat the stipulation as to
time has (sic.) merely directory and thereby enlarge or
extend the exemption or the concession granted by the
legislature.
81. If, the intention of the legislature was to grant exemption
from the requirement of producing Validity Certificate, until,
the elected candidate’s application is disposed of by the
Scrutiny Committee, nothing prevented the legislature from
saying so expressly or at least by necessary implication.
Instead, in this case, and perhaps, for good reason,
the legislature has consciously deemed it appropriate
to insist that the person submits an undertaking that he
shall produce the Validity Certificate within six months
and further, the legislature, in clear, unambiguous and
express terms has provided that upon the failure of such
person to produce the Validity Certificate within six months
from the date of election, his election shall be deemed
to have been retrospectively terminated and he shall be
disqualified for being a Councillor. If, the stipulation as to
time is construed as directory, then, the legislative intent, so
clearly expressed, will be defeated. The significant portions
of the provision will be rendered a mere surplusage. In
essence, this Court would be rewriting the statute on the
basis of its own value judgments or notions of equity and
inequity.”
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After holding that the provision is mandatory, the Full Bench held that
failure to produce the Validity Certificate from the Scrutiny Committee
within the stipulated time would mean that the election was deemed
to have been terminated retrospectively and the person was to be
disqualified. It also held that retrospective termination of the election
and disqualification were automatic in the following words:-
“98. In the present case also the legislature in enacting
section 9-A has provided for a statutory fiction, which is
evident from the use of expression “his election shall be
deemed to have been terminated retrospectively and he
shall be disqualified being a Councillor”. The statutory
fiction must be allowed to have its full play. No other
provision or reason has been pointed out to take the view
that consequences prescribed under second proviso to
section 9-A are not automatic or would require any further
adjudication once it is established that the person elected
has failed to produce the Validity Certificate within a
stipulated period of six months from the date of his election.
99. The validation of caste claim of the elected Councillor
by the Scrutiny Committee beyond the prescribed period
would have no effect upon the statutory consequences
prescribed under the second proviso to section 9-A i.e.
deemed retrospective termination of the election of such
Councillor and his disqualification for being a Councillor.
The subsequent validation or issue of the Validity Certificate
will therefore be irrelevant for the purpose of restoration of
the Councillor’s election but, such validation will obviously
entitle him to contest the election to be held on account
of termination of his election and the consequent vacancy
caused thereby.
100. In the result, we hold that the time limit of six months
prescribed in the two provisos to section 9-A of the said
Act, within which an elected person is required to produce
the Validity Certificate from the Scrutiny Committee is
mandatory.”
Further, in terms of second proviso to section 9-A if a person
fails to produce Validity Certificate within a period of six
months from the date on which he is elected, his election
shall be deemed to have been terminated retrospectively
and he shall be disqualified for being a Councillor.
[2024] 2 S.C.R.  177

Sudhir Vilas Kalel & Ors. v. Bapu Rajaram Kalel & Ors.

Such retrospective termination of his election and

disqualification for being a Councillor would be automatic
and validation of his caste claim after the stipulated period
would not result in restoration of his election.
The questions raised, stand answered accordingly.”
15. This statutory background is essential to interpret the Temporary
Extension Act, 2023. To consider whether the Appellant No. 1 is
entitled to the protection of the Temporary Extension Act, 2023,
it is necessary to recapitulate the facts of the present case. The
Appellant No. 1 obtained his Caste Certificate on 03.02.2013. Only on
30.12.2020 (the date of his nomination) he submitted an application
for the Validity Certificate to the Caste Scrutiny Committee. At the
time of filing of his nomination, he also filed an undertaking that he
will produce the Caste Validity Certificate within twelve months from
the date of his election. On 18.01.2021, the elections were held and
on 21.01.2021, the results were declared and the Appellant No. 1 was
declared elected. The twelve months period expired on 20.01.2022.
16. On 30.12.2020, when he filed the application online to the Scrutiny
Committee for obtaining the Validity Certificate, a receipt was issued
to him. In the receipt, the following endorsement appears:-
“I have been informed that, within seven days will file
declaration otherwise the matter should be closed.”
Thereafter, it is undisputed that on 01-03/04/2021, the District Caste
Certificate Verification Committee, Satara made the following order.
This order also covered the case of the Appellant No. 1 along with
3013 other applicants. The order reads as under:
“As per above read No 1 the intended contestants of the
elections of Local Bodies. Municipal Councils, Municipal
Corporations have submitted their application for their cast
certificates with the office of the Committee. As per the read
No 2 and 3 above the elected candidates in local bodies,
municipal councils and corporations from reserved seats,
have to submit their cast verification certificate within one
year from the election.
As per read No. 4 above notification regarding decision of
the election dtd 23.03.2021 of Collector (Election Branch)
and as per the notification submitted by the elected
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candidates the committee scrutinized that, whether these

applicants are elected in such elections or not? After
scrutiny it found that, these applicant candidates have not
been elected in the elections from the reserve seats. As
such elected candidates have not filed the notification of
elected candidates in time, this office cannot take decision
in this regard. Hence this proposal has been filed as per
the provisions of Rules 17(2)(3) of Maharashtra Rules of
verification of caste certificate SC, ST, OBC, Spl BC 2012.”
It is clear from the operative portion of the order that since the elected
candidates have not submitted the notification of being elected, in
time, the office was not able to take any decision in that regard. In
view of that, the proposal was ‘filed’ as per the provisions of Rule
17 (2)(3) of the 2012 Rules.
17. Before we take up for consideration the interpretation of Sections 3
and 4 of the Temporary Extension Act, 2023, one judgment of the High
Court of Judicature at Bombay in the case of Mandakani Kachru
Kokane alias Mandakani Vishnu Godse Vs State of Maharashtra
& Ors. [2021 (3) Mh.L.J. 221] needs to be referred to. In the said
judgment, in para 48, 49, 50(ii) and 50(iii), the following significant
directions were issued:
“48. Shri Satyajit Dighe, learned counsel for the Petitioner
rightly submitted that impugned order of the Caste Scrutiny
Committee was passed almost on the last day of twelve
months mandatory period and therefore, no time was left for
approaching this Court which is the only remedy available
i.e. the constitutional remedy. Thus Petitioner’s right to
approach this Court under Article 226 of the Constitution
of India is violated….
49. However, in view of the law laid down by the Full Bench
of this Court in the case of Anant H. Ulharkar (supra)
Section 30(1A) of the Maharashtra Village Panchayat
Act, 1958 is mandatory and therefore time limit provided
therein cannot be extended. However, we are constrained
to issue directions to all the Caste Scrutiny Committees
to decide the matters much before the mandatory
period of twelve months if the aforesaid provisions are
applicable. However, this will be subject to the condition
[2024] 2 S.C.R.  179

Sudhir Vilas Kalel & Ors. v. Bapu Rajaram Kalel & Ors.

that the applicant completely co-operates in disposal of

the proceedings in time bound manner and do not seek
unnecessary adjournments.
50. (ii) All the District Caste Scrutiny Committees are
directed to dispose of the matters which are covered by
the mandatory period of twelve months as provided in
Section 10-1A and Section 30(1A) of the Maharashtra
Village Panchayat Act, 1959, Section 9A of the Maharashtra
Municipal Councils, Nagar Panchayat and Industrial
Townships Act, 1965, in Section 5-B of the Mumbai
Municipal Corporation Act, 1888 and Section 5-B of
the Maharashtra Municipal Corporation Act, 1949 as
expeditiously as possible and in any case within a period
of eight months subject to following conditions:
(a) The concerned successful candidate who has applied for
getting caste certificate validated to convey his election
result and this order to the relevant District Caste Scrutiny
Committee personally or through his Advocate within a
period of two weeks from the date of declaration of the
result of his election and pointing out to the Committee
the aforesaid time period of twelve months as provided
in the aforesaid provisions with a request to expedite the
hearing and to complete the proceedings within the time
prescribed in this judgment.
(b) The relevant District Caste Scrutiny Committee to
fix tentative time table for disposal of the said case
in maximum period of eight months from the above
referred communication of the successful candidate to
the Committee. However while fixing the time table the
Committee shall also have regard to the provisions of said
Act and said Rules.
(c) The concerned successful candidate to completely
cooperate in expeditious disposal of the respective
proceedings before the committee and shall not take any
adjournment without valid reason.
(d) It is specifically directed that in case such successful
candidate fails to comply with the above directions then the
time limit as fixed herein will not apply to such proceedings.
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(iii) The Chief Secretary of the State of Maharashtra

is directed to circulate to all the District Caste Scrutiny
Committees copy of this judgment within a period of 30
days from today.”
It is obvious from the above directions issued on 27th October, 2020
(well before the Appellant No. 1 filed the application for the Validity
Certificate on 30.12.2020) that within two weeks from the declaration
of the result the successful candidate from the reserved seats was
obligated to convey his election result and the order and the judgment
of the High Court to the relevant Caste Scrutiny Committee. The
candidate was also to point out the aforesaid time limit and request
for an expeditious hearing and completion of proceeding within the
said period. It is further clear that the Scrutiny Committee was to
fix a tentative time table and dispose of the said application within
a maximum period of eight months from the date of the aforesaid
communication. The successful candidate was to co-operate in the
expeditious disposal of the respective proceedings. Most importantly,
it was specifically directed that in case the successful candidate
failed to comply with the directions, then the time limit fixed therein
will not apply to such proceedings.
18. It is also the understanding of the Appellant No. 1, as evident from
the undertaking furnished along with his second application on
14.06.2023, which is in the following terms:
“I, Applicant – Sudhir Vilas Kalel respectfully submitting this
I applicant Sudhir Vilas Kalel submitting my request
application that, I contested the election of Grampanchayat
Jambhulni, Tal Man in the year 2020 and I am elected in
the said election. In that respect Ld. Election Officer, Tal
Man has given me declaration/letter to me. Due to some
reasons, I could not submit the same within time and
therefore my proposal has been rejected by the Committee.
That today on 14.07.2023, I am again submitting my fresh
proposal and accepting the responsibilities for delay. I am
solely responsible for the delay caused. You are kindly
requested to accept my proposal and please issue me
the Caste Validity Certificate at your earliest.”
(Emphasis Supplied)
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Sudhir Vilas Kalel & Ors. v. Bapu Rajaram Kalel & Ors.

19. No doubt, on this application which is filed on 14.06.2023 (filed long

after the submission of his nomination on 30.12.2020), he obtained
the Validity Certificate on 12.07.2023.
20. In this background we need to examine whether the validation
under Section 3 of the Temporary Extension Act, 2023 applies to
the case of the Appellant No. 1. The provisions of Sections 3 and
4 of the Temporary Extension Act, 2023, along with its Statement
of Objects and Reasons, are set out and analyzed in the later part
of the judgment.
21. A factual aspect that needs to be noticed is that on 26.05.2023,
the Tehsildar forwarded a report to the Respondent No.11 - District
Collector, Satara informing that the Appellant No. 1 Sudhir Vilas
Kalel has failed to produce his Caste Validity Certificate within the
prescribed time as per Section 10(1A) of the Panchayats Act.
Proceedings arising from the No Confidence Motion
22. On 13.06.2023, eight Members moved a No Confidence Motion
against Appellant No. 2-Sushila Sitaram Kalel, expressing No
Confidence in her being the Sarpanch. The eight Respondents herein
voted in favour of the No Confidence Motion. If Appellant No.1 was
entitled to sit, the total number of members would be eleven and eight
members voting would only constitute 72.73%. If the Appellant No.1
was not entitled to sit, then the total number of members would be
ten and eight members voting would constitute 80%. On 19.06.2023,
on the ground that there was absence of minimum three-fourth of
the Members voting in favour of the motion, the No Confidence
Motion was ordered as rejected. The relevant part of Section 35 of
the Panchayats Act which deals with the process of No Confidence
Motion is extracted below:
“35. Motion of no confidence. –
(1) A motion of no confidence may be moved by not less
than two third of the total number of the members
who are for the time being entitled to sit and vote at
any meeting of the panchayat against the Sarpanch
or the Upa-Sarpanch after giving such notice thereof
to the Tahsildar as may be prescribed. Such notice
once given shall not be withdrawn.
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(2) Within seven days from the date of receipt by him

of the notice under sub-section (1), the Tahasildar,
shall convene a special meeting of the panchayat at
a time to be appointed by him and he shall preside
over such meeting. At such special meeting, the
Sarpanch or the Upa- Sarpanch against whom the
motion of no confidence is moved shall have a right
to speak or otherwise to take part in the proceedings
at the meeting including the right to vote.
(3) If the motion is carried by a majority of not less than
three-fourth of the total number of the members who
are for the time being entitled to sit and vote at any
meeting of the panchayat or the Upa-Sarpanch, as
the case may be, shall forthwith stop exercising all
the powers and perform all the functions and duties
of the office and thereupon such powers, functions
and duties shall vest in the Upa-Sarpanch in case
the motion is carried out against the Sarpanch; and
in case the motion is carried out against both the
Sarpanch and Upa-Sarpanch, in such officer, not
below the rank of Extension Officer, as may be
authorised by the Block Development Officer, till the
dispute, if any, referred to under sub-section (3B) is
decided: …”
23. On 23.06.2023, respondents no. 1 to 8 filed a Writ Petition before the
High Court praying that the No Confidence Motion against Appellant
No. 2 be declared to be duly and validly carried, and for consequential
directions directing the Appellant No. 2 to forthwith stop exercising all
the powers, functions and duties as the Sarpanch. Further directions
for declaring election to the post of Sarpanch were also prayed.
24. On 12.07.2023, the District Caste Certificate Scrutiny Committee,
Satara granted the Caste Validity Certificate to the Appellant No. 1.
25. By its judgment of 20.09.2023, which is impugned herein, the Division
Bench of the High Court made rule absolute in terms of prayer (a)
and (b) of the Writ. Prayer (a) and (b) of the Writ is as under:
(a) By suitable writ, order or direction this Hon’ble Court may be
pleased to hold and declare that the no confidence motion
against the present Respondent No. 3 moved by the Petitioners
[2024] 2 S.C.R.  183

Sudhir Vilas Kalel & Ors. v. Bapu Rajaram Kalel & Ors.

on 13/06/2023 has been duly and validly carried with the requisite
majority in the special meeting conveyed by the Respondent
No. 2 and held on 19/06/2023 and consequently the direction
be issued to the Respondents that the Respondent No. 3 shall
forthwith stop exercising all the powers, functions and duties
as the Sarpanch in the village Panchayat Jambulani Taluka
Man, District Satara and thereafter, further direction be issued
to the Respondent No. 2 and Respondent No. 6 – the Collector
to declare the election for the post of the village Sarpanch for
electing the new Sarpanch in the said Village Panchayat.
(b) By suitable writ, order or direction the declaration made by the
Respondent No. 2 in the special meeting held on 19/06/2023
and as recorded in the minutes of the said meeting declaring
that the no confidence motion against the Respondent No. 3
has failed be quashed and set aside.
Questions for Consideration:
26. In this scenario, the questions that arise for consideration are as
follows:
a. Whether Appellant No. 1 is entitled to the protection of Sections
3 and 4 of the Temporary Extension Act, 2023?
b. Whether the proceedings of 19.06.2023 holding the No
Confidence Motion against Appellant No. 2 as not carried for
want of the requisite votes is tenable?
Contentions
27. We have heard Mr. Gaurav Agrawal, learned advocate (since
designated as a senior counsel) for the appellants and Mr. Vinay
Navare, learned senior counsel for the Respondent nos. 1 to 8 as well
as Mr. Aniruddha Joshi, learned counsel for the official respondents.
Mr. Gaurav Agrawal, learned advocate vehemently contends that
the application filed before the Scrutiny Committee on 30.12.2020
has not been rejected. According to the learned counsel, the order
dated 01-03/04.2021 cannot be construed as a rejection; that his
application was pending and the filing done on 14.06.2023 was only
a re-filing after curing the defects. In view of the same, according to
the learned counsel, the Appellant No.1 is entitled to the benefit of
the validation provision under Section 3 of the Temporary Extension
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Act, 2023. Learned counsel contends that under Section 35(3) of

the Maharashtra Village Panchayats Act, a No Confidence Motion
has to be carried by a majority of not less than three-fourth of total
number of Members who are for the time being entitled to sit and
vote. Hence, submits the learned counsel, that the requisite majority
of nine votes was not obtained.
28. In response, Mr. Vinay Navare, learned senior counsel and Mr.
Aniruddha Joshi, learned counsel for the Respondent authorities,
have contended that the Appellant No. 1 is not entitled to the
benefit of Section 3 of the Temporary Extension Act, 2023 as that
Section will apply only to a person who has applied to the Scrutiny
Committee for verification of his Caste Certificate before the date of
filing the nomination papers and who is elected on the reserved seat
but whose application is pending before the Scrutiny Committee on
10.07.2023, the date of commencement of the Temporary Extension
Act, 2023. It is only to those persons the benefit of submission of the
Validity Certificate within twelve months from 10.07.2023 is made
available. According to them, it is only that person’s election which
may have been terminated or deemed to have been terminated
for not submitting the Validity Certificate would be protected by the
deeming provisions which enabled the individual to continue to be
a Member or Sarpanch. They further contended that the impugned
order warrants no interference as it has been rightly held that on
account of the conduct of the Appellant No. 1 in not furnishing the
declaration as undertaken and as required, he is deemed to be
automatically disqualified with retrospective effect from the date of
his election. Since the No Confidence Motion was carried with eight
Members out of ten, who were entitled to sit and vote, the rejection
of No Confidence Motion was illegal.
Discussion and findings:
29. Sections 3 and 4 of the Temporary Extension Act, 2023 read as under:-
“3. (1) Notwithstanding anything contained in sections
10-1A and 30-1A of the Maharashtra Village Panchayats
Act and sections 12A, 42 and 67 of the Maharashtra Zilla
Parishads and Panchayat Samitis Act, 1961, for contesting
General or bye-elections to the Village Panchayats, Zilla
Parishads and Panchayat Samitis which were held on or
after 1st January 2021 and till the date of commencement
of this Act,—
[2024] 2 S.C.R.  185

Sudhir Vilas Kalel & Ors. v. Bapu Rajaram Kalel & Ors.

(a) a person, who has applied to the Scrutiny Committee

for verification of his Caste Certificate before the date
of filing of the nomination papers and who is elected on
the reserved seat of a member or Sarpanch of Village
Panchayat, Councillor or President of Zilla Parishad
or member or Chairman of Panchayat Samiti, but
whose application is pending before the Scrutiny
Committee on the date of commencement of this Act,
shall submit his Validity Certificate within a period of
twelve months from the date of commencement of
this Act ;
And
(b) a person, whose election has been terminated or
deemed to have been terminated or a person who
is disqualified for being a member or Sarpanch of
Village Panchayat, Councillor or President of Zilla
Parishad or member or Chairman of Panchayat Samiti
for not submitting the Validity Certificate within the
period specified in sections mentioned above, shall
be deemed to be and shall continue to be a member
or Sarpanch of Village Panchayat, Councillor or
President of Zilla Parishad or member or Chairman
of Panchayat Samiti, as the case may be, and shall
not be disqualified till the period of twelve months
from the date of commencement of this Act for not
submitting the Validity Certificate:
Provided that, if such person fails to produce the
Validity Certificate within a period of twelve months
from the date of commencement of this Act, his
election shall be deemed to have been terminated
retrospectively and he shall be disqualified for being a
member or Sarpanch of Village Panchayat, Councillor
or President of Zilla Parishad or member or Chairman
of Panchayat Samiti.
(2) The provisions of sub-section (1) shall not be applicable,—
(a) where bye-elections have been held on the seats
specified in sub-section (1) before the date of
commencement of this Act ; or
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(b) where a member whose application of Validity

Certificate has been rejected by the Scrutiny
Committee.
4. All legal proceedings pending immediately before the date of
commencement of this Act, before any court or authority relating
to disqualification of a member or Sarpanch of Village Panchayat,
Councillor or President of Zilla Parishad or member or Chairman
of Panchayat Samiti, for not submitting the Validity Certificate
by them in cases where extension of period for submission of
Validity Certificate is granted under this Act, shall abate.”
30. The statement of objects and reasons leading to the passing of the
Temporary Extension Act, 2023 w.e.f. 10.07.2023 are important.
They are extracted hereinbelow:-
“Sections 10-1A and 30-1A of the Maharashtra Village
Panchayats Act (III of 1959) and sections 12A, 42 and
67 of the Maharashtra Zilla Parishads and Panchayats
Samitis Act, 1961 (Mah. V of 1962) provides that, every
person desirous of contesting elections to a seat of a
member or Sarpanch of the Village Panchayat, Councillor
or President of the Zilla Parishad or member or Chairman
of Panchayat Samiti reserved for persons belonging to
Scheduled Castes, Scheduled Tribes or, as the case may
be, Backward Classes of Citizens, shall submit alongwith
the nomination paper, Caste Certificate issued by the
Competent Authority and the Validity Certificate issued
by the Scrutiny Committee.
2. The abovementioned sections of the said Acts are
amended with a view to allow the persons, desirous of
contesting for such reserved seats in certain general or
bye-elections and have applied to the Scrutiny Committee
for obtaining Validity Certificate, to submit the Validity
Certificate within twelve months from the date on which
they were declared elected.
3. As the Scrutiny Committees are overburdened
with the work of verification of Caste Certificates, the
elected members were facing difficulties in obtaining
the Validity Certificates from the Scrutiny Committees
[2024] 2 S.C.R.  187

Sudhir Vilas Kalel & Ors. v. Bapu Rajaram Kalel & Ors.

within the period specified in the said Acts. The

applications of such elected members are still pending
before the Scrutiny Committees. However, due to
pending applications of such members before Scrutiny
Committees more than seven thousand duly elected
members were disqualified or might be disqualified for
not submitting Validity Certificates for no fault of their own.
Also it had caused hindrance in the local self-governing
process. It was, therefore, necessary to ensure that
such elected candidates shall not be deprived to hold
such offices merely because of non-issuance of validity
certificates in time by the Scrutiny Committees when
their applications are still pending with the Scrutiny
Committees.
4. It was, therefore, considered expedient to make a law
to provide for extension of a period of twelve months
for submitting Validity Certificates by persons elected
on reserved seats of member, Sarpanch, Councillor,
President and member and Chairman in certain general
or bye-elections to Village Panchayats, Zilla Parishads
and Panchayat Samitis and for the matters connected
therewith or incidental thereto.
5. As both Houses of the State Legislature were not in
session and the Governor of Maharashtra was satisfied that
circumstances existed which rendered it necessary for him
to take immediate action to make a law, for the purposes
aforesaid, the Maharashtra Temporary Extension of Period
for Submitting Validity Certificate (for certain elections to
Village Panchayats, Zilla Parishads and Panchayat Samitis)
Ordinance, 2023 (Mah. Ord. VI of 2023), was promulgated
by the Governor of Maharashtra on the 10th July 2023.
6. The Bill is intended to replace the said Ordinance by
an Act of the State Legislature.”
(emphasis supplied)
31. As would be evident, this Temporary Extension Act was enacted
since the Scrutiny Committees were overburdened with the work of
verification of Caste Certificates and the elected members were facing
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difficulties in obtaining the Validity Certificates within the prescribed

time. It is aimed to protect the applicants whose applications are
still pending before the Scrutiny Committee. The idea was that such
elected candidates ought not to be deprived merely because of non-
issuance of Validity Certificates when the applications are still pending.
Section 3 begins with a non obstante clause. It applies to elections
held on or after the 1st January, 2021 and till 10.07.2023, the date
of commencement of the Temporary Extension Act, 2023. It clearly
provides that it covers the cases of persons who have applied to the
Scrutiny Committee for verification of his Caste Certificate before
the date of filing of the nomination papers and who are elected on
the reserved seat; and whose applications are pending before the
Scrutiny Committee on the date of commencement of the Act. It is
mandated that they can produce the certificate within twelve months
from the date of commencement of the Temporary Extension Act,
2023 i.e. till 09.07.2024. Sub-clause (b) states that a person whose
election has been terminated or deemed to have been terminated
or a person who is disqualified for being a Member or Sarpanch for
not submitting the Validity Certificate within the period specified in
the sections mentioned above (10-1A and 30-1A), shall be deemed
to be and shall be continued to be a member or Sarpanch and shall
not be disqualified till the period of twelve months. Sub-section (2)
further clearly states that the provisions of sub-section (1) shall not
apply where the member whose application of Validity Certificate
had been rejected by the Scrutiny Committee. Section 4 states
that all legal proceedings pending immediately before the date of
commencement of the Act, before any court or authority relating to
disqualification of a member, for not submitting the Validity Certificate
where extension of period for submission is granted under the present
Act was to abate.
32. The High Court, in the impugned order, has recorded the following
findings in its operative portion:
“32. In this particular case, Sudhir’s application for a Validity
Certificate was rejected on 1st April 2021. The argument
that this rejection is technical is totally irrelevant. In fact,
the order seems to us to expose precisely the mischief
that is sought to be cured and addressed by Section
10-1A and the amended proviso. It is not permissible for
a candidate to simply file an application and do nothing
[2024] 2 S.C.R.  189

Sudhir Vilas Kalel & Ors. v. Bapu Rajaram Kalel & Ors.

further. That application for a Validity Certificate must

be properly filed and followed through. The mere filing
of the application is not in sufficient compliance with the
statute. The Validity Certificate has to be obtained within
the time provided, whether by the original statute or by
the Temporary Extension Act. Simply filing some sort of
defective application with incomplete documents does not
meet the statutory purpose.
33. Thus, if even the mischief rule of interpretation, the
oldest interpretation doctrine by far, [Heydon’s case, 1584,
76 ER 637] is adopted for the purposes of the Maharashtra
Village Panchayats Act, 1959 and the Temporary Extension
Act, it is clear that defective or incomplete applications
that result in a rejection are no different from a rejection
on merits. Yet, Section 3(2)(b) of the Temporary Extension
Act is thus an essential safeguard.
34. Viewed from either perspective, the Temporary
Extension Act cannot come to Sudhir’s rescue. We note
from the Ordinance, a copy of which is at pages 93 and
96, that it was necessitated because of the huge backlog
of applications pending before the scrutiny committee.”
33. As was set out earlier, after obtaining his caste certificate on
03.02.2013, it was only on 30.12.2020 that is on the same day of the
nomination that the Appellant No. 1 moved the Scrutiny Committee
for obtaining the Validity Certificate. The elections were held on
18.01.2021 and the results were declared on 21.01.2021. He ought
to have furnished the Validity Certificate by 20.01.2022.
34. After filing his application for the Validity Certificate on 30.12.2020,
he undertook that he would file the declaration of the results within
a week. Besides, this undertaking is legally backed by the judgment
in Mandakani Kachru Kokane (supra), which no doubt gave two
weeks from the date of declaration of the result for communication of
the declaration to the Scrutiny Committee. Admittedly, the appellant
No. 1 did not submit the declaration either within one week as
undertaken or within two weeks as provided in Mandakani Kachru
Kokane (supra). In cases where there is due communication
from the applicants, the Division Bench in Mandakani Kachru
Kokane (supra) had obligated the Scrutiny Committee to decide
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the case within a maximum period of eight months from the date of
communication. The Scrutiny Committee which is faced with a large
number of applications can legitimately expect that the applicants who
require disposal on priority basis should comply with the formalities
required to enable the applicant to get priority in decision making.
The Committee under Rule 17(3) is also entitled to reject incomplete
applications by recording reasons. Under Section 17(2) it is also the
obligation of the applicant to comply with removal of objections raised.
35. It is in this background that the order of 01-03/04/2021 came to be
passed whereby the applications (including those of the Appellant
No.1), were ‘filed’. On the facts of the case, the question is, would
the order of 01-03.04.2021 tantamount to a rejection under Section
3(2)(b) of the Temporary Extension Act, 2023 so as to dis-entitle
Appellant No.1 from the benefit of Section 3.
36. To answer this question, the object of Section 10-1A and 30-1A of
the Panchayats Act along with Sections 3 and 4 of the Temporary
Extension Act, 2023 ought to be borne in mind. As has been correctly
held in Anant H. Ulahalkar (supra) while reiterating the holding
in Sujit Vasant Patil (supra), ordinarily, the rule is for an aspiring
candidate in an election to submit the Caste Certificate and the
Validity Certificate along with the nomination. However, a window
of twelve months was given for those who have not obtained the
Validity Certificate to furnish the same and this was held to be a
“risk” that the applicants were taking. Under the Caste Certificate
Act, 2000, the certificate attains finality only if it is authenticated with
a Validity Certificate. That statute and scheme have been discussed
herein above. From those who aspire to contest for a reserved
seat and who take a risk of applying for the validity certificate by
filing an application before the date of nomination, it is prudent to
expect that they will show utmost due diligence in the prosecution
of their application. This would mean that they are expected to do
all that is within their control to do and submit with the Scrutiny
Committee a valid application for their consideration. In fact, it was
on the basis that applicants aspiring to contest election who do not
possess a Validity Certificate, were taking a risk, that the provisions
were held to be mandatory. Further and independent of the above,
Mandakani Kachru Kokane (supra) which came on 27.10.2020
well before the Appellant No.1 filed his nomination clearly mandated
that there was an obligation on the applicants before the Scrutiny
[2024] 2 S.C.R.  191

Sudhir Vilas Kalel & Ors. v. Bapu Rajaram Kalel & Ors.

Committee to furnish the declaration of the results within two weeks

of the declaration of the results for expeditious disposal. In this
case, results were announced on 21.01.2021. Under the law, as
it obtained in Maharashtra, as laid down in the statute and in the
judgments of the Court, there was an obligation to furnish the validity
certificate on or before 20.01.2022. The Appellant No. 1 admitted in
the second application filed on 14.06.2023 that inspite of possessing
the declaration of the result, for some reason, he could not file the
same with the Scrutiny Committee. The consequence was that on
20.01.2022, the Appellant No.1 stood automatically disqualified as
a Member with retrospective effect from the date of his election,
under Section 10-1A of the Panchayats Act. On 01-03/4/2021, under
Rule 17(2) and 17(3) of the Caste Certificate Rules, the applications
were ‘filed’ for not submitting of the notification of his election. It is
pertinent to note that the said order was never challenged by the
Appellant No.1 and so it has attained finality.
37. To hold that – in spite of the Appellant No.1 not doing everything
required to be done, and which were under his control to do – his
application before the Caste Certificate Scrutiny Committee was
still pending on 10.07.2023 for the purposes of Section 3 of the
Temporary Extension Act, 2023, would be letting the Appellant No.1
take advantage of his own wrong. It will also go against the object
and purpose of extending the time for production of the Validity
Certificate by further period of twelve months from 10.07.2023.
38. As is clear from Section 3(1), the further period of twelve months from
10.07.2023 was for those whose applications were validly filed and
pending and where their applications have been submitted before the
date of nomination. Sub-section (1)(b) of Section 3 of the Temporary
Extension Act, 2023 only revives the membership of those, whose
applications are pending by enacting a deeming provision, since they
are now given a further period of twelve months from 10.07.2023
to furnish the Validity Certificate. Sub-section (2) (b) clearly states
that Section 3(1) was not to apply to members whose applications
for Validity Certificate has been rejected by the Scrutiny Committee.
39. The contention of learned counsel for the Appellant No.1 that there
was no rejection and that it was only a “filing” or “lodgment” of the
application on 01-03/04/2021 by the Scrutiny Committee, does not
commend itself to us for acceptance. The rejection in Section 3(2)
(b) will also include those cases where applications came to be
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rejected on account of defaults committed at the end of the applicants

themselves. An applicant who has certain things under his control
ought to have done everything that is under his control for the
purpose of Section 3 of the Temporary Extension Act, 2023. This
would also mean that Section 3(1) of the Temporary Extension Act,
2023 would not apply since there was no valid application filed before
the nomination to the Scrutiny Committee and which was pending.
That his application was not pending, was also the undertaking of the
Appellant No.1, as explained hereinabove. Accepting the contention
of the Appellant No.1 would also amount to putting a premium on the
concession given to a party who was taking the ‘risk’ of contesting
the election by not having a Validity Certificate on the date of the
nomination.
40. For the above reasons, we hold that the Appellant No.1 stood
automatically disqualified as a Member since he failed to produce
the Validity Certificate within 12 months from the date of his election.
The protective umbrella of Section 3 of the Temporary Extension
Act, 2023 will not be available to Appellant No.1 since he is hit by
Section 3(2)(b), for the reason that there was no valid application
pending on the date of the commencement of the said Act.
41. Additionally, the application was rejected under Rule 17. No doubt
this cannot be a rejection which will result in the cancellation of his
caste certificate. This is also reinforced by the fact that the District
Caste Certificate Scrutiny Committee, by its letter dated 14.09.2023,
stated that the Appellant No.1’s application dated 30.12.2020 was
“disposed for non-compliance” and clarifies that his Caste Certificate
dated 03.02.2013 is not invalidated. The Appellant No.1 may take
the benefit of the validity certificate issued to him on 12.07.2023,
pursuant to his second application of 14.06.2023, for sustaining his
Caste Certificate issued by the Competent Authority on 03.02.2013,
for contesting in future elections and for claiming other concessions
as may be available in law.
42. Appellant No.1 has ceased to be a member because of the automatic
disqualification. In view of this, the proceedings of the Tahsildar dated
19.06.2023 rejecting the No Confidence Motion on the ground that
the voting requirement of three-fourth of the members “entitled to
sit and vote”, was not fulfilled, cannot be sustained and has rightly
been set aside by the High Court.
[2024] 2 S.C.R.  193

Sudhir Vilas Kalel & Ors. v. Bapu Rajaram Kalel & Ors.

43. The net result is that the High Court was right in setting aside the
rejection of the No Confidence Motion and in holding that the No
Confidence Motion against Appellant No. 2-Sarpanch, was duly
carried. The High Court was also justified in directing that the Appellant
No.2 should stop exercising the powers as a sarpanch and in further
directing that the election for the post of village Sarpanch be notified
afresh. The High Court was justified in quashing the declaration dated
19.06.2023 declaring that the No Confidence Motion had failed.
44. We affirm the judgement and order of the High Court dated 20.09.2023
in Writ Petition No. 7924 of 2023. In view of the above discussion,
the Appeal is dismissed. Interim orders will stand vacated. No order
as to costs.

Headnotes prepared by: Divya Pandey Result of the case: Appeal dismissed.
 [2024] 2 S.C.R. 194 : 2024 INSC 94

Naresh Chandra Agrawal

v.
The Institute of Chartered Accountants of India and Others
(Civil Appeal No. 4672 of 2012)
08 February 2024
[Pamidighantam Sri Narasimha and Aravind Kumar,* JJ.]

Issue for Consideration

Whether Rule 9(3)(b) of the Chartered Accountants’ (Procedure of
Investigation of Professional and Other Misconduct and Conduct
of Cases) Rules, 2007 is inconsistent with and beyond the rule-
making power of the Central Government.

Headnotes
Chartered Accountants’ (Amendment) Act, 2006 – Chartered
Accountants’ (Procedure of Investigation of Professional and
Other Misconduct and Conduct of Cases) Rules, 2007 – Writ
petition was filed with a prayer to declare Rule 9(3)(b) of the
Rules, 2007 as invalid on the ground that the said rule was
ultra vires section 21 A (4) of the Act – Challenge was repelled
by the High Court:
Held: The rule-making power has been conferred u/s. 29A, which
is titled as ‘Power of the Central Government to make Rules’
– While sub-clause (1) of s. 29A sets out the general power of
delegation, sub-clause (2) provides for enumerated heads – The
power to make rules under the latter clause is without prejudice
to the general power under the former clause – In exercise of the
enabling power (s.29A(2)(c)) to make rules relating to procedure
of investigation u/s. 21(4), the Rules 2007 have been made –
Admittedly, Rule 9(3) goes beyond what is provided for u/s. 21A(4)
in terms of the options available to the Board of Discipline in case
it disagrees with the opinion of the Director (Discipline) – Other
than the option of advising the director to further investigate, Rule
9(3) provides the additional option to the Board for proceeding to
deal with the complaint by itself or referring it to the Disciplinary
Committee, depending on whether the alleged misconduct falls
under the First Schedule or the Second Schedule – Since the
general delegation of power is without any specific guideline, it

* Author
[2024] 2 S.C.R.  195

Naresh Chandra Agrawal v. The Institute of Chartered

Accountants of India and Others

may be necessary to understand the object of the Act vis-à-vis

the chapter on Misconduct – This Chapter defines and prohibits
professional misconduct, while aiming to uphold honesty, integrity,
and professionalism in the practice of chartered accountancy – By
addressing instances of misconduct, it establishes a framework for
accountability, reinforcing the credibility of individual professionals
and the reputation of the entire profession – To achieve these
goals, the Act includes a disciplinary mechanism, ensuring a fair
and transparent process for investigating and adjudicating alleged
cases of misconduct – In this background, there is not the slightest
hesitation to conclude that the impugned rule is completely in sync
with the object and purpose of framing the Chapter on ‘Misconduct’
under the Act. [Paras 34, 35, 36]
Administrative Law – Subordinate Legislation – Summarization
of the legal principles that may be relevant in adjudicating
cases where subordinate legislation are challenged on the
ground of being ‘ultra vires’ the parent Act:
Held: (a) The doctrine of ultra vires envisages that a Rule making
body must function within the purview of the Rule making authority,
conferred on it by the parent Act – As the body making Rules
or Regulations has no inherent power of its own to make rules,
but derives such power only from the statute, it must necessarily
function within the purview of the statute – Delegated legislation
should not travel beyond the purview of the parent Act; (b) Ultra
vires may arise in several ways; there may be simple excess of
power over what is conferred by the parent Act; delegated legislation
may be inconsistent with the provisions of the parent Act; there
may be non-compliance with the procedural requirement as laid
down in the parent Act – It is the function of the courts to keep all
authorities within the confines of the law by supplying the doctrine
of ultra vires; (c) If a rule is challenged as being ultra vires, on
the ground that it exceeds the power conferred by the parent
Act, the Court must, firstly, determine and consider the source of
power which is relatable to the rule – Secondly, it must determine
the meaning of the subordinate legislation itself and finally, it
must decide whether the subordinate legislation is consistent
with and within the scope of the power delegated; (d) Delegated
rule-making power in statutes generally follows a standardized
pattern – A broad section grants authority with phrases like ‘to
carry out the provisions’ or ‘to carry out the purposes’ – Another
sub-section specifies areas for delegation, often using language
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like ‘without prejudice to the generality of the foregoing power’ –

In determining if the impugned rule is intra vires/ultra vires the
scope of delegated power, Courts have applied the ‘generality vs
enumeration’ principle; (e) The “generality vs enumeration” principle
lays down that, where a statute confers particular powers without
prejudice to the generality of a general power already conferred,
the particular powers are only illustrative of the general power,
and do not in any way restrict the general power – In that sense,
even if the impugned rule does not fall within the enumerated
heads, that by itself will not determine if the rule is ultra vires/intra
vires – It must be further examined if the impugned rule can be
upheld by reference to the scope of the general power; (f) The
delegated power to legislate by making rules ‘for carrying out the
purposes of the Act’ is a general delegation, without laying down
any guidelines as such – When such a power is given, it may
be permissible to find out the object of the enactment and then
see if the rules framed satisfy the Act of having been so framed
as to fall within the scope of such general power confirmed; (g)
However, it must be remembered that such power delegated by
an enactment does not enable the authority, by rules/regulations,
to extend the scope or general operation of the enactment but is
strictly ancillary – It will authorize the provision of subsidiary means
of carrying into effect what is enacted in the statute itself and will
cover what is incidental to the execution of its specific provision
– In that sense, the general power cannot be so exercised as to
bring into existence substantive rights or obligations or disabilities
not contemplated by the provisions of the Act itself; (h) If the rule
making power is not expressed in such a usual general form but
are specifically enumerated, then it shall have to be seen if the
rules made are protected by the limits prescribed by the parent
Act. [Para 32]

Case Law Cited

Tamil Nadu and Anr. v. P. Krishnamurthy and Ors.,
[2006] 3 SCR 396 : (2006) 4 SCC 517; Academy of
Nutrition Improvement v. Union of India, [2011] 8 SCR
680 : (2011) 8 SCC 274; Afzal Ullah vs. The State of
Uttar Pradesh, 1963 SCC Online SC 76 – relied on.
BSNL v. TRAI, [2013] 12 SCR 999 : (2014) 3 SCC
222; Afzal Ullah v. State of U.P, [1964] 4 SCR 991 :
AIR 1964 SC 264; Rohtak and Hissar Districts Electric
[2024] 2 S.C.R.  197

Naresh Chandra Agrawal v. The Institute of Chartered

Accountants of India and Others

Supply Co. Ltd. v. State of U.P., [1966] 2 SCR 863 :

AIR 1966 SC 1471; K. Ramanathan v. State of T.N.,
[1985] 2 SCR 1028 : (1985) 2 SCC 116; D.K. Trivedi
and Sons v. State of Gujarat, 1986 Supp SCC 20; State
of Jammu and Kashmir v Lakhwinder Kumar and Ors.,
[2013] 2 SCR 1070 : (2013) 6 SCC 333; PTC India Ltd.
v. Central Electricity Regulatory Commission, [2010] 3
SCR 609 : (2010) 4 SCC 603; Hindustan Zinc Ltd. vs
Andhra Pradesh State Electricity Board, [1991] 2 SCR
643 : (1991) 3 SCC 299; Shri Sitaram Sugar Co. Ltd.
vs Union of India, [1990] 1 SCR 909 : (1990) 3 SCC
223 – referred to.
King Emperor v. Sibnath Banerji, AIR 1945 PC 156;
State of Kerala v. Shri M. Appukutty, (1963) 14 STC
242 – referred to.

List of Acts
Chartered Accountants’ (Amendment) Act, 2006 – Chartered
Accountants’ (Procedure of Investigation of Professional and Other
Misconduct and Conduct of Cases) Rules, 2007.

List of Keywords
Administrative Law; Subordinate Legislation; Doctrine of ultra vires;
Rule making body; Rule making authority; Delegated legislation;
Rule exceeds the power conferred by the parent Act; Delegated
rule-making power in statutes; Generality vs enumeration.

Case Arising From

CIVIL APPELLATE JURISDICTION : Civil Appeal No.4672 of 2012

From the Judgment and Order dated 05.09.2011 of the High Court of
Delhi at New Delhi in WP No.6488 of 2011
Appearances for Parties
Dr. Anurag Kr. Agarwal, Umesh Mishra, Sanjay Jain, Advs. for the
Appellant.
K. M. Nataraj, ASG, Pramod Dayal, Nikunj Dayal, Ms. Sushma
Suri, Sharath Nambiar, Chinmayee Chandra, Digvijay Dam, Yogya
Rajpurohit, Advs. for the Respondents.
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Judgment / Order of the Supreme Court

Judgment
Aravind Kumar, J.
1. The facts in brief are set out herein below:
The Bank of Rajasthan Limited, (hereinafter referred to as
‘Complainant-bank’) had engaged the services of M/s Ramesh C.
Agrawal & Co. (hereinafter referred to interchangeably as ‘the firm’/
‘service provider’) for the purpose of conducting audit work. The
audit work was to be carried out in respect of Sahara India, Aliganj,
Lucknow Branch for a period of 3 years commencing from 01.01.2007.
According to this arrangement, the service provider was required to
submit monthly audit reports in respect of daily transactions/banking
affairs of the concerned branch. This report had to be submitted within
a particular time frame, i.e., by the 7th of the succeeding month. The
service provider was also required to report any suspicious activity
or foul play pertaining to the transactions under review, to the Chief
Executive Officer of the Complainant bank.
On 27.09.2009, a series of circuitous transactions (hereinafter referred
to as ‘subject transaction’) involving large sums of money are said
to have taken place in certain accounts of the branch, which were
neither regular nor normal in nature. However, in the audit report
submitted to the Complainant bank, these transactions were not
flagged.
2. According to the Complainant, the main purpose of engaging the firm
for audit related work was to assist it in timely detection of irregularities/
lapses, besides observing as to whether the transactions were within
the policy parameters as laid down by the Reserve Bank of India. In
having failed to point out the suspicious transactions that took place
on 27.09.2009, the Complainant alleges that the firm had utterly failed
to discharge its professional obligation under the terms, as agreed.
3. It is in this background that the Complainant wrote to the firm, vide
letter dated 05.03.2009 and called for its explanation. No satisfactory
response was received. On 05.09.2009, yet another letter was issued
to the firm, but no reply was received in that regard.
4. Accordingly, the Complainant proceeded to register its complaint
against the audit firm before the Director (Discipline) on 21.12.2009.
The Director (Discipline) forwarded a copy of the complaint to the firm
[2024] 2 S.C.R.  199

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Accountants of India and Others

and called upon it to disclose the name(s) of the member/person(s)

who was/were responsible for conducting the audit and preparing
the report pertaining to the subject transaction.
5. On 15.02.2010, there was a letter communication received by the
Director (Discipline) from the audit firm, in which it was stated that
the Appellant was given the responsibility for reviewing the subject
transactions. The Appellant filed his written statement on 02.04.2010.
The Complainant bank submitted its rejoinder on 02.06.2010. Certain
additional documents were sought by the Director (Discipline) from
the Complainant on 10.12.2010.
6. On consideration of the complaint, the written statement and the
other matters on record, the Director (Discipline) arrived at a prima
facie conclusion that the Appellant was not guilty of any professional
or other misconduct within the meaning of clause (7), (8) and (9)
of Part 1 of the Second Schedule of the Chartered Accountants’
(Amendment) Act, 2006.
7. On such opinion of the Director being placed before the Board of
Discipline, Respondent No.1 informed the Appellant that the Board of
Discipline had disagreed with the prima facie opinion of the Director
(Discipline) and the Board had decided to refer the matter to the
Disciplinary Committee for further action under Chapter V of the
Chartered Accountants’ (Procedure of Investigation of Professional
and Other Misconduct and Conduct of Cases) Rules, 2007 (for short
‘Rules, 2007’).
8. The action of the Board in disagreeing with the prima facie opinion
of the Director (Discipline) and referring the matter for further action
before the Disciplinary Committee was impugned before the High
Court of Delhi in W.P.(C) No.6488 of 2011. The prayer in the said
writ petition was to declare Rule 9(3)(b) of the Rules, 2007 as invalid
on the ground that the said rule was ultra vires section 21 A (4) of
the Act. The Ld. Division Bench having repelled the said challenge,
the Appellants are now before us.
9. According to the Ld. Counsel for the Appellant, when the Director
(Discipline) was of the prima facie opinion that the Appellant was not
guilty of the alleged misconduct, the Board had two options available
to it according to Section 21 A (4) of the Act. It could either close the
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matter at that very stage or direct the Director (Discipline) to further

investigate and it could not have assumed the role of the Director
and acted as the investigating agency by referring the matter to the
Disciplinary Committee. It is submitted that there is no substantive
basis in the parent Act for the action impugned in this appeal. The
Ld. Counsel argued that the impugned Rule, being a delegated
legislation, cannot provide for any action which is not contemplated
under the parent Act.
10. Per contra, Ld. Counsel for the Respondent has sought to justify the
correctness of the view taken in the impugned order. According to
him, if the argument of the Appellant is accepted, the result would
be that the Director (Discipline), who is merely a Secretary to the
Board of Discipline, would have greater powers than the Board itself.
This is because the Board would not be able to overrule the prima
facie view taken by the Director (Discipline). The Board could, at
best, direct the Director (Discipline) to conduct further investigation
and nothing more. It is submitted that the legislature would not have
intended such a consequence. There is nothing in the scheme of
the Act to suggest that the Board cannot refer the matter to the
Disciplinary Committee for further action.
11. Therefore, considering the arguments canvassed on behalf of both
sides, the following question falls for our consideration:
“Whether Rule 9(3)(b) of the Rules, 2007 is inconsistent
with and beyond the rule-making power of the Central
Government?”
Relevant provisions in the Act and Rules:
12. It may be necessary to refer to certain provisions of the Act in order
to better understand the scheme of the applicable law pertaining
to investigation of complaints alleging misconduct. The relevant
provisions are extracted hereinbelow:
“21. Disciplinary Directorate. -
(1) The Council shall, by notification, establish a
Disciplinary Directorate headed by an officer of the
Institute designated as Director (Discipline) and such
other employees for making investigations in respect
of any information or complaint received by it.
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(2) On receipt of any information or complaint along

with the prescribed fee, the Director (Discipline) shall
arrive at a prima facie opinion on the occurrence of
the alleged misconduct.
(3) Where the Director (Discipline) is of the opinion
that a member is guilty of any professional or other
misconduct mentioned in the First Schedule, he
shall place the matter before the Board of Discipline
and where the Director (Discipline) is of the opinion
that a member is guilty of any professional or other
misconduct mentioned in the Second Schedule or in
both the Schedules, he shall place the matter before
the Disciplinary Committee.
(4) In order to make investigations under the
provisions of this Act, the Disciplinary Directorate
shall follow such procedure as may be specified.
(5) Where a complainant withdraws the complaint, the
Director (Discipline) shall place such withdrawal
before the Board of Discipline or, as the case
may be, the Disciplinary Committee, and the said
Board or Committee may, if it is of the view that the
circumstances so warrant, permit the withdrawal at
any stage.
21A. Board of Discipline. —
(1) The Council shall constitute a Board of Discipline
consisting of--
(a) a person with experience in law and having
knowledge of disciplinary matters and the
profession, to be its presiding officer.
(b) two members one of whom shall be a member
of the Council elected by the Council and the
other member shall be nominated by the Central
Government from amongst the persons of
eminence having experience in the field of law,
economics, business, finance or accountancy.
(c) the Director (Discipline) shall function as the
Secretary of the Board.
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(2) The Board of Discipline shall follow summary disposal

procedure in dealing with all cases before it.
(3) Where the Board of Discipline is of the opinion that a
member is guilty of a professional or other misconduct
mentioned in the First Schedule, it shall afford to the
member apportunity of being heard before making
any order against him and may thereafter take any
one or more of the following actions, namely: --
(a) reprimand the member.
(b) remove the name of the member from the
Register up to a period of three months.
(c) impose such fine as it may think fit, which may
extend to rupees one lakh.
(4) The Director (Discipline) shall submit before the
Board of Discipline all information and complaints
where he is of the opinion that there is no prima
facie case and the Board of Discipline may, if it
agrees with the opinion of the Director (Discipline),
close the matter or in case of disagreement,
may advise the Director (Discipline) to further
investigate the matter.]
21B. Disciplinary Committee. —
(1) The Council shall constitute a Disciplinary Committee
consisting of the President or the Vice-President of the
Council as the Presiding Officer and two members to
be elected from amongst the members of the Council
and two members to be nominated by the Central
Government from amongst the persons of eminence
having experience in the field of law, economics,
business, finance or accountancy:
Provided that the Council may constitute more
Disciplinary Committees as and when it considers
necessary.
(2) The Disciplinary Committee, while considering the
cases placed before it shall follow such procedure
as may be specified.
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Accountants of India and Others

(3) Where the Disciplinary Committee is of the opinion

that a member is guilty of a professional or other
misconduct mentioned in the Second Schedule or
both the First Schedule and the Second Schedule,
it shall afford to the member an opportunity of being
heard before making any order against him and
may thereafter take any one or more of the following
actions, namely: --
(a) reprimand the member.
(b) remove the name of the member from the
Register permanently or for such period, as it
thinks fit.
(c) impose such fine as it may think fit, which may
extend to rupees five lakhs.
(4) The allowances payable to the members nominated
by the Central Government shall be such as may be
specified.]
“29A. Power of Central Government to make rules:
(1) The Central Government may, by notification, make
rules to carry out the provisions of this Act.
(2) In particular, and without prejudice to the generality
of the foregoing powers, such rules may provide for
all or any of the following matters, namely :−
(a) the manner of election and nomination in respect
of members to the Council under sub-section
(2) of Section 9;
(b) the terms and conditions of service of the
Presiding Officer and Members of the Tribunal,
place of meetings and allowances to be paid
to them under sub-section (3) of Section 10B;
(c) the procedure of investigation under sub-section
(4) of Section 21;
(d) the procedure while considering the cases by the
Disciplinary Committee under sub-section (2),
and the fixation of allowances of the nominated
members under sub-section (4) of Section 21B;
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(e) the allowances and terms and conditions of

service of the Chairperson and members of the
Authority and the manner of meeting expenditure
by the Council under Section 22C;
(f) the procedure to be followed by the Board in its
meetings under Section 28C ; and
(g) the terms and conditions of service of the
Chairperson and members of the Board under
sub-section (1) of Section 28D.]
(emphasis supplied)
Rule 9 of the Rules, 2007 is extracted hereinbelow:
Rule 9. Examination of the Complaint
(1) The Director shall examine the complaint, written
statement, if any, rejoinder, if any, and other additional
particulars or documents, if any, and form his prima
facie opinion as to whether the member or the
firm is guilty or not of any professional or other 10
misconduct or both under the First Schedule or the
Second Schedule or both.
(2) (a) Where the Director is of the prima facie opinion
that, −
(i) the member or the firm is guilty of any misconduct
under the First Schedule, he shall place his
opinion along with the complaint and all other
relevant papers before the Board of Discipline.
(ii) the member or the firm is guilty of misconduct
under the Second Schedule or both the First and
Second Schedules, he shall place his opinion
along with the complaint and all other relevant
papers before the Committee.
(b) If the Board of Discipline or the Committee, as the
case may be, agrees with the prima facie opinion of
the Director under clause (a) above, then the Board
of Discipline or the Committee may proceed further
under Chapter IV or V respectively.
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(c) If the Board of Discipline or the Committee, as the

case may be, disagrees with the prima facie opinion
of the Director under clause (a) above, it shall either
close the matter or advise the Director to further
investigate the matter
(3) Where the Director is of the prima facie opinion
that the member or the firm is not guilty of any
misconduct either under the First Schedule or the
Second Schedule, he shall place the matter before
the Board of Discipline, and the Board of Discipline, −
(a) if it agrees with such opinion of the Director,
shall pass order, for closure.
(b) if it disagrees with such opinion of the
Director, then it may either proceed under
chapter IV of these rules, if the matter
pertains to the First Schedule, or refer the
matter to the Committee to proceed under
Chapter V of these rules, if the matter
pertains to the Second Schedule or both
the Schedules and may advise the Director
to further investigate the matter.
(4) The Director shall, after making further investigation
as advised by the Board of Discipline under sub-rule
(2) or (3) of this rule or by the Committee under sub-
rule (2), shall further proceed under this rule.”
(emphasis supplied)
13. Section 21(1) empowers the Council to establish a Disciplinary
Directorate for making investigations into the complaints received by
it. The head of this authority is designated as Director (Discipline).
Section 21(2) provides that the Director (Discipline), on receipt of
any information or complaint, shall arrive at a prima facie opinion
on the occurrence of the alleged misconduct. Section 21(3) states
that should the Director (Discipline) arrive at a prima facie opinion
that the member is guilty of professional misconduct, he shall refer
the matter to the Board of Discipline or the Disciplinary Committee,
depending on whether the alleged misconduct falls within the First
Schedule or the Second Schedule or both. If the alleged misconduct
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falls within the First Schedule, the matter is placed before the Board
of Discipline and if it falls within the Second Schedule or in both the
Schedules, the matter is placed before the Disciplinary Committee.
Section 21(4) provides that the procedure for investigation would
be as prescribed under the relevant rules. 1 In the event where
the Complainant wishes to withdraw his/her complaint, Section
21(5) provides that the Director (Discipline) shall place the request
for withdrawal before the Board of Discipline or the Disciplinary
Committee, as the case may be, and the Board or Committee would
take a final call in this regard.
14. The Board of Discipline is constituted under Section 21A of the
Act. The Director (Discipline) is to function as the Secretary of the
Board, as per Section 21A(1)(c) of the Act. Section 21A (2) provides
that the Board shall follow a summary procedure in dealing with
cases referred to it. Where the Board finds that a member is guilty
of professional or other misconduct mentioned in First Schedule, it
may resort to imposing any of the three punishments enumerated
in Section 21A (3).
15. Section 21A (4) requires the Director (Discipline) to submit all
information and complaints to the Board, where he is of the opinion
that there is no prima facie case in the complaint. It further provides
that if the Board agrees with the opinion of the Director (Discipline),
it may close the matter and if it disagrees with the opinion, it may
advise the Director (Discipline) to further investigate into the complaint.
16. Similar scheme to deal with complaints relating to misconduct as
prescribed in the Second Schedule is found in Section 21B (1) to (4).
17. Section 29A is titled ‘Power of Central Government to make rules’.
Section 29A (1) enables the Central Government ‘to make rules
to carry out the provisions of this Act’. Section 29A (2) sets out
enumerated heads under which rules may be made. Rule 9(3), which
is part of Rules, 2007 appears to have been made under Section
29A(2)(c). It is relevant to note that the power to make rules under
sub-section (2) of Section 29A is ‘without prejudice to the generality
of the foregoing power’ provided for in Section 29A(1).

1 Chartered Accountants’ (Procedure of Investigation of Professional and Other Misconduct and Con-
duct of Cases) Rules, 2007
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18. Having discussed the scheme of relevant provisions in the parent

Act, we may now peruse the contents of Rule 9.
19. Rule 9 is titled ‘Examination of Complaint’. Sub-clause (1) provides
for the procedure to be followed on receipt of complaint. The Director
(Discipline) is required to form his prima facie opinion as to whether
the member is guilty or not of the alleged misconduct. Sub-clause (2)
sets out the procedure to be followed in the event where the Director
(Discipline) reaches a prima facie opinion that the member is guilty
of professional misconduct. What is of utmost significance for us is
to see the procedure to be followed when the Director (Discipline)
comes to a prima facie opinion that the member is not guilty of alleged
misconduct, as has been examined in the instant case. This can be
found in sub-clause (3) of Rule 9. It provides that the Board can
accept the opinion of the Director (Discipline) and pass an order for
closure (Rule 9(3)(a)). Where the Board disagrees with the opinion
of the Director (Discipline), it may proceed under Chapter IV of the
Rules, 2007 if the matter pertains to the First Schedule or it may
advise the Director to further investigate the matter. Similarly, the
Board could refer the matter to the Disciplinary Committee for action
under Chapter V if the matter pertains to the Second Schedule or it
could advise the Director (Discipline) to conduct further investigation.
Analysis and Findings:
20. Now, let us contrast Section 21A (4) with Rule 9(3) to examine if
there is any substance in the argument that Rule 9(3) is ultra vires
Section 21A (4). In the event the Board disagrees with the opinion
of the Director (Discipline), Section 21A(4) provides that the Board
may advise the Director to further investigate the matter. However,
Rule 9(3) does not limit itself to just this option. It also enables the
Board to straightaway proceed to act by itself or refer the matter
to the Disciplinary Committee, depending on whether the alleged
misconduct relates to the First Schedule or Second Schedule. It is
in this background that the learned counsel for the Appellant has
strenuously submitted that the Rule goes beyond the enabling power
set out in the parent Act.
21. In State of Tamil Nadu and Anr. v. P. Krishnamurthy and Ors. (2006)
4 SCC 517, this Court recollected the following principles while
adjudging the validity of subordinate legislation, including regulations:
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15. There is a presumption in favour of constitutionality or

validity of a subordinate legislation and the burden is upon
him who attacks it to show that it is invalid. It is also well
recognized that a subordinate legislation can be challenged
under any of the following grounds:
(a) Lack of legislative competence to make the
subordinate legislation.
(b) Violation of fundamental rights guaranteed under the
Constitution of India.
(c) Violation of any provision of the Constitution of India.
(d) Failure to conform to the statute under which it is
made or exceeding the limits of authority conferred
by the enabling Act.
(e) Repugnancy to the laws of the land, that is, any
enactment.
(f) Manifest arbitrariness/unreasonableness (to an extent
where the court might well say that the legislature
never intended to give authority to make such rules)
(emphasis supplied)
22. Of the six available grounds for challenging subordinate legislation,
it is quite clear that the scope of the challenge raised in this petition
is restricted to one ground in the instant case; that the Rule exceeds
the limits of authority conferred by the enabling Act. Therefore, it
becomes important to examine the scope of power available under
the Act before we can adjudge whether the Rules exceed the limits
of authority conferred by the enabling Act.
23. As we have noted earlier, the Rules, 2007, have been framed
purportedly in exercise of the power conferred under Section 29A(2)
(c) of the Act, which enables the Central Government to make rules
regarding ‘the procedure of investigation under sub-section (4) of
Section 21’. However, the enumerated heads set out in Section 29A(2)
cannot be read as exhaustive since the legislature has deployed
the expression ‘without prejudice to the generality of the foregoing
provisions’ before enumerating the specific heads for exercising the
rule-making power. In that sense, the power to make rules generally
for carrying out the provisions of the Act is found in Section 29A(1).
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Section 29A (2) is only an illustrative list of subjects with respect to

which the Central Government may make rules. The illustrative list
of subjects cannot limit the scope of general power available under
the wider rule-making power found in Section 29A(1).
24. Experience of legislative drafting in India has shown that, generally,
the delegation of power to formulate rules follows a standardized
pattern within statutes. Typically, a section of the statute grants
this authority in broad terms, using phrases like ‘to carry out the
provisions of this Act’ or ‘to carry out the purposes of this Act.’
Subsequently, another sub-section details specific matters or areas
for which the delegated power can be exercised, often employing
language such as ‘in particular and without prejudice to the generality
of the foregoing power.’ Judicial interpretation of such provisions
underscores that the specific enumeration is illustrative and should
not be construed as limiting the scope of the general power. This
approach allows for flexibility in rulemaking, enabling the authorities
to address unforeseen circumstances. A key principle emerges from
this interpretation: even if specific topics are not explicitly listed in the
statute, the formulation of rules can be justified if it falls within the
general power conferred, provided it stays within the overall scope
of the Act. This mode of interpretation has been categorised as the
‘generality versus enumeration’ principle in some precedents of this
Court2. This delicate balance between specificity and generality in
legal delegation is crucial for effective governance and adaptability
to evolving legal landscapes.
25. For the sake of completeness, we may refer to some leading
precedents of this Court which have discussed the ‘generality versus
enumeration’ principle.
26. In State of Jammu and Kashmir v Lakhwinder Kumar and Ors.,
(2013) 6 SCC 333, this Court held that when a general power to
make regulations is followed by a specific power to make regulations,
the latter does not limit the former. This is the principle of ‘generality
vs enumeration’: a residuary provision can always be given voice.

2 See, BSNL v. TRAI, (2014) 3 SCC 222; King Emperor v. Sibnath Banerji: AIR 1945 PC 156; Afzal
Ullah v. State of U.P, AIR 1964 SC 264; Rohtak and Hissar Districts Electric Supply Co. Ltd. v. State of
U.P.,AIR 1966 SC 1471; K. Ramanathan v. State of T.N. (1985) 2 SCC 116; D.K. Trivedi and Sons v.
State of Gujarat, 1986 Supp SCC 20
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27. In Academy of Nutrition Improvement v. Union of India (2011) 8

SCC 274, this Court had interpreted a pari materia expression “in
particular and without the generality of the foregoing power, such
Rules may provide for all or any of the following matters”. This Court
held as follows :
“………where power is conferred to make subordinate
legislation in general terms, the subsequent particularisation
of the matters/topics has to be construed as merely
illustrative and not limiting the scope of the general power.
Consequently, even if the specific enumerated topics in
section 23(1A) may not empower the Central Government
to make the impugned rule (Rule 44-I), making of the
Rule can be justified with reference to the general power
conferred on the central government under section 23(1),
provided the rule does not travel beyond the scope of
the Act”
28. In the case of State of Kerala v. Shri M. Appukutty (1963) 14 STC
242, the provisions of Section 19 (1) and (2) (f) of the Madras General
Sales Tax Act of 1939 came up for consideration of this Court. It
was unsuccessfully argued therein that Rule 17(1) was ultra vires
the rule making power specifically enumerated in Section 19(2)(f).
29. The relevant provisions involved there were similar in form to the
applicable provisions in the instant case.
Section 19 (1),(2),2(f) read as follows:
(1) The State Government may make rules to carry out
the purposes of this Act.
(2) In particular and without prejudice to the generality
of foregoing power such rules may provide for-- *****
(f) the assessment to tax under this Act of any turnover
which has escaped assessment and the period within
which such assessment may be made, not exceeding
three years;
Dealing with the objection raised, this Court observed:--
“..... Rule 17 (1) and (3A) ex facie properly fall under Section
19(2)(f). In any event as was said by the Privy Council in
King Emperor v. Sibnath Banerji MANU/PR/0024/1945,
[2024] 2 S.C.R.  211

Naresh Chandra Agrawal v. The Institute of Chartered

Accountants of India and Others

the rule-making power is conferred by Sub-section (1) of

that section and the function of Sub-section (2) is merely
illustrative and the rules which are referred to in Sub-section
(2) are authorised by and made under Sub-section (1).
The pro-visions of Sub-section (2) are not restrictive
of Sub-section (1) as expressly stated in the words
‘without prejudice to the generality of the foregoing
power’ with which Sub-section (2) begins and which
words are similar to the words of Sub-section (2) of
Section 2 of the Defence of India Act which the Privy
Council was considering.....”
(emphasis supplied)
30. While examining the “generality versus enumeration” principle, this
Court, in PTC India Ltd. v. Central Electricity Regulatory Commission,
(2010) 4 SCC 603, referred with approval to its earlier Judgement
in Hindustan Zinc Ltd. vs Andhra Pradesh State Electricity Board
(1991) 3 SCC 299, wherein the scope of Sections 49(1) & (2) of the
Electricity Supply Act, 1948 fell for consideration. Under Section 49(1),
a general power was given to the Board to supply electricity to any
person not being a licensee, upon such terms and conditions as the
Board thinks fit and the Board may, for the purposes of such supply,
frame uniform tariff under Section 49(2). The Board was required to
fix uniform tariff after taking into account certain enumerated factors.
In this context, this Court, in Hindustan Zinc Ltd., held that the power
of fixation of tariff in the Board ordinarily had to be done in the light
of specified factors; however, such enumerated factors in Section
49(2) did not prevent the Board from fixing uniform tariff on factors
other than those enumerated in Section 49(2), as long as they were
relevant and in consonance with the Act. This Court then referred,
with approval, to its judgment in Shri Sitaram Sugar Co. Ltd. vs Union
of India (1990) 3 SCC 223, wherein it was held that the enumerated
factors/topics in a provision did not mean that the authority cannot
take any other matter into consideration which may be relevant; and
the words in the enumerated provision are not a fetter; they are not
words of limitation, but are words for general guidance.
31. In Afzal Ullah vs. The State of Uttar Pradesh reported in 1963 SCC
Online SC 76, it was argued that the impugned bye-laws were invalid,
because they were outside the authority conferred on the delegate
to make bye-laws by Section 298(2) of the Act, and it was also
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contended that the bye-laws were invalid for the additional reason
that they were inconsistent with Section 241 of the Act. Rejecting
the said contentions, this Court observed as follows:
“Even if the said clauses did not justify the impugned bye-
law, there can be little doubt that the said bye-laws would
be justified by the general power conferred on the Boards
by s. 298(1). It is well-settled that the specific provisions
such as are contained in the several clauses of s. 298(2)
are merely illustrative and they cannot be read as restrictive
of the generality of powers prescribed by s. 298(1) vide
Emperor v. Sibnath Banerji & Ors MANU/PR/0024/1945. If
the powers specified by s. 298(1) are very wide and they
take in within their scope bye-laws like the ones with which
we are concerned in the present appeal, it cannot be said
that the powers enumerated under s. 298(2) control the
general words used by s. 298(1). These latter clauses
merely illustrate and do not exhaust all the powers
conferred on the Board, so that any cases not falling
within the powers specified by section 298(2) may
well be protected by s. 298(1), provided, of course, the
impugned bye-laws can be justified by reference to the
requirements of s. 298(1). There can be no doubt that
the impugned bye-laws in regard to the markets framed
by respondent No. 2 are for the furtherance of municipal
administration under the Act, and so, would attract the
provisions of s. 298(1). Therefore we are satisfied that
the High Court was right in coming to the conclusion that
the impugned bye-laws are valid.”
(emphasis supplied)
32. From reference to the precedents discussed above and taking an
overall view of the instant matter, we proceed to distil and summarise
the following legal principles that may be relevant in adjudicating
cases where subordinate legislation are challenged on the ground
of being ‘ultra vires’ the parent Act:
(a) The doctrine of ultra vires envisages that a Rule making body
must function within the purview of the Rule making authority,
conferred on it by the parent Act. As the body making Rules or
Regulations has no inherent power of its own to make rules, but
[2024] 2 S.C.R.  213

Naresh Chandra Agrawal v. The Institute of Chartered

Accountants of India and Others

derives such power only from the statute, it must necessarily

function within the purview of the statute. Delegated legislation
should not travel beyond the purview of the parent Act.
(b) Ultra vires may arise in several ways; there may be simple
excess of power over what is conferred by the parent Act;
delegated legislation may be inconsistent with the provisions of
the parent Act; there may be non-compliance with the procedural
requirement as laid down in the parent Act. It is the function of
the courts to keep all authorities within the confines of the law
by supplying the doctrine of ultra vires.
(c) If a rule is challenged as being ultra vires, on the ground that it
exceeds the power conferred by the parent Act, the Court must,
firstly, determine and consider the source of power which is
relatable to the rule. Secondly, it must determine the meaning
of the subordinate legislation itself and finally, it must decide
whether the subordinate legislation is consistent with and within
the scope of the power delegated.
(d) Delegated rule-making power in statutes generally follows a
standardized pattern. A broad section grants authority with
phrases like ‘to carry out the provisions’ or ‘to carry out the
purposes.’ Another sub-section specifies areas for delegation,
often using language like ‘without prejudice to the generality
of the foregoing power.’ In determining if the impugned rule is
intra vires/ultra vires the scope of delegated power, Courts have
applied the ‘generality vs enumeration’ principle.
(e) The “generality vs enumeration” principle lays down that, where
a statute confers particular powers without prejudice to the
generality of a general power already conferred, the particular
powers are only illustrative of the general power, and do not in
any way restrict the general power. In that sense, even if the
impugned rule does not fall within the enumerated heads, that
by itself will not determine if the rule is ultra vires/intra vires. It
must be further examined if the impugned rule can be upheld
by reference to the scope of the general power.
(f) The delegated power to legislate by making rules ‘for carrying out
the purposes of the Act’ is a general delegation, without laying
down any guidelines as such. When such a power is given,
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it may be permissible to find out the object of the enactment

and then see if the rules framed satisfy the Act of having been
so framed as to fall within the scope of such general power
confirmed.
(g) However, it must be remembered that such power delegated by
an enactment does not enable the authority, by rules/regulations,
to extend the scope or general operation of the enactment but
is strictly ancillary. It will authorize the provision of subsidiary
means of carrying into effect what is enacted in the statute
itself and will cover what is incidental to the execution of its
specific provision. In that sense, the general power cannot be
so exercised as to bring into existence substantive rights or
obligations or disabilities not contemplated by the provisions
of the Act itself.
(h) If the rule making power is not expressed in such a usual general
form but are specifically enumerated, then it shall have to be
seen if the rules made are protected by the limits prescribed
by the parent Act.
33. With this background in view, we may now apply the principles to
the factual context obtained in the instant case.
34. In the instant case, the ultra vires challenge has been mounted on
the ground that the impugned Rule exceeds the power conferred by
the parent Act. If we look at the parent Act, the rule-making power
has been conferred under Section 29A, which is titled as ‘Power of
the Central Government to make Rules’. While sub-clause (1) of
Section 29A sets out the general power of delegation, sub-clause (2)
provides for enumerated heads. As noted earlier, the power to make
rules under the latter clause is without prejudice to the general power
under the former clause. In exercise of the enabling power (Section
29A(2)(c)) to make rules relating to procedure of investigation under
Section 21(4), the Rules 2007 have been made. Admittedly, Rule 9(3)
goes beyond what is provided for under Section 21A(4) in terms of
the options available to the Board of Discipline in case it disagrees
with the opinion of the Director (Discipline). Other than the option
of advising the director to further investigate, Rule 9(3) provides the
additional option to the Board for proceeding to deal with the complaint
[2024] 2 S.C.R.  215

Naresh Chandra Agrawal v. The Institute of Chartered

Accountants of India and Others

by itself or referring it to the Disciplinary Committee, depending on

whether the alleged misconduct falls under the First Schedule or the
Second Schedule. But as we have seen from principles discussed
above, the scrutiny cannot stop at examining if the impugned rule
is relatable to any specific enumerated head. We must go further
and examine if it can be related to the general delegation of power
under Section 29A(1), which authorises the Central Government to
make rules for carrying out the purposes of the Act.
35. Since the general delegation of power is without any specific guideline,
it may be necessary to understand the object of the Act vis-à-vis the
chapter on Misconduct. It is only then can we examine whether the
impugned rule falls within the scope of such general power conferred.
Object of the CA Act vis a vis Chapter on Misconduct:
36. The Chartered Accountants Act, 1949, is a legislation that governs
the regulation of the chartered accountancy profession in India. The
chapter on “Misconduct” in the Chartered Accountants Act, 1949, plays
a crucial role in maintaining the ethical standards of the profession in
India. Its main objectives are to set ethical guidelines, prevent actions
that may compromise public interests, ensure accountability among
chartered accountants, and preserve the profession’s reputation. This
Chapter defines and prohibits professional misconduct, while aiming
to uphold honesty, integrity, and professionalism in the practice of
chartered accountancy. By addressing instances of misconduct, it
establishes a framework for accountability, reinforcing the credibility
of individual professionals and the reputation of the entire profession.
To achieve these goals, the Act includes a disciplinary mechanism,
ensuring a fair and transparent process for investigating and
adjudicating alleged cases of misconduct.
37. Seen in this background, we have not the slightest hesitation to
conclude that the impugned rule is completely in sync with the
object and purpose of framing the Chapter on ‘Misconduct’ under
the Act. As has been rightly argued by the learned counsel for the
Respondent, accepting the contention of the Appellant will create
an anomalous situation. The Director (Discipline) who functions as
a secretary to the Board of Discipline as per Section 21A (2) will be
having greater powers than the Board itself. The ‘prima facie’ opinion
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of the Director will become nothing but a final opinion if the Board
will have no option except to direct the Director (Discipline) to further
investigate the matter. The Section is silent as to what would happen
in a situation where the Director (Discipline) on further investigation
concludes in accordance with his preliminary assessment. Therefore,
even if we accept, for the sake of argument, that Rule 9(3) cannot
be saved under Section 29A(2)(c), as it directly relates to furthering
the purposes of the Act in ensuring that a genuine complaint of
professional misconduct against the member is not wrongly thrown
out at the very threshold, it can be easily concluded that the impugned
Rule falls within the scope of the general delegation of power under
Section 29A(1).
38. Accordingly, we dismiss this appeal. No costs.

Headnotes prepared by: Ankit Gyan Result of the case: Appeal dismissed.
 [2024] 2 S.C.R. 217 : 2024 INSC 97

Sushil Kumar Pandey & Ors.

v.
The High Court of Jharkhand & Anr.
(Writ Petition (Civil) No. 753 of 2023)

01 February 2024
[Aniruddha Bose and Sanjay Kumar, JJ.]

Issue for Consideration

High Court whether justified in altering the selection criteria after the
performance of individual candidates was assessed for selection
to the posts of District Judge Cadre in the State of Jharkhand.

Headnotes
Jharkhand Superior Judicial Service (Recruitment,
Appointment and Conditions of Service) Rules, 2001 – rr.14,
18, 21 – Jharkhand Superior Judicial Service (Recruitment,
Appointment and Conditions of Service) Regulation, 2017 –
Selection to the posts of District Judge Cadre in the State
of Jharkhand – Alteration in selection criteria after the
performance of individual candidates was assessed – Higher
aggregate marks prescribed in deviation from the statutory
rules – By way of Full Court Resolution, High Court introduced
securing 50 per cent marks in aggregate (combination of
marks obtained in main examination and viva-voce) as the
qualifying criteria for being recommended to the posts of
District Judge – Impermissibility:
Held: Under r.18, the task of setting cut-off marks was vested
in the High Court but this was to be done before the start of the
examination – Stipulations contained in r.21 for making the select
list were breached by the High Court administration in adopting
the impugned resolution – Plea that applying a higher aggregate
mark was not barred under the Rules or Regulations, not accepted
– The very expression “aggregate” means combination of two or
more processes and in the event the procedure for arriving at the
aggregate has been laid down in the applicable Rules, a separate
criteria cannot be carved out to enable change in the manner
of making the aggregate marks – If the High Court is permitted
to alter the selection criteria after the performance of individual
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candidates is assessed, that would constitute alteration of the laid

down Rules – Plea of the High Court administration that r.14 permits
them to alter the selection criteria after the selection process is
concluded and marks are declared is not proper exposition of the
said provision – r.14 empowers the High Court administration in
specific cases to reassess the suitability and eligibility of a candidate
in a special situation by calling for additional documents –High
Court administration cannot take aid of this Rule to take a blanket
decision for making departure from the selection criteria specified
in the 2001 Rules – High Court to make recommendation for
those candidates who were successful as per the merit or select
list, for filing up the subsisting notified vacancies without applying
the Full Court Resolution that requires each candidate to get 50
per cent aggregate marks – The part of the Full Court Resolution
of the Jharkhand High Court by which it was decided that only
those candidates who secured at least 50% marks in aggregate
shall be qualified for appointment to the post of District Judge is
quashed [Paras 20, 22-24]
Service jurisprudence – Change in the rule midway – Discussed.

Case Law Cited

Sivanandan C.T. & Ors. v. High Court of Kerala, [2023]
11 SCR 674 : (2023) INSC 709 – followed.
State of Haryana v. Subash Chander Marwaha & Ors.,
[1974] 1 SCR 165 : (1974) 3 SCC 220; Ram Sharan
Maurya and Ors. v. State of U.P. and Ors., [2020] 12
SCR 466 : (2021) 15 SCC 401 – distinguished.
K.Manjusree v. State of Andhra Pradesh and Anr., [2008]
2 SCR 1025 : (2008) 3 SCC 512; Hemani Malhotra
v. High Court of Delhi, [2008] 5 SCR 1066 : (2008) 7
SCC 11 – relied on.
Tej Prakash Pathak & Ors. v. Rajasthan High Court and
Others: (2013) 4 SCC 540 – referred to.

List of Acts
Jharkhand Superior Judicial Service (Recruitment, Appointment and
Conditions of Service) Rules, 2001; Jharkhand Superior Judicial
Service (Recruitment, Appointment and Conditions of Service)
Regulation, 2017; Constitution of India.
[2024] 2 S.C.R.  219

Sushil Kumar Pandey & Ors. v. The High Court of Jharkhand & Anr.

List of Keywords
District Judge Cadre; Altering the selection criteria; Higher
aggregate mark; Qualifying criteria; Cut-off marks; Departure from
selection criteria.

Case Arising From

CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.753 of 2023

(Under Article 32 of The Constitution of India)

With

Writ Petition (Civil) No.921 of 2023

Appearances for Parties
Arunabh Chowdhury, Sr. Adv./A.A.G., Vinay Navare, K
Karpagavinagagam, Dushyant Dave, Ms. Meenakshi Arora, Jayant
K. Sud, Jaideep Gupta, Sr. Advs., Mahesh Thakur, Ms. Neha Singh,
Mrs. Geetanjali Bedi, Ranvijay Singh Chandel, Shivamm Sharrma,
Ms. Shivani, Prithvi Pal, Sanjay Kumar Yadav, Manoj Jain, Ms.
Kiran Bhardwaj, C Aravind, K V Mathu Kumar, Ms. Geeta Verma,
Syed Imtiyaz, Usman Khan, Ms. Madhurima Sarangi, Naeem
Ilyas, Towseef Ahmad Dar, Danish Zubair Khan, Dr. Lokendra
Malik, Surya Nath Pandey, Durga Dutt, Rohit Priyadarshi, Upendra
Narayan Mishra, Satyendra Kumar Mishra, Ms. Rashi Verma,
Somesh Kumar Dubey, Kartik Jasra, Prannit Stefano, Shivam
Nagpal, Ms. Susmita Lal, Ms. Racheeta Chawla, Kamakhya
Srivastava, Rajiv Shanker Dvivedi, Ms. Tulika Mukherjee, Karma
Dorjee, Dechen W. Lachungpa, Beenu Sharma, Venkat Narayan,
Advs. for the appearing parties.
Judgment / Order of the Supreme Court
Judgment
In these two writ petitions, we are to address the legality of the
selection process of District Judge Cadre in the State of Jharkhand
initiated in the year 2022. An advertisement bearing No. 01/2022
was published on 24th March, 2022, inviting applications from the
eligible candidates for the said posts. The vacancies specified in
the advertisement itself were twenty-two. Appointment procedure to
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the said posts is guided by the Jharkhand Superior Judicial Service

(Recruitment, Appointment and Conditions of Service) Rules, 2001
(‘the 2001 Rules’). In the year 2017, the Jharkhand Superior Judicial
Service (Recruitment, Appointment and Conditions of Service)
Regulation, 2017 (“the 2017 Regulation”) was framed in terms of
Rule 11 and Rule 30 of the 2001 Rules for this purpose.
2. On the basis of cut-off marks specified in the advertisement as also
in the 2001 Rules, select list of sixty-six persons was published,
applying the 1:3 ratio as there were twenty-two published vacancies.
3. The High Court on its administrative side, however, recommended
only thirteen candidates for appointment though the vacancies
declared were twenty-two. A resolution to that effect was taken in
a Full Court meeting held on 23.03.2023. We shall quote relevant
provisions from the 2001 Rules in subsequent paragraphs of this
judgment along with the relevant extracts from the advertisement.
In the advertisement, the relevant portions for adjudication of the
subject dispute were contained under the heading ‘Eligibility and
Conditions’. The following criteria for selection was specified therein:-
“Preliminary Entrance Test
(1) The Preliminary Entrance Test shall consist. Of:-
i. General English
ii. General Knowledge(including Current Affairs).
iii. C.P.C.
iv. Cr.P.C.
v. Evidence Act
vi. Law of Contract.
vii. IPC
(2) The Preliminary Entrance Test shall be of 100 in aggregate
(3) Duration of Preliminary Entrance Test shall be of two hours.
(4) There shall be negative marking of -1 mark (minus one)for
each wrong answer.
Main Examination
(1) The Main Examination shall consist of:-
[2024] 2 S.C.R.  221

Sushil Kumar Pandey & Ors. v. The High Court of Jharkhand & Anr.

Paper -I
Part- I Language (English) 50 Marks
(Essay, Precis, Preposition and Comprehension etc,)
Part- II
(i) Procedural Law (Cr.P.C. & C.P.C)
(ii) Law of Evidence
(iii) Law of Limitation 50Marks
Paper- II
Substantive Law  100 Marks
(i) Constitution of India
(ii) Indian Penal Code
(iii) Law of Contract
(iv) Sale of Goods Act
(v) Transfer of Property Act
(vi) Negotiable Instrument Act
(vii) Law relating to Motor Vehicle Accident Claim
(viii) Jurisprudence.
(ix) Santhal Pargana Tenancy Act
(x) Chhotanagpur Tenancy Act
(xi) Protection of Children from Sexual Offences Act (pocso)
(xii) Prevention Of Corruption Act (xiii) SC & ST Act
(xiv) Electricity Act
(xv) Narcotic Drugs and Psychotropic Substances Act (NDPS
Act)
(2) Examination shall be held in two sittings of three hours duration
for each paper.
Viva-Voce Test
(1) There shall be Viva-Voce Test of 40 marks.
(2) The marks obtained in Viva-Voce Test shall be added to
the marks obtained in Main Examination and the merit list
shall be prepared accordingly.
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(3) No candidate irrespective of the marks obtained by him

in the Main Examination, shall be eligible for selection
for appointment, if he obtains less than 20 marks out of
aggregate of 40 in the Viva-Voce. Test.
Note:- Every differently abled candidate will be allowed
“compensatory time” of 20 minutes for each hour of written
examination.”
4. So far as the selection process involved in these proceedings is
concerned, no preliminary entrance test was held, but that question
is not in controversy before us. The main examination comprising
of Paper-I and Paper-II carried a total of 200 marks. As per the
advertisement, the marks allocated for viva-voce test was 40 as would
appear from the preceding paragraph. A candidate irrespective of
the marks obtained by him in the main examination was required to
get at least 20 marks out of the aggregate 40 in the viva-voce test.
5. As per the 2001 Rules, the provisions relevant are Rules 14, 18, 21
and 22. These Rules read:-
“14. Notwithstanding anything contained in the foregoing
Rule, it shall be open to the High Court to require the
candidate at any stage of the selection process or
thereafter, to furnish any such additional proof or to produce
any document with respect to any matter relating to his
suitability and/or eligibility as the High Court may deem
necessary.
18. Before the start of the examination, the High Court
may fix the minimum qualifying marks in the Preliminary
Written Entrance Test and thereafter minimum qualifying
marks in the main examination. Based on such minimum
qualifying marks, the High Court may decide to call for
viva-voce such number of candidates, in order of merit
in written examination, depending upon the number of
vacancies available as it may appropriately decide:
Provided that in the case of candidates belonging to
scheduled castes and scheduled tribes and candidates
belonging to other reserved categories, such minimum
qualifying marks may not be higher than 45% of the total
aggregate marks :
[2024] 2 S.C.R.  223

Sushil Kumar Pandey & Ors. v. The High Court of Jharkhand & Anr.

Provided also that in determining the suitability of a

particular candidate based on both the minimum qualifying
marks as well as in order of merit, the total marks obtained
in the examination as a whole and the marks obtained
in any individual paper, both shall also be taken into
consideration, depending upon any guidelines that the
High Court may issue in this behalf in the Regulations to
be framed for this purpose.
21. A candidate, irrespective of the marks obtained by him
in the Preliminary Written Entrance Examination and/or
the Main Written Examination shall not be qualified to be
appointed unless he obtains a minimum of 30% marks in
the viva-voce test. The marks obtained at the viva voce
test shall then be added to the marks obtained by the
candidate at the main written examination. The names of
the candidates will then be tabulated and arranged in order
of merit. If two or more candidates obtain equal marks in
the aggregate, the order shall be determined in accordance
with the marks secured at the main written examination.
If the marks secured at the main written examination of
the candidates also are found equal then the order shall
be decided in accordance with the marks obtained in the
Preliminary Written Entrance Test. From the list of candidates
so arranged in order of merit the High Court shall prepare a
select list and have it duly notified in a manner as prescribed
in the regulations. Such select list shall be valid for a period
of one year from the date of being notified.
22. From out of the aforesaid select list, depending upon the
number of vacancies available or those required to be filled
up, the High Court shall recommend to the Government
the names for appointment as Additional District Judge.”
6. There appears to be one inconsistency in relation to minimum marks
prescribed between the content of Rule 21 of the said Rules and
paragraph 12 of the 2017 Regulation. The said paragraph of the
Regulation stipulates:-
“(12) No candidate irrespective of the marks obtained by
him in the Main Examination, shall be eligible for selection
for appointment, if he obtains less than 20 marks out of
aggregate of 40 in the Viva-Voce Test.”
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7. We have already quoted Rule 21 of the 2001 Rules where minimum of

30% marks in the viva-voce has been prescribed as the qualification
criteria. But that question also does not arise in the present two writ
petitions as none of the parties before us has raised this point. We
also find it to be a safer course to go by the provisions of paragraph
12 of the 2017 Regulation, as the advertisement also prescribed
minimum 20 marks out of aggregate of 40 in the Viva Voce test.
8. Admitted position is that the 9 candidates who have been left out
from being recommended for appointment, had found place in the
select list in terms of Rule 21 of the 2001 Rules.
9. In Writ Petition (Civil) No. 753 of 2023, altogether seven petitioners
have joined in questioning the exclusion of the 9 candidates by
the Full Court Resolution. The said resolution introduces securing
50 per cent marks in aggregate (combination of marks obtained in
main examination and viva-voce) as the qualifying criteria for being
recommended to the said posts. This resolution against Agenda
No. 1 of the Full Court Meeting held on 23rd March, 2023 records:-

SL.No. AGENDA RESOLUTIONS

1. To consider the matter Considered.
over recruitment
The Full Court resolves to approve
process of District
the final result list of 63 Candidates
Judge [U/r 4(a)
who have appeared for viva voce
directly from Bar] with
(list enclosed with this resolution and
regard to Final Result
marked at Flag “X”)
against advertisement
no.01/2022/Apptt. Further, Full Court observes that
candidates at Sl.No.7 & 8 have
got the same total marks, but on
careful consideration it transpires that
candidate at Sl.No.8 has got higher
marks in written examination. Hence
in view of Rule 21 of Jharkhand
Superior Judicial (Recruitment,
Appointment and Conditions of
Service) Rules, 2001, candidate at
Sl.No.8 is placed at higher place/
rank.
[2024] 2 S.C.R.  225

Sushil Kumar Pandey & Ors. v. The High Court of Jharkhand & Anr.

Further after due deliberation,

keeping in view the responsibility that
will be vested upon the candidates
who qualify for appointment of
District Judges and to maintain the
high standard of Superior Judicial
Services, the Full Court resolves
that only those candidates who
have secured at least 50% marks
in aggregate, shall be qualified for
appointment to post of District Judge.
It is hereby resolved to recommend
the names of following 13 top
(merit wise) candidates to the
State Government for issuance of
necessary notification/s for their
appointment to the post of District
Judge after completing/undertaking
the investigation/enquiry relating to
the candidates credentials as per
Rule 23 & 24 of Jharkhand Superior
Judicial (Recruitment, Appointment
and Conditions of Service) Rules,
2001:

S.No. Roll No. Name

1 10369 NAMITA CHANDRA
2 10956 SHWETA DHINGRA
3 10343 PARAS KUMAR SINHA
4 10388 KUMAR SAKET
5 10519 SHIVNATH TRIPATHI
6 10218 BHUPESH KUMAR
7 11577 AISHA KHAN
8 10294 BHANU PRATAP SINGH
9 10592 NEETI KUMAR
10 10371 PRACHI MISHRA
11 10109 PAWAN KUMAR
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12 11061 RAJESH KUMAR BAGGA

13 10587 NARANJAN SINGH
Registrar General is directed to upload the names of above mentioned
13 successful candidates to the official website of this Court.
10. This Resolution has been disclosed in the reply to the Rejoinder
affidavit filed on behalf of the High Court of Jharkhand, affirmed by
Registrar General of that Court.
11. There are two impleadment applications registered as I.A. No.
173928 of 2023 taken out by ‘Purnendu Sharan’ and I.A. No. 10383
of 2024 taken out by ‘Ashutosh Kumar Pandey’, both of them being
aggrieved by the procedure adopted by the Full Court.
12. Another set of candidates have filed the second writ petition registered
as Writ Petition (Civil) No. 921 of 2023. In this writ petition, altogether
five candidates have sought substantially the same relief asked for
in the Writ Petition (Civil) No. 753 of 2023.
13. The petitioners have been represented before us by Mr. Dushyant
Dave, Mr. Vinay Navare and Mr. Jayant K. Sud, learned senior
counsel whereas the High Court of Jharkhand has been represented
by Mr. Jaideep Gupta, learned senior counsel. Mr. Rajiv Shanker
Dvivedi, learned Standing Counsel for the State of Jharkhand has
appeared for the State. State has taken a non-committal stand before
us. Counter affidavit has been filed by the State in which also no
definitive stand has been taken on the legality of the Resolution
in the Full Court meeting of the High Court. It has however been
submitted by the State that certain amendments need to be carried
out in Rule 21 of the 2001 Rules. That plea does not come within
the scope of the present proceedings.
14. The petitioners’ main case rests on two planks. First one is that the
decision of the Full Court on the administrative side goes contrary
to the Recruitment Rules, Regulations and the Terms contained in
the advertisement. The second plank of the submissions advanced
by the petitioners is that in any event, after the performance of each
of the candidate is known and the marks obtained by them in the
two forms of the examination are disclosed, it was impermissible
for the High Court Administration to introduce fresh cut-off marks.
On this point, the authority relied upon by Mr. Dave is a judgment
of a Constitution Bench comprising of five Hon’ble Judges of this
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Sushil Kumar Pandey & Ors. v. The High Court of Jharkhand & Anr.

Court in the case of Sivanandan C.T. & Ors. Vs. High Court of
Kerala [(2023) INSC 709)] decided on 12th July, 2023. This judgment
narrates the factual background of that case in paragraph ‘7’ thereof
and the ratio of this decision would emerge from paragraphs ‘52’ to
‘57’ of the said judgment. These passages from the judgment are
quoted below:-
“7. On 27 February 2017, after the viva-voce was
conducted, the Administrative Committee of the High
Court passed a resolution by which it decided to apply
the same minimum cut-off marks which were prescribed
for th e written examination as a qualifying criterion in the
viva-voce. In coming to this conclusion, the Administrative
Committee was of the view that since appointments
were being made to the Higher Judicial Service, it was
necessary to select candidates with a requisite personality
and knowledge which could be ensured by prescribing
a cut-off for the viva-voce in terms similar to the cut-off
which was prescribed for the written examination. On 6
March 2017, the Full Court of the High Court of Kerala
approved the resolution of the Administrative Committee.
The final merit list of the successful candidates was also
published on the same day.
x x x
52. The statutory rule coupled with the scheme of
examination and the 2015 examination notification would
have generated an expectation in the petitioners that
the merit list of selected candidates will be drawn on
the basis of the aggregate of total marks received in the
written examination and the viva voce. Moreover, the
petitioners would have expected no minimum cutoff for
the viva voce in view of the express stipulation in the
scheme of examination. Both the above expectations of
the petitioners are legitimate as they are based on the
sanction of statutory rules, scheme of examination, and
the 2015 examination notification issued by the High Court.
Thus, the High Court lawfully committed itself to preparing
a merit list of successful candidates on the basis of the
total marks obtained in the written examination and the
viva voce.
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ii. Whether the High Court has acted unlawfully in relation

to its commitment?
53. The Administrative Committee of the High Court
apprehended that a candidate who performed well in the
written examination, even though they fared badly in the
viva voce, would get selected to the post of District and
Sessions Judge. The Administrative Committee observed
that recruitment of such candidates would be a disservice to
the public at large because they possessed only “bookish”
knowledge and lacked practical wisdom. To avoid such a
situation, the Administrative Committee of the High Court
decided to apply a minimum cut-off to the viva voce
examination. The decision of the Administrative Committee
was approved by the Full Bench of the High Court.
54. The Constitution vests the High Courts with the authority
to select judicial officers in their jurisdictions. The High
Court, being a constitutional and public authority, has
to bear in the mind the principles of good administration
while performing its administrative duties. The principles
of good administration require that the public authorities
should act in a fair, consistent, and predictable manner.
55. The High Court submitted that frustration of the
petitioner’s substantive legitimate expectation was in larger
public interest – selecting suitable candidates with practical
wisdom for the post of District Judges. Indeed, it is in the
public interest that we have suitable candidates serving
in the Indian judiciary. However, the criteria for selecting
suitable candidates are laid down in the statutory rules. As
noted above, the High Court did amend the 1961 Rules
in 2017 to introduce a minimum cut-off mark for the viva
voce. The amended Rule 2(c) is extracted below:
“2. Method of appointment – (1) Appointment to the service
shall be made as follows:
[…]
(c) Twenty five percent of the posts in the service shall
be filled up by direct recruitment from the members of the
Bar. The recruitment shall be on the basis of a competitive
[2024] 2 S.C.R.  229

Sushil Kumar Pandey & Ors. v. The High Court of Jharkhand & Anr.

examination consisting of a written examination and a viva

voce. […] Maximum marks for viva voce shall be 50. The
General and Other Backward Classes candidates shall
secure a minimum of 40% marks and Scheduled Caste/
Scheduled Tribe candidate shall secure a minimum of
35% marks for passing the viva voce. The merit list of the
selected candidates shall be prepared on the basis of the
aggregate marks secured by the candidate in the written
examination and viva voce.”
(emphasis supplied)
56. Under the unamended 1961 Rules, the High Court was
expected to draw up the merit list of selected candidates
based on the aggregate marks secured by the candidates
in the written examination and the viva voce, without any
requirement of a minimum cut-off for the viva voce. Thus,
the decision of the Administrative Committee to depart
from the expected course of preparing the merit list of the
selected candidates is contrary to the unamended 1961
Rules. It is also important to highlight that the requirement
of a minimum cutoff for the viva voce was introduced
after the viva voce was conducted. It is manifest that the
petitioners had no notice that such a requirement would
be introduced for the viva voce examination. We are of
the opinion that the decision of High Court is unfair to the
petitioners and amounts to an arbitrary exercise of power.
57. The High Court’s decision also fails to satisfy the test
of consistency and predictability as it contravenes the
established practice. The High Court did not impose the
requirement of a minimum cut-off for the viva voce for the
selections to the post of District and Sessions Judges for
2013 and 2014. Although the High Court’s justification,
when analyzed on its own terms, is compelling, it is not
grounded in legality. The High Court’s decision to apply a
minimum cut-off for the viva voce frustrated the substantive
legitimate expectation of the petitioners. Since the decision
of the High Court is legally untenable and fails on the
touchstone of fairness, consistency, and predictability, we
hold that such a course of action is arbitrary and violative
of Article 14.”
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15. There is an earlier judgment of this Court comprising of three Hon’ble

Judges in the case of K. Manjusree -vs- State of Andhra Pradesh
and Anr. [(2008) 3 SCC 512] in which the change of recruitment
criteria mid-way through the selection process has been held to
be impermissible. We quote below paragraphs ‘27’ and ‘36’ of that
judgment from the said report:-
“27. But what could not have been done was the second
change, by introduction of the criterion of minimum marks
for the interview. The minimum marks for interview had
never been adopted by the Andhra Pradesh High Court
earlier for selection of District & Sessions Judges, (Grade
II). In regard to the present selection, the Administrative
Committee merely adopted the previous procedure in
vogue. The previous procedure as stated above was to
apply minimum marks only for written examination and not
for the oral examination. We have referred to the proper
interpretation of the earlier Resolutions dated 24.7.2001 and
21.2.2002 and held that what was adopted on 30.11.2004
was only minimum marks for written examination and not for
the interviews. Therefore, introduction of the requirement
of minimum marks for interview, after the entire selection
process (consisting of written examination and interview)
was completed, would amount to changing the rules of
the game after the game was played which is clearly
impermissible. We are fortified in this view by several
decisions of this Court. It is sufficient to refer to three of
them - P. K. Ramachandra Iyer v. Union of India1, Umesh
Chandra Shukla v. Union of India2, and Durgacharan Misra
v. State of Orissa3.
x x x
36. The Full Court however, introduced a new requirement
as to minimum marks in the interview by an interpretative
process which is not warranted and which is at variance
with the interpretation adopted while implementing the

1 (1984) 2 SCC 141: 1984 SCC (L &S) 214

2 (1985) 3 SCC 721: 1985 SCC (L&S) 919
3 (1987) 4 SCC 646: 1988 SCC (L & S) 36: (1987) 5 ATC 148
[2024] 2 S.C.R.  231

Sushil Kumar Pandey & Ors. v. The High Court of Jharkhand & Anr.

current selection process and the earlier selections. As

the Full Court approved the Resolution dated 30.11.2004
of the Administrative Committee and also decided to
retain the entire process of selection consisting of written
examination and interviews it could not have introduced
a new requirement of minimum marks in interviews,
which had the effect of eliminating candidates, who would
otherwise be eligible and suitable for selection. Therefore,
we hold that the action of Full Court in revising the merit list
by adopting a minimum percentage of marks for interviews
was impermissible.”
16. The same view has later been taken by a Coordinate Bench of this
Court in the case of Hemani Malhotra -vs- High Court of Delhi
[(2008) 7 SCC 11]. In a later decision, Tej Prakash Pathak & Ors.
-vs- Rajasthan High Court and Others [(2013) 4 SCC 540], a three
Judge Bench of this Court expressed a view which is different from
that taken in the case of K. Manjusree (supra) and referred the
matter to the Hon’ble the Chief Justice of India for being considered
by a larger Bench. There is no decision yet from a larger Bench and
until the principle laid down in the case of K. Manjusree (supra) is
overruled by a larger Bench, we shall continue to be guided by the
same as “no change in the rule midway” dictum has become an
integral part of the service jurisprudence.
17. The next point urged by Mr. Gupta is that the ratio of the three
judgments on which reliance has been placed by Mr. Dave would
not apply in the facts of the present case. His argument is that in
those three authorities, the marking in viva-voce was the subject
of dispute whereas in the present writ petitions, it is on aggregate
marking that the High Court administration has raised the bar. One
of the authorities on which Mr. Gupta has relied on is State of
Haryana -vs- Subash Chander Marwaha & Ors. [(1974) 3 SCC
220]. In paragraphs 7 and 12 of the said report, it has been held and
observed by a Bench of two Hon’ble Judges of this Court:-
“7. In the present case it appears that about 40 candidates
had passed the examination with the minimum score of
45%. Their names were published in the Government
Gazette as required by Rule 10(1) already referred to. It
is not disputed that the mere entry in this list of the name
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of candidate does not give him the right to be appointed

The advertisement that there are 15 vacancies to be
filled does not also give him a right to be appointed. It
may happen that the Government for financial or other
administrative reasons may not fill up any vacancies. In
such a case the candidates, even the first in the list, will
not have a right to be appointed. The list is merely to help
the State Government in making the appointments showing
which candidates have the minimum qualifications under
the Rules. The stage for selection for appointment comes
thereafter, and it is not disputed that under the Constitution
it is the State Government alone which can make the
appointments. The High Court does not come into the
picture for recommending any particular candidate. After
the State Government have taken a decision as to which
of the candidates in accordance with the list should be
appointed, the list of selected candidates for appointment
is forwarded to the High Court then will have to enter
such candidates on a Register maintained by it. When
vacancies are to be filled the High Court will send in the
names of the candidates in accordance with the select
list and in the order they have been placed in that list for
appointment in the vacancies. The High Court, therefore,
plays no part except to suggest to the Government who
in accordance with the select list is to be appointed and
in a particular vacancy. It appears that in the present case
the Public Service Commission had sent up the rolls of
the first 15 candidates because the Commission had been
informed that there are 15 vacancies. The High Court
also in its routine course had sent up the first 15 names
to the Government for appointment. Thereupon the Chief
Secretary to Government, Haryana wrote to the Registrar
of the High Court on May 4, 1971 as follows:
“I am directed to refer to Haryana Government endst
No. 1678-1 GS, II—71/3802, dated April 22, 1971, on
the subject noted above, and to say that after careful
consideration of the recommendations of the Punjab
and Haryana High Court for appointment of first fifteen
candidates to the Haryana Civil Service (Judicial Branch),
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Sushil Kumar Pandey & Ors. v. The High Court of Jharkhand & Anr.

the State Government have taken the view that it would be

appropriate that only the first seven candidates should be
appointed to the Haryana Civil Service (Judicial Branch)
and a notification has been issued accordingly. The
reason is that in the opinion of the State Government,
only those candidates who obtained 55% or more marks
in the Haryana Civil Service (Judicial Branch) Examination,
should be appointed as that will serve to maintain a
minimum standard in the appointments to the Service. It
may be mentioned that the last candidate appointed against
un-reserved vacancies out of the merit list prepared on
the basis of the Haryana Civil Service (Judicial Branch)
Examination held in May 1969, secured 55.67% marks.
The State Government have also received information
that the Punjab and Haryana High Court themselves
recommended to the Punjab Government that in respect
of P.C.S. (Judicial Branch) Examination held in 1970,
candidates securing 55% marks or more should be
appointed against un-reserved vacancies. Thus, the
decision taken by Haryana Government is in line with
the recommendations which the High Court made to the
Punjab Government regarding recruitment to the P.C.S.
(Judicial Branch) on the basis of the Examination held
in 1970, and a similar policy in both the cases would be
desirable for obvious reasons.”
12. It was, however, contended by Dr Singhvi on behalf
of the respondents that since Rule 8 of Part C makes
candidates who obtained 45% or more in the competitive
examination eligible for appointment, the State Government
had no right to introduce a new rule by which they can
restrict the appointments to only those who have scored not
less than 55%. It is contended that the State Government
have acted arbitrarily in fixing 55% as the minimum
for selection and this is contrary to the rule referred to
above. The argument has no force. Rule 8 is a step in the
preparation of a list of eligible candidates with minimum
qualifications who may be considered for appointment.
The list is prepared in order of merit. The one higher in
rank is deemed to be more meritorious than the one who
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is lower in rank. It could never be said that one who tops

the list is equal in merit to the one who is at the bottom of
the list. Except that they are all mentioned in one list, each
one of them stands on a separate level of competence
as compared with another. That is why Rule 10(ii), Part
C speaks of “selection for appointment”. Even as there is
no constraint on the State Government in respect of the
number of appointments to be made, there is no constraint
on the Government fixing a higher score of marks for the
purpose of selection. In a case where appointments are
made by selection from a number of eligible candidates
it is open to the Government with a view to maintain
high standards of competence to fix a score which is
much higher than the one required for more eligibility.
As shown in the letter of the Chief Secretary already
referred to, they fixed a minimum of 55% for selection as
they had done on a previous occasion. There is nothing
arbitrary in fixing the score of 55% for the purpose of
selection, because that was the view of the High Court
also previously intimated to the Punjab Government on
which the Haryana Government thought fit to act. That
the Punjab Government later on fixed a lower score is no
reason for the Haryana Government to change their mind.
This is essentially a matter of administrative policy and if
the Haryana State Government think that in the interest
of judicial competence persons securing less than 55%
of marks in the competitive examination should not be
selected for appointment, those who got less than 55%
have no right to claim that the selections be made of also
those candidates who obtained less than the minimum
fixed by the State Government. In our view the High Court
was in error in thinking that the State Government had
somehow contravened Rule 8 of Part C.”
18. Mr. Gupta has also cited the case of Ram Sharan Maurya and Ors.
Vs. State of U.P. and Ors. [(2021) 15 SCC 401]. It has been held
in this judgment:-
“72. In terms of Rule 2(1)(x) of the 1981 Rules, qualifying
marks of ATRE are such minimum marks as may be
determined “from time to time” by the Government.
[2024] 2 S.C.R.  235

Sushil Kumar Pandey & Ors. v. The High Court of Jharkhand & Anr.

Clause (c) of Rule 14 of the 1981 Rules lays down

that a candidate must have “passed Assistant Teacher
Recruitment Examination conducted by the Government”.
Thus, one of the basic requirements for being considered
to be appointed as an Assistant Teacher under the 1981
Rules is passing of ATRE with such minimum marks as
may be determined by the Government. Unlike para 7 of
the Guidelines for ATRE 2018 which had spelt out that a
candidate must secure minimum of 45% or 40% marks
(for “General” and “Reserved” categories respectively) for
passing ATRE 2018, no such stipulation was available in
G.O. dated 1-12-2018 notifying ATRE 2019. Though, the
minimum qualifying marks were set out in the Guidelines
for ATRE 2018, it is not the requirement of the 1981 Rules
that such stipulation must be part of the instrument notifying
ATRE. By very nature of entrustment, the Government
is empowered to lay down minimum marks “from time
to time”. If this power is taken to be conditioned with
the requirement that the stipulation must be part of the
instrument notifying the examination, then there was no
such stipulation for ATRE 2019. Such reading of the rules
will lead to somewhat illogical consequences. On one hand,
the relevant Rule requires passing of ATRE while, on the
other hand, there would be no minimum qualifying marks
prescribed. A reasonable construction on the relevant
rules would therefore imply that the Government must
be said to be having power to lay down such minimum
qualifying marks not exactly alongside instrument notifying
the examination but at such other reasonable time as well.
In that case, the further question would be at what stage
can such minimum qualifying marks be determined and
whether by necessity such minimum qualifying marks must
be declared well before the examination.
73.K. Manjusree [K. Manjusree v. State of A.P., (2008) 3
SCC 512 : (2008) 1 SCC (L&S) 841] and Hemani Malhotra
[Hemani Malhotra v. High Court of Delhi, (2008) 7 SCC 11
: (2008) 2 SCC (L&S) 203] were the cases which pertained
to selections undertaken to fill up posts in judicial service.
In these cases, no minimum qualifying marks in interview
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were required and the merit list was to be determined going

by the aggregate of marks secured by a candidate in the
written examination and the oral examination. By virtue
of stipulation of minimum qualifying marks for interview,
certain candidates, who otherwise, going by their aggregate
would have been in zone of selection, found themselves
to be disqualified. The stipulation of minimum qualifying
marks having come for the first time and after the selection
process was underway or through, this Court found such
exercise to be impermissible.
74. These were cases where, to begin with, there was no
stipulation of any minimum qualifying marks for interview.
On the other hand, in the present case, the requirement
in terms of Rule 2(1)(x) read with Rule 14 is that the
minimum qualifying marks as stipulated by the Government
must be obtained by a candidate to be considered eligible
for selection as Assistant Teacher. It was thus always
contemplated that there would be some minimum qualifying
marks. What was done by the Government by virtue of its
orders dated 7-1-2019 was to fix the quantum or number
of such minimum qualifying marks. Therefore, unlike the
cases covered by the decision of this Court in K. Manjusree
[K. Manjusree v. State of A.P., (2008) 3 SCC 512 : (2008)
1 SCC (L&S) 841], where a candidate could reasonably
assume that there was no stipulation regarding minimum
qualifying marks for interview, and that the aggregate of
marks in written and oral examination must constitute
the basis on which merit would be determined, no such
situation was present in the instant case. The candidate
had to pass ATRE 2019 and he must be taken to have
known that there would be fixation of some minimum
qualifying marks for clearing ATRE 2019.
75. Therefore, there is fundamental distinction between
the principle laid down in K. Manjusree [K. Manjusree v.
State of A.P., (2008) 3 SCC 512 : (2008) 1 SCC (L&S)
841] and followed in Hemani Malhotra [Hemani Malhotra
v. High Court of Delhi, (2008) 7 SCC 11 : (2008) 2 SCC
(L&S) 203] on one hand and the situation in the present
case on the other.
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Sushil Kumar Pandey & Ors. v. The High Court of Jharkhand & Anr.

76. We are then left with the question whether prescription

of such minimum qualifying marks by order dated 7-1-
2019 must be set aside merely because such prescription
was done after the examination was conducted. At this
juncture, it may be relevant to note that the basic prayer
made in the leading writ petition before the Single Judge
was to set aside the order dated 7-1-2019. What could
then entail as a consequence is that there would be no
minimum qualifying marks for ATRE 2019, which would run
counter to the mandate of Rule 2(1)(x) read with clause
(c) of Rule 14. It is precisely for this reason that what was
submitted was that the same norm as was available for
ATRE 2018 must be adopted for ATRE 2019. In order to
lend force to this submission, it was argued that Shiksha
Mitras who appeared in ATRE 2018 and ATRE 2019 formed
a homogeneous class and, therefore, the norm that was
available in ATRE 2018 must be applied. This argument,
on the basis of homogeneity, has already been dealt with
and rejected.
77. If the Government has the power to fix minimum
qualifying marks “from time to time”, there is nothing in
the Rules which can detract from the exercise of such
power even after the examination is over, provided the
exercise of such power is not actuated by any malice or
ill will and is in furtherance of the object of finding the
best available talent. In that respect, the instant matter
is fully covered by the decisions of this Court in MCD v.
Surender Singh [MCD v. Surender Singh, (2019) 8 SCC 67
: (2019) 2 SCC (L&S) 464] and Jharkhand Public Service
Commission v. Manoj Kumar Gupta [Jharkhand Public
Service Commission v. Manoj Kumar Gupta, (2019) 20
SCC 178] . In the first case, the power entrusted under
Clause 25 of the advertisement also provided similar
discretion to the Selection Board to fix minimum qualifying
marks for each category of vacancies. While construing
the exercise of such power, it was found by this Court
that it was done “to ensure the minimum standard of the
teachers that would be recruited”. Similarly, in Jharkhand
Public Service Commission [Jharkhand Public Service
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Commission v. Manoj Kumar Gupta, (2019) 20 SCC 178],

the exercise of power after the examination in Paper III
was over, was found to be correct and justified.
78. If the ultimate object is to select the best available
talent and there is a power to fix the minimum qualifying
marks, in keeping with the law laid down by this Court in
State of Haryana v. Subash Chander Marwaha [State of
Haryana v. Subash Chander Marwaha, (1974) 3 SCC 220
: 1973 SCC (L&S) 488], State of U.P. v. Rafiquddin [State
of U.P. v. Rafiquddin, 1987 Supp SCC 401 : 1988 SCC
(L&S) 183], MCD v. Surender Singh [MCD v. Surender
Singh, (2019) 8 SCC 67 : (2019) 2 SCC (L&S) 464] and
Jharkhand Public Service Commission v. Manoj Kumar
Gupta [Jharkhand Public Service Commission v. Manoj
Kumar Gupta, (2019) 20 SCC 178], we do not find any
illegality or impropriety in fixation of cut-off at 65-60% vide
order dated 7-1-2019. The facts on record indicate that
even with this cut-off the number of qualified candidates
is more than twice the number of vacancies available. It
must be accepted that after considering the nature and
difficulty level of examination, the number of candidates
who appeared, the authorities concerned have the requisite
power to select a criteria which may enable getting the
best available teachers. Such endeavour will certainly be
consistent with the objectives under the RTE Act.
79. In the circumstances, we affirm the view taken by the
Division Bench of the High Court and conclude that in
the present case, the fixation of cut-off at 65-60%, even
after the examination was over, cannot be said to be
impermissible. In our considered view, the Government
was well within its rights to fix such cut-off.”
19. In these two writ petitions, we are not, however, only concerned with
the “midway change of the Rule” Principle. But on that count also,
the ratio of the decisions cited by Mr. Gupta are distinguishable. The
three Judge Bench in Tej Prakash Pathak (supra) had referred to
the judgment in the case of Subhas Chandra Marwaha (supra) to
express doubt over correctness of the judgment in the case of K.
Manjusree (supra). As we have already observed, the ratio of K.
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Sushil Kumar Pandey & Ors. v. The High Court of Jharkhand & Anr.

Manjusree (supra) still holds the field. In the case of Ram Sharan
Maurya (supra), the Rules guiding recruitment empowered the
Government to stipulate qualifying marks of the particular selection
process to be such minimum marks as may be determined from
time to time by the Government. In this decision, the judgment itself
takes note of the decisions of this Court in K. Manjusree (supra)
and Hemani Malhotra (supra) and finds that the course for selection
to the posts involved in that case was different from that which was
found to be impermissible in K. Manjusree (supra) and Hemani
Malhotra (supra).
20. We find from Rule 18 of the 2001 Rules, the task of setting cut-off
marks has been vested in the High Court but this has to be done
before the start of the examination. Thus, we are also dealing with
a situation in which the High Court administration is seeking to
deviate from the Rules guiding the selection process itself. We have
considered the High Court’s reasoning for such deviation, but such
departure from Statutory Rules is impermissible. We accept the
High Court administration’s argument that a candidate being on the
select list acquired no vested legal right for being appointed to the
post in question. But if precluding a candidate from appointment is
in violation of the recruitment rules without there being a finding on
such candidate’s unsuitability, such an action would fail the Article
14 test and shall be held to be arbitrary. The reason behind the Full
Court Resolution is that better candidates ought to be found. That
is different from a candidate excluded from the appointment process
being found to be unsuitable.
21. Stipulations contained in Rule 21 of the 2001 Rules for making the
select list were breached by the High Court administration in adopting
the impugned resolution. The ratio of the decision in the case of
Ram Sharan Maurya (supra) would not apply in the facts of this
case and we have already discussed why we hold so.
22. Mr. Gupta’s stand is that applying a higher aggregate mark is not
barred under the said Rules or Regulations. We are, however,
unable to accept this submission. The very expression “aggregate”
means combination of two or more processes and in the event the
procedure for arriving at the aggregate has been laid down in the
applicable Rules, a separate criteria cannot be carved out to enable
change in the manner of making the aggregate marks.
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23. So far as the ratio of the decision in the case of K. Manjusree

(supra) is concerned, that authority deals with change of the Rules
mid-way. In the case before us, in our opinion, if the High Court
is permitted to alter the selection criteria after the performance of
individual candidates is assessed, that would constitute alteration
of the laid down Rules. We refer to paragraphs Nos. 14 and 15 of
the judgment of the Constitution Bench in the case of Sivanandan
C.T. (supra), which lays down the principle of law on this point. We
reproduce below the said passages from this authority:-
“14. The decision of the High Court to prescribe a cut-off for
the viva-voce examination was taken by the Administrative
Committee on 27 February 2017 after the viva-voce was
conducted between 16 and 24 January 2017. The process
which has been adopted by the High Court suffers from
several infirmities. Firstly, the decision of the High Court
was contrary to Rule 2(c)(iii) which stipulated that the
merit list would be drawn up on the basis of the marks
obtained in the aggregate in the written examination and
the viva-voce; secondly, the scheme which was notified
by the High Court on 13 December 2012 clearly specified
that there would be no cut off marks in respect of the viva-
voce; thirdly, the notification of the High Court dated 30
September 2015 clarified that the process of short listing
which would be carried out would be only on the basis of
the length of practice of the members of the Bar, should
the number of candidates be unduly large; and fourthly,
the decision to prescribe cut off marks for the viva-voce
was taken much after the viva-voce tests were conducted
in the month of January 2017.
15. For the above reasons, we have come to the conclusion
that the broader constitutional issue which has been referred
in Tej Prakash Pathak (supra) would not merit decision on
the facts of the present case. Clearly, the decision which was
taken by the High Court was ultra vires Rule 2(c)(iii) as it
stands. As a matter of fact, during the course of the hearing
we have been apprised of the fact that the Rules have
been subsequently amended in 2017 so as to prescribe a
cut off of 35% marks in the viva-voce examination which
however was not the prevailing legal position when the
present process of selection was initiated on 30 September
2015. The Administrative Committee of the High Court
[2024] 2 S.C.R.  241

Sushil Kumar Pandey & Ors. v. The High Court of Jharkhand & Anr.

decided to impose a cut off for the viva-voce examination

actuated by the bona fide reason of ensuring that candidates
with requisite personality assume judicial office. However
laudable that approach of the Administrative Committee
may have been, such a change would be required to be
brought in by a substantive amendment to the Rules which
came in much later as noticed above. This is not a case
where the rules or the scheme of the High Court were
silent. Where the statutory rules are silent, they can be
supplemented in a manner consistent with the object and
spirit of the Rules by an administrative order.”
24. The ratio of this authority is squarely applicable in the facts of this
case. Submission on behalf of the High Court administration that
Rule 14 permits them to alter the selection criteria after the selection
process is concluded and marks are declared is not proper exposition
of the said provision. The said Rule, in our opinion, empowers the
High Court administration in specific cases to reassess the suitability
and eligibility of a candidate in a special situation by calling for
additional documents. The High Court administration cannot take aid
of this Rule to take a blanket decision for making departure from the
selection criteria specified in the 2001 Rules. The content of Rule
14 has the tenor of a verification process of an individual candidate
in assessing the suitability or eligibility.
25. We, accordingly, allow both the writ petitions by directing the High
Court to make recommendation for those candidates who have been
successful as per the merit or select list, for filing up the subsisting
notified vacancies without applying the Full Court Resolution that
requires each candidate to get 50 per cent aggregate marks. The
part of the Full Court Resolution of the Jharkhand High Court dated
23.03.2023 by which it was decided that only those candidates who
have secured at least 50% marks in aggregate shall be qualified for
appointment to the post of District Judge is quashed.
26. We expect the exercise of recommendation in terms of this judgment
to be completed as expeditiously as possible.
27. We do not find any reason to address the impleadment applications
as this judgment will cover the entire recommendation process.

Headnotes prepared by: Divya Pandey Result of the case:

Writ petitions allowed.
 [2024] 2 S.C.R. 242 : 2024 INSC 95

No.2809759H Ex-Recruit Babanna Machched

v.
Union of India and Ors.
(Civil Appeal No. 644-645 of 2017)

09 February 2024
[Bela M. Trivedi and Pankaj Mithal,* JJ.]

Issue for Consideration

The appellants were dismissed/discharged from service on the
ground that at the time of their enrollment in the Army through
Maratha Light Infantry Regimental Centre under the Unit
Headquarters Quota in December, 2009 they had produced false
relationship certificates which upon verification were found to be
manipulated and false. The points which arise for consideration are:
(i) Whether the appellants were enrolled/recruited by giving benefit
of relationship with the servicemen/ex-servicemen; (ii) Whether
the appellants have produced any relationship certificate(s); (iii)
Whether their discharge/dismissal from service is bad in law for
non-consideration of their explanation.

Headnotes
Service Law – Dismissal from service – Allegation of producing
false relationship certificate – The appellants contended that
they were recruited under the general category and not on
priority basis as relatives of any servicemen or ex-servicemen;
and they have not produced any relationship certificate and,
therefore, they cannot be charged for obtaining enrollment/
recruitment on the basis of fake relationship certificates:
Held: The appellants have brought on record zerox copies of their
applications submitted for the purposes of enrollment/recruitment
– The application(s) nowhere mentions that they have produced
any relationship certificate(s) – The application(s) thus clearly
establishes that the appellants appear to have applied as a
general category candidate(s) against the surplus seats/vacancies
remaining unfilled after considering the priority/reserved quota for
relatives of servicemen/ex-servicemen, etc – In such a situation,
when they have not claimed any enrollment/recruitment on the basis
of relationship with servicemen/ex-servicemen, obviously there was
no occasion for them to submit any relationship certificate – In
the discharge certificate, there is no mention of any inquiry being
* Author
[2024] 2 S.C.R.  243

No.2809759H Ex-Recruit Babanna Machched v.

Union of India and Ors.

conducted or find out as to whether the appellants had actually

produced relationship certificates for the purpose of enrollment/
recruitment – Tribunal had affirmed the discharge/dismissal order
in a casual manner without taking note of the crucial point that
appellants had applied under general category and not as relatives
of servicemen/ex-servicemen – Thus, the orders of discharge/
dismissal of the appellants stand vitiated for non-consideration of
the material aspect – Thus, the discharge/dismissal orders of the
appellants set aside. [Paras 17, 19, 20, 24, 27]

Case Law Cited

S.N. Mukherjee vs. Union of India, [1990] 1 Suppl. SCR
44 : (1990) 4 SCC 594; Mohinder Singh Gill vs. Chief
Election Commissioner, [1978] 2 SCR 272 : (1978) 1
SCC 405 – referred to.
Ex Sig. Man Kanhaiya Kumar vs. Union of India and
Ors., [2018] 1 SCR 679 : (2018) 14 SCC 279; S. Muthu
Kumaran vs. Union of India and Ors., [2017] 1 SCR
550 : (2017) 4 SCC 609 – held inapplicable.

List of Acts
Armed Forces Tribunal Act, 2007.

List of Keywords
Service Law; Dismissal from service; False relationship
certificate; Relatives of servicemen/ex-servicemen; General
category; Material evidence; Non-consideration of relevant
material; Principles of Natural Justice.

Case Arising From

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.644-645 of

2017
From the Judgment and Order dated 06.03.2014 in O.A. No.159 of
2013/05.06.2014 in M.A. No.247 of 2014 in O.A. No.159 of 2013 of
the Armed Forces Tribunal, Regional Bench, Kochi, Circuit Bench
at Para Regimental Training Centre, Bangalore and order dated
18.11.2015 in M.A. No.373 of 2015 in R.A. No.15 of 2015 in O.A.
No.159 of 2013, S.R.A. No.15 of 2015
With
Civil Appeal Nos.652-653, 642-643 And 654-655 of 2017
244 [2024] 2 S.C.R.

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Appearances for Parties

Vinay Navare, Suhaskumar Kadam for M/s. Black & White Solicitors,
Advs. for the Appellant.
Ms. Aishwarya Bhati, ASG, R. Bala, Sr. Adv., V. V. V. Pattabhi Ram,
Anmol Chandan, Prahlad Singh, Ms. Nidhi Khanna, Ms. Poornima
Singh, Ashwin Joseph, Dr. N. Visakamurthy, Mukesh Kumar Maroria,
Advs. for the Respondents.

Judgment / Order of the Supreme Court

Judgment
Pankaj Mithal, J.
1. Learned counsel for the parties were heard.
2. Instructions were issued from time to time with regard to enrollment
into Army under the Unit Headquarters Quota (UHQ). The instructions
as revised upto the year 1978, provided that Regiments/Corps have
sanction to enroll 15 per cent of the total yearly demand released by
the Additional Directorate of Recruiting to Zonal Recruiting Offices.
This percentage was increased to 25 during the year 1981-82 and
in March, 1983 this quota was further increased to 50 per cent.
Since the Regiments/Corps could not fill up such large number
of vacancies, to facilitate the enrollment, priority was provided to
certain categories of personnel which included sons and grandsons
of servicemen and ex-servicemen; brothers and other near relatives
of those killed in battle or died in service; wards who were fully
dependent upon servicemen or ex-servicemen; sportsmen of merit,
and those for whom there was a special recruitment, e.g., Ladakh
Scouts, Cavalry, Gorkha, Para, President Body Guard Regiments
etc. It was further provided that Unit Headquarters Quota Enrollment
shall give priority to the above categories and in case vacancies for
recruitment remain available with Regimental Centre, personnel from
open category based on merit may be taken.
3. In the light of the above instructions for recruitment under the Unit
Headquarters, a news item was published for the purposes of
recruitment inviting applications under the Unit Headquarters Quota.
It appears that a large number of candidates including the appellants
applied. The appellants were selected and were enrolled in the Army
by the Maratha Light Infantry Regimental Centre (‘MLIRC’). After they
[2024] 2 S.C.R.  245

No.2809759H Ex-Recruit Babanna Machched v.

Union of India and Ors.

had put in nearly three years of service, a show cause notice was
issued to several of them alleging that they had obtained enrollment
in the Army either on the basis of the fake sports person certificate
or on the basis of false relationship certificate. On consideration of
the reply of those persons, the services of about 52 of them were
terminated. However, after some litigation, candidates belonging
to the category of sportsmen of merit, were all reinstated. In regard
to the fake relationship certificate, services of about 20 persons
including the appellants were terminated out of which 4 persons
are before this Court.
4. The case of all the four appellants is identical and is based upon
similar facts and as such the appeals of all four of them were taken
up together for consideration and are being disposed of by this
common judgment.
5. In these appeals the challenge is to the common judgment and order
of the Armed Forces Tribunal1, Kochi, dated 6.03.2014, whereby
the Tribunal has refused to interfere with the discharge certificate,
dismissing the appellants from service for adopting fraudulent means.
Consequently, refusing the prayer of the appellants to reinstate them.
6. Notice in these appeals were issued only because the appellants
before this Court wished to press that the appellants had never
applied for enrollment in any reserved category. This was done on
the statement of the counsel for the appellants which stands recorded
in the order dated 08.03.2016.
7. In view of the above factual position, the only question for our
consideration in these appeals is whether the appellants had applied
and were selected as general category candidates or were placed
in any of the reserved category.
8. Briefly stated, after the appellants were enrolled/recruited in the Army,
they were served with identical show cause notices contending that
they have been enrolled in the Army by producing false relationship
certificates and the documents produced by them on verification have
been found to be fake/forged. Thus, calling upon them as to why they
should not be dismissed from service. In response to the show cause
notice, all the appellants submitted their response on identical lines

1 Hereinafter referred to as ‘the Tribunal’

246 [2024] 2 S.C.R.

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that they were recruited in the Army after they have passed all exams
and standards; they were not recruited on the basis of the claim that
they were relatives of any serving or ex-servicemen personnel rather
they had applied under the general category and as such there was
no occasion for them to have produced any relationship certificate. In
other words, they clearly denied having produced any certificate of
relationship for the purposes of recruitment and as such contended
that they cannot be charged of producing fake certificates.
9. The Maratha Light Infantry Regimental Centre by similar orders
dismissed all the appellants from service with effect from 9.05.2013.
The discharge certificate issued to each of the appellant in unequivocal
terms stated that they are being dismissed from service for the
reason that they got themselves enrolled by adopting fraudulent
means, referring to the fake relationship certificates as mentioned
in the show cause notices.
10. In other words, the appellants were dismissed/discharged from
service on the ground that at the time of their enrollment in the
Army through Maratha Light Infantry Regimental Centre under the
Unit Headquarters Quota in December, 2009 they had produced
false relationship certificates which upon verification were found to
be manipulated and false.
11. The departmental appeal(s) against the aforesaid discharge/dismissal
also failed whereupon the appellants preferred Original Applications
before the Armed Forces Tribunal. The Original Applications were
dismissed by the Tribunal and so were the review petitions.
12. The appellants have thus preferred these appeals under Section
31 of the Armed Forces Tribunal Act, 2007 before this Court inter
alia contending that the appellants were recruited under the general
category and not on priority basis as relatives of any servicemen
or ex-servicemen; and they have not produced any relationship
certificate and, therefore, they cannot be charged for obtaining
enrollment/recruitment on the basis of fake relationship certificates.
The authorities as well as the Tribunal have not considered the
above explanation of the appellants and only on the basis that the
certificates alleged to have been produced by the appellants on
verification have been found to be fake/forged, without recording
any finding that the appellants had in effect produced any such
certificate, upheld the order of discharge/dismissal.
[2024] 2 S.C.R.  247

No.2809759H Ex-Recruit Babanna Machched v.

Union of India and Ors.

13. The defence of the respondents is that the enrollment/recruitment

under the Army Headquarters Quota is only for the relatives of the
servicemen/ ex-servicemen and that there is no general category in
which the appellants could have been recruited. It is also contended
that the appellants are taking the above grounds of enrollment/
recruitment under general category and of non-production of
relationship certificate as an afterthought as on identical plea the
sports persons were directed to be reinstated.
14. After hearing Shri Vinay Navare, learned senior counsel, appearing
as a lead lawyer for the appellants and Ms. Aishwarya Bhati, learned
Additional Solicitor General, appearing for the respondents, in the
facts and circumstances of the case, as narrated above, the following
points arise for our consideration:
(i) Whether the appellants were enrolled/recruited by giving benefit
of relationship with the servicemen/ex-servicemen;
(ii) Whether the appellants have produced any relationship
certificate(s);
(iii) Whether their discharge/dismissal from service is bad in law
for non-consideration of their explanation.
15. The respondents have relied upon a newspaper clipping which was
neither part of the record before the Tribunal or of these appeals
but was passed over to this Court for the purposes of its perusal.
The newspaper clipping dated 27.9.2009 as appearing in Deccan
Herald as shown to this Court during the course of hearing is not
part of the record. The respondents made no efforts to bring it on
record at any stage, not even before this Court except for placing
it across the Bar for our perusal. In such a scenario, it is not at all
appropriate for this Court to consider and rely upon it. Nonetheless, a
plain reading of it would reveal that it is not an advertisement inviting
applications for enrollment/recruitment under the Unit Headquarters
Quota. It is simply a news item published in the newspaper informing
that such an exercise for enrollment/recruitment under the Unit
Headquarters Quota is going to take place without specifically stating
that general category candidates who do not have any relationship
with servicemen/ex-servicemen are prohibited or barred from applying.
On the contrary, the guidelines/instructions for recruitments under
the enrollment/recruitment in Paragraph 7 clearly mentions about
open category recruitment. It reads thus:
248 [2024] 2 S.C.R.

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“7. Open Category: In case of Additional vacancies

for recruitment available with Regimental Centre open
category of personnel based on merit may be taken
provided they meet the ___________.”
16. A simple reading of the above Paragraph 7 clearly belies the stand
taken by the defence that the above enrollment/recruitment was only
meant for the relatives of the servicemen/ex-servicemen and was
not open for the general category.
17. The appellants have brought on record zerox copies of their
applications submitted for the purposes of enrollment/recruitment. In
Part-II of the application(s) under the heading ‘Documentation’ they
have not claimed status of a relative of servicemen/ex-servicemen,
NCC, Sports persons rather they have clearly stated to be of
general category. The application(s) nowhere mentions that they
have produced any relationship certificate(s). The application(s) thus
clearly establishes that the appellants appear to have applied as a
general category candidate(s) against the surplus seats/vacancies
remaining unfilled after considering the priority/reserved quota for
relatives of servicemen/ex-servicemen, etc. In such a situation, when
they have not claimed any enrollment/recruitment on the basis of
relationship with servicemen/ex-servicemen, obviously there was no
occasion for them to submit any relationship certificate.
18. In response to the show cause notice which stated that the
appellants have obtained enrollment/recruitment on false relationship
certificates which on verification have been confirmed to be fake,
the appellants have denied producing any such certificates as they
never applied under any priority category as a relative of servicemen/
ex-servicemen but in the general category. The discharge certificate
simply states that the appellants are dismissed from service under
the orders of Commandant for the reason of obtaining enrollment/
recruitment by fraudulent means referring to submission of fake
relationship certificates. The order of the Commandant states that at
the time of enrollment/recruitment in December, 2009 under the Unit
Headquarters Quota at the Maratha Light Infantry Regimental Centre,
the relationship certificates of the appellants upon verification from
records have been found to be manipulated and false. Therefore,
the appellants had obtained enrollment/recruitment by fraudulent
means and their services are liable to be terminated. Accordingly,
the appellants were dismissed.
[2024] 2 S.C.R.  249

No.2809759H Ex-Recruit Babanna Machched v.

Union of India and Ors.

19. In the above discharge certificate or the order of the Commandant,

there is no whisper that any inquiry was conducted to ascertain
or find out as to whether the appellants had actually produced
relationship certificates for the purposes of enrollment/recruitment
in the Army. No finding has been recorded by the respondents that
the appellants had as of fact, produced such certificates or that their
explanation claiming that no such certificates were furnished by them
is completely false. In effect, the authorities have not dealt with the
above explanations/claims of the appellants.
20. A reading of the order of the Tribunal also shows that the above
aspect or the contention of the appellants was not dealt with by
the Tribunal. The Tribunal in a casual and routine manner affirmed
the discharge/dismissal order simply holding that the relationship
certificates produced by the appellants have been found to be fake
even upon verification. The Tribunal also seems to have lost sight of
the crucial point of the appellants that they have applied under the
general category and not as relatives of servicemen/ex-servicemen.
They have not produced the alleged certificate(s) which could be
held to be fake. Accordingly, the core issue arising in the matter was
missed not only by the authorities concerned but by the Tribunal as
well. Thus, the order(s) of discharge/dismissal of the appellants and
that of Tribunal stand vitiated for non-consideration of the material
aspect.
21. In S.N. Mukherjee vs. Union of India2, it has been categorically
laid down by this Court that an order passed without consideration
of the material evidence or the plea would be violative of Principles
of Natural Justice and would stand vitiated for non-consideration of
the relevant material, plea or the evidence.
22. At the same time in Mohinder Singh Gill vs. Chief Election
Commissioner, New Delhi3, it has been provided that the validity of
the order impugned has to be tested on the basis of the reasoning
contained therein and that the authorities are not supposed to
supplement the same by means of extraneous material or affidavit
before the courts.

2 [1990] 1 Suppl. SCR 44 : (1990) 4 SCC 594

3 [1978] 2 SCR 272 : (1978) 1 SCC 405
250 [2024] 2 S.C.R.

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23. In the case at hand, it was not the case of the respondents ever that
the vacancies on which the appellants have been enrolled/recruited
were only supposed to be filled up by the relatives of the servicemen/
ex-servicemen and not by a general category person or that the
posts advertised were only for the alleged reserved category. They
never even took any defence based upon the newspaper clipping as
referred to earlier. This is a subsequent improvement in their defence
which as discussed earlier do not stand established. It is nothing
but supplementing the reasoning of discharge/dismissal which is not
contained in the order impugned. It is thus not permissible in law in
view of Mohinder Singh Gill (supra).
24. In the end, we sum up our conclusions as under: -
(i) The recruitment under the Headquarter Quota was not confined
to the priority/reserved class rather it was open for general
category also to a limited extent;
(ii) There is no material on record to establish that the appellants had
produced any relationship certificate to obtain enrollment; and
(iii) The discharge/dismissal of the appellants from service is vitiated
for non-consideration of their specific case that they have
actually not produced any relationship certificate for selection/
recruitment as they never applied in the reserved category.
25. The decision in Ex Sig. Man Kanhaiya Kumar vs. Union of India
and Ors.4 as cited from the side of the respondents has no application
in the present case in as much as in the said case the fraudulent
enrollment in the Army was admitted to the appellants to be on the
basis of fake relationship certificate. There is no dispute to the ratio
laid down in the above case that the authorities had the power of
punishment/dismissal/removal of the candidate in the event the
enrollment/recruitment had been obtained by fraudulent means or
on the basis of fake relationship certificate.
26. Similarly, the case of S. Muthu Kumaran vs. Union of India and
Ors.5 is of no help to the respondents as the dismissal therein under
the Army Act was on the ground of fraudulent recruitment which was

4 [2018] 1 SCR 679 : (2018) 14 SCC 279

5 [2017] 1 SCR 550 : (2017) 4 SCC 609
[2024] 2 S.C.R.  251

No.2809759H Ex-Recruit Babanna Machched v.

Union of India and Ors.

found to be proved and no perversity was found in the order of the

Tribunal affirming the dismissal order which was modified/substituted
to that of discharge.
27. In view of what have been said above and the legal position, as
referred, the discharge/dismissal order of the appellants is certainly
invalid for want of non-consideration of the plea taken by the
appellants. Accordingly, we have no option but to set aside the
impugned orders of discharge/dismissal dated 9.5.2013 and the
judgment(s) and order(s) dated 06.03.2014 and 18.11.2015 passed
by the Armed Forces Tribunal. The appellants shall be reinstated
with all consequential benefits.
28. The appeals are allowed as aforesaid with no order as to costs.

Headnotes prepared by: Ankit Gyan Result of the case:

Appeals allowed.
 [2024] 2 S.C.R. 252 : 2024 INSC 101

Mamidi Anil Kumar Reddy

v.
The State of Andhra Pradesh & Anr.
(Criminal Appeal No. 758 of 2024)

05 February 2024
[Vikram Nath and Satish Chandra Sharma, JJ.]

Issue for Consideration

The High Court, if justified in refusing to quash the docket order
which re-initiated criminal proceedings against the appellants
for offences u/s. 420, 498A, 506 IPC and u/s. 3, 4 of the Dowry
Prohibition Act, 1961.

Headnotes
Code of Criminal Procedure, 1973 – s. 482 – Quashing of the
docket order – Matter pertaining to matrimonial disputes,
wherein the High Court refused to quash the docket order
which re-initiated criminal proceedings against the husband
and in-laws for offences u/s. 420, 498A, 506 IPC and u/s. 3, 4
of the Dowry Prohibition Act, 1961 – Correctness:
Held: A bare perusal of the complaint, statement of witnesses’ and
the charge-sheet shows that the allegations against the husband
and in-laws are wholly general and omnibus in nature; even if
taken in their entirety, they do not prima facie make out a case
against the husband and in-laws – Material on record neither
discloses any particulars of the offences alleged nor discloses
the specific role/allegations assigned to any of the husband and
in-laws in the commission of the offences – Husband and in-
laws approached the High Court on inter alia grounds that the
proceedings were re-initiated on vexatious grounds and even
highlighted the commencement of divorce proceedings by the
wife, as such the High Court had a duty to consider the allegations
with great care and circumspection so as to protect against the
danger of unjust prosecution – Thus, the material on record being
wholly insufficient to proceed against the husband and in-laws,
the impugned orders and the docket order set aside and the
criminal proceedings against the husband and in-laws quashed.
[Paras 14, 17, 18]
[2024] 2 S.C.R.  253

Mamidi Anil Kumar Reddy v. The State of Andhra Pradesh & Anr.

Case Law Cited

Kahkashan Kausar alias Sonam v. State of Bihar [2022]
1 SCR 558 : (2022) 6 SCC 599; Mahmood Ali v. State of
U.P., Criminal Appeal No. 2341 of 2023 – referred to.

List of Acts
Code of Criminal Procedure, 1973; Penal Code, 1860; Dowry
Prohibition Act, 1961.

List of Keywords
Docket Order; Reopening/re-initiating criminal proceedings; Matrimonial
disputes; False implication; Statement of witnesses; Compromise; Lok
Adalat; Divorce; Vexatious grounds; Unjust prosecution.

Case Arising From

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.758

of 2024
From the Judgment and Order dated 23.11.2022 of the High Court
of Andhra Pradesh at Amravati in CRLP No.2768 of 2022
With
Criminal Appeal No.759 of 2024
Appearances for Parties

D. Mahesh Babu, Adv. for the Appellant.

Mahfooz Ahsan Nazki, Polanki Gowtham, K V Girish Chowdary, T
Vijaya Bhaskar Reddy, Ms. Rajeswari Mukherjee, Meeran Maqbool,
Ms. Archita Nigam, Advs. for the Respondents.

Judgment / Order of the Supreme Court

Order
1. Leave granted.
2. Both the appeals are being disposed of by the present common order.
3. The present appeals arise out of orders dated (i) 11.11.2022 in
Criminal Petition No. 5710 of 2021 (the ‘Impugned Order I’) and (ii)
23.11.2022 in Criminal Petition No. 2768 of 2022 (the ‘Impugned
Order II’), passed by the High Court of Andhra Pradesh (collectively
referred to as the ‘Impugned Orders’).
254 [2024] 2 S.C.R.

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4. Vide the Impugned Orders, the High Court refused to quash the
Docket Order dated 20.07.2021 which reinitiated criminal proceedings
against the Appellants for offences u/s. 420, 498A, 506 of the IPC
& u/s. 3, 4 of the Dowry Prohibition Act, 1961.
Brief Facts
5. The Appellants before us are the husband and the in-laws of
Respondent No. 2 i.e., the de-facto complainant. After the case against
the Appellants for the aforementioned offences was instituted, the
parties were referred to the Lok Adalat by the Trial Court.
6. As per the Docket Order dated 26.06.2021, the parties entered into a
compromise before the Lok Adalat and in consideration of the same,
a petition for compounding of the offences was allowed by the Trial
Court. Accordingly, the Appellants were acquitted by the Trial Court.
7. Thereafter, Respondent No. 2 altered her position and filed a memo
before the Trial Court withdrawing her consent from the compromise.
Consequently, vide Docket Order dated 20.07.2021, the Trial Court
reopened the proceedings against the Appellants.
8. Aggrieved by this development, the Appellants approached the
High Court u/s. 482 CrPC seeking to quash the Docket Order dated
20.07.2021 on inter alia grounds that Respondent No. 2 sought to
reopen the criminal proceedings only to wreak vengeance upon the
Appellants.
9. In case of the Appellant-husband, vide Impugned Order II, the High
Court upheld the Docket Order dated 20.07.2021 and the set aside
the compromise between the parties in view of the amendment1 to
Sec. 320(2) CrPC, applicable to the State of Andhra Pradesh. As
per the amendment, compounding of an offence u/s. 498A is only
permissible after a lapse of three months from the date of request
for compounding.
10. In case of the in-laws, vide Impugned Order I, the High Court
refused to grant the relief sought, noting the existence of prima facie
allegations against the Appellants. However, in recognition of the
fact that the allegations were general and omnibus in nature, the
High Court dispensed with the presence of the Appellants during the
trial and furthermore, left it open for the Trial Court to conduct trial.

1 Andhra Pradesh Act 11 of 2003, sec. 2 (w.e.f. 01.08.2003)

[2024] 2 S.C.R.  255

Mamidi Anil Kumar Reddy v. The State of Andhra Pradesh & Anr.

Submissions & Analysis:

11. Learned Counsel for the Appellants vehemently submits that a bare
perusal of the complaint filed by Respondent No.2 and the charge-
sheet plainly discloses the absence of any necessary ingredients of
the charged offences. It is submitted that the allegations are wholly
general and omnibus in nature, made only with the intention to harass
the Appellants, amounting to an abuse of the process of the law.
12. To buttress his contention, Learned Counsel for the Appellants has
drawn the attention of this Court to the fact that Respondent No. 2
filed a petition seeking divorce and only thereafter, the memo seeking
reopening of the criminal proceedings against the Appellants was
filed before the Trial Court.
13. This Court has heard the Learned Counsel for the parties and
perused the record.
14. In the considered opinion of this Court, there is significant merit in
the submissions of the Learned Counsel for the Appellants. A bare
perusal of the complaint, statement of witnesses’ and the charge-
sheet shows that the allegations against the Appellants are wholly
general and omnibus in nature; even if they are taken in their entirety,
they do not prima facie make out a case against the Appellants. The
material on record neither discloses any particulars of the offences
alleged nor discloses the specific role/allegations assigned to any
of the Appellants in the commission of the offences.
15. The phenomenon of false implication by way of general omnibus
allegations in the course of matrimonial disputes is not unknown
to this Court. In Kahkashan Kausar alias Sonam v. State of Bihar2,
this Court dealt with a similar case wherein the allegations made
by the complainant-wife against her in-laws u/s. 498A and others
were vague and general, lacking any specific role and particulars.
The court proceeded to quash the FIR against the accused persons
and noted that such a situation, if left unchecked, would result in the
abuse of the process of law.

2 [2022] 1 SCR 558 : [(2022) 6 SCC 599]

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16. More recently, this Court in Mahmood Ali v. State of U.P.3, while
considering the principles applicable to the exercise of jurisdiction
u/s. 482 CrPC, observed as follows:
“12. At this stage, we would like to observe something
important. Whenever an accused comes before the Court
invoking either the inherent powers under Section 482 of
the Code of Criminal Procedure (CrPC) or extraordinary
jurisdiction under Article 226 of the Constitution to get the
FIR or the criminal proceedings quashed essentially on the
ground that such proceedings are manifestly frivolous or
vexatious or instituted with the ulterior motive for wreaking
vengeance, then in such circumstances the Court owes
a duty to look into the FIR with care and a little more
closely. We say so because once the complainant decides
to proceed against the accused with an ulterior motive
for wreaking personal vengeance, etc., then he would
ensure that the FIR/complaint is very well drafted with all
the necessary pleadings. The complainant would ensure
that the averments made in the FIR/complaint are such
that they disclose the necessary ingredients to constitute
the alleged offence. Therefore, it will not be just enough
for the Court to look into the averments made in the FIR/
complaint alone for the purpose of ascertaining whether
the necessary ingredients to constitute the alleged offence
are disclosed or not. In frivolous or vexatious proceedings,
the Court owes a duty to look into many other attending
circumstances emerging from the record of the case over
and above the averments and, if need be, with due care and
circumspection try to read in between the lines. The Court
while exercising its jurisdiction under Section 482 of the
CrPC or Article 226 of the Constitution need not restrict itself
only to the stage of a case but is empowered to take into
account the overall circumstances leading to the initiation/
registration of the case as well as the materials collected
in the course of investigation. Take for instance the case

3 (Criminal Appeal No. 2341 of 2023)

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Mamidi Anil Kumar Reddy v. The State of Andhra Pradesh & Anr.

on hand. Multiple FIRs have been registered over a period

of time. It is in the background of such circumstances the
registration of multiple FIRs assumes importance, thereby
attracting the issue of wreaking vengeance out of private
or personal grudge as alleged.”
17. Considering the dicta in Mahmood Ali (supra), we find that the High
Court in this case has failed to exercise due care and has mechanically
permitted the criminal proceedings to continue despite specifically
finding that the allegations are general and omnibus in nature. The
Appellants herein approached the High Court on inter alia grounds
that the proceedings were re-initiated on vexatious grounds and even
highlighted the commencement of divorce proceedings by Respondent
No. 2. In these peculiar circumstances, the High Court had a duty
to consider the allegations with great care and circumspection so
as to protect against the danger of unjust prosecution.
18. As stated above, given the facts and circumstances of the case, we
find that the material on record is wholly insufficient to proceed against
the Appellants. Accordingly, the Impugned Orders and the Docket
Order dated 20.07.2021 are set aside and the criminal proceedings
against the Appellants are consequently quashed.
19. Resultantly, the appeals stand allowed.
20. Pending applications, if any, shall also stand disposed of.

Headnotes prepared by: Nidhi Jain Result of the case:

Appeals allowed.
 [2024] 2 S.C.R. 258 : 2024 INSC 102

Greater Noida Industrial Development Authority

v.
Prabhjit Singh Soni & Anr.
(Civil Appeal Nos. 7590-7591 of 2023)

12 February 2024
[Dr. Dhananjaya Y. Chandrachud, CJI, J. B. Pardiwala and
Manoj Misra,* JJ.]

Issue for Consideration

Whether in exercise of powers under s.60(5), Insolvency and
Bankruptcy Code, 2016, the Adjudicating Authority-NCLT can recall
an order of approval passed under s.31(1) of the IBC; whether the
application for recall of the order was barred by time; whether the
resolution plan put forth by the resolution applicant did not meet
the requirements of s.30(2) of the IBC read with Regulations 37
and 38 of the CIRP Regulations, 2016 and; what relief, if any, the
appellant is entitled to.

Headnotes
Insolvency and Bankruptcy Code, 2016 – ss.30(2), 31(1), 60(5)
– The Insolvency and Bankruptcy Board of India (Insolvency
Resolution Process for Corporate Persons) Regulations,
2016 – National Company Law Tribunal Rules, 2016 – r.11 –
Inherent power of the Tribunal – Recall of the order of approval
passed u/s.31(1) – Maintainability of application for recall –
Resolution plan put forth by the resolution applicant, if met
the requirements of s.30(2) r/w Regulations 37 and 38 of the
CIRP Regulations, 2016:
Held: A Court or a Tribunal, in absence of any provision to the
contrary, has inherent power to recall an order to secure the ends
of justice and/or to prevent abuse of the process of the Court –
Neither the IBC nor the Regulations framed thereunder, in any
way, prohibit, exercise of such inherent power – Rather, s.60(5)
(c) which opens with a non-obstante clause, empowers the NCLT
(the Adjudicating Authority) to entertain or dispose of any question
of priorities or any question of law or facts, arising out of or in
relation to the insolvency resolution or liquidation proceedings of
the corporate debtor or corporate person under the IBC – Further,

* Author
[2024] 2 S.C.R.  259

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Prabhjit Singh Soni & Anr.

r.11 of the NCLT Rules, 2016 preserves the inherent power of the
Tribunal – In the present case, the grounds taken in the recall
application qualified as valid grounds on which a recall of the
order of approval could be sought– Thus, the recall application
was maintainable notwithstanding that an appeal lay before the
NCLAT against the order of approval passed by the Adjudicating
Authority – Neither NCLT nor NCLAT while deciding the application/
appeal of the appellant took note of the fact that the appellant was
not served notice of the meeting of the Committee of Creditors
(COC); the entire proceedings up to the stage of approval of the
resolution plan were ex-parte to the appellant; the appellant had
submitted its claim, and was a secured creditor by operation of
law, yet the resolution plan projected the appellant as one who
did not submit its claim; and the resolution plan did not meet all
the parameters laid down in s.30(2) read with Regulations 37 and
38 of the CIRP Regulations, 2016 – Also, the Recall Application
was not barred by time – Impugned order set aside – Resolution
plan be sent back to the COC for re-submission after satisfying
the parameters set out by the Code. [Para 50, 52 and 55]
Insolvency and Bankruptcy Code, 2016 – The Insolvency and
Bankruptcy Board of India (Insolvency Resolution Process
for Corporate Persons) Regulations, 2016 – Claim submitted
with proof could not be overlooked merely because it is in
a different Form:
Held: Even if a claim submitted by a creditor against the Corporate
Debtor (CD) is in a Form not as specified in the CIRP Regulations,
2016, the same has to be given due consideration by the IRP or the
RP, as the case may be, if it is otherwise verifiable, either from the
proof submitted by the creditor or from the records maintained by
the CD – A fortiori, if a claim is submitted by an operational creditor
claiming itself as a financial creditor, the claim would have to be
accorded due consideration in the category to which it belongs
provided it is verifiable – The resolution plan disclosed that the
appellant did not submit its claim, when the unrebutted case of the
appellant was that it had submitted its claim with proof – Though,
the record indicates that the appellant was advised to submit its
claim in Form B (meant for operational creditor) in place of Form
C (meant of financial creditor) – But, assuming the appellant did
not heed the advice, once the claim was submitted with proof,
it could not have been overlooked merely because it was in a
different Form – The Form in which a claim is to be submitted
is directory and not mandatory – What is necessary is that the
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claim must have support from proof – The resolution plan failed
not only in acknowledging the claim made but also in mentioning
the correct figure of the amount due and payable. [Paras 30, 54]
Insolvency and Bankruptcy Code, 2016 – Insolvency and
Bankruptcy Board of India (Insolvency Resolution Process
for Corporate Persons) Regulations, 2016 – Regulation 7,
8, 8-A, 9, 9-A, 12-14, 12A – Corporate insolvency resolution
process under – Discussed.
National Company Law Tribunal Rules, 2016 – r.11 – Inherent
power of the Tribunal – Exercise of – Application for recall,
maintainable on limited grounds:
Held: r.11 of the NCLT Rules, 2016 preserves the inherent power
of the Tribunal – Therefore, even in absence of a specific provision
empowering the Tribunal to recall its order, the Tribunal has power
to recall its order – However, such power is to be exercised
sparingly, and not as a tool to re-hear the matter – A Tribunal or a
Court is invested with such ancillary or incidental powers as may
be necessary to discharge its functions effectively for the purpose
of doing justice between the parties and, in absence of a statutory
prohibition, in an appropriate case, it can recall its order in exercise
of such ancillary or incidental powers – Ordinarily, an application
for recall of an order is maintainable on limited grounds, inter alia,
where the order is without jurisdiction; the party aggrieved with
the order is not served with notice of the proceedings in which
the order under recall has been passed; and the order has been
obtained by misrepresentation of facts or by playing fraud upon the
Court /Tribunal resulting in gross failure of justice. [Paras 48, 50]
Insolvency and Bankruptcy Code, 2016 – s.30(2) – The
Insolvency and Bankruptcy Board of India (Insolvency
Resolution Process for Corporate Persons) Regulations,
2016 – Regulations 37 and 38 – Resolution plan put forth
by the resolution applicant did not meet the requirements
of s.30(2) of the IBC read with Regulations 37 and 38 of the
CIRP Regulations, 2016 – Reasons stated. [Para 54]
Insolvency and Bankruptcy Code, 2016 – s.60 – Companies
Act, 2013 – ss.408, 409 – National Company Law Tribunal
Rules, 2016 – r.11 – Code of Civil Procedure, 1908 – s.151:
Held: s.60 specifies that the Adjudicating Authority in relation
to insolvency resolution and liquidation for corporate persons
including corporate debtors and personal guarantors thereof shall
[2024] 2 S.C.R.  261

Greater Noida Industrial Development Authority v.

Prabhjit Singh Soni & Anr.

be the NCLT having territorial jurisdiction over the place where

the registered office of the corporate person is located – s.60(5)
provides that notwithstanding anything to the contrary contained
in any other law for the time being in force, the NCLT shall have
jurisdiction to entertain or dispose of any application or proceeding
by or against the corporate debtor or corporate person; any claim
made by or against the corporate debtor or corporate person,
including claims by or against any of its subsidiaries situated in
India; and any question of priorities or any question of law or
facts, arising out of or in relation to the insolvency resolution or
liquidation proceedings of the corporate debtor or corporate person
under the IBC – r.11 of the 2016 Rules, framed u/s.469 of the
Companies Act 2013, which is in pari materia with s.151 of CPC,
1908, preserves the inherent powers of the Tribunal. [Paras 40-42]
Insolvency and Bankruptcy Code, 2016 – Insolvency and
Bankruptcy Board of India (Insolvency Resolution Process
for Corporate Persons) Regulations, 2016 – Duties performed
by Resolution Professional – Discussed.
Words and Phrases – Insolvency and Bankruptcy Board of
India (Insolvency Resolution Process for Corporate Persons)
Regulations, 2016 – “a person claiming to be an operational
creditor” in Regulation 7; “a person claiming to be a financial
creditor” in Regulation 8:
Held: Indicate that the category in which the claim is submitted is
based on the own understanding of the claimant – There could be
a situation where the claimant, in good faith, may place itself in a
category to which it does not belong – However, what is important
is, the claim so submitted must be with proof – As to what could
form proof of the debt/ claim is delineated in sub-regulation (2)
of Regulations 7 and 8 of the CIRP Regulations, 2016. [Para 20].

Case Law Cited

Ghanashyam Mishra & Sons (P) Ltd. vs. Edelweiss Asset
Reconstruction Co. Ltd., [2021] 13 S.C.R. 737: (2021)
9 SCC 657; Jaypee Kensington Boulevard Apartments
Welfare Association vs. NBCC (India) Ltd., [2021] 12
SCR 603 : (2022) 1 SCC 401; Manohar Lal Chopra
vs. Rai Bahadur Rao Raja Seth Hiralal, [1962] Suppl.
SCR 450 : AIR 1962 SC 527; Grindlays Bank Ltd. vs.
Central Govt. Industrial Tribunal, [1981] 2 S.C.R. 341:
1980 Supp SCC 420; State of Punjab vs. Davinder Pal
262 [2024] 2 S.C.R.

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Singh Bhullar, [2011] 15 SCR 540 : (2011) 14 SCC

770; New India Assurance Co. Ltd. vs. Krishna Kumar
Pandey, (2021) 14 SCC 683; Budhia Swain vs. Gopinath
Deb, [1999] 2 SCR 1189 : (1999) 4 SCC 396; Union
Bank of India vs. Financial Creditors of M/s Amtek Auto
Ltd. & Ors., Civil Appeal No.4620 of 2023 – relied on.
New Okhla Development Authority vs. Anand Sonbhadra,
[2022] 5 SCR 319 : (2023) 1 SCC 724; RE: Cognizance
For Extension of Limitation, [2021] 2 SCR 640 : (2021)
5 SCC 452 – referred to.

List of Acts
Insolvency and Bankruptcy Code, 2016; The Insolvency and
Bankruptcy Board of India (Insolvency Resolution Process for
Corporate Persons) Regulations, 2016; U.P. Industrial Area
Development Act, 1976; Companies Act, 2013; National Company
Law Tribunal Rules, 2016; Code of Civil Procedure, 1908.

List of Keywords
Inherent power of the Tribunal; Recall application; Claim submitted
with proof; Form not as specified in CIRP Regulations; Form
directory not mandatory; Ancillary or incidental powers; pari materia.

Case Arising From

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.7590-7591

of 2023
From the Judgment and Order dated 24.11.2022 of the National
Company Law Appellate Tribunal in CAAT (I) No. 867 of 2021 and
IA No. 2315 of 2021
Appearances for Parties

Ravindra Kumar, Sr. Adv, Binay Kumar Das, Vipin Saxena, Ms. Neha
Das, Ms. Priyanka Das Advs. for the Appellant.
Dr. Abhishek Manu Singhvi, Siddharth Bhatnagar, Sr. Advs.,Vardhman
Kaushik, Nishant Gautam, Dhruv Joshi, Abhinav Singh, Mayank
Sharma, Ms. Sanjana Mehrotra, Pracheta Kar, Aditya Sidhra, Nadeem
Afroz, Ajay Kanojia, Ayush Sharma, V M Kannan, G.P. Madaan,
Aditya Madaan, Mrs. Harimohana N, Naresh Kaushik, Mrs. Lalita
Kaushik, Advs. for the Respondents.
[2024] 2 S.C.R.  263

Greater Noida Industrial Development Authority v.

Prabhjit Singh Soni & Anr.

Judgment / Order of the Supreme Court

Judgment
Manoj Misra, J.
1. These appeals under Section 62 of the Insolvency and Bankruptcy
Code, 20161 are directed against the judgment and order2 of the
National Company Law Appellate Tribunal, Principal Bench, New
Delhi3 passed in Company Appeal (AT) (Ins.) No. 867 of 2021 and
I.A. No. 2315 of 2021, whereby the appellant’s appeal against the
order of the National Company Law Tribunal, New Delhi4 dated
05.04.2021 has been dismissed.

2. By the order dated 05.04.2021, NCLT had dismissed two applications

filed by the appellant under Section 60(5) of the IBC, namely:

(a) I.A. No.1380/ 2021, inter alia, to recall the order dated 04.08.2020
passed by NCLT in I.A. No. 2201 (PB)/2020 in Company Petition
No. (IB)-272 (ND)/ 2019; and

(b) I.A. No.344/ 2021, inter alia, questioning the decision of the
Resolution Professional (hereinafter referred to as the RP) in
treating the appellant as an operational creditor and not informing
the appellant about the meetings of the Committee of Creditors5.

Factual Background

3. The appellant being a statutory authority constituted under Section

3 of the U.P. Industrial Area Development Act, 19766 acquired land
for setting up an urban and industrial township. On 28.10.2010, one
of the plots of land acquired by it, namely, Plot No. 01-C, Sector
16C, Greater Noida, District Gautam Budh Nagar, U.P., was allotted,
by way of lease for 90 years, to M/s. JNC Construction (P) Ltd (the

1 IBC
2 Order dated 24.11.2022
3 NCLAT
4 NCLT
5 COC
6 1976 Act
264 [2024] 2 S.C.R.

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Corporate Debtor7) for a residential project, by charging premium,

payable in instalments starting from 29.10.2012 up to 29.04.2020,
after initial moratorium of 24 months, albeit subject to payment of
interest as well as penal interest, while reserving right to cancel the
lease and resume the demised land, subject to certain conditions.
The CD committed default in payment of instalments and was served
with demand cum pre-cancellation notice.

4. A Company Petition No. (IB) 272 (PB)/ 2019 was filed against the CD
for initiating Corporate Insolvency Resolution Process8, which was
admitted on 30.05.2019. Consequent thereto, claims were invited
through a public announcement.

5. Pursuant to the public notice, in the month of January 2020, appellant

submitted a claim of Rs. 43,40,31,951, being unpaid instalments
payable towards premium for the lease. The claim was set up by
the appellant as a financial creditor of the CD.

6. However, the RP treated the appellant as an operational creditor and,

vide e-mail dated 04.02.2020, requested the appellant to submit its
claim in Form B, as an operational creditor of the CD.

7. The appellant did not submit its claim afresh as an operational creditor.
In the meantime, the COC approved a plan which was presented to
the Adjudicating Authority (NCLT) for approval. The NCLT vide order
dated 04.08.2020 approved the same.

8. On getting information through letter dated 24.09.2020 that the plan

has been finalised and approved, on 06.10.2020 the appellant filed
I.A. No.344 of 2021 questioning, inter alia, the resolution plan, the
decision of the RP to treat the appellant as an operational creditor,
and all actions in pursuance thereof. Another I.A. No.1380/2021
was filed on 15.03.2021 seeking, inter alia, recall of the order dated
04.08.2020.

9. In the two applications referred to above, the appellant pleaded,

inter alia, that, --

7 CD
8 CIRP
[2024] 2 S.C.R.  265

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Prabhjit Singh Soni & Anr.

(a) there was gross error on part of the RP in treating the appellant as
an operational creditor, particularly, when it had no adjudicatory
power under Regulation 13 of The Insolvency and Bankruptcy
Board of India (Insolvency Resolution Process for Corporate
Persons) Regulations, 20169;

(b) the resolution plan erroneously states that appellant did not
submit a claim when, in fact, it was submitted;

(c) appellant being owner of the land with statutory charge over
assets of the CD ought to have been given top priority for its
dues as a secured creditor;

(d) no opportunity of hearing was given to the appellant by the

COC, and the entire process right up to the approval of the
plan by the Adjudicating Authority was ex parte.

NCLT’s Order

10. The NCLT, vide order dated 5.4.2021, rejected the aforesaid
applications, inter alia, on the ground that, despite lapse of seven
months between the date of filing its claim in January, 2020 and
the date of approval of the plan in August 2020, the appellant took
no steps against the RP for not taking a decision on its claim, even
though it was aware about initiation of the CIRP, and now it is not
permissible to take a decision on the claim application of the appellant
as the CIRP is complete consequent to approval of the plan.

Appeal before NCLAT

11. Aggrieved with the order of the NCLT, the appellant filed an appeal
before the NCLAT, inter alia, on the following grounds:
(i) The appellant was a financial creditor and, therefore, ought to
have been a member of the COC. On account of absence of
the appellant in the COC, the approval of the resolution plan
by the COC and, thereafter, by the NCLT is rendered invalid;

9 CIRP Regulations 2016

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(ii) By virtue of Sections 1310, 13A11and 1412of the 1976 Act, the
appellant had a charge over the assets of the CD and was
therefore a secured creditor within the meaning of Section
3(30)13 read with Section 3(31)14 of the IBC, yet the resolution
plan does not treat the appellant as a secured creditor;
(iii) The appellant had submitted its claim with proof, yet the appellant
was shown as one who submitted no claim. Additionally, the
appellant was neither informed of the meetings of the COC nor
adequate amount, commensurate to its status as a secured
creditor and owner of the land with statutory rights, was allocated
to it in the resolution plan, which is violative of the provisions
of Section 30(2)15 of the IBC; and

10 Section 13.- Imposition of penalty and mode of recovery of arrears.- Where any transferee makes any
default in the payment of any consideration money or instalment thereof or any other amount due on
account of the transfer of any site or building by the Authority or any rent due to the Authority in respect
of any lease, or where any transfer or occupier makes any default in payment of any amount of fee or
tax levied under this Act the Chief Executive Officer may direct that in addition to the amount of arrears,
a further sum not exceeding that amount shall be recovered from the transferee or occupier, as the
case may be, by way of penalty.
11 Section 13.A- Any amount payable to the Authority under Section 13 shall constitute a charge over the
property and may be recovered as arrears of land revenue or by attachment and sale of property in the
manner provided under Sections 503, 504, 505, 506, 507, 508, 509, 510, 512, 513, and 514 of the Ut-
tar Pradesh Municipal Corporations Act, 1959 [Act 2 of 1959] and such provisions of the said Act shall
mutatis mutandis apply to the recovery of dues of an authority as they apply to the recovery of a tax
due to a Municipal Corporation, so however, that references in the aforesaid Sections of the said Act to
“Municipal Commissioner”, “Corporation Officer” and “Corporation” shall be construed as references to
“Chief Executive Officer” and “Authority” respectively:
provided that more than one modes of recovery shall not be commenced or continued simultaneously
12 Section 14.- Forfeiture for breach of conditions of transfer.- (1) in the case of non-payment of consider-
ation money or any installment thereof on account of the transfer by the Authority of any site or building
or in case of breach of any condition of such transfer or breach of any rules or regulations made under
this Act, the Chief Executive Officer may resume the site or building so transferred and may further
forfeit the whole or any part of the money, if any, paid in respect thereof.
(2) Where the Chief Executive Officer orders resumption of any site or building under sub-section (1)
the Collector may, on his own requisition, cause possession thereof to be delivered to him and may for
that purpose use or causes to be used such force as may be necessary
13 Section 3 (30).- “secured creditor” means a creditor in favour of whom a security interest is created.
14 Section 3(31).- “security interest” means right, title or interest or a claim to a property, created in favour
of, or provided for a secured creditor by a transaction which secures payment or performance of an
obligation and includes mortgage, charge, hypothecation, assignment and encumbrance or any other
agreement or arrangement securing payment or performance of any obligation of any person:
Provided that security interest shall not include a performance guarantee.
15 Section 30. Submission of Resolution Plan. – (1)…………………
(2) The resolution professional shall examine each resolution plan received by him to confirm that each
resolution plan—
(a) provides for the payment of insolvency resolution process costs in a manner specified by the Board
in priority to the payment of other debts of the corporate debtor;
(b) provides for the payment of debts of operational creditors in such manner as may be specified by
the Board which shall not be less than—
(i) the amount to be paid to search creditors in the event of a liquidation of the corporate debtor
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Prabhjit Singh Soni & Anr.

(iv) The NCLT failed to address and appreciate the grounds taken
in the correct perspective.
Findings of NCLAT
12. The appeal preferred by the appellant was dismissed by observing,
inter alia,
(i) the materials on record reflect that the RP had informed the
appellant vide e-mail dated 04.02.2020 about its status as an
Operational Creditor and to submit its claim in Form ‘B’, yet
the appellant chose not to file its claim;
(ii) in New Okhla Development Authority vs. Anand Sonbhadra16,
it was held that disbursement is an indispensable requirement
to constitute a financial debt within the meaning of Section
5(8)17 of the IBC and, that too, the disbursement must be from a

under section 53;

(ii) the amount that would have been paid to such creditors, if the amount to be distributed under
the resolution plan had been distributed in accordance with the order of priority in sub-section (1) of
section 53;
whichever is higher, and provides for the payment of debts of financial creditors, who do not vote in
favour of the resolution plan, in such manner as may be specified by the Board, which shall not be less
than the amount to be paid to such creditors in accordance with sub-section (1) of section 53 in the
event of a liquidation of the corporate debtor.
Explanation 1.-- For the removal of doubts, it is hereby clarified that a distribution in accordance with the
provisions of this clause shall be fair and equitable to such creditors.
Explanation 2.-- For the purposes of this clause it is hereby declared that on and from the date of com-
mencement of the Insolvency and Bankruptcy Code [Amendment] Act, 2019, the provisions of this
clause shall also apply to the corporate insolvency resolution process of a corporate debtor----
(i) where the resolution plan has not been approved or rejected by the adjudicating authority;
(ii) where an appeal has been preferred under section 61 or section 62 or such an appeal is not
time barred under any provision of law for the time being in force; or
(iii) where a legal proceeding has been initiated in any court against the decision of the adjudicating
authority in respect of a resolution plan;
(c) provides for the management of the affairs of the corporate debtor after approval of the resolution
plan;
(d) the implementation and supervision of the resolution plan;
(e) does not contravene any of the provisions of the law for the time being in force;
(f) conforms to such other requirements as may be specified by the Board.
16 [2022] 5 SCR 319 : (2023) 1 SCC 724
17 Section 5(8).—“financial debt” means a debt along with interest, if any, which is disbursed against the
consideration for the time value of money and includes –
(a) money borrowed against the payment of interest;
(b) any amount raised by acceptance under any acceptance credit facility or its dematerialised equiva-
lent;
(c) any amount raised pursuant to any note, purchase facility or the issue of bonds, notes, debentures,
loan stock or any similar instrument;
(d) the amount of any liability in respect of any lease or higher purchase contract which is deemed as a
financial or capital lease under the Indian Accounting Standards or such other accounting standards as
may be prescribed;
(e) receivables sold or discounted other than any receivables sold on non-recourse basis;
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creditor to a debtor, and as the lease executed by the appellant

was not a financial lease or capital lease, the appellant does
not qualify as a financial creditor;
(iii) the resolution plan was approved by the Adjudicating Authority
on 04.08.2020, and the successful resolution applicant (SRA)
seeking implementation of the plan informed the appellant
vide letter dated 24.09.2020 about the plan, yet I.A. No.344/
2021 was not filed before 06.10.2020 and I.A. No. 1380/2021,
seeking recall, was filed only on 15.03.2021, which shows that
the appellant had not been diligent in pursuing its right, if any,
therefore the challenge, post approval of the resolution plan,
is liable to be rejected; and
(iv) there appears no material irregularity in the approval of the
Resolution Plan, particularly, when the commercial wisdom of
the COC is not justiciable.
13. We have heard Sri Ravindra Kumar, learned senior counsel, for the
appellant; Dr. Abhishek Manu Singhvi, learned senior counsel, for
respondent no.2 (Resolution Applicant); and Sri V.M. Kannan for
respondent no.1 (Resolution Professional).
Submissions on behalf of the appellant
14. The learned counsel for the appellant, inter alia, submitted:
(a) There is no dispute that appellant had submitted its claim with
proof on 30.01.2020 as a financial creditor having security
interest over the assets of the CD. Even if the appellant was
not a financial creditor, the resolution plan ought to have noticed

(f) any amount raised under any other transaction, including any forward sale or purchase agreement,
having the commercial effect of a borrowing;
Explanation.-- For the purposes of this sub clause,--
(i) any amount raised from an allottee under a real estate project shall be deemed to be an amount
having the commercial effect of a borrowing; and
(ii) the expressions, “allottee” and “real estate project” shall have the meanings respectively assigned
to them in clauses (d) and (zn) of Section 2 of the Real Estate (Regulation and Development Act, 2016
(16 of 2016);
(g) any derivative transaction entered into in connection with protection against or benefit from fluctua-
tion in any rate or price and for calculating the value of any derivative transaction, only the market
value of such transaction shall be taken into account;
(h) any counter indemnity obligation in respect of a guarantee, indemnity bond, documentary letter of
credit or any other instrument issued by a bank or financial institution;
(i) the amount of any liability in respect of any of the guarantee or indemnity for any of the items
referred to in sub-clauses (a) to (h) of this clause;
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its claim as a secured creditor whereas the order of approval

dated 4.8.2020 describes the appellant as one who did not
submit its claim.
(b) The meetings of the COC were not notified to the appellant to
enable its participation. In absence thereof, the resolution plan
stood vitiated.
(c) At the time of approving the resolution plan, the adjudicating
authority failed to consider whether the plan had made provisions
commensurate to appellant’s claim, and the statutory charge
which the appellant enjoyed over the assets of the CD. Not
only that, it overlooked the ownership and statutory rights
of the appellant over the land and thereby failed to consider
whether the plan was feasible and viable. In absence of such
consideration, the order of approval stood vitiated.
(d) The finding that there had been a delay on part of the appellant
in pursuing its remedies is misconceived, particularly when it was
established on record that I.A. No.344/ 2021 was filed promptly
on 6.10.2020 upon getting information on 24.09.2020 from the
monitoring agency regarding approval of the plan. Likewise,
I.A. No.1380/ 2021 was filed immediately on 15.03.2021 when
suspension of the period of limitation for any suit, appeal,
application or proceeding, imposed between 15.03.2020 and
14.03.2021, was lifted in terms of this Court’s order dated
8.03.2021 in RE: Cognizance For Extension of Limitation18.
Submissions on behalf of the respondents
15. Dr. Abhishek Manu Singhvi, leading the arguments on behalf of the
respondents, submitted that the issue as to whether dues payable to
an Industrial Area Development Authority, like the appellant, towards
lease/ allotment premium / rental, would be a financial debt or not is
no longer res integra, as it stands settled by a decision of this Court
in Anand Sonbhadra (supra), wherein it has been held that it is not
a financial debt. Therefore, the appellant had no voting right in the
COC. And since the appellant pressed its case only on the ground
that it is a financial creditor, its challenge to the order of approval
had no basis. More so, when the commercial wisdom of the COC

18 [2021] 2 SCR 640 : (2021) 5 SCC 452

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is not justiciable. Further, once the resolution plan, which makes a

provision for the appellant, is approved by the Adjudicating Authority,
it cannot be questioned through a recall application.
Analysis
16. Before we proceed to test the correctness of the impugned order
against the weight of rival submissions, it would be useful to have
a look at the statutory provisions of the IBC and the Regulations
framed thereunder with reference to the corporate insolvency
resolution process.
17. As per the provisions of the IBC, on admission of a petition, and
declaration of a moratorium under Section 13, a public announcement
is made inviting claims against the CD by a specified date. The
manner in which a public announcement is to be made and claims
are to be submitted, is described in the CIRP Regulations 2016.
18. Regulation 719 of CIRP Regulations, 2016 deals with submission of a
claim by a person who claims himself to be an operational creditor.
Such claim is to be submitted in Form B specified in the Schedule.
Whereas Regulation 820 deals with submission of a claim by a person
who claims himself to be a financial creditor. Such a claim is to be
submitted in Form C. Regulations 8-A, 9 and 9-A deal with other
classes of creditors with which we are not concerned here.

19 7. Claims by operational creditors.—(1) A person claiming to be an operational creditor, other than

workman or employee of the corporate debtor, shall submit claim with proof to the interim resolution
professional in person, by post or by electronic means in Form B of the Schedule:
Provided that such person may submit supplementary documents or clarifications in support of the
claim before the constitution of the committee.
(2) The existence of debt due to the operational creditor under this regulation may be proved on the
basis of—
(a) the records available with an information utility, if any; or
(b) other relevant documents, including—
(i) a contract for the supply of goods and services with corporate debtor;
(ii) an invoice demanding payment for the goods and services supplied to the corporate debtor;
(iii) an order of a court or tribunal that has adjudicated upon the non-payment of a debt, if any; or
(iv) financial accounts.
20 8. Claims by financial creditors.—(1) A person claiming to be a financial creditor, other than a
financial creditor belonging to a class of creditors, shall submit claim with proof to the interim resolution
professional in electronic form in Form C of the Schedule:
Provided that such person may submit supplementary documents or clarifications in support of the
claim before the constitution of the committee.
(2) The existence of debt due to the financial creditor may be proved on the basis of—
(a) the records available with an information utility, if any; or
(b) other relevant documents, including—
(i) a financial contract supported by financial statements as evidence of the debt;
(ii) a record evidencing that the amounts committed by the financial creditor to the corporate
debtor under a facility has been drawn by the corporate debtor;
(iii) financial statements showing that the debt has not been paid; or
(iv) an order of a court or tribunal that has adjudicated upon the non-payment of a debt, if any.
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19. Regulation 1221 mandates submission of proof of the claim by the

date specified. Whereas, Regulation 1322 speaks of verification of
claims by the interim resolution professional (IRP) or the RP, as the
case may be. Regulation 1423 provides for determination of amount
of claim where the amount claimed is not precise.
20. The use of the words “a person claiming to be an operational
creditor” in the opening part of Regulation 7, and the words “a
person claiming to be a financial creditor” in Regulation 8, indicate
that the category in which the claim is submitted is based on the
own understanding of the claimant. Thus, there could be a situation
where the claimant, in good faith, may place itself in a category to
which it does not belong. However, what is important is, the claim
so submitted must be with proof. As to what could form proof of the
debt/ claim is delineated in sub-regulation (2) of Regulations 7 and
8 of the CIRP Regulations, 2016.

21 12. Submission of proof of claims.—(1) Subject to sub-regulation (2), a creditor shall submit claim
with proof on or before the last date mentioned in the public announcement.
(2) A creditor, who fails to submit claim with proof within the time stipulated in the public announcement,
may submit the claim with proof to the interim resolution professional or the resolution professional, as
the case may be, on or before the ninetieth day of the insolvency commencement date.
(3) Where the creditor in sub-regulation (2) is a financial creditor under Regulation 8, it shall be in-
cluded in the committee from the date of admission of such claim:
Provided that such inclusion shall not affect the validity of any decision taken by the committee prior to
such inclusion.
22 13. Verification of claims.—(1) The interim resolution professional or the resolution professional, as
the case may be, shall verify every claim, as on the insolvency commencement date, within seven
days from the last date of the receipt of the claims, and thereupon maintain a list of creditors containing
names of creditors along with the amount claimed by them, the amount of their claims admitted and the
security interest, if any, in respect of such claims, and update it.
(2) The list of creditors shall be—
(a) available for inspection by the persons who submitted proofs of claim;
(b) available for inspection by members, partners, directors and guarantors of the corporate debtor
or their authorised representatives;
(c) displayed on the website, if any, of the corporate debtor;
(ca) filed on the electronic platform of the Board for dissemination on its website:
Provided that this clause shall apply to every corporate insolvency resolution process ongoing and
commencing on or after the date of commencement of the Insolvency and Bankruptcy Board of India
(Insolvency Resolution Process for Corporate Persons) (Fifth Amendment) Regulations, 2020;
(d) filed with the adjudicating authority; and
(e) presented at the first meeting of the committee.
23 14. Determination of amount of claim.—(1) Where the amount claimed by a creditor is not precise
due to any contingency or other reason, the interim resolution professional or the resolution profes-
sional, as the case may be, shall make the best estimate of the amount of the claim based on the
information available with him.
(2) The interim resolution professional or the resolution professional, as the case may be, shall revise
the amounts of claims admitted, including the estimates of claims made under sub-regulation (1), as
soon as may be practicable, when he comes across additional information warranting such revision.”
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21. Once a claim is submitted with proof under any of the Regulations
(i.e., Regulations 7, 8, 8-A, 9 and 9-A), the IRP or the RP, as the
case may be, as per Regulation 13, has to verify the claim, as on
the insolvency commencement date, and thereupon maintain a list
of creditors containing names of creditors along with the amount
claimed by them, the amount of their claims admitted and the security
interest, if any, in respect of such claims, and update it in terms of
Regulation 12 A24.
22. As it could be noticed from the CIRP Regulations, 2016, on submission
of a claim with proof, the IRP or the RP, as the case may be, has to
verify the claim and prepare a list of creditors containing names of
creditors along with the amount claimed by them and security interest,
if any, the logical conclusion derivable from the provisions analysed
above would be that the Form in which a claim is to be submitted
under the CIRP Regulations 2016 is directory and not mandatory.
What is important is, the claim must be supported by proof.
23. On collation of claims received against the CD, the IRP has to
constitute a COC. As per Section 21 (2) of the IBC, subject to other
provisions of Section 21, the COC must comprise all financial creditors
of a CD. Under Section 22 of the IBC, the COC appoints an RP in
its first meeting. It may, however, resolve to appoint the IRP as the
RP, subject to confirmation by the Board.
24. The RP has many important duties. Some of the duties which an
RP has to perform, under Section 25 of the IBC, are to: (a) take
immediate custody and control of all the assets of the CD, including
the business records of the CD; (b) maintain an updated list of
claims; (c) convene and attend all meetings of the COC; (d) prepare
information memorandum in accordance with Section 29 read with
Regulation 36 of the CIRP Regulations 201625; (e) invite prospective

24 !2 A. Updation of claim. — A creditor shall update its claim as and when the claim is satisfied, partly
or fully, from any source in any manner, after the insolvency commencement date.
25 Regulation 36. Information memorandum. – (1) Subject to sub regulation [4], the resolution profes-
sional shall submit the information memorandum in electronic form to each member of the committee
within 2 weeks of his appointment, but not later than 54th day from the insolvency commencement
date, whichever is earlier.
(2) the information memorandum shall contain the following details of the corporate debtor--
[a] assets and liabilities with such description, as on the insolvency commencement date, as are
generally necessary for ascertaining their values.
Explanation.- Description includes the details such as date of acquisition cost of acquisition, re-
maining useful life identification number, depreciation charged, book value, and any other relevant
details.
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resolution applicants to submit a resolution plan or plans; and (f)

present all resolution plans at the meetings of the COC.
25. The meetings of the COC are to be conducted by the RP. Sub
section (3) of Section 2426, inter alia, provides that the RP shall
give notice of each meeting of the COC to the operational creditors
or their representative(s) if the amount of their aggregate dues is
not less than ten percent of the debt. Regulation 19 of the CIRP
Regulations, 2016 further mandates the RP to ensure that notice of
the meeting is given to every participant. “Participant” is defined in
Regulation 2 (l) of the CIRP Regulations 2016 as a person who is
entitled to attend a meeting of the COC under Section 24 of the IBC
or any other person authorised by the COC to attend the meeting.
26. Based on the information memorandum, when a resolution plan is
submitted by a resolution applicant, eligible under Section 29-A of the
IBC, the RP is under an obligation to examine whether the resolution

(b) the latest annual financial statements;

(c) financial statements of the corporate debtor for the last 2 financial years and provisional finan-
cial statements for the current financial year made up to a date not earlier than 14 days from the
date of the application;
(d) a list of creditors containing the names of creditors, the amounts claimed by them, the amount
of their claims admitted and the security interest, if any, in respect of such claims;
(e) particulars of a debt due from or to the corporate debtor with respect to related parties;
(f) details of guarantees that have been given in relation to the debts of the corporate debtor by
other persons, specifying which of the guarantors is a related party;
(g) the names and addresses of the members or partners holding at least 1% stake in the corpo-
rate debtor along with the size of stake;
(h) details of all material litigation and an ongoing investigation or proceeding initiated by Govern-
ment and statutory authorities;
(i) the number of workers and employees and liabilities of the corporate debtor towards them;
(j) *******omitted
(k)*******omitted
(l) other information, which the resolution professional deems relevant to the committee.
(3) A member of the committee may request the resolution professional for further information of the
nature described in this regulation and the resolution professional shall provide such information to all
members within reasonable time if such information has a bearing on the resolution plan.
(4) The resolution professional shall share the information memorandum after receiving an undertaking
from a member of the committee to the effect that such member or resolution applicant shall maintain
confidentiality of the information and shall not use such information to cause an undue gain or undue
loss to itself or any other person and comply with the requirements under subsection [2] of section 29.
26 “Section 24. Meeting of committee of creditors.--- (1)………
(2)…………..
(3) The resolution professional shall give notice of each meeting of the committee of creditors to—
(a) members of committee of creditors, including the authorized representatives referred to in
sub-sections (6) and (6A) of section 2 and sub-section (5);
(b) members of the suspended Board of Directors or the partners of the corporate persons, as
the case may be;
(c). operational creditors or their representatives if the amount of their aggregate dues is not
less than ten percent of the debt
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plan(s) received by him conform(s) to the conditions referred to in

sub-section (2) of Section 30 of the IBC as elaborated in Regulations
3727 and 3827A of the CIRP Regulations 2016.
27. The resolution plan that conforms to the conditions referred to in
sub-section (2) of Section 30 is to be presented by the RP to the
COC for its approval. Thereafter, under sub-section (4) of Section
3028, the COC may approve the plan after considering its feasibility

27 Regulation 37. Resolution Plan.-- A resolution plan shall provide for the measures as may be neces-
sary, for insolvency resolution of the corporate debtor for maximization of value of its assets including
but not limited to the following:-
[a] transfer of all or part of the assets of the corporate debtor to one or more persons;
(b) sale of all or part of the assets whether subject to any security interest or not;
[ba] restructuring of the corporate debtor, by way of merger, amalgamation and demerger;
[c] the substantial acquisition of shares of the corporate debtor or the merger or consolidation of the
corporate debtor with one or more persons;
[ca] cancellation or delisting of any shares of the corporate debtor if applicable;
[d] satisfaction or modification of any security interest;
[e] curing or waving of any breach of the terms of any debt due from the corporate debtor;
[f] reduction in the amount payable to the creditors;
[g] extension of a maturity date or change in interest rate or other terms of a debt due from the
corporate debtor;
[h] amendment of the constitutional documents of the corporate debtor;
[i] issuance of securities of the corporate debtor for cash, property, securities, or in exchange for
claims or interest, or other appropriate purpose;
[j] change in portfolio of goods or services produced or rendered by the corporate debtors;
[k] change in technology used by the corporate debtor; and
[l] obtaining necessary approvals from the central and state governments and other authorities.
27A Regulation 38. Mandatory contents of the resolution plan.---(1) The amount payable under a
resolution plan-----
(a) to the operational creditors shall be paid in priority over financial creditors; and
(b) to the financial creditors, who have a right to vote under sub- section (2) of Section 21 and did
not vote in favour of the resolution plan, shall be paid in priority over financial creditors who voted
in favour of the plan.
(1A) A resolution plan shall include a statement as to how it has dealt with the interests of all stakehold-
ers including financial creditors and operational creditors, of the corporate debtor.
(1B) A resolution plan shall include a statement giving details if the resolution applicant or any of its
related parties has failed to implement or contributed to the failure of implementation of any other
resolution plan approved by the adjudicating authority at any time in the past.
(2) A resolution plan shall provide:
[a] the term of the plan and its implementation schedule;
[b] the management and control of the business of the corporate debtor during its term; and
[c) adequate means for supervising its implementation.
(3) A resolution plan shall demonstrate that----
[a] it addresses the cause of the fault;
[b] it is feasible and viable;
[c] it has provisions for its effective implementation;
(d) it has provisions for approvals required and the timeline for the same; and
[e] the resolution applicant has the capability to implement the resolution plan.
28 Section 30 (4). The committee of creditors may approve a resolution plan by a vote of not less than
sixty six percent of voting share of financial creditors, after considering its feasibility and viability, the
manner of distribution proposed, which may take into account the order of priority amongst creditors
as laid down in sub-section (1) of section 53, including the priority and value of the security interest of
secured creditor and such other requirements as may be specified by the Board:
………………”
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and viability, the manner of distribution proposed, which may take

into account the order of priority amongst creditors as laid down
in sub-section (1) of Section 53, including the priority and value of
security interest of a secured creditor and such other requirements
as may be specified by the Board.
28. Once the plan is approved by the COC, the RP has to submit it
for approval of the Adjudicating Authority. As per sub-section (1) of
Section 3129 of the IBC, if the Adjudicating Authority is satisfied that
the resolution plan as approved by the COC under sub-section (4) of
Section 30 meets the requirements of sub-section (2) of Section 30, it
has to approve the resolution plan. On its approval, the plan becomes
binding on the CD and its employees, members, creditors, including
the Central Government, any State Government or any local authority
to whom a debt in respect of the payment of dues arising under any
law for the time being in force, such as authorities to whom statutory
dues are owed, guarantors and other stakeholders involved in the
resolution plan. But where the Adjudicating Authority is satisfied that
the resolution plan does not conform to the requirements referred
to in sub-section (1), it may, in exercise of power under sub-section
(2) of Section 31, by an order, reject the resolution plan.
29. Explaining the scheme of the CIRP under the IBC, in Ghanashyam
Mishra & Sons (P) Ltd. vs. Edelweiss Asset Reconstruction
Co. Ltd.30, a three-Judge Bench of this Court observed that one
of the principal objects of the IBC is to provide for revival of the
CD and to make it a going concern. The RP on commencement
of CIRP is required to issue a publication inviting claims from all
the stakeholders; thereafter, on basis of claims received, the RP
is required to collate the information and submit necessary details
in the information memorandum; the resolution applicant(s) submit
their plan(s) on the basis of the details provided in the information
memorandum; the resolution plan(s) undergo deep scrutiny by RP

29 “Section 31. Approval of resolution plan.- (1) If the Adjudicating Authority is satisfied that the
resolution plan as approved by the committee of creditors under sub-section (4) of section 30 meets
the requirements as referred to in sub-section (2) of section 30, it shall by order approve the resolution
plan which shall be binding on the corporate debtor and its employees, members, creditors, including
the Central Government, any State Government or any local authority to whom a debt in respect of the
payment of dues under any law for the time being in force, such as authorities to whom statutory dues
are owed, guarantors and other stakeholders involved in the resolution plan:
………….”.
30 [2021] 13 SCR 737 : (2021) 9 SCC 657 (paragraph 93)
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as well as COC; in the negotiations that may be held between COC

and the resolution applicant, various modifications may be made so
as to ensure that while paying part of the dues of financial creditors
as well as operational creditors and other stakeholders, the CD is
revived and is made an on-going concern; after COC approves the
plan, the adjudicating authority is required to arrive at a subjective
satisfaction that the plan conforms to the requirements as are
provided in sub-section (2) of Section 30 of IBC; and only thereafter,
the adjudicating authority can grant its approval to the plan.
30. What is clear from the provisions of the IBC and the Regulations
noticed above is, that the RP is under a statutory obligation to
collate the data obtained from (a) the claim(s) made before it and
(b) information gathered from the records including those maintained
by the CD. The data so collated forms part of the information
memorandum. Based on that information, the resolution applicant(s)
submit(s) plan. In consequence, even if a claim submitted by a creditor
against the CD is in a Form not as specified in the CIRP Regulations,
2016, the same has to be given due consideration by the IRP or the
RP, as the case may be, if it is otherwise verifiable, either from the
proof submitted by the creditor or from the records maintained by
the CD. A fortiori, if a claim is submitted by an operational creditor
claiming itself as a financial creditor, the claim would have to be
accorded due consideration in the category to which it belongs
provided it is verifiable.
31. On submission of the plan by a resolution applicant, the RP examines
it to confirm whether it meets the requirements of sub-section
(2) of Section 30 and, if it conforms to the conditions referred to
therein, present the plan to the COC for its approval. After the
plan is presented to the COC for its approval, the COC, under
sub-section (4) of Section 30, has to consider its feasibility and
viability, the manner of distribution proposed, including the priority
and value of the security interest of a secured creditor and such
other requirements as may be specified by the Board. Once that
exercise is over, the plan is submitted for approval of the Adjudicating
Authority, which must, under sub-section (1) of Section 31, satisfy
itself as to whether the plan approved by COC under sub-section (4)
of Section 30 meets the requirements as referred to in sub-section
(2) of Section 30 of IBC.
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32. In Jaypee Kensington Boulevard Apartments Welfare Association

vs. NBCC (India) Ltd.,31 a three-Judge Bench of this Court had
occasion to examine the scope of judicial review exercisable
by: (a) the Adjudicating Authority, under Section 31 (1), over a
resolution plan approved by the COC; and (b) the Appellate Authority
exercising its power under Section 32 read with Section 61 (3) of
the IBC. After examining the relevant provisions of the IBC and the
Regulations framed thereunder, and upon a survey of various judicial
pronouncements on the subject, the scope of judicial review was
summarised as follows:
“108. To put in a nutshell, the adjudicating authority
has limited jurisdiction in the matter of approval of a
resolution plan, which is well-defined and circumscribed
by Sections 30(2) and 31 of the Code read with the
parameters delineated by this Court in the decisions
above-referred. The jurisdiction of the appellate authority
is also circumscribed by the limited grounds of appeal
provided in Section 61 of the Code. In the adjudicatory
process concerning a resolution plan under IBC, there is no
scope for interference with the commercial aspects of the
decision of the CoC; and there is no scope for substituting
any commercial term of the resolution plan approved by
the CoC. Within its limited jurisdiction, if the adjudicating
authority or the appellate authority, as the case may be,
would find any shortcoming in the resolution plan vis-à-vis
the specified parameters, it would only send the resolution
plan back to the Committee of Creditors, for re-submission
after satisfying the parameters delineated by the Code and
exposited by this Court.
(Emphasis supplied)
33. In light of the analysis of the provisions of the IBC and the Regulations
framed thereunder, in our view, though commercial wisdom of the
COC in approving a resolution plan may not be justiciable in exercise
of the power of judicial review, the Adjudicating Authority can always
take notice of any shortcoming in the resolution plan in terms of the
parameters specified in sub-section (2) of Section 30 of the IBC

31 [2021] 12 SCR 603 : (2022) 1 SCC 401

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coupled with Regulations 37 and 38 of the CIRP Regulations 2016.

If any such shortcoming appears in the resolution plan, it may send
the resolution plan back to the COC for re-submission after satisfying
the parameters so laid down. Likewise, the appellate authority can
also interfere upon noticing any shortcoming in the resolution plan
while exercising its powers under Section 3232 read with Section 61
(3)33 of the IBC.
34. In the instant case, a perusal of the approval order dated 04.08.2020
would reveal that the resolution plan put forth by the resolution
applicant refers to the appellant as a creditor who had not submitted
its claim. Further, the dues shown payable to the appellant are Rs.
13,47,40,819/- when, according to the appellant, its claim was for
Rs. 43,40,31,951/- Not only that, the amount proposed to be paid is
just Rs.1,34,74,082/-, that too, payable by conversion of dues into
square feet of area to be completed and payment to be made, on
square feet basis, at the time of registration of each of the units.
35. However, what is important is that neither NCLT nor NCLAT rejected
the assertion of the appellant that on 30.01.2020, in response to the
public announcement, the appellant had submitted with proof a claim
of Rs.43,40,31,951/- before the RP, being the amount payable to it by
the CD towards unpaid premium including interest payable thereon
for the lease/allotment of land owned by the appellant.
36. According to the appellant, the resolution plan fails to take into account
the following: (a) the appellant had submitted its claim with proof
for Rs. 43,40,31,951/-; (b) the appellant had a statutory charge over
the assets of the CD; (c) the entire land over which the project has
been conceived is owned by the appellant; (d) a notice to cancel the

32 Section 32. Appeal. - Any appeal from an order approving the resolution plan shall be in the manner
and on the grounds laid down in sub-section (3) of Section 61.
33 Section 61. Appeals and Appellate Authority. – (1)…………
(2)………….
(3) An appeal against an order approving resolution plan under Section 31 may be filed on the follow-
ing grounds, namely:-
[i] the approved resolution plan is in contravention of the provisions of any law for the time being in
force;
(ii) there has been material irregularity in exercise of the powers by the resolution professional during
the corporate insolvency resolution period;
(iii) the debts owed to operational creditors of the corporate debtor have not been provided for in the
resolution plan in the manner specified by the Board;
(iv) the insolvency resolution process costs have not been provided for repayment in priority to all other
debts; or
(v) the resolution plan does not comply with any other criteria specified by the Board.
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Prabhjit Singh Soni & Anr.

lease for non-payment of dues had already been served on the CD;
and (e) without approval of the appellant, the plan was not feasible.
Further, according to the appellant, the plan did not conform to the
conditions referred to in sub-section (2) of Section 30 of the IBC read
with Regulations 37 and 38 of the CIRP Regulations 2016; and that
the entire process of preparing the resolution plan and approving the
same had been ex parte, thereby seriously prejudicing the interest
of the appellant. It is the case of the appellant that neither NCLT
nor NCLAT accorded due consideration to the above aspects while
rejecting the application/ appeal of the appellant.
37. Per contra, on behalf of the respondents, it was urged that,- (a)
the appellant had pressed its case only on the ground that it was a
financial creditor, once this plea is found unsustainable, no relief can
be granted to the appellant, as commercial wisdom of the COC is
not justiciable; (b) NCLT has no power to recall its order of approval,
the remedy for the appellant was to file an appeal within the time
provided by the statute; and (c) there has been inordinate delay on
the part of the appellant in questioning the order of approval.
38. At this stage, we may put on record that the appellant had set up
its claim as a financial creditor. However, the appellant was found
to be an operational creditor. Though a challenge to this finding has
been laid but, during the course of arguments, the learned counsel
for the appellant failed to demonstrate as to how could the appellant
be considered a financial creditor. In view thereof, taking notice of
the decision in Anand Sonbhadra (supra), we do not propose to
deal with the submission that the appellant was a financial creditor.
39. Upon consideration of the rival submissions, following issues arise
for our consideration in this appeal:
(i) Whether in exercise of powers under sub-section (5) of Section
60, the Adjudicating Authority (i.e., NCLT) can recall an order of
approval passed under sub-section (1) of Section 31 of the IBC?.
(ii) Whether the application for recall of the order was barred by
time?
(iii) Whether the resolution plan put forth by the resolution applicant
did not meet the requirements of sub-section (2) of Section
30 of the IBC read with Regulations 37 and 38 of the CIRP
Regulations, 2016?
(iv) As to what relief, if any, the appellant is entitled to?
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Recall Application is maintainable.

40. Section 60 of the IBC specifies that the Adjudicating Authority in
relation to insolvency resolution and liquidation for corporate persons
including corporate debtors and personal guarantors thereof shall
be the NCLT having territorial jurisdiction over the place where the
registered office of the corporate person is located. Sub-section (5)
of Section 60 provides that notwithstanding anything to the contrary
contained in any other law for the time being in force, the NCLT shall
have jurisdiction to entertain or dispose of: (a) any application or
proceeding by or against the corporate debtor or corporate person;
(b) any claim made by or against the corporate debtor or corporate
person, including claims by or against any of its subsidiaries situated
in India; and (c) any question of priorities or any question of law
or facts, arising out of or in relation to the insolvency resolution or
liquidation proceedings of the corporate debtor or corporate person
under the IBC.
41. The NCLT has been constituted by the Central Government in
exercise of power under Section 408 of the Companies Act, 2013.
Section 408 of the Companies Act is in following terms:
“The Central Government shall, by notification, constitute
with effect from such date as may be specified therein, a
tribunal to be known as the National Company Law Tribunal
consisting of a President and such number of judicial and
technical members as the Central Government may deem
necessary, to be appointed by it by notification to exercise
and discharge such powers and functions as are, or may
be, conferred on it by or under this Act or any other law
for the time being in force.”
42. Rule 11 of the National Company Law Tribunal Rules, 2016, framed
under Section 469 of the Companies Act 2013, which is in pari materia
with Section 15134 of Code of Civil Procedure, 190835, preserve the
inherent powers of the Tribunal in the following terms:

34 Section 151.- Saving of inherent powers of Court. - Nothing in this Code shall be deemed to limit
or otherwise affect the inherent power of the Court to make such orders as may be necessary for the
ends of justice or to prevent abuse of the process of the Court
35 CPC
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“Nothing in these rules shall be deemed to limit or otherwise

affect the inherent powers of the Tribunal to make such
orders as may be necessary for meeting the ends of justice
or to prevent abuse of the process of the Tribunal.”
43. In Manohar Lal Chopra vs. Rai Bahadur Rao Raja Seth Hiralal36
a four-Judge Bench of this Court in the context of powers vested in
the Court, while interpreting Section 151 CPC, observed:
“23… The Section itself says that nothing in the Code
shall be deemed to limit or otherwise affect the inherent
power of the Court to make orders necessary for the ends
of justice. In the face of such a clear statement, it is not
possible to hold that the provisions of the Code control the
inherent power by limiting it or otherwise affecting it. The
inherent power has not been conferred upon the court; it
is a power inherent in the Court by virtue of its duty to do
justice between the parties before it.”
(Emphasis supplied)
44. In Grindlays Bank Ltd. vs. Central Govt. Industrial Tribunal37 a
question arose whether Central Government Industrial Tribunal has
power to recall/ set aside an ex parte award when the party aggrieved
had been prevented from appearing by a sufficient cause. Holding
that such power inheres in a Tribunal, this Court observed:
“6. We are of the opinion that the Tribunal had the power
to pass the impugned order if it thought fit in the interest
of justice. It is true that there is no express provision in
the Act or the rules framed thereunder giving the Tribunal
jurisdiction to do so. But it is a well-known rule of statutory
construction that a Tribunal or body should be considered
to be endowed with such ancillary or incidental powers as
are necessary to discharge its functions effectively for the
purpose of doing justice between the parties. In a case of
this nature, we are of the view that the Tribunal should be
considered as invested with such incidental or ancillary

36 [1962] Supp. (1) S.C.R. 450 : AIR 1962 SC 527

37 [1981] 2 SCR 341 : 1980 Supp SCC 420
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powers unless there is any indication in the statute to the

contrary. We do not find any such statutory prohibition.
On the other hand, there are indications to the contrary.”
(Emphasis Supplied)
In addition to above, recognising the difference between a procedural
review and a review on merits, it was observed:
13…………The expression “review” is used in the two
distinct senses, namely (1) a procedural review which is
either inherent or implied in a court or Tribunal to set aside a
palpably erroneous order passed under a misapprehension
by it, and (2) a review on merits when the error sought to
be corrected is one of law and is apparent on the face of
the record. …………. Obviously when a review is sought
due to a procedural defect, the inadvertent error committed
by the Tribunal must be corrected ex debito justitiae to
prevent the abuse of its process, and such power inheres
in every court or Tribunal.”
45. In State of Punjab vs. Davinder Pal Singh Bhullar 38, while
considering the bar imposed on a Court by Section 362 of the
Criminal Procedure Code, 1973 on review of a judgment or final
order disposing of a case, it was observed:
“46. If a judgment has been pronounced without jurisdiction
or in violation of principles of natural justice or where the
order has been pronounced without giving an opportunity
of being heard to a party affected by it or where an order
was obtained by abuse of the process of court which would
really amount to its being without jurisdiction, inherent
powers can be exercised to recall such order for the reason
that in such an eventuality the order becomes a nullity and
the provisions of Section 362 CrPC would not operate. In
such an eventuality, the judgment is manifestly contrary to
the audi alteram partem rule of natural justice. The power
of recall is different from the power of altering/reviewing
the judgment. However, the party seeking recall/alteration
has to establish that it was not at fault.”

38 [2011] 15 SCR 540 : (2011) 14 SCC 770

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46. The above passage was cited and approved by a three-Judge Bench
of this Court in New India Assurance Co. Ltd. vs. Krishna Kumar
Pandey39.
47. In Budhia Swain vs. Gopinath Deb40, after considering a number
of decisions, a two-Judge Bench of this Court observed:
“8. In our opinion a tribunal or a court may recall an order
earlier made by it if
(i) the proceedings culminating into an order suffer
from the inherent lack of jurisdiction and such lack
of jurisdiction is patent,
(ii) there exists fraud or collusion in obtaining the
judgment,
(iii) there has been a mistake of the court prejudicing a
party, or
(iv) a judgment was rendered in ignorance of the fact that
a necessary party had not been served at all or had
died and the estate was not represented.
The power to recall a judgment will not be exercised when
the ground for reopening the proceedings or vacating the
judgment was available to be pleaded in the original action
but was not done or where a proper remedy in some
other proceeding such as by way of appeal or revision
was available but was not availed. The right to seek
vacation of a judgment may be lost by waiver, estoppel
or acquiescence.”
48. The law which emerges from the decisions above is that a Tribunal
or a Court is invested with such ancillary or incidental powers as may
be necessary to discharge its functions effectively for the purpose
of doing justice between the parties and, in absence of a statutory
prohibition, in an appropriate case, it can recall its order in exercise
of such ancillary or incidental powers.

39 (2021) 14 SCC 683

40 [1999] 2 SCR 1189 : (1999) 4 SCC 396
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49. In a recent decision (i.e., Union Bank of India vs. Dinakar T.

Vekatasubramanian & Ors.), a five-member Full Bench of NCLAT
held that though the power to review is not conferred upon the
Tribunal but power to recall its judgment is inherent in the Tribunal
and is preserved by Rule 11 of the NCLT Rules, 2016. It was held
that power of recall of a judgment can be exercised when any
procedural error is committed in delivering the earlier judgment; for
example, necessary party has not been served or necessary party
was not before the Tribunal when judgment was delivered adverse
to a party. It was observed that there may be other grounds for
recall of a judgment one of them being where fraud is played on the
Court in obtaining a judgment. This decision of NCLAT was upheld
by a two-Judge Bench of this Court vide order dated 31.07.2023 in
Civil Appeal No.4620 of 2023 (Union Bank of India vs. Financial
Creditors of M/s Amtek Auto Ltd. & Ors.).
50. In light of the discussion above, what emerges is, a Court or a Tribunal,
in absence of any provision to the contrary, has inherent power to
recall an order to secure the ends of justice and/or to prevent abuse
of the process of the Court. Neither the IBC nor the Regulations
framed thereunder, in any way, prohibit, exercise of such inherent
power. Rather, Section 60(5)(c) of the IBC, which opens with a non-
obstante clause, empowers the NCLT (the Adjudicating Authority) to
entertain or dispose of any question of priorities or any question of
law or facts, arising out of or in relation to the insolvency resolution
or liquidation proceedings of the corporate debtor or corporate person
under the IBC. Further, Rule 11 of the NCLT Rules, 2016 preserves
the inherent power of the Tribunal. Therefore, even in absence of
a specific provision empowering the Tribunal to recall its order,
the Tribunal has power to recall its order. However, such power is
to be exercised sparingly, and not as a tool to re-hear the matter.
Ordinarily, an application for recall of an order is maintainable on
limited grounds, inter alia, where (a) the order is without jurisdiction;
(b) the party aggrieved with the order is not served with notice of
the proceedings in which the order under recall has been passed;
and (c) the order has been obtained by misrepresentation of facts
or by playing fraud upon the Court /Tribunal resulting in gross failure
of justice.
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51. In the case on hand, the recall application was filed by claiming that,-
(a) the appellant was not informed of the meetings of the COC; (b)
the proceedings up to the stage of approval of the resolution plan by
the Adjudicating Authority were ex parte; (c) the RP misrepresented
that the appellant had submitted no claim when, otherwise, a claim
was submitted of an amount higher than what was shown outstanding
towards the appellant; and (d) there was gross mistake on part of
the Adjudicating Authority in approving the plan which did not fulfil
the conditions laid down in sub-section (2) of Section 30 of the IBC.
52. In our view, the grounds taken qualify as valid grounds on which a
recall of the order of approval dated 04.08.2020 could be sought. We
thus hold that the recall application was maintainable notwithstanding
that an appeal lay before the NCLAT against the order of approval
passed by the Adjudicating Authority.
The Recall Application was not barred by time.
53. As regards the plea that the recall application was barred by time,
suffice it to say that I.A. No.344/ 2021 was filed on 6.10.2020 upon
getting information on 24.09.2020 from the monitoring agency
regarding approval of the plan. Likewise, I.A. No.1380/ 2021 was
filed on 15.03.2021 immediately when suspension of the period of
limitation for any suit, appeal, application or proceeding, between
15.03.2020 and 14.03.2021, was lifted in terms of this Court’s order
dated 8.03.2021 in RE: Cognizance For Extension of Limitation
(supra). We, therefore, find no substance in the plea that the
applications were barred by limitation.
The Resolution Plan did not meet the requirements of Section
30 (2) of the IBC read with Regulations 37 and 38 of the CIRP
Regulations, 2016
54. In our view the resolution plan did not meet the requirements of
Section 30(2) of the IBC read with Regulations 37 and 38 of the
CIRP Regulations, 2016 for the following reasons:
a. The resolution plan disclosed that the appellant did not submit
its claim, when the unrebutted case of the appellant had been
that it had submitted its claim with proof on 30.01.2020 for a
sum of Rs.43,40,31,951/- No doubt, the record indicates that
the appellant was advised to submit its claim in Form B (meant
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for operational creditor) in place of Form C (meant of financial

creditor). But, assuming the appellant did not heed the advice,
once the claim was submitted with proof, it could not have
been overlooked merely because it was in a different Form.
As already discussed above, in our view the Form in which a
claim is to be submitted is directory. What is necessary is that
the claim must have support from proof. Here, the resolution
plan fails not only in acknowledging the claim made but also in
mentioning the correct figure of the amount due and payable.
According to the resolution plan, the amount outstanding was Rs.
13,47,40,819/- whereas, according to the appellant, the amount
due and for which claim was made was Rs. 43,40,31,951/- This
omission or error, as the case may be, in our view, materially
affected the resolution plan as it was a vital information on
which there ought to have been application of mind. Withholding
the information adversely affected the interest of the appellant
because, firstly, it affected its right of being served notice of the
meeting of the COC, available under Section 24 (3) (c) of the
IBC to an operational creditor with aggregate dues of not less
than ten percent of the debt and, secondly, in the proposed
plan, outlay for the appellant got reduced, being a percentage
of the dues payable. In our view, for the reasons above, the
resolution plan stood vitiated. However, neither NCLT nor NCLAT
addressed itself on the aforesaid aspects which render their
orders vulnerable and amenable to judicial review.
b. The resolution plan did not specifically place the appellant in
the category of a secured creditor even though, by virtue of
Section 13-A of the 1976 Act, in respect of the amount payable
to it, a charge was created on the assets of the CD. As per
Regulation 37 of the CIRP Regulations 2016, a resolution
plan must provide for the measures, as may be necessary, for
insolvency resolution of the CD for maximization of value of its
assets, including, but not limited to, satisfaction or modification of
any security interest. Further, as per Explanation 1, distribution
under clause (b) of sub-section (2) of Section 30 must be fair
and equitable to each class of creditors. Non-placement of the
appellant in the class of secured creditors did affect its interest.
However, neither NCLT nor NCLAT noticed this anomaly in the
plan, which vitiates their order.
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c. Under Regulation 38 (3) of the CIRP Regulations, 2016, a resolution

plan must, inter alia, demonstrate that (a) it is feasible and viable;
and (b) it has provisions for approvals required and the time-line
for the same. In the instant case, the plan conceived utilisation of
land owned by the appellant. Ordinarily, feasibility and viability of
a plan are economic decisions best left to the commercial wisdom
of the COC. However, where the plan envisages use of land not
owned by the CD but by a third party, such as the appellant,
which is a statutory body, bound by its own rules and regulations
having statutory flavour, there has to be a closer examination
of the plan’s feasibility. Here, on the part of the CD there were
defaults in payment of instalments which, allegedly, resulted in
raising of demand and issuance of pre-cancellation notice. In these
circumstances, whether the resolution plan envisages necessary
approvals of the statutory authority is an important aspect on which
feasibility of the plan depends. Unfortunately, the order of approval
does not envisage such approvals. But neither NCLT nor NCLAT
dealt with those aspects.
Relief
55. As we have found that neither NCLT nor NCLAT while deciding the
application /appeal of the appellant took note of the fact that,- (a)
the appellant had not been served notice of the meeting of the
COC; (b) the entire proceedings up to the stage of approval of the
resolution plan were ex parte to the appellant; (c) the appellant had
submitted its claim, and was a secured creditor by operation of law,
yet the resolution plan projected the appellant as one who did not
submit its claim; and (d) the resolution plan did not meet all the
parameters laid down in sub-section (2) of Section 30 of the IBC
read with Regulations 37 and 38 of the CIRP Regulations, 2016,
we are of the considered view that the appeals of the appellant are
entitled to be allowed and are accordingly allowed. The impugned
order dated 24.11.2022 is set aside. The order dated 04.08.2020
passed by the NCLT approving the resolution plan is set aside. The
resolution plan shall be sent back to the COC for re-submission after
satisfying the parameters set out by the Code as exposited above.
There shall be no order as to costs.

Headnotes prepared by: Divya Pandey Result of the case:

Appeals allowed.
 [2024] 2 S.C.R. 288 : 2024 INSC 104

Mallappa & Ors.

v.
State of Karnataka
(Criminal Appeal No. 1162 of 2011)

12 February 2024
[Bela M. Trivedi and Satish Chandra Sharma,* JJ.]

Issue for Consideration

The trial Court acquitted appellants-accused nos.3, 4 and 5 for
the commission of murder of one ‘M’. However, the High Court
reversed the order of acquittal and held the appellants guilty of
the commission of murder. Whether the High Court was correct
in reversing the order of acquittal of the trial Court and thereby
convicting the accused persons u/s. 302 IPC.

Headnotes
Penal Code, 1860 – s.302 – Acquittal under – As per prosecution
eight accused persons armed with axes, knives and clubs
attacked ‘M’ and assualted him – PW-4 tried to run away,
however, was assaulted with an axe on his head, back and
on scrotum – PW-4 sustained injuries, became unconcious
and fell on the ground – PW-3 hid himself inside the jali-trees
– After assailants left, PW-3 went to M and found that he was
dead and PW-4 was unconcious with blood flowing out of his
injuries – PW-3 fearing for his life kept on hiding then left during
night – On the next day he informed PW-2 (father of deceased)
about the incident – Eight accused persons were tried and
acquitted by the trial Court – The High Court acquitted all
the accused persons except the three appellants – Propriety:
Held: In the instant case, the case of prosecution substantially
rests on the testimonies of PW-3 and PW-4 read with various
documents, especially the reports of medical examination and
post mortem – The conduct of PW-3 renders his very presence
at the place of incident as doubtful – Despite a heavy assault
by multiple accused persons, he did not suffer any injury at all
– That too when he was indeed chased by A-3 while attacking
PW-4 – It is extremely doubtful that the assailants simply chose
to give up on PW-3 and did not pursue him behind the bushes,

* Author
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despite knowing that PW-3 could turn out to be an eye witness

of the incident – The story that follows the story of hiding behind
the bushes is equally doubtful and leaves one speculating –
The timelines, the route taken by PW-3, complete disregard for
severely injured PW-4, failure to inform the police post despite
access to it etc. are some of the factors that raise a reasonable
doubt on the entire story – The chain of circumstances created
by the testimony of PW-3 is not consistent with the outcome of
guilt – The version of PW-4 is that he was attacked from the back
by A3 and thereafter, he fell unconscious – As per his testimony
and the testimony of PW-3, PW-4 was attacked by an axe on his
head, back and scrotum – The first point of corroboration is to be
seen from the circumstances following the assault – The assault
on PW-4 took place at around 4 P.M. and he was admittedly
unconscious thereafter – He remained as such until he was “self-
admitted” in the hospital at around 12:30 P.M. the following day –
The second point for corroboration of this version could be taken
from the wound certificate issued by PW-8 during the treatment of
PW-4 at Government Hospital – The Trial Court relied upon the
wound certificate and noted a contradiction between the condition
of PW-4 at the time of admission – In the certificate, PW-4 is
stated to be “self-admitted” but at the same time, he is stated to
be unconscious – The injuries found on PW-4, as per the wound
certificate, were simple in nature – PW-8 gave some treatment to
PW-4, however the nature of treatment is not indicated – In the
ordinary course of natural events, an injury inflicted by an axe,
that too in a manner that the injured immediately fell unconscious
and remained unconscious for almost 20 days, could not have
been a simple injury – The High Court omitted to take note of
two material aspects-the fact that the statement of PW-4 was
recorded after a period of one month from the date of incident
and the factum of family relationship between the deceased and
PW-4 – The former aspect raises a grave suspicion of credibility,
whereas the latter raises the suspicion of being an interested
witness – The High Court went on to reverse the decision by
taking its own view on a fresh appreciation of evidence without
recording any illegality, error of law or of fact in the decision of
the Trial Court – Thus, the High Court had erred in reversing the
decision of acquittal, without arriving at any finding of illegality
or perversity or error in the reasoning of the Trial Court. [Paras
29, 30, 33, 34, 39]
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Criminal Jurisprudence – Criminal jurisprudence is

essentially based on the promise that no innocent shall
be condemned as guilty – All the safeguards and the
jurisprudential values of criminal law, are intended to
prevent any failure of justice – The principles which come
into play while deciding an appeal from acquittal could be
summarized as:
Held: (i) Appreciation of evidence is the core element of a
criminal trial and such appreciation must be comprehensive
– inclusive of all evidence, oral or documentary; (ii) Partial or
selective appreciation of evidence may result in a miscarriage
of justice and is in itself a ground of challenge; (iii) If the Court,
after appreciation of evidence, finds that two views are possible,
the one in favour of the accused shall ordinarily be followed;
(iv) If the view of the Trial Court is a legally plausible view,
mere possibility of a contrary view shall not justify the reversal
of acquittal; (v) If the appellate Court is inclined to reverse the
acquittal in appeal on a re-appreciation of evidence, it must
specifically address all the reasons given by the Trial Court for
acquittal and must cover all the facts; (vi) In a case of reversal
from acquittal to conviction, the appellate Court must demonstrate
an illegality, perversity or error of law or fact in the decision of
the Trial Court. [Para 36]
Code of Criminal Procedure, 1973 – Appellate Power –
Qualified Power of the High Court:
Held: In the exercise of appellate powers, there is no inhibition
on the High Court to re-appreciate or re-visit the evidence on
record – However, the power of the High Court to re-appreciate
the evidence is a qualified power, especially when the order
under challenge is of acquittal – The first and foremost question
to be asked is whether the Trial Court thoroughly appreciated the
evidence on record and gave due consideration to all material
pieces of evidence – The second point for consideration is whether
the finding of the Trial Court is illegal or affected by an error of
law or fact – If not, the third consideration is whether the view
taken by the Trial Court is a fairly possible view – A decision of
acquittal is not meant to be reversed on a mere difference of
opinion – What is required is an illegality or perversity. [Para 25]
Criminal Jurisprudence – Two-views theory – Reiterated.
[2024] 2 S.C.R.  291

Mallappa & Ors. v. State of Karnataka

Case Law Cited

Selvaraj v. State of Karnataka, [2015] 9 SCR 381 :
(2015) 10 SCC 230; Sanjeev v. State of H.P., (2022) 6
SCC 294; Sanwat Singh v. State of Rajasthan, [1961]
3 SCR 120 : AIR 1961 SC 715; Sharad Birdhichand
Sarda v. State of Maharashtra, [1985] 1 SCR 88 : (1984)
4 SCC 116 – relied on.

List of Acts
Penal Code, 1860; Code of Criminal Procedure, 1973.

List of Keywords
Murder; Acquittal; Testimonies; Chain of circumstances; Reasonable
doubt; Appreciation of evidence; Illegality, error of law or of fact;
Qualified Power of the High Court; Criminal Jurisprudence; Two-views
theory; Material pieces of evidence.

Case Arising From

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.1162

of 2011
From the Judgment and Order dated 31.05.2010 of the High Court
of Karnataka at Bengaluru in CRLA No. 1363 of 2005
Appearances for Parties

Basavaprabhu Patil, Sr. Adv., Ms. Supreeta Sharanagouda,

Sharanagouda Patil, Advs. for the Appellants.
Nishanth Patil, A.A.G., D. L. Chidananda, Adv. for the Respondent.

Judgment / Order of the Supreme Court

Judgment
Satish Chandra Sharma, J.
1. The wheels of justice may grind slow, but they grind fine. Mallappa
S/o Ningappa Kanner, Hanamanth S/o Ningappa Kanner and
Dharamanna S/o Ningappa Kanner are the appellants before us who
were put on a trial, as accused no. 3, 4 and 5, for the commission of
murder of deceased namely Marthandappa and were acquitted by
the Trial Court/Fast Track Court-I at Gulbarga on 24.03.2005. The
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judgment was not meant to finally seal the fate of the appellants as
the State of Karnataka preferred an appeal against the order of the
Trial Court before the High Court of Karnataka which was registered
as Criminal Appeal No. 1363/2005. On 31.05.2010, the High Court
reversed the order of acquittal and held the appellants guilty of the
commission of murder of deceased Marthandappa. Accordingly,
the appellants stood convicted and were sentenced to undergo life
imprisonment. The appellants stand before us assailing the order of
conviction of the High Court and praying for a declaration of innocence.
2. Pertinently, eight accused persons were tried and acquitted by the
Trial Court. The High Court agreed with the acquittal of all the accused
persons, except the three appellants before us.
PROSECUTION CASE
3. The case of the prosecution begins from one Nagamma, who is the
wife of Accused No. 5 and deceased Marthandappa was allegedly
having an illicit relationship with her. On account of the alleged
illicit relationship, the relations between A1-A8 and Marthandappa
were strained. On 28.06.1997, the fateful day, Marthandappa (the
deceased), PW3 and PW4 were travelling in a bullock-cart from
village Aidbhavi to the village Nagaral for cultivating their lands. They
left the house of PW-2 (father of the deceased) at around 9 A.M. in
a bullock cart to go to village Nagaral. PW-2 had agricultural lands
at Aidbhavi as well as Nagaral. While they were travelling to village
Nagaral, they crossed village Shantpur as they were proceeding
on the bullock-cart towards Nagaral village. At around 4 P.M., when
their bullock-cart arrived near the land of Balwantappa Channur, A1
to A8 came out of their hiding place and stopped the bullock-cart.
4. As per the prosecution case, A3, A4 and A6 were armed with axes
(MO1s. 5, 6 &7), A5 was armed with knife (MO8) and Al, A2, A7
and A10 were armed with clubs (MOs 9, 10 and 1). The accused
persons started by threatening Marthandappa stating that on account
of his illegal acts, village women folk are not able to lead their life
peacefully and then they proceeded towards Marthandappa, with
the intention to kill him. A3 assaulted him with an axe on his right
leg and caused injuries. A4 also assaulted him with an axe five/six

1 MO = Material Object
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times on the right side of the stomach. A5 assaulted with a knife

on the lip and back of Marthandappa, A6 assaulted with an axe on
the right and left temple region and chin of Marthandappa. He also
assaulted with an axe on the lap of Marthandappa. As the offensive
act continued, A7 assaulted with a bullock-cart peg on the head of
Marthandappa. A1, A2 and A8 assaulted with clubs on the back of
Marthandappa.
5. Fearing for his life, PW-4 tried to run away and at that point of time,
A3 assaulted him with an axe on the head, back and on the scrotum.
PW-4 sustained injuries, became unconscious and fell on the ground.
6. PW-3, an eye witness of the incident, rushed to save himself and
went inside the jali-trees. He saw the incident hiding from that
particular place. Eventually, Marthandappa fell on the ground and
Al to A8, believing that Marthandappa was no more, left the place.
Finding it safe for him, PW3 then went to Marthandappa and found
that Marthandappa was no more. He noticed that PW-4 was also
lying unconscious with blood flowing out of his injuries. Thereafter,
PW-3, fearing for his life, kept on hiding amidst the jali-trees and
sometime during the night, he left the jali-trees and left for Devpura.
On the next day, PW-3 reached the house of PW-2 at Aidbhavi and
informed him regarding the incident. PW-2 then visited the scene
of offence and saw the dead body of Marthandappa. He also saw
PW-4 lying on the ground in an unconscious condition. Thereafter, on
29.06.1997 at around 3 P.M., he went to P.S. Shorapur and lodged a
written complaint to the PW-10 as per Ex.P1 and PW-10 registered
a case as Crime No. 78/97 and sent FIR (Ex.P13) through PW-1 to
the Judicial Magistrate First Class2, Shorapur. The copy of FIR was
handed over to JMFC at around 4:30 P.M.
7. The facts further reveal that on 29.06.1997 at about 12:30 P.M., PW-4
went to the Government Hospital, Shorapur, and met the doctor (PW-
8). He showed his injuries to PW-8 and PW-8 found three injuries
(simple) on PW-4 and gave treatment to him, and later sent him for
further treatment to the Government Hospital, Gulbarga. The doctor
at Gulbarga treated PW-4 and issued a simple injury certificate to
PW-8 (Ex.P12). After registering the case, PW-10 went to the scene
of offence at Shorapur village along with PW-9 and saw the dead

2 Hereinafter referred as “JMFC”

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body of Marthandappa and collected panchas (PW-7 and Malleshi).

In the presence of Panchas, he conducted inquest mahazar on the
dead body of Marthandappa, as per Ex.P9. On 29.06.1997, between
4.30 P.M. to 6.00 P.M. and thereafter, he handed over the dead body
of Marthandappa to PW-9 with the requisition letter (Ex.P2) directing
PW-9 to take the dead body to Government Hospital, Kakkera for
getting the post-mortem examination done. PW-9 took the dead body
of Marthandappa to the Government Hospital, Kakkera, and handed
over the dead body to PW-5 (doctor) for post-mortem examination
on 30.06.1997 at about 6.30 A.M. On 29.06.1997, PW-10, in the
presence of Panchas (PW7 and Malleshi) conducted mahazar of
scene of offence as per Ex.P10. From the scene of offence, he seized
MO-1 (bullock-cart peg), MO-12 (pair of chappal), MO-13 (towel),
MO-14 (blood stained mud), MO-15 (sample mud), MO-16(taita) and
MO-17 (waist thread) and slips were affixed bearing signatures of
the Panchas on them.
8. On 30.06.1997, PW-5 (doctor) conducted post-mortem examination
on the dead body of Marthandappa from 6.30 am to 9.30 am. The
doctor found 9 ante mortem injuries on him and issued a post-mortem
report as per Ex.P3 stating the cause of death to be haemorrhage
shock as a result of laceration of liver tissue. Notably, the report
stated the time of death to be 36 to 48 hours prior to the post
mortem examination. The doctor further handed over clothes and
articles (MOs) found on the dead body as well as the dead body
to PC (PW9). Thereafter, PW9 handed over the dead body to the
relatives of Marthandappa for burial. The clothes and articles found
on the dead body were brought to Kakkera by PW9, who produced
them before PW-10. PW-10 seized them in the presence of panchas
(PW7 and Malleshi) and also conducted mahazar of seizure as per
Ex.P11 (MOs 1 to 4). Thereafter, he went to Aidbhavi village and
recorded the statement of witnesses. Thereafter, he went to Mudagal
and recorded the statement of Nagamma (wife of A5).
9. On 01.07.1997, PW-10 recorded statement of Balvantappa. On
04.07.1997, at about 5.30 A.M. at Tintini Bridge, PW-10 arrested A5
and interrogated him. A5 gave him information that he could produce
knife from his house, thereby leading to discovery as per Ex.P14.
A5, thereafter, took PW10 and panchas PW6 and Yamanappa) to his
house situated in Aidbhavi vilage and from his house, he produced
one knife (MO-8) and one axe (MO-5). PW-10 seized them as per
[2024] 2 S.C.R.  295

Mallappa & Ors. v. State of Karnataka

Ex.P14. PW-10, thereafter obtained judicial custody remand of A5

from JMFC, Shorapur and obtained permission to retain properties.
On 14.07.1997 at about 4.00 A.M., PW-10 arrested A1 to A4 from
Shorapur Bus Stand and brought them to the police station for
interrogation. A1 gave information leading to discovery as per Ex.P15.
A2 gave information leading to discovery as per Ex.P16 and A3
gave information leading to discovery as per Ex.P17. Thereafter,
on 15.07.1997, A1 led police and panchas (PW6 and Yamanappa)
to his house and from his house, he produced one stick (MO9)
before the police and panchas and PW-10 conducted mahazar of
seizure as per Ex.P5. PW-10 took the signatures of the panchas on
it. Thereafter, A2 led police and panchas to his house and from his
house, he produced one stick (MO-10). PW-10 conducted mahazar
of seizure of these articles, as per Ex.P7. A3 led police and panchas
to his house at Aidbhavi and from his house, he produced one axe
(MO7) and PW-10 seized the same as per mahazar (Ex.P6) and took
signatures of the panchas on it. PW-10 thereafter obtained judicial
custody remand of A1 to A4 from JMFC, Shorapur. On 25.07.1997,
PW10 arrested A7 from his house and remanded him to judicial
custody and on 17.07.1997 at 6.30 a.m., arrested A6 from Gurgunta
bus stand and interrogated him. A6 gave him information leading to
discovery as per Ex.P18 and from his house, one knife (MO8) was
recovered and PW-10 seized it under mahazar Ex.P8. Thereafter,
A6 was also remanded to judicial custody. On 07.10.1997, PW-10
sent all the seized articles to FSL, Bangalore through PW9.
10. On 07.08.1997, PW-10 recorded the statement of PW4. On
22.08.1997, PW10 collected post-mortem report (Ex.P3) from the
doctor (PW-5). On 30.08.1997, PW9 returned from Bangalore FSL
Office and PW-9 produced all the articles in re-sealed condition
before PW10 and seized them. On the same day, he collected injury
certificate of Laxman (PW4) as per Ex.P12. On 14.09.1997, PW-10
received FSL report as per Ex.P19 and Ex.P20.
11. After completing investigation, he filed the charge-sheet before JMFC,
Shorapur on 29.09.1997. The JMFC Court, Shorapur, passed the order
of committal on 19.01.1998 and the accused persons appeared before
the Principal Sessions Judge, Gulbarga on 22.03.2002. The Principal
Sessions Judge framed charges against the accused persons for
the commission of offences under Sections 147, 148, 149, 302,
307 and 504 of the Indian Penal Code and all the accused persons
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pleaded not guilty and claimed trial. The prosecution examined PW1
to PW10 as witnesses for the prosecution, got marked Ex.P1 to
Ex.P21 as well as MOs. 1 to17 as exhibits and materials in support
of the prosecution case and closed the prosecution evidence. The
defence marked Ex.D1 in support of their case. The trial court, after
appreciating the evidence on record, acquitted all the persons under
Section 235 Cr.P.C. The order of acquittal was assailed before the
High Court and vide order dated 31.05.2010, the High Court convicted
A3 to A5 (present appellants) and upheld the acquittal order with
respect to accused Nos. 1,2, 6, 7 and 8.
12. In the course of this proceeding, we have been informed that
appellant no. 3 is no more, and the present appeal is confined only
to appellant Nos. 1 and 2.
13. Before we proceed to lay down the case set up by the parties before
us, we may briefly highlight the reasons that prevailed upon the trial
court while ordering acquittal. The trial court, after appreciating the
evidence on record, acquitted the accused persons by assigning
the following reasons:
i. The evidence of eyewitness PW3 is not worthy of
credit and his conduct after the alleged murder was
artificial.
ii. PW3 witnessed the assault on the deceased as well
as on PW4, as per the prosecution version, however,
he chose to hid behind the bushes till the sunset as
he got frightened.
iii. PW-3 admitted that there were number of buses
plying on the route between Lingasgur to Shorapur
and Gulbarga. However, his version, that he could
catch the bus only on the next day at 6.00 A.M., is
artificial. He could have availed the transport facility
on 28.06.1997 itself after the assailants had left.
iv. PW-3 states that his relatives are residing in Nagaral
village, which is 4 km from the scene, but he did not
go and inform them.
v. PW-3 did not inform the people at Devpura or the
passengers plying in the bus in which he travelled to
[2024] 2 S.C.R.  297

Mallappa & Ors. v. State of Karnataka

go to Gurugunte. From there, he catched another bus

to Aidbhavi village. The incident took place around
4 P.M. and it took more than 18 hours for PW-3
to inform the father of the deceased PW-2. In the
meanwhile, although he had opportunity, he did not
inform the out-post police, which must have come in
the course of his journey from Devpura to Aidbhavi.
vi. PW-3 admitted that he was conscious that he should
get PW-4 treated after the incident, yet he did not
make any sincere effort to get him treated. The
deceased and PW-4 were assaulted by the accused.
There was no reason for the accused persons to not
assault PW-3. His version that he escaped and hid
behind the bushes is artificial. Further, the evidence
of PW-4 that he was unconscious till he was taken
to hospital is artificial. There is no evidence to show
the nature of treatment given to PW4 and to show
his physical condition at Gulbarga Hospital.
vii. T h e f a t h e r ’s n a m e o f P W- 4 i s s h o w n a s
Siddaramegowda, whereas in the MLC register the
name of the father of PW-4 is shown as Narasappa.
viii. In the wound certificate, it is mentioned that PW-4
“self admitted” at the hospital. The doctor PW-8 states
that PW-4 was unconscious. In the wound certificate
of PW-4, it is stated that the assault took place in
the night. Whereas, the FIR shows that the incident
took place around 4 P.M. in the day hours. The Trial
Court finds that the evidence of PW-3 and PW-4 is
incredible and thus, acquitted the accused.
14. The High Court, in appeal, after re-appreciating the evidence on
record, held that the post-mortem report supported the case of
the prosecution that the death of Marthandappa was homicidal. It
further held that the prosecution has successfully proved the motive
and occurrences of incidents on the basis of evidence of PW-3 and
PW-4. The High Court further held that Wound Certificate of PW-4
corroborated the evidence of PW-4 regarding the injuries caused to
him in the assault.
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15. On the question of credibility, the High Court held that PW-4 is an
injured witness and he has categorically stated that A1, A2, A7 and A8
assaulted the deceased with clubs on the head and on back, and A3,
A4 and A6 assaulted the deceased with axe. His evidence established
that A7 assaulted the deceased with knife and he was assaulted by
A3 with an axe. The High Court has arrived at the conclusion that
evidence of PW-4 is quite natural and there is nothing to disbelieve
his veracity. It has also been observed that PW-4, after the assault,
was found lying unconscious. He was admitted to the hospital on
the next date at 12.30 P.M. The contents of the wound certificate at
Ex.P8 show that PW-4 was semi-conscious and it corroborates the
version of PW-4 about his condition that he fell unconscious and was
semi-conscious at the time when he was admitted to the hospital.
16. In those circumstances, the High Court has arrived at a conclusion
that there is no reason to disbelieve the evidence of PW-4, and also
that he was a witness to the assault on the deceased and was also
a victim of assault.
17. The High Court also considered the evidence of PW-3 who was
the eye witness of the incident. The High Court has observed that
PW-3 certainly had several options, like informing by-standers at
the bus-stop, going to Nagaral village or going to the police, but he
went to the village of the deceased father at his Aidbhavi village as
he was keen on informing PW-2, as he was the most appropriate
person to be informed about the incident. In such circumstances,
the High Court has arrived at the conclusion that the conduct of
PW-3 in not informing others and going to Aidbhavi village to inform
PW-2, could not be a reason to disbelieve his statement. The High
Court has arrived a conclusion that the evidence of PW-3 and PW-
4, if read together, proves the alleged incident and the evidence of
PW-3 and PW-4 establishes that Al, A2, A7 and A8 assaulted the
deceased with clubs, however, there are no injuries reflected on the
dead body of the deceased.
18. It has been further held that in respect of A3 to A6, the evidence of
PW-3 and PW-4 is consistent and establishes their involvement in
the assault and proves their guilt. The manner of assault in the overt
acts of A3 to A6 corresponds with the injuries noted in the wound
certificate and the post-mortem report. In those circumstances, the
High Court has set aside the acquittal of A3, A4 and A5, and convicted
them for offences punishable under Sections 302 read with Section
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Mallappa & Ors. v. State of Karnataka

34 of the Indian Penal Code and confirmed the order of acquittal in

respect of A1, A2, A7 and A8.
19. Assailing the order of the High Court, the appellants submit that the
High Court has erred in re-appreciating the entire evidence without
finding any fault with the appreciation of evidence by the Trial Court.
They submit that re-appreciation of the entire evidence at the appellate
stage is not permissible until and unless a grave error has been
identified in the view taken by the Trial Court. It is further submitted
that if appreciation of evidence leads to two possible views, then the
decision of the Trial Court could not be reversed merely because
another view was possible.
20. Per contra, it is submitted by the respondent State that the Trial
Court did not appreciate the evidence in a proper manner which led
to the acquittal of the accused persons. It is further submitted that
the testimonies of PW-3 and PW-4 were incorrectly rejected by the
Trial Court despite the fact that one of them was an eye witness of
the entire incident and the other one was a victim of the assault. It
is further submitted that once a grave error is found in the decision
of the Trial Court, the High Court is fully empowered to re-appreciate
the entire evidence and reach a different conclusion.
21. We have heard the rival submissions of the parties and have also
carefully gone through the record.
22. We may now proceed to answer the principal question i.e. whether
the High Court was correct in reversing the order of acquittal of
the Trial Court and thereby convicting the accused persons under
Section 302 IPC.
23. At the outset, it is relevant to note that accused Nos. 1 to 5 are
brothers inter se and accused no. 6 to 8 are relatives of accused
Nos. 1 to 5, residing at Aidbhavi, Taluk Lingasgur. The complainant
PW-2 (Narsappa) is the father of the deceased Marthandappa and
PW-4 and PW-3 are the nephews of PW2, and they are residing
at village Aidbhavi. The accused persons are not unknown to the
victims and complainant.
24. We may firstly discuss the position of law regarding the scope of
intervention in a criminal appeal. For, that is the foundation of this
challenge. It is the cardinal principle of criminal jurisprudence that
there is a presumption of innocence in favour of the accused, unless
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proven guilty. The presumption continues at all stages of the trial and
finally culminates into a fact when the case ends in acquittal. The
presumption of innocence gets concretized when the case ends in
acquittal. It is so because once the Trial Court, on appreciation of
the evidence on record, finds that the accused was not guilty, the
presumption gets strengthened and a higher threshold is expected
to rebut the same in appeal.
25. No doubt, an order of acquittal is open to appeal and there is no quarrel
about that. It is also beyond doubt that in the exercise of appellate
powers, there is no inhibition on the High Court to re-appreciate or
re-visit the evidence on record. However, the power of the High Court
to re-appreciate the evidence is a qualified power, especially when the
order under challenge is of acquittal. The first and foremost question to
be asked is whether the Trial Court thoroughly appreciated the evidence
on record and gave due consideration to all material pieces of evidence.
The second point for consideration is whether the finding of the Trial
Court is illegal or affected by an error of law or fact. If not, the third
consideration is whether the view taken by the Trial Court is a fairly
possible view. A decision of acquittal is not meant to be reversed on a
mere difference of opinion. What is required is an illegality or perversity.
26. It may be noted that the possibility of two views in a criminal case
is not an extraordinary phenomenon. The ‘two-views theory’ has
been judicially recognized by the Courts and it comes into play
when the appreciation of evidence results into two equally plausible
views. However, the controversy is to be resolved in favour of the
accused. For, the very existence of an equally plausible view in
favour of innocence of the accused is in itself a reasonable doubt in
the case of the prosecution. Moreover, it reinforces the presumption
of innocence. And therefore, when two views are possible, following
the one in favour of innocence of the accused is the safest course
of action. Furthermore, it is also settled that if the view of the Trial
Court, in a case of acquittal, is a plausible view, it is not open for the
High Court to convict the accused by reappreciating the evidence. If
such a course is permissible, it would make it practically impossible
to settle the rights and liabilities in the eyes of law. In Selvaraj v.
State of Karnataka3,

3 [2015] 9 SCR 381 : (2015) 10 SCC 230

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“13. Considering the reasons given by the trial court and

on appraisal of the evidence, in our considered view,
the view taken by the trial court was a possible one.
Thus, the High Court should not have interfered with the
judgment of acquittal. This Court in Jagan M. Seshadri
v. State of T.N. [(2002) 9 SCC 639] has laid down that
as the appreciation of evidence made by the trial court
while recording the acquittal is a reasonable view, it is not
permissible to interfere in appeal. The duty of the High
Court while reversing the acquittal has been dealt with by
this Court, thus:
“9. …We are constrained to observe that the High Court
was dealing with an appeal against acquittal. It was required
to deal with various grounds on which acquittal had been
based and to dispel those grounds. It has not done so.
Salutary principles while dealing with appeal against
acquittal have been overlooked by the High Court. If the
appreciation of evidence by the trial court did not suffer
from any flaw, as indeed none has been pointed out in
the impugned judgment, the order of acquittal could not
have been set aside. The view taken by the learned trial
court was a reasonable view and even if by any stretch
of imagination, it could be said that another view was
possible, that was not a ground sound enough to set aside
an order of acquittal.””
(emphasis supplied)
In Sanjeev v. State of H.P.4, the Hon’ble Supreme Court analyzed
the relevant decisions and summarized the approach of the appellate
Court while deciding an appeal from the order of acquittal. It observed
thus:
“7. It is well settled that:
7.1. While dealing with an appeal against acquittal, the reasons
which had weighed with the trial court in acquitting the accused
must be dealt with, in case the appellate court is of the view
that the acquittal rendered by the trial court deserves to be

4 (2022) 6 SCC 294

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upturned (see Vijay Mohan Singh v. State of Karnataka5,

Anwar Ali v. State of H.P.6)
7.2. With an order of acquittal by the trial court, the normal
presumption of innocence in a criminal matter gets reinforced
(see Atley v. State of U.P.7)
7.3. If two views are possible from the evidence on record, the
appellate court must be extremely slow in interfering with the
appeal against acquittal (see Sambasivan v. State of Kerala8)”
27. In this case, the case of the prosecution substantially rests on
the testimonies of PW-3 and PW-4 read with various documents,
especially the reports of medical examination and post mortem. PW3
is the eye witness of the incident. His testimony has been rejected by
the Trial Court by terming it as artificial. PW-3 deposed that he was
present at the place of incident when the accused persons started
assaulting the deceased and PW-4 on 28.06.1997 at around 4 P.M.
PW-3 deposed that A3 had assaulted PW-4 as he was running for
his life along with PW-3. PW-4 was attacked from the back and PW-3
successfully managed to hide behind the bushes. Notably, PW-3
hid behind the bushes and observed the assault till Marthandappa
was dead and PW-4 was unconscious. He then came out to check
them and fearing for his life, he again rushed behind the bushes. He
admitted that he was hiding behind the bushes till sunset. Thereafter,
he came out and started walking towards Devpura, although he
admitted that there were a number of buses plying on the route.
But PW-3 takes no bus and keeps walking towards Devpura. On
reaching there, he sat at the bus stand and kept on sitting there.
Fast forward to the next morning, PW-3 catches the bus only at 6
A.M. on the next morning. The explanation as to how PW-3 spent the
entire intervening night of 28-29.06.1997 is missing from the chain of
circumstances. The statement that he was simply sitting at the bus
stand for the entire night, while Marthandappa was dead and PW-4
was severely injured and unconscious, fails to inspire confidence.
More so, when the entire reason for hiding behind the bushes was

5 [2019] 6 SCR 994 : (2019) 5 SCC 436

6 (2020) 10 SCC 166)
7 AIR 1955 SC 807
8 [1998] 3 SCR 280 : (1998) 5 SCC 412
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Mallappa & Ors. v. State of Karnataka

the fear of life. Despite such fear, PW-3 did not choose to inform the
police out-post, on the way from Devpura to Aidbhavi, and rather,
he kept on sitting at the Devpura bus stop. He also admitted that
his relatives were residing around 4 km from the place of incident
at Nagaral. However, he chose not to inform them either. He also
admitted that he took no steps to provide medical treatment to PW-4
who was lying unconscious at the place of incident as a result of
the assault. The said fact could have been entertained if the place
of incident was completely secluded. Such is not the case, as it is
admitted that the place of incident fell on a bus route and buses
were indeed plying.
28. It was almost 18 hours after the assault that PW-3 managed to reach
Aidbhavi to inform PW-2 about the incident. The High Court found
the conduct of PW-3 to be perfectly natural, as it was understandable
that PW-3 wanted to inform PW-2 before anyone else. Such conduct
would have been justified if PW-2 was residing in close proximity of the
place of incident. The very fact that PW-3 did not even contemplate
about providing medical help to PW-4 or to seek protection from
the local police despite such a drastic assault and instead, chose
to wait for 18 hours, raises a reasonable doubt on the credibility of
his version. This circumstance assumes a greater importance in
light of the fact that PW4 was the cousin brother of PW3 and not
some stranger. The conduct of PW-3 was not that of a reasonable
man placed in such circumstances and the Trial Court was right in
terming it as artificial.
29. The conduct of PW-3 renders his very presence at the place of
incident as doubtful. Despite a heavy assault by multiple accused
persons, he did not suffer any injury at all. That too when he was
indeed chased by A3 while attacking PW-4. It is extremely doubtful
that the assailants simply chose to give up on PW-3 and did not
pursue him behind the bushes, despite knowing that PW-3 could
turn out to be an eye witness of the incident. The story that follows
the story of hiding behind the bushes is equally doubtful and leaves
one speculating. The timelines, the route taken by PW-3, complete
disregard for severely injured PW-4, failure to inform the police
post despite access to it etc. are some of the factors that raise a
reasonable doubt on the entire story. The chain of circumstances
created by the testimony of PW-3 is not consistent with the outcome
of guilt.
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30. The version of PW-4 is that he was attacked from the back by A3
and thereafter, he fell unconscious. As per his testimony and the
testimony of PW-3, PW-4 was attacked by an axe on his head, back
and scrotum. The first point of corroboration is to be seen from the
circumstances following the assault. The assault on PW-4 took place
at around 4 P.M. and he was admittedly unconscious thereafter. He
remained as such until he was “self-admitted” in the hospital at around
12:30 P.M. the following day. The second point for corroboration
of this version could be taken from the wound certificate issued
by PW-8 during the treatment of PW-4 at Government Hospital,
Shorapur. The Trial Court relied upon the wound certificate and
noted a contradiction between the condition of PW-4 at the time of
admission. In the certificate, PW-4 is stated to be “self-admitted” but
at the same time, he is stated to be unconscious. The High Court
rejected this contradiction as material by observing that PW-4 was
semi-conscious at the time of admission and therefore, he could have
admitted himself in the hospital. However, the inherent contradictions
in the statement of PW-4 are not limited to this point.
31. The injuries found on PW-4, as per the wound certificate, were
simple in nature. PW-8 gave some treatment to PW-4, however the
nature of treatment is not indicated. Thereafter, PW-8 forwarded
him to a hospital at Gulbarga where injury certificate Ex.P12 was
prepared. Ex.P12 also recorded the nature of injury to be simple in
nature. The nature of injury is to be corroborated with the nature
of assault, as deposed by PW-4 and PW-3. They deposed that A3
had attacked PW-4 with an axe at three sensitive places i.e. head,
back and scrotum. The attack was so severe that PW-4 immediately
fell unconscious. In the ordinary course of natural events, an injury
inflicted by an axe, that too in a manner that the injured immediately
fell unconscious and remained unconscious for almost 20 days,
could not have been a simple injury. More so, a simple injury of a
standard that required no admission in the hospital.
32. Furthermore, PW-4 travelled to the hospital at Shorapur by a bus, but
he failed to inform any passenger about the assault. Despite such
injuries, including on the head, no one noticed his condition. He was
unconscious for over 20 days and after he regained consciousness,
his statement was recorded by PW-10. It is difficult to comprehend as
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Mallappa & Ors. v. State of Karnataka

to how a severely injured person, who could not gain consciousness

before 20 days, managed to go to the hospital on his own by using a
public bus and later, to another hospital at a different place. It is difficult
to comprehend that PW-4 was conscious enough to undertake two
journeys to two different hospitals, by public transport, but did not have
the senses to give a statement to the IO PW-10 before the passage
of almost 30 days. During cross examination, PW-4 had deposed that
he had sustained injuries on head and testicles only, and there was
no other injury. The said statement was a material improvement from
the versions initially put forth by PW-3 and PW-4 whereby, PW-4 had
sustained injuries on the back as well. However, no such injury was
recorded in the wound certificate and in all likelihood, the improvement
was made for that reason. The testimony of PW-4 is impeachable for
another reason – the time of the offence. As per his version, the time
of assault was around 4 P.M., whereas, as per the wound certificate
Ex.P12, the time of injury was at night. Similar issue with respect to
timing was noticeable in the post mortem report as well.
33. Notably, all these aspects have been carefully analysed and
appreciated by the Trial Court, but the High Court rejected all the
doubts by observing that PW-4 was an injured witness and there
was no reason to disbelieve his testimony. The High Court omitted
to take note of two material aspects – the fact that the statement
of PW-4 was recorded after a period of one month from the date of
incident and the factum of family relationship between the deceased
and PW-4. The former aspect raises a grave suspicion of credibility,
whereas the latter raises the suspicion of being an interested witness.
In normal circumstances, where a testimony is duly explained and
inspires confidence, the Court is not expected to reject the testimony
of an interested witness, however, when the testimony is full of
contradictions and fails to match evenly with the supporting evidence
(the wound certificate, for instance), a Court is bound to sift and
weigh the evidence to test its true weight and credibility.
34. Pertinently, the Trial Court had reached its decision after a thorough
appreciation of evidence and we have no doubt in observing that
the view taken by the Trial Court was indeed a legally permissible
view. The High Court went on to reverse the decision by taking its
own view on a fresh appreciation of evidence. Moreover, the High
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Court did so without recording any illegality, error of law or of fact

in the decision of the Trial Court. In our considered view, the same
was not permissible for the High Court, in light of the law discussed
above. Setting aside an order of acquittal, which signifies a stronger
presumption of innocence, on a mere change of opinion is not
permissible. A low standard for turning an acquittal into conviction
would be fraught with the danger of failure of justice.
35. So far as the question of independent appreciation of evidence by
the High Court is concerned, be it noted that the High Court was fully
empowered to do so, but in doing so, it ought to have appreciated
the evidence in a thorough manner. In the present case, the High
Court has not done so. Even the aspects discussed by the Trial Court
have not been fully addressed and the High Court merely relied on
a limited set of facts to arrive at a finding. The factors which raised
reasonable doubts in the case of the prosecution were ignored by
the High Court. For instance, the contradictions pertaining to time,
which were carefully analyzed by the Trial Court, were not examined
by the High Court at all. Similarly, the contradictions qua the nature of
injuries were also not discussed. In an appeal, as much as in a trial,
appreciation of evidence essentially requires a holistic view and not
a myopic view. Appreciation of evidence requires sifting and weighing
of material facts against each other and a conclusion of guilt could
be arrived at only when the entire set of facts, lined together, points
towards the only conclusion of guilt. Appreciation of partial evidence
is no appreciation at all, and is bound to lead to absurd results. A
word of caution in this regard was sounded by this Court in Sanwat
Singh v. State of Rajasthan9, wherein it was observed thus:
“9. The foregoing discussion yields the following results :
(1) an appellate court has full power to review the evidence
upon which the order of acquittal is founded; (2) the
principles laid down in Sheo Swarup case [LR 61 IA 398]
afford a correct guide for the appellate court’s approach
to a case in disposing of such an appeal; and (3) the
different phraseology used in the judgments of this Court,

9 [1961] 3 SCR 120 : AIR 1961 SC 715

[2024] 2 S.C.R.  307

Mallappa & Ors. v. State of Karnataka

such as, (i) “substantial and compelling reasons”, (ii) “good

and sufficiently cogent reasons”, and (iii) “strong reasons”,
are not intended to curtail the undoubted power of an
appellate court in an appeal against acquittal to review the
entire evidence and to come to its own conclusion; but in
doing so it should not only consider every matter on
record having a bearing on the questions of fact and
the reasons given by the court below in support of
its order of acquittal in its arriving at a conclusion on
those facts, but should also express those reasons in
its judgment, which lead it to hold that the acquittal
was not justified.”
(emphasis supplied)
36. Our criminal jurisprudence is essentially based on the promise that
no innocent shall be condemned as guilty. All the safeguards and
the jurisprudential values of criminal law, are intended to prevent any
failure of justice. The principles which come into play while deciding
an appeal from acquittal could be summarized as:
(i) Appreciation of evidence is the core element of a criminal trial
and such appreciation must be comprehensive – inclusive of
all evidence, oral or documentary;
(ii) Partial or selective appreciation of evidence may result in a
miscarriage of justice and is in itself a ground of challenge;
(iii) If the Court, after appreciation of evidence, finds that two views
are possible, the one in favour of the accused shall ordinarily
be followed;
(iv) If the view of the Trial Court is a legally plausible view, mere
possibility of a contrary view shall not justify the reversal of
acquittal;
(v) If the appellate Court is inclined to reverse the acquittal in appeal
on a re-appreciation of evidence, it must specifically address
all the reasons given by the Trial Court for acquittal and must
cover all the facts;
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(vi) In a case of reversal from acquittal to conviction, the appellate

Court must demonstrate an illegality, perversity or error of law
or fact in the decision of the Trial Court.
37. In this case, the appellants, as a separate argument, have also
submitted that the case is not based on circumstantial evidence and
is based on direct evidence of PW-3 and PW-4, and therefore, the
principles of circumstantial evidence shall not apply. The submission
is erroneous for various reasons. First, the direct evidence of PW-3
and PW-4 is to be tested on its own strength, especially in light of
their subsequent conduct after the incident. As per their version, they
were accessories to the fact, however, their subsequent conduct left
much to be desired and therefore, their direct testimony was found to
be incredible, as already discussed above. Secondly, in the absence
of credible direct evidence, the case essentially falls back on the
circumstantial evidence, and thirdly, the prosecution has failed to
complete the chain of circumstances. The contradictions between
oral testimonies and medical examination reports, failure to seize
essential materials from the scene of crime, failure to explain the
mode of conveyance while going from one place to another, failure
to prove the presence of PW-3 at the place of incident, failure to
corroborate the injuries etc. are some of the deficiencies in the chain
of circumstances. It would be apposite to refer to the decision of this
Court in Sharad Birdhichand Sarda v. State of Maharashtra10,
wherein the “Panchsheel” or five principles of circumstantial evidence
were laid down as follows:
“153. A close analysis of this decision would show that
the following conditions must be fulfilled before a case
against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt
is to be drawn should be fully established.
It may be noted here that this Court indicated that
the circumstances concerned “must or should”
and not “may be” established. There is not only a

10 [1985] 1 SCR 88 : (1984) 4 SCC 116

[2024] 2 S.C.R.  309

Mallappa & Ors. v. State of Karnataka

grammatical but a legal distinction between “may

be proved” and “must be or should be proved” as
was held by this Court in Shivaji Sahabrao Bobade
v. State of Maharashtra [(1973) 2 SCC 793] where
the observations were made:
“Certainly, it is a primary principle that the accused
must be and not merely may be guilty before a court
can convict and the mental distance between ‘may be’
and ‘must be’ is long and divides vague conjectures
from sure conclusions.”
(2) the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is
to say, they should not be explainable on any other
hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature
and tendency,
(4) they should exclude every possible hypothesis except
the one to be proved, and
(5) there must be a chain of evidence so complete as not
to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and
must show that in all human probability the act must
have been done by the accused.”
38. The circumstances in this case are far from conclusive and a
conclusion of guilt could not be drawn from them. To sustain a
conviction, the Court must form the view that the accused “must
have” committed the offence, and not “may have”. As noted in Sharad
Birdichand Sarda11, the distinction between “may have” and “must
have” is a legal distinction and not merely a grammatical one.
39. In light of the foregoing discussion, we hereby conclude that the
High Court had erred in reversing the decision of acquittal, without
arriving at any finding of illegality or perversity or error in the reasoning

11 [1985] 1 SCR 88 Supra

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of the Trial Court. Even on a fresh appreciation of evidence, we

find ourselves unable to agree with the findings of the High Court.
Accordingly, the impugned order and judgment are set aside. We
find no infirmity in the order of the Trial Court and the same stands
restored. Consequently, the appellants are acquitted from all the
charges levelled upon them. The appellants are directed to be
released forthwith, if lying in custody.
40. The captioned appeal stands disposed of in the aforesaid terms.
Interim applications, if any, shall also stand disposed of.
41. Parties to bear their own costs.

Headnotes prepared by: Ankit Gyan Result of the case:

Appeal disposed of.
 [2024] 2 S.C.R. 311 : 2024 INSC 106

Directorate of Enforcement
v.
Niraj Tyagi & Ors.
(Criminal Appeal No. 843 of 2024)
13 February 2024
[Bela M. Trivedi* And Prasanna B. Varale, JJ.]

Issue for Consideration

Interim orders passed by the High Court staying the investigations
of the FIRs and the Enforcement Directorate, if justified.

Headnotes
Code of Criminal Procedure, 1973 – s. 482 – Powers of the
High Court under – Banking financial institution sanctioned
loan facilities to the borrowers, however, the borrowers
defaulted – Banking institution auctioned the property
and sold the shares of the borrowers for the recovery of
its dues – Registration of FIR by the borrowers against
the Banking institution and its officers, and investigation
by the Enforcement Directorate – Writ petition before the
High Court by the officers seeking quashing of FIR and as
also consequential proceedings arising therefrom – Orders
passed by the High Court staying the investigations of the
FIRs and ECIR and restrained the investigating agencies
from investigating into the cognizable offences as alleged
in the FIRs and the ECIR – Propriety:
Held: Inherent powers u/s. 482 do not confer any arbitrary
jurisdiction on the High Court to act according to whims or caprice
– Statutory power has to be exercised sparingly with circumspection
and in the rarest of rare cases – Said order passed in utter
disregard of the settled legal position – Without undermining the
powers of the High Court u/s. 482 to quash the proceedings if
the allegations made in the FIR or complaint prima facie do not
constitute any offence against the accused, or if the criminal
proceedings are found to be manifestly malafide or malicious,
instituted with ulterior motive etc., the High Court could not have
stayed the investigations and restrained the investigating agencies

* Author
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from investigating into the cognizable offences as alleged in the

FIRs and the ECIR, particularly when the investigations were at a
very nascent stage – In a way, by passing such orders of staying
the investigations and restraining the investigating agencies from
taking any coercive measure against the accused pending the
petitions u/s. 482, the High Court granted blanket orders restraining
the arrest without the accused applying for the anticipatory bail
– Thus, the impugned orders passed by the High Court being
not in consonance with the legal position, set aside – Impugned
interim orders passed by the High Court qua the accused stands
vacated. [Paras 20, 23-25]
Judicial discipline – Principle of:
Held: Judicial discipline and Judicial comity and demands that
higher courts should follow the law – Extraordinary and inherent
powers of the court do not confer any arbitrary jurisdiction on the
court to act according to its whims and caprice. [Paras 24, 25]

Case Law Cited

Neeharika Infrastructure Pvt. Ltd. vs. State of
Maharashtra and Others, [2021] 4 SCR 1044 : (2021)
SCC Online SC 315 – relied on.
K. Virupaksha and Another vs. State of Karnataka and
Another, [2020] 2 SCR 1020 : (2020) 4 SCC 440; A.P.
Mahesh Cooperative Urban Bank Shareholders Welfare
Association vs. Ramesh Kumar Bung and Others, [2021]
6 SCR 850 : (2021) 9 SCC 152; State of Telangana
vs. Habib Abdullah Jeelani and Others, [2017] 1 SCR
141 : 2017 (2) SCC 779 – referred to.

List of Acts
Code of Criminal Procedure, 1973; Prevention of Money Laundering
Act, 2002.

List of Keywords
Quashing of FIR; Staying the investigations; Powers of the High
Court; Malafide or malicious criminal proceedings; Investigating
agencies; Enforcement Directorate; Inherent powers; Judicial
comity; Judicial discipline; Extraordinary powers; Money
laundering.
[2024] 2 S.C.R.  313

Directorate of Enforcement v. Niraj Tyagi & Ors.

Case Arising From

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.843
of 2024
From the Judgment and Order dated 13.07.2023 of the High Court of
Judicature at Allahabad in CRMWP No.10893 of 2023
With
Criminal Appeal Nos. 844 And 845 of 2024

Appearances for Parties

S.V. Raju, ASG, Siddhartha Dave, Sr. Adv., Udai Khanna, Rudra
Pratap, Talha Abdul Rahman, M Shaz Khan, Tushar Randhawa,
Rahul Sharma, Nandini Singh, Adnan Yousuf, Mukesh Kumar Maroria,
Advs. for the Appellant.
Ardhendumauli Kumar Prasad, Sr. Adv./A.A.G, Ranjit Kumar, Dhruv
Mehta, Sr. Advs., Mahesh Agarwal, Rishi Agrawala, Ankur Saigal, Mr.
Ankit Banati, Kajal Dalal, E. C. Agrawala, Ms. Fauzia Shakil, Rajat
Singh, Ms. Rukhmini S. Bobde, Vivek Narayan Sharma, Sarthak
Chandra, Akshay Kumar, Ms. Ananya Sahu, Deepesh Singh, Arun
Pratap Singh Rajawat, Tishampati Sen, Ms. Riddhi Sancheti, Anurag
Anand, Mukul Kulhari, Anubhav Ray, Advs. for the Respondents.

Judgment / Order of the Supreme Court

Judgment

Bela M. Trivedi, J.
1. Leave granted.
2. The appellants being aggrieved by the interim orders dated
13.07.2023, 08.08.2023 and 13.09.2023 passed by the High Court
of Judicature at Allahabad in Criminal Misc. Writ Petition Nos.
10893/2023, 11837/2023 and 14053/2023 respectively, have preferred
the instant appeals. Vide the impugned orders, the High Court has
stayed the proceedings of the FIRs registered against the concerned
respondents-accused as also stayed the proceedings of ECIR No.-
ECIR/HIU-I/06/2023 registered by the Directorate of Enforcement
against the concerned respondents, and further directed not to take
any coercive action against the said respondents pending the said
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writ petitions. All the appeals being interconnected with each other,
they were heard together and it would be appropriate to decide them
by this common judgment.
3. The respondent India Bulls Housing Finance Limited (IHFL) is a non-
banking financial institution incorporated under the provisions of the
Companies Act. IHFL deals with the public money. The major source
of funds for the loans to be advanced by IHFL, is either the loans
from the other banks or from the public in the form of non-convertible
debentures. The respondents Niraj Tyagi is the President (Legal) and
Reena Bagga is the authorized officer of the IHFL.
4. M/s Kadam Developers Pvt. Ltd. (hereinafter referred to as M/s
Kadam) was one of the Shipra Group entities. M/s Kadam had
a sub-lease of a parcel of land admeasuring 73 acres in Sector
128, Noida, which was allotted to it by the predecessor of Yamuna
Expressway Industrial Development Authority (hereinafter referred to
as the YEIDA). The 100% equity shares of M/s Kadam were held by
Shipra Estate Limited (98%); Mohit Singh (1%) and Bindu Singh (1%).
5. Between 2017-2020, IHFL had sanctioned 16 loan facilities to the
tune of Rs. 2,801 crores to the Shipra Group/ Borrowers comprising
of Shipra Hotels Ltd., Shipra Estate Ltd. and Shipra Leasing Pvt.
Ltd. for the purposes of the construction and/or development of
Housing/Residential Projects. Against the said sanctioned loan, a
sum of approximately 1995.37 crores was disbursed. The financial
assistance was secured by the Shipra Group by executing 22
pledge agreements whereby the shares of various companies were
pledged in favour of IHFL. A pledge agreement was also entered
into by Shipra Groups and M/s Kadam with IHFL pledging 100%
equity shares (dematerialized) of M/s Kadam to secure the loan. The
mortgaged properties also included 73 acres of land at Noida that
had been sub-let to M/s Kadam by YEIDA, and the property called
‘Shipra Mall’ in Ghaziabad.
6. There being defaults in the repayment of loan amount, IHFL had
issued notices recalling all the loans advanced to the Shipra Group
amounting to Rs. 1763 crores (approx.). The said notices came to
be challenged by the Shipra Group before the Delhi High Court, by
filing FAO(OS) COMM 59/2021. The Delhi High Court vide order
dated 16.04.2021 recorded that IHFL could proceed further with the
recovery proceedings, however the sale of shares should be done
[2024] 2 S.C.R.  315

Directorate of Enforcement v. Niraj Tyagi & Ors.

at a fair market value and in a transparent manner. It appears that

a series of litigations under the SARFAESI Act before the DRT and
High Court had ensued between the parties.
7. IHFL on 01.07.2021 ultimately sold the shares of M/s Kadam pledged
with it to one Final Step Developers P. Ltd., a subsidiary of M3M India
P. Ltd. for Rs. 750 crores. Since Final Step Developers (earlier known
as M/s Creative Soul Technology P. Ltd) had no source of funds of its
own, the funds to purchase the shares of M/s Kadam were provided
to the Final Step Developers by the M3M India, which managed to
take loan from the IHFL on the same day i.e. 03.07.2021. Thus, the
purchase of shares of M/s Kadam by Final Step from the IHFL was
funded by the IHFL itself. The mortgaged properties-Shipra Mall at
Ghaziabad and the parcel of law admeasuring 73 acres at Noida
also eventually came to be sold by the IHFL towards the recovery
of its dues from the Shipra Group.
8. On 09.04.2023, an FIR being No. 427 of 2023 came to be filed by
one Amit Walia, a Director of Shipra Hotels, against IHFL and its
officers for the offences under Sections 420, 467, 468, 471, 120-B
IPC, 323, 504 & 506 at Police Station Indirapuram, alleging inter alia
that IHFL had illegally showed the Shipra group to be the defaulters,
so that they may misappropriate the properties owned by the Group
through illegal means. The FIR also alleged that IHFL had conspired
with M3M India, and by forging and fabricating the documents sold
73 acres of land of M/s Kadam to M3M India, for a sum of 300
crores when the market value of the same was about 4000 crores.
IHFL had also undervalued the shares and securities on the basis
of false and forged documents and had caused great loss to the
Shipra Estate Company and its Directors.
9. On 15.04.2023, another FIR being No. 197 of 2023 came to be filed
by YEIDA against IHFL, M3M India, M/s Kadam and M/s Beacon
Trusteeship Ltd. for the offences under Sections 420, 467, 468, 471
and 120-B at Police Station Beta-2, Greater Noida alleging inter
alia that the first charge of YEIDA was preserved in the permission
issued on 09.01.2018 for pledging the shares to IHFL however, the
IHFL neither informed nor sought any permission of YEIDA before
transferring the shares of M/s Kadam to M3M India. Thus, the terms
and conditions contained in the permission letter, indemnity certificate
and sub-lease document were violated by the financial institution and
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the sub-lessee, due to which the YEIDA had suffered a financial loss
of about Rs. 200 crores.
10. On 22.07.2023, yet another FIR being No. 611 of 2023 came to be
filed by one Mohit Singh, authorized representative of Shipra Group,
against Reena Bagga in her capacity as an authorized officer of IHFL
and others for the offences under Section 420, 120B IPC and 82 of
Registration Act at Police Station Kavi Nagar, Ghaziabad, alleging
therein that “Shipra Mall”, which formed a part of the properties
mortgaged with IHFL, had been sold in pursuance of recovery
proceedings on the basis of false and fabricated documents, for a
sum of Rs. 551 Crore to Himri Estate Pvt. Ltd. although the actual
value of the land was over 2000 crore. It has been alleged that
illegalities were committed by the said accused, by not showing the
actual value of Shipra Mall and thereby had caused huge loss to
the Shipra Group.
11. Since various FIRs came to be registered against the IHFL and its
officers, the same came to be challenged by them by filing the W.P.
(Crl) being no. 166 of 2023 before this Court (Gagan Banga and
Anr. vs. State of West Bengal and Ors.).
12. Pending the said W.P. No.166/2023, the Directorate of Enforcement
(ED) on the basis of the said FIR nos. 197/2023 and 427/2023
registered an ECIR bearing no. ECIR/HIU-I/06/2023 in Delhi on
09.06.2023, to investigate into the offences of money laundering
under the Prevention of Money Laundering Act, 2002.
13. According to the appellant-ED, this Court without giving the appellant
any opportunity of hearing, passed the following order on 04.07.2023
while disposing off the W.P. (Crl) No. 166/2023 and connected
Contempt Petition.
“1 to 3.……
4. Vide order dated 28.04.2023 passed in W.P. (Crl.)
No. 166/2023, criminal proceedings in three such FIRs
instituted by borrowers in different States, namely FIR No.
646/2022 dated 26.10.2022 registered at P.S. Titagarh,
FIR No. 427/2023 dated 09.04.2023 registered at P.S.
Indirapuram and FIR No. 25/2021 dated 27.01.2021
registered at P.S. EOW, Delhi were stayed.
[2024] 2 S.C.R.  317

Directorate of Enforcement v. Niraj Tyagi & Ors.

5. Further FIR No. 197/2023 dated 15.04.2023 was filed

by YEIDA at PS Beta-2, Greater Noida, UP, which also
refers to the aforesaid FIR No. 427/2023 dated 09.04.2023
registered at P.S. Indirapuram with some overlapping facts.
It is stated that on the basis of these two connected FIRs
namely FIR No. 427/2023 and 197/2023, now the ED
has registered ECIR bearing No. ECIR/HIU-I/06/2023 in
Delhi. The petitioners have now challenged the said FIRs
and ECIR.
6. In the circumstances, as it may also involve adjudication
on facts, we deem it appropriate to permit the petitioners
to approach the respective jurisdictional High Courts to
challenge all four FIRs and the ECIR within two weeks
from today, with a request to the respective High Courts
to consider and decide the petitions expeditiously, not later
than six months of their presentation.
7. We also direct DGPs of respective States to look into
the matter, examine the contentions of the petitioners in
respect of the contents of FIRs, and to take appropriate
measures in accordance with law within a period of one
month.
8. Till final disposal of the respective petitions, interim order
dated 28.04.2023 passed in W.P.(Crl.) No. 166/2023 would
continue in the three FIRs mentioned therein.
9. In so far as the further FIR No. 197/2023 dated
15.04.2023 filed by YEIDA and ECIR bearing No. ECIR/
HIU-I/06/2023 are concerned, no coercive steps would
be taken against the petitioner financial institution and its
officers, representatives and managers till final disposal of
such petitions by the High Court, and it would be open for
the petitioners to seek stay of proceedings which would be
considered by the High Court on its own merits. It is clarified
that this interim protection would only be applicable to the
petitioner financial institution and its officers, representatives
and managers, and not to any other person.”
14. The respondent-Niraj Tyagi and IHFL thereafter filed a writ petition
in the High Court being Criminal Misc. Writ Petition No. 10893/2023
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seeking issuance of appropriate writ, order and direction for declaring

Section 420 of IPC as arbitrary and ultra vires to the Constitution
of India and seeking quashing of the FIR No.197 of 2023 dated
15.04.2023 as also the consequential proceedings arising therefrom
as initiated by the ED in ECIR bearing No. ECIR/HIU-I/06/2023.
Similarly, the respondent Reena Bagga and IHFL filed another writ
petition being Criminal Miscellaneous Writ Petition No. 11837/2023
seeking quashing of the FIR being No.611/2023 registered against
them as also all the consequential actions taken by any authority/
agency in pursuance to the said FIR. The respondent M3M India
Pvt. Ltd. and Kadam Developers Pvt. Ltd. also filed a writ petition
being Criminal Misc. Writ Petition No.14053/2023 seeking the reliefs
similar to the reliefs prayed for in the Writ Petition No.10893/2023.
15. The High Court passed the following impugned Order on 13.07.2023
in Criminal Misc. Writ Petition No.10893 of 2023: -
“19. In view of the above, we are of the opinion that the
petitioners have made out a case for grant of the interim
as relief prayed for. Accordingly, in furtherance of the
protection granted by the Apex Court to the petitioners
by the order dated 4th July, 2023, while disposing of the
Contempt Petition (Civil) No. 774 of 2023, it is provided
that further proceedings, including summoning of the
officers, consequent to the F.I.R. No. 197 of 2023 dated
15.4.2023 under Sections 420, 467, 468, 471 and 120-B
- IPC, Police Station Beta-2, Greater Noida, Gautam Budh
Nagar, registered by Respondent No.2 and consequent
ECIR No. ECIR/HIU-I/06/2023 registered by Respondent
No. 4, shall remain stayed so far as it confines to the
petitioners only and no coercive action shall be taken
against them.”
16. The High Court passed the other impugned orders on 08.08.2023 in
Criminal Miscellaneous Writ Petition No.11837/2023 and on 13.09.2023
in Criminal Miscellaneous Writ Petition No.14053/2023, following the
order dated 13.07.2023 passed in Writ Petition No.10893/2023.
Consequently, the proceedings of the FIR No.197/2023, FIR
No.611/23 as also the ECIR No. ECIR/HIU-I/06/2023 have been
stayed qua the concerned respondents herein pending the said three
writ petitions before the High Court, and the concerned respondents
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Directorate of Enforcement v. Niraj Tyagi & Ors.

who are the accused in the said FIRs have been protected from any
coercive action being taken against them. The present appeals stem
out of the aforesaid impugned orders passed by the High Court.
17. The ASG, Mr. Raju appearing for the appellant ED in all the three
appeals vehemently submitted that this Court had passed the order
dated 04.07.2023 in Gagan Banga’s case staying the proceedings
of ECIR and the FIRs registered against the concerned respondents
without hearing the ED, and therefore the ED has filed a Review
Petition, which is pending before this Court. He further submitted
that the High Court also without assigning any cogent reasons in
the impugned orders stayed the said proceedings of ECIR and FIRs
under the guise of following the said order dated 04.07.2023 passed
by this Court. Placing heavy reliance on the decision of the Three-
Judge Bench in Neeharika Infrastructure Pvt. Ltd. vs. State of
Maharashtra and Others1, he submitted that this Court has strongly
deprecated the practice of the courts granting interim orders staying
the investigation or directing the investigating agencies not to take
coercive actions against the accused. The impugned orders passed
by the High Court therefore being in the teeth of the said settled legal
position, the same deserve to be quashed and set aside forthwith.
18. However, the learned Senior counsels appearing for the respondents
in the respective appeals, taking the Court to the proceedings which
had taken place under the SARFAESI Act and before the High Court
and this Court, submitted that the respondent-complainant Shipra
Group having failed in all the said proceedings had taken recourse
to the criminal proceedings to create a fear amongst the financial
institution and its officers. They further submitted that the High Court
taking into consideration the order passed by this Court in Gagan
Banga’s case had rightly protected the financial institution and its
officers who had discharged their duties for the recovery of the dues
from the borrowers. Reliance is placed on the decision of this Court in
K. Virupaksha and Another vs. State of Karnataka and Another2
and in A.P. Mahesh Cooperative Urban Bank Shareholders Welfare
Association vs. Ramesh Kumar Bung and Others3, to submit that

1 [2021] 4 SCR 1044 : (2021) SCC Online SC 315

2 [2020] 2 SCR 1020 : (2020) 4 SCC 440
3 [2021] 6 SCR 850 : (2021) 9 SCC 152
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even in case of Neeharika Infrastructure (supra), the discretion

has been conferred on the High Court to pass the interim orders in
exceptional cases for not taking coercive steps against the accused
pending the proceedings, particularly when the proceedings under
the SARFAESI Act were initiated against the borrowers. According
to them, bypassing the statutory remedies available to the borrowers
or having failed in such proceedings, the borrowers should not be
permitted to prosecute the financial institution or its officers or the
purchasers just to instill a fear in their mind, which otherwise would
have the potentiality to affect the marrows of economic health of
the nation.
19. At the outset, it may be noted that the impugned interim orders have
been passed by the High Court under the umbrella of the order
dated 04.07.2023 passed by this Court in Gagan Banga’s case,
creating an impression that the impugned orders were passed in
furtherance of the said order, though this Court had passed the said
order leaving it open to the High Court to decide the writ petitions
on their own merits.
20. In our opinion, it’s a matter of serious concern that despite the legal
position settled by this Court in catena of decisions, the High Court
has passed the impugned orders staying the investigations of the
FIRs and ECIR in question in utter disregard of the said settled legal
position. Without undermining the powers of the High Court under
Section 482 of Cr.PC to quash the proceedings if the allegations made
in the FIR or complaint prima facie do not constitute any offence
against the accused, or if the criminal proceedings are found to be
manifestly malafide or malicious, instituted with ulterior motive etc.,
we are of the opinion that the High Court could not have stayed
the investigations and restrained the investigating agencies from
investigating into the cognizable offences as alleged in the FIRs and
the ECIR, particularly when the investigations were at a very nascent
stage. It hardly needs to be reiterated that the inherent powers under
Section 482 of Cr.PC do not confer any arbitrary jurisdiction on
the High Court to act according to whims or caprice. The statutory
power has to be exercised sparingly with circumspection and in the
rarest of rare cases. In a way, by passing such orders of staying the
investigations and restraining the investigating agencies from taking
any coercive measure against the accused pending the petitions
under Section 482 Cr.PC, the High Court has granted blanket orders
[2024] 2 S.C.R.  321

Directorate of Enforcement v. Niraj Tyagi & Ors.

restraining the arrest without the accused applying for the anticipatory
bail under Section 438 of Cr.PC.
21. This Court in State of Telangana vs. Habib Abdullah Jeelani and
Others4, while dealing with the contours of Section 482 and 438
Cr.PC had emphasized that the direction not to arrest the accused
or not to take coercive action against the accused in the proceedings
under Section 482 Cr.PC, would amount to an order under Section
438 Cr.PC, albeit without satisfaction of the conditions of the said
provision, which is legally unacceptable.
22. Recently, a Three-Judge Bench in Neeharika Infrastructure (supra)
while strongly deprecating the practice of the High Courts in staying
the investigations or directing not to take coercive action against the
accused pending petitions under Section 482 of Cr.PC, has issued
the guidelines, which may be reproduced hereinbelow for ready
reference:-
“Conclusions
33. In view of the above and for the reasons stated above,
our final conclusions on the principal/core issue, whether
the High Court would be justified in passing an interim
order of stay of investigation and/or “no coercive steps
to be adopted”, during the pendency of the quashing
petition under Section 482CrPC and/or under Article 226
of the Constitution of India and in what circumstances and
whether the High Court would be justified in passing the
order of not to arrest the accused or “no coercive steps
to be adopted” during the investigation or till the final
report/charge-sheet is filed under Section 173CrPC, while
dismissing/disposing of/not entertaining/not quashing the
criminal proceedings/complaint/FIR in exercise of powers
under Section 482CrPC and/or under Article 226 of the
Constitution of India, our final conclusions are as under:
33.1. Police has the statutory right and duty under the
relevant provisions of the Code of Criminal Procedure
contained in Chapter XIV of the Code to investigate into
a cognizable offence.

4 [2017] 1 SCR 141 : 2017 (2) SCC 779

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33.2. Courts would not thwart any investigation into the

cognizable offences.
33.3. It is only in cases where no cognizable offence or
offence of any kind is disclosed in the first information report
that the Court will not permit an investigation to go on.
33.4. The power of quashing should be exercised sparingly
with circumspection, as it has been observed, in the “rarest
of rare cases” (not to be confused with the formation in
the context of death penalty).
33.5. While examining an FIR/complaint, quashing of which
is sought, the court cannot embark upon an enquiry as to
the reliability or genuineness or otherwise of the allegations
made in the FIR/complaint.
33.6. Criminal proceedings ought not to be scuttled at the
initial stage.
33.7. Quashing of a complaint/FIR should be an exception
rather than an ordinary rule.
33.8. Ordinarily, the courts are barred from usurping the
jurisdiction of the police, since the two organs of the State
operate in two specific spheres of activities and one ought
not to tread over the other sphere.
33.9. The functions of the judiciary and the police are
complementary, not overlapping.
33.10. Save in exceptional cases where non-interference
would result in miscarriage of justice, the Court and
the judicial process should not interfere at the stage of
investigation of offences.
33.11. Extraordinary and inherent powers of the Court
do not confer an arbitrary jurisdiction on the Court to act
according to its whims or caprice.
33.12. The first information report is not an encyclopaedia
which must disclose all facts and details relating to the
offence reported. Therefore, when the investigation by the
police is in progress, the court should not go into the merits
of the allegations in the FIR. Police must be permitted
[2024] 2 S.C.R.  323

Directorate of Enforcement v. Niraj Tyagi & Ors.

to complete the investigation. It would be premature to

pronounce the conclusion based on hazy facts that the
complaint/FIR does not deserve to be investigated or that
it amounts to abuse of process of law. After investigation, if
the investigating officer finds that there is no substance in
the application made by the complainant, the investigating
officer may file an appropriate report/summary before the
learned Magistrate which may be considered by the learned
Magistrate in accordance with the known procedure.
33.13. The power under Section 482CrPC is very wide,
but conferment of wide power requires the court to be
more cautious. It casts an onerous and more diligent duty
on the court.
33.14. However, at the same time, the court, if it thinks
fit, regard being had to the parameters of quashing and
the self-restraint imposed by law, more particularly the
parameters laid down by this Court in R.P. Kapur [R.P.
Kapur v. State of Punjab, 1960 SCC OnLine SC 21 : AIR
1960 SC 866] and Bhajan Lal [State of Haryana v. Bhajan
Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , has
the jurisdiction to quash the FIR/complaint.
33.15. When a prayer for quashing the FIR is made by the
alleged accused and the court when it exercises the power
under Section 482CrPC, only has to consider whether the
allegations in the FIR disclose commission of a cognizable
offence or not. The court is not required to consider on
merits whether or not the merits of the allegations make
out a cognizable offence and the court has to permit the
investigating agency/police to investigate the allegations
in the FIR.
33.16. The aforesaid parameters would be applicable and/
or the aforesaid aspects are required to be considered
by the High Court while passing an interim order in a
quashing petition in exercise of powers under Section 482
CrPC and/or under Article 226 of the Constitution of India.
However, an interim order of stay of investigation during
the pendency of the quashing petition can be passed with
circumspection. Such an interim order should not require
324 [2024] 2 S.C.R.

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to be passed routinely, casually and/or mechanically.

Normally, when the investigation is in progress and the
facts are hazy and the entire evidence/material is not
before the High Court, the High Court should restrain
itself from passing the interim order of not to arrest or “no
coercive steps to be adopted” and the accused should
be relegated to apply for anticipatory bail under Section
438CrPC before the competent court. The High Court
shall not and as such is not justified in passing the order
of not to arrest and/or “no coercive steps” either during
the investigation or till the investigation is completed and/
or till the final report/charge-sheet is filed under Section
173 CrPC, while dismissing/disposing of the quashing
petition under Section 482CrPC and/or under Article 226
of the Constitution of India.
33.17. Even in a case where the High Court is prima
facie of the opinion that an exceptional case is made
out for grant of interim stay of further investigation, after
considering the broad parameters while exercising the
powers under Section 482CrPC and/or under Article 226
of the Constitution of India referred to hereinabove, the
High Court has to give brief reasons why such an interim
order is warranted and/or is required to be passed so that
it can demonstrate the application of mind by the Court
and the higher forum can consider what was weighed
with the High Court while passing such an interim order.
33.18. Whenever an interim order is passed by the High
Court of “no coercive steps to be adopted” within the
aforesaid parameters, the High Court must clarify what
does it mean by “no coercive steps to be adopted” as the
term “no coercive steps to be adopted” can be said to be
too vague and/or broad which can be misunderstood and/
or misapplied.”
23. The impugned orders passed by the High Court are in utter disregard
and in the teeth of the said guidelines issued by the Three-Judge
Bench of this Court. It was sought to be submitted by the Learned
Counsels for the respondents-accused that the allegations made
in the FIRs are of civil nature, and have been given a colour of
[2024] 2 S.C.R.  325

Directorate of Enforcement v. Niraj Tyagi & Ors.

criminal nature. According to them, as discernible from the record,

number of proceedings had ensued between the parties pursuant to
the actions taken by the IHFL against the complainant-borrower for
the recovery of its dues under the SARFAESI Act, and the borrower
M/s Shipra after having failed in the said proceedings had filed the
complaints with ulterior motives. We do not propose to examine
the merits of the said submissions as the writ petitions filed by the
concerned respondents-accused seeking quashing of the FIRs on
such grounds are pending for consideration before the High Court.
It would be open for the High Court to examine the merits of the
petitions and decide the same in accordance with law.
24. Without elaborating any further, suffice it to say that judicial comity
and judicial discipline demands that higher courts should follow
the law. The extraordinary and inherent powers of the court do not
confer any arbitrary jurisdiction on the court to act according to its
whims and caprice.
25. The impugned orders passed by the High Court being not in
consonance with the settled legal position, the same deserve to be
set aside and are hereby set aside. The impugned interim orders
passed by the High Court qua the concerned respondents-accused
in the present appeals stand vacated forthwith.
26. We may clarify that we have not expressed any opinion on the merits
of the Writ Petitions which are pending before the High Court, and
that it would be open for the concerned respondents-accused to
take all legal contentions or take recourse to the legal remedies as
may be available to them in accordance with law.
27. The appeals stand allowed accordingly.

Headnotes prepared by: Nidhi Jain Result of the case:

Appeals allowed.
 [2024] 2 S.C.R. 326 : 2024 INSC 109

Vasantha (Dead) Thr. Lr.

v.
Rajalakshmi @ Rajam (Dead) Thr.Lrs.
(Civil Appeal No. 3854 of 2014)
13 February 2024
[Hrishikesh Roy and Sanjay Karol*, JJ.]

Issue for Consideration

The action that set in motion the instant dispute was in the year
1947, when a mother ‘T’ transferred property by executing First
Settlement Deed in one form to her two sons and in another, to her
daughter. Some forty-odd years later, the daughter’s husband ‘G’
filed a suit in respect of such property, in 1993. The issues arise
for consideration are (i) Whether G’s suit for declaration based on
the First Settlement Deed, eventually filed in the year 1993 barred
by limitation; (ii) Whether the suit for declaration simpliciter was
maintainable in view of s.34 of the SRA, 1963.

Headnotes
Limitation Act, 1963 – s.27, Arts.58 and 65 – Specific Relief
Act, 1963 – s.34 – After First Settlement Deed, two sons
of T executed a second settlement deed dated 31.07.1952
reverting the interest in properties back to their mother-T
– Thereafter, T executed a third Settlement Deed dated
18.08.1952 bequeathing absolute interest in such properties
only in favour of two sons – G filed a suit praying for a
declaration as owner of the property as sole heir of T’s
daughter in terms of First Settlement Deed – Trial Court
held that G admitted execution of Second Settlement Deed
and possession was handed over to T – The suit filed was
barred by limitation – First Appellate Court confirmed the
trial Court judgment – However, the High Court held that G
was entitled to half share a property according to the First
Settlement Deed – Propriety:
Held: If the period of limitation is to run from the date of the Second
Settlement Deed, then the rights should be extinguished in 1964
– If the same were to run from either 1974 (when M, younger son

* Author
[2024] 2 S.C.R.  327

Vasantha (Dead) Thr. Lr. v. Rajalakshmi @ Rajam (Dead) Thr.Lrs.

of T executed settlement deed in favour of his adopted daughter

V) or 1976 (when another deed was executed by M in favour of
his wife P), then after 1986 or 1988 respectively, G had no right
in the property on the plea of adverse possession – It is settled
that a reversioner ordinarily must file a suit for possession within
12 years from the death of the limited heir or widow – That metric
being applied to the instant facts, it is after the death of P, that the
reversioner, or in this case the heir of the reversioner G ought to
have filed the suit – The suit, the subject matter of appeal before
this Court is a suit for declaration simpliciter and not possession
– So, the possession still rests with heir of P – The 12 year period
expired in 2016 with death of P in the year 2004 – Therefore,
the suit filed in 1993 is barred by limitation – Also, Part III of the
Schedule to the Limitation Act details the time period within which the
declarations may be sought for – Art.58 of the Limitation Act governs
the present dispute – In the instant case, the suit for declaration
was filed in 1993 – This implies that the cause of action to seek
any other declaration i.e. a declaration of G in the property, should
have arisen only in the year 1990 – There is nothing on record
to show any cause of action having arisen at this point in time,
much less within the stipulated period of three years – As far as
the maintainability of suit for declaration simpliciter in view of s.34
of SRA is concerned, in view of the proviso to s.34, the suit of the
plaintiff-G could not have been decreed since the plaintiff sought
for mere declaration without the consequential relief of recovery
of possession – On a perusal of the plaint, it is evident that the
plaintiff was aware that the appellant-V herein was in possession
of the suit property and therefore it was incumbent upon him to
seek the relief which follows – It is also noted that after the death
of the life-estate holder-P in 2004, there was no attempt made
by the original plaintiff to amend the plaint to seek the relief of
recovery of possession – Thus, the impugned judgment fails on
both limitation and maintainability of suit – Judgment of the trial
Court and First Appellate Court restored. [Paras 16, 17, 23, 26, 33]
Adverse Possession – Claim of:
Held: Person who claims adverse possession should show : (a)
on what date he came into possession; (b) what was the nature of
his possession; (c) whether the factum of possession was known
to the other party; (d) how long his possession has continued;
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and (e) his possession was open and undisturbed – A person

pleading adverse possession has no equities in his favour – Since
he is trying to defeat the rights of the true owner, it is for him to
clearly plead and establish all facts necessary to prove his adverse
possession. [Para 20]
Limitation – Adverse Possession – Dependence on limitation:
Held: Modern statutes of limitation operate, as a rule, not only to
cut off one’s right to bring an action for the recovery of property
that has been in the adverse possession of another for a specified
time but also to vest the possessor with title – The intention of such
statutes is not to punish one who neglects to assert rights but to
protect those who have maintained the possession of property for
the time specified by the statute under a claim of right or colour
of title. [Para 21]

Case Law Cited

Bharat Barrel and Drum Mfg. Co. Ltd. v. ESI Corpn.,
[1972] 1 SCR 867 : (1971) 2 SCC 860; Union of India
v. Ibrahim Uddin, [2012] 8 SCR 35 : (2012) 8 SCC
148 – relied on.
Sultan Khan v. State of MP, 1991 MP LJ 81 –
distinguished.
Yeswant Deorao Deshmukh v. Walchand Ramchand
Kothari, [1950] 1 SCR 852; National Textile Corporation
Ltd. v. Nareshkumar Badrikumar Jagad, [2011] 14 SCR
472 : (2011) 12 SCC 695; Fateh Bibi v. Charan Dass,
[1970] 3 SCR 953 : (1970) 1 SCC 658; M/s Ganesh
Trading Co. v. Moji Ram, [1978] 2 SCR 614 : (1978) 2
SCC 91; Ram Saran & Anr. v. Ganga Devi, (1973) 2 SCC
60; Vinay Krishna v. Keshav Chandra & Anr., (1993) Supp
3 SCC 129; UOI v. Ibrahim Uddin, [2012] 8 SCR 35 :
(2012) 8 SCC 148; Goplakrishna (Dead) Through LRs
v. Narayanagowda(Dead) Through Lrs., [2019] 6 SCR
382 : (2019) 4 SCC 592; Harmath Kaur v. Inder Bahadur
Singh, AIR 1922 PC 403; Mahadeo Prasad Singh, AIR
1931 PC 1989; Sreenivasa Pai v. Saraswathi Ammal,
[1985] Supp. 2 SCR 122 : (1985) 4 SCC 85; Tribhuvan
Shankar v. Amrutlal, [2013] 12 SCR 368 : (2014) 2 SCC
[2024] 2 S.C.R.  329

Vasantha (Dead) Thr. Lr. v. Rajalakshmi @ Rajam (Dead) Thr.Lrs.

788; In Saroop Singh v. Banto, [2005] Suppl. 4 SCR

253 : (2005) 8 SCC 330; Karnataka Board of Wakf v.
Govt. of India, [2004] Suppl. 1 SCR 255 : (2004) 10
SCC 779; Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai
Harijan, [2008] 13 SCR 818 : (2009) 16 SCC 517; P.T.
Munichikkanna Reddy v. Revamma, [2007] 5 SCR
491 : (2007) 6 SCC 59; Shakti Bhog Food Industries
Ltd. v. Central Bank of India, [2020] 6 SCR 538 : (2020)
17 SCC 260; Vinay Krishna v. Keshav Chandra, 1993
Supp (3) SCC 129; Venkataraja and Ors. v. Vidyane
Doureradjaperumal (Dead) thr. Lrs., [2013] 5 SCR 814 :
(2014) 14 SCC 502; Akkamma and Ors. v. Vemavathi
and Ors., 2021 SCC Online SC 1146; Executive Officer,
Arulmigu Chokkanatha Swamy Koil Trust, Virudhunagar
v. Chandran and Others, [2017] 5 SCR 473 : (2017) 3
SCC 702; Harcharan v. State of Haryana, (1982) 3 SCC
408; Rajender Prasad v. Kayastha Pathshala, (1981)
Supp 1 SCC 56 – referred to.

List of Acts
Limitation Act, 1963; Specific Relief Act, 1963.

List of Keywords
Limitation; Extinguishment of right to property; Adverse possession;
Title by adverse possession; Establishment of adverse possession;
Claim of adverse possession; Adverse possession dependency on
limitation; Modern statutes of limitation; Suit for declaration; Relief of
possession; Discretion of Court as to declaration of status or right;
Suit for mere declaration without consequential relief; Amendment
of plaint for recovery of possession.

Case Arising From

CIVIL APPELLATE JURISDICTION : Civil Appeal No.3854 of 2014
From the Judgment and Order dated 27.09.2012 of the High Court
of Madras in SA No.1926 of 2004
Appearances for Parties
Dama Seshadri Naidu, Sr. Adv., G. Balaji, Advs. for the Appellant.
V. Ramasubramanian, Adv. for the Respondents.
330 [2024] 2 S.C.R.

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Judgment / Order of the Supreme Court

Judgment
Sanjay Karol, J.
1. The action that set in motion the instant dispute was in the year
1947, when a mother transferred property inherited at the death
of her husband, in one form to her two sons and in another, to her
daughter. Some forty-odd years later, the daughter’s husband filed
a suit in respect of such property, in 1993. The Additional District
Munsiff1 decided the matter in 1999. The Additional District and
Session Judge2 returned a decision on the First Appeal in 2002.
The Second Appeal was decided by the High Court3 in 2012. It is
against this order and judgment in Second Appeal that the present
civil appeal has been preferred.
BACKGROUND FACTS
2. It would be necessary to advert to the facts underlying the present
dispute.
3. On 10th July 1947, one Thayammal executed a settlement deed4
granting rights in her property to her two sons namely Raghavulu
Naidu and Chinnakrishnan @ Munusamy Naidu 5 for their lives
and thereafter to the former’s two daughters namely Saroja and
Rajalakshmi (present Respondent now represented through LRs).
Saroja pre-deceased Thayammal as also her father and uncle, in
1951.
3.1 Subsequently, Raghavulu and Munusamy executed a Settlement
Deed dated 31st July 19526 reverting the said interests in the
properties back to their mother.
3.2 Thayamma, soon thereafter, executed a further Settlement
Deed7 dated 18th August 1952, bequeathing absolute interest

1 “Trial Court”
2 “First Appellate Court”
3 “Impugned judgment”
4 “First Settlement Deed”
5 “Munusamy”
6 “Second Settlement Deed”
7 “Third Settlement Deed”
[2024] 2 S.C.R.  331

Vasantha (Dead) Thr. Lr. v. Rajalakshmi @ Rajam (Dead) Thr.Lrs.

in such properties only in favour of her two sons namely

Raghavulu Naidu and Munusamy Naidu, with the consequence
of extinguishing the rights, if any, of Saroja and Gopalakrishnan.
3.3 Munusamy had no children. His wife Pavunammal enjoyed
life interest in the property bequeathed to her husband. They
had an adopted daughter, Vasantha (present Appellant, now
represented through LRs).
3.4 In 1993, during the lifetime of Pavunammal, Gopalakrishnan
(Husband of Saroja) filed a suit, subject matter of the present
lis, praying for a declaration as the owner of the properties since
he was the sole heir of Saroja in terms of the First Settlement
Deed.
4. It is in this brief background of facts that the dispute entered the
courts.
It would be useful to have a summary of family relations forming
the backdrop of, and parties to, the dispute by way of a chart, as
immediately hereunder:-

● Pounamma is also referred to as Pavanuammal at some places,

as was so done by the Courts below.
332 [2024] 2 S.C.R.

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PROCEEDING BEFORE THE TRIAL COURT

A. PLAINT
5. Plaintiff (Gopalakrishnan) filed a suit for declaration and to establish
his vested rights and interest in the property.
5.1 It was urged that only the First Settlement Deed had legal
sanctity. Accordingly, the wife of Munusamy is only entitled to
possession and enjoyment till her lifetime. There is no right of
transfer in her favour.
5.2 The Second Settlement Deed is only for the lifetime of
Thayammal, and the same would not impact the vested
right created in favour of deceased Saroja, inherited by
Gopalakrishnan, as her husband and sole heir.
5.3 The adoption of Vasantha is illegal. Also, the vested right in favour
of Saroja was created prior to such adoption and, therefore,
would not affect the rights of Gopalakrishnan.
B. WRITTEN STATEMENT
6. The written statement is of denial of all claims made by Gopalakrishnan.
6.1 It is incorrect to state that the two sons Raghavulu and
Munasamy, were in possession of suit properties according to
the First Settlement Deed. No claim of any vested rights can
be accepted.
6.2 The claim that Gopalakrishnan is the sole legal heir of Saroja,
cannot be accepted as after her death in the year 1951, he
has remarried and relocated to Pondicherry.
6.3 Even if the First Settlement Deed is accepted as genuine, then
Pavanuammal alone would be the heir to such properties.
6.4 Munasamy had, during his lifetime, on 7 th October, 1976
executed a settlement deed in favour of Pavanuammal without
any coercion. The patta of the said property was also transferred
in her name.
6.5 Since Munasamy and Pavanuammal did not have any children,
they adopted a child namely Vasantha. Pavanuammal of her
own volition executed a settlement deed in favour of Vasantha
on 19th July, 1993. Any denial of the same cannot be accepted.
[2024] 2 S.C.R.  333

Vasantha (Dead) Thr. Lr. v. Rajalakshmi @ Rajam (Dead) Thr.Lrs.

6.6 On 18th August 1952, Thayammal had vide the Third Settlement
Deed given exclusively, the suit properties to her two sons
who have made separate and individual deeds in regards to
their shares and sold portions thereof to other parties. The suit
suffers from non-joinder of necessary parties.
C. FINDINGS
7. The Learned Additional District Munsif framed four following issues
to be considered:
a) Whether the settlement deed suggested by the
plaintiff is genuine?
b) Whether the plaintiff cannot claim any right in the
suit property?
c) Whether the plaintiff is entitled to get the relief prayed
in the plaint?
d) What are the relief for which plaintiff is entitled to?
7.1 Placing reliance upon the deposition of PW1 (Gopalakrishnan),
the first issue was decided in favour of the plaintiff and the First
Settlement Deed was upheld as genuine. Also, DW1 (Vasantha)
in her deposition had not completely denied the execution
and genuineness of First Settlement Deed. After considering
both, the First and the Second Settlement Deeds, it held that
Raghavulu Naidu and Munusamy Naidu must have executed
the Second Settlement Deed in favour of Thayammal as the
Second Settlement Deed could not be executed without the
first deed having been in existence.
7.2 In regard to the second issue, it was observed that plaintiff himself
has admitted the execution of Second Settlement Deed and that
possession was handed over to Thayammal. Plaintiff has not
taken any action in respect of the document executed in the year
1974 and filed the suit in the year 1993 and held that the suit is
barred by Limitation and the rights of the plaintiff were abated.
7.3 The third and fourth issues were decided against the plaintiff
since he cannot claim any rights in the suit property, therefore,
the declaration cannot be made in respect of one-half of the
defendant’s share in the suit property after her lifetime would
come to the plaintiff.
334 [2024] 2 S.C.R.

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PROCEEDING BEFORE THE FIRST APPELLATE COURT

8. Two following questions were considered by the First Appellate Court:
a) Whether the plaintiff is the legal heir of Saroja Ammal?
b) Whether the plaintiff is entitled for the share in the
suit property?
8.1 It was held that the plaintiff has never taken any steps to revoke
various transactions that have taken place in regard to the suit
properties. He was also unaware about the real possession of
the properties in question. Further, it was observed that the
plaintiff failed to prove dispossession within a period of twelve
years, i.e. the time period within which the claim of adverse
possession has to be made.
8.2 In the above terms, the judgment and decree of the Trial Court
was confirmed and the appeal was dismissed.
PROCEEDING BEFORE THE HIGH COURT
9. The High Court under Second Appeal framed the following substantial
questions of law:
a) Whether in law the courts below are right in failing to
see that under Section 19 of the Transfer of Property
Act, a vested interest is not defeated by the death of
the transferee before the possession.
b) Whether in law the courts below are not wrong in
omitting to see that the matter in issue would be
squarely covered by the illustrations (i) and (iii) of
Section 119 of the Indian Succession Act?
c) Whether in law the courts below are right in failing to
see that a limited interest owner could not prescribe
title by adverse possession as held in AIR 1961
SCC 1442?
9.1 Having taken note of various decisions, the learned Single
Judge held that the interest vested in Saroja was full and not
life interest. Therefore, upon her death,, the interest does not
revert to the settlor. In other words, that Saroja died before her
interest stood fructified, is an incorrect statement. It is only the
[2024] 2 S.C.R.  335

Vasantha (Dead) Thr. Lr. v. Rajalakshmi @ Rajam (Dead) Thr.Lrs.

right of enjoyment that stood postponed till the life interest of

Raghavulu Naidu and Munusamy Naidu.
9.2 On the question of limitation, it was observed that the documents
executed between Thayammal, her sons and subsequently,
Pavanummal and Vasantha, were only in respect of life interest
i.e. a limited right. The other two deeds of settlement executed
after the First Settlement Deed are against or beyond the
competency of the executants and therefore, not binding on the
plaintiff. That being the case the requirement of twelve years
within which to initiate a suit, does not arise. Further, it was held
that since, in the suit, the life estate holder has been impleaded
in the suit and Gopalakrishnan had the option of filing the suit
even after her lifetime, the same is not barred by limitation.
9.3 It was in such terms that it was held that according to the First
Settlement Deed the plaintiff will be entitled to half share of
the property after the lifetime of Vasantha, a life estate holder.
SUBMISSIONS
10. We have heard at length, Mr. Dama Seshadri Naidu, learned senior
counsel for the Appellants and Mr. V. Ramasubramanian, learned
counsel for the Respondents. The main contentions urged have
been recorded as under:-
A. APPELLANTS
(i) It is submitted that all questions raised in this Appeal are
pure questions of law and in accordance with Yeswant
Deorao Deshmukh v. Walchand Ramchand Kothari
(3-Judge Bench) 8 and National Textile Corporation Ltd.
v. Nareshkumar Badrikumar Jagad (2-Judge Bench)9, a
question of law can be raised at any stage.
(ii) It is urged that the original plaintiff (Gopalakrishnan) lacked
a cause of action. Since the suit was filed while Pounammal
was alive, even if his right is termed as ‘vested ’, the same
does not become enforceable till her death. In other words, till
2004 no right stood accrued in favour of the plaintiff. Reference

8 [1950] 1 SCR 852

9 [2011] 14 SCR 472 : (2011) 12 SCC 695
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was made to Fateh Bibi v. Char̥an Dass (3-Judge Bench)10.

Further, upon such rights having accrued, no application
to amend the plaint was filed. Any which way, if he had by
amendment, sought the relief of possession, it would be as
if an entirely new cause of action is sought to be introduced
amounting to substitution, which ought not to be allowed.
Reference was made to M/s Ganesh Trading Co. v. Moji
Ram (2-Judge Bench)11.
(iii) As per Section 34 of the Specific Relief Act, 196312 the declaration
of a right or status is a matter of discretion. However, the proviso
restricts the application of such discretion in terms that it is not
to be exercised when the complainant seeks only a declaration
of title when he is able to seek further relief. Reference is made
to Ram Saran & Anr. v. Ganga Devi (3-Judge Bench)13, Vinay
Krishna v. Keshav Chandra & Anr. (3-Judge Bench)14 and
UOI v. Ibrahim Uddin (2-Judge Bench)15.
(iv) It is submitted that Article 65 Explanation (a) read with Section
27 of the Limitation Act, 1963 hits the right of Gopalkrishnan.
Succession to the estate only accrues on the death of the life
estate holder which was in 2004. Till date, no suit stands filed.
The learned senior counsel relied on Goplakrishna (Dead)
Through LRs v. Narayanagowda(Dead) Through LRs(2-
Judge Bench)16.
(v) It is argued that the right of Saroja created as per the First
Settlement Deed was in fact a contingent interest. It states that
if Munusamy has a male heir then one half will belong to him
and Saroja will get the other half after the life of Raghavulu
and Munusamy. Therefore, on her death in 1951, her interest
was spes successionis i.e. it did not achieve concrete form
and is only an expectation of succeeding. The contingency

10 [1970] 3 SCR 953 : (1970) 1 SCC 658

11 [1978] 2 SCR 614 : (1978) 2 SCC 91
12 “SRA, 1963”
13 (1973) 2 SCC 60
14 (1993) Supp 3 SCC 129
15 [2012] 8 SCR 35 : (2012) 8 SCC 148
16 [2019] 6 SCR 382 : (2019) 4 SCC 592
[2024] 2 S.C.R.  337

Vasantha (Dead) Thr. Lr. v. Rajalakshmi @ Rajam (Dead) Thr.Lrs.

upon which Saroja’s interest rests is two-fold; Munusamy

either having or not having children. If he does, they would
get half share; if he doesn’t then two eventualities exist: half
of Munusamy’s share goes to Saroja upon his death, and the
other half after the life interest of Pavunammal is exhausted,
goes to Saroja, the remainder woman. Reliance is placed on
Harmath Kaur v. Inder Bahadur Singh17. Further, reliance is
placed on Mahadeo Prasad Singh18 to state that when there
is an expectation simpliciter of succession, neither a transfer
nor a contract to transfer is permissible.
B. RESPONDENTS
(i) The fact that the First Settlement Deed was acted upon i.e.
the rights given to two sons of Thayammal were returned to
her by a subsequent deed in 1952, shows that the first one
gave rights in presenti. Therefore, in Saroja rests a ‘vested ’
right as per Section 19 of the Transfer of Property Act, 188219,
a vested right once accrued cannot be defeated by the death
of the transferee prior to possession. Reference is made to
Sreenivasa Pai v. Saraswathi Ammal (2-Judge Bench) 20.
(ii) The Second Settlement Deed reverting the life interest awarded
to the two sons only gives Thayammal a life interest and
therefore subsequent settlement deeds were non est in law
and thus need not be challenged.
(iii) So far as the non-seeking of relief within twelve years is
concerned, it is submitted that the possession of the property was
only available to Gopalkrishnan upon the death of Pavunammal
(in 2004). Since a suit is pending, the limitation for seeking
possession is arrested. The plea of adverse possession will be
applicable only if the possession with the opposing party had
become adverse on the date of the plaint. The learned counsel
relies on Tribhuvan Shankar v. Amrutlal (2-Judge Bench) 21.

17 AIR 1922 PC 403

18 AIR 1931 PC 1989
19 “TPA”
20 [1985] Supp. 2 SCR 122 : (1985) 4 SCC 85
21 [2013] 12 SCR 368 : (2014) 2 SCC 788
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(iv) The enjoyment of the property bequeathed on Raghavulu

and Munusamy was in the nature of life interest. The Second
Settlement Deed, therefore, is hit by Section 6(d) of TPA. They
cannot convey a better title than they have received.
(v) None of the conditions mentioned in Section 126, TPA for
revocation/suspension of settlement are met in the present
case, meaning thereby that the settlement cannot be revoked.
(vi) Since the title to the properties stood vested in Saroja,
Gopalakrishnan had cause of action to file a suit for declaration.
The reason for filing of the suit in 1993 is a settlement deed
executed by Pavunammal in favour of Vasantha. Since the
former was alive the suit was filed without seeking the relief
of possession. It is submitted that the proviso uses the term
‘further relief’ which implies that such relief had to be available
on the date of filing the plaint which it was not as possession
rested with Pavunammal therefore, a suit only for declaration
was maintainable on the date of filing.
(vii) Reliance on Section 213 of the Indian Succession Act, 1925 is
misconceived as the same is only applicable to wills covered
by Section 57 (a) and (b) of the said Act i.e wills executed
within the local limits of the civil jurisdiction of the High Courts
of Bombay and Madras.
QUESTIONS FOR OUR CONSIDERATION
11. Various contentions have been canvassed by either party to the
dispute. However, if this Court is to decide those issues, two questions
must be considered at the threshold. They are:-
(i) Whether Gopalakrishnan’s suit for declaration based on the
First Settlement Deed, eventually filed in the year 1993 barred
by limitation?
(ii) Whether the suit for declaration simpliciter was maintainable
in view of Section 34 of the SRA, 1963?
To emphasise, we restate that if the answer to the aforementioned
questions is in the affirmative, we need not refer to the other
contentions raised across the bar.
[2024] 2 S.C.R.  339

Vasantha (Dead) Thr. Lr. v. Rajalakshmi @ Rajam (Dead) Thr.Lrs.

ANALYSIS & CONSIDERATION

ISSUE 1
12. The provisions of the Limitation Act, 1963 relevant to the instant
dispute, i.e, Section 27 and Articles 58 and 65 of the First Schedule
to the Act, are reproduced hereinbelow for ready reference:-
“27. Extinguishment of right to property.—At the
determination of the period hereby limited to any person
for instituting a suit for possession of any property, his
right to such property shall be extinguished.

Art. Description Period Time from

of suit of which period
limitation begins to run
58. To obtain any other Three When the right
declaration. years to sue first
accrues.
65. For possession of Twelve When the
immovable property years possession of
or any interest the defendant
therein based on becomes
title. adverse to the
plaintiff.
Explanation.- For the purposes of this article--
(a) Where the suit is by a remainderman, a
reversioner (other than a landlord) or a
devisee, the possession of the defendant
shall be deemed to become adverse only
when the estate of the remainderman,
reversioner or devisee, as the case may be,
falls into possession;…”
13. We notice that before us, are different interpretations of when the
limitation period would expire thereby making the possession of the suit
property, hostile to the rights supposedly vesting in Gopalakrishnan,
as the heir of Saroja upon whom, the First Settlement Deed vested
a right in the property. The learned Trial Court observed that, given
the contention of the original plaintiff (Gopalakrishnan) that the
340 [2024] 2 S.C.R.

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Second Settlement Deed was invalid, he ought to have challenged

the transfer caused thereby within 12 years of such date. Further, it
was observed that another possibility of challenge arose in 1974 when
Munasamy executed a settlement deed in favour of Vasantha and
subsequently in 1976, when another deed was executed in favour of
his wife, Pavanuaamal, his daughter. On both these occasions, the
heir of the alleged vested interest of Saroja, was silent. Therefore, on
both counts the suit filed by Gopalakrishnan was barred by limitation.
The First Appellate Court agreed with this reasoning.
14. On the other hand, the learned senior counsel for the Appellants
has contended, if at all, Gopalakrishnan has a right in the disputed
property, then the period of limitation for establishing the adverse
possession of Vasantha began in the year 2004 upon the death of
the life estate holder i.e, Pavanuaamal, then by 2016 Vasantha had
perfected the title by adverse possession. Since no suit for recovery
of possession stands filed till date, Gopalakrishnan’s claim today is
barred by limitation.
15. The question before us is, from when will the period of limitation run,
for Gopalakrishnan to stake a claim on the properties?
16. If the period of limitation is to run from the date of the Second
Settlement Deed, then the rights should be extinguished in 1964. If
the same were to run from either 1974 or 1976, then after 1986 or
1988 respectively, Gopalakrishnan had no right in the property on
the plea of adverse possession.
17. We notice that this Court in Gopalakrishna (supra) had observed
that a reversioner ordinarily must file a suit for possession within 12
years from the death of the limited heir or widow. That metric being
applied to the instant facts, it is after the death of Pavunammal,
that the reversioner, or in this case the heir of the reversioner
(Gopalakrishnan) ought to have filed the suit. The suit, the subject
matter of appeal before us is a suit for declaration simpliciter and not
possession. So, the possession still rests with heir of Pavunammal.
The twelve-year period stood expired in 2016 (with the death of
Pavanummal in the year 2004) therefore, in our considered view,
the suit is barred by limitation, which was filed in 1993.
18. The learned counsel for the respondents contended that since the
suit stood filed in respect of the property, the clock for adverse
[2024] 2 S.C.R.  341

Vasantha (Dead) Thr. Lr. v. Rajalakshmi @ Rajam (Dead) Thr.Lrs.

possession stopped ticking. He relied on Tribhuvanshankar (supra)

to buttress this claim.
19. A perusal of the said decision shows a reference has been made
to Sultan Khan v. State of MP22 to hold that if a suit for recovery of
possession has been filed then the time period for adverse possession
is arrested. The instant decision is distinguishable from the current
set of facts on two grounds: one, that the holding of the Madhya
Pradesh High Court was in respect of Section 248 of the MP Land
Revenue Code and had been referenced in an appeal arising from
the State of MP itself; two, in the present facts, Gopalakrishnan has
filed only a suit for declaration and not one for possession. The said
declaration suit was filed in the year 1993. It was after the death of
Pavunammal (in 2004) that the relief of possession became available
to him. However, no such relief has been claimed. This decision does
not in any way support the claim of the respondents.
20. In Saroop Singh v. Banto (2-Judge Bench) 23, this Court observed
that Article 65 states that the starting point of limitation does not
commence from the date when the right of ownership arises to the
plaintiff but commences from the date the defendant’s possession
becomes adverse. Further relying on Karnataka Board of Wakf
v. Govt. of India (2-Judge Bench) 24, it observed that the physical
fact of exclusive possession and the animus possidendi to hold
as owner in exclusion to the actual owner are the most important
factors that are to be accounted in cases related to adverse
possession. Plea of adverse possession is not a pure question of
law but a blend of fact and law. Therefore, a person who claims
adverse possession should show : (a) on what date he came into
possession; (b) what was the nature of his possession; (c) whether
the factum of possession was known to the other party; (d) how
long his possession has continued; and (e) his possession was
open and undisturbed. A person pleading adverse possession has
no equities in his favour. Since he is trying to defeat the rights of
the true owner, it is for him to clearly plead and establish all facts
necessary to prove his adverse possession.

22 1991 MP LJ 81
23 [2005] Supp. (4) SCR 253 : (2005) 8 SCC 330
24 [2004] Supp. (1) SCR 255 : (2004) 10 SCC 779
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21. This Court in Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai

Harijan (2-Judge Bench) 25, reiterating the observations made in
P.T. Munichikkanna Reddy v. Revamma (2-Judge Bench) 26 in
respect of the concept of adverse possession observed that efficacy
of adverse possession law in most jurisdictions depends on strong
limitation statutes by operation of which, right to access the court
expires through efflux of time. As against the rights of the paper-
owner, in the context of adverse possession, there evolves a set of
competing rights in favour of the adverse possessor who has, for
a long period of time, cared for the land, developed it, as against
the owner of the property who has ignored the property. Modern
statutes of limitation operate, as a rule, not only to cut off one’s
right to bring an action for the recovery of property that has been in
the adverse possession of another for a specified time but also to
vest the possessor with title. The intention of such statutes is not to
punish one who neglects to assert rights but to protect those who
have maintained the possession of property for the time specified
by the statute under a claim of right or colour of title.
22. In Bharat Barrel and Drum Mfg. Co. Ltd. v. ESI Corpn.27, (2-Judge
Bench) while discussing the object of Limitation Act, this Court
opined that:
“ ….The law of limitation appertains to remedies because
the rule is that claims in respect of rights cannot be
entertained if not commenced within the time prescribed
by the statute in respect of that right. Apart from Legislative
action prescribing the time, there is no period of limitation
recognised under the general law and therefore any time
fixed by the statute is necessarily to be arbitrary. A statute
prescribing limitation however does not confer a right of
action nor speaking generally does not confer on a person
a right to relief which has been barred by efflux of time
prescribed by the law. The necessity for enacting periods
of limitation is to ensure that actions are commenced
within a particular period, firstly to assure the availability

25 [2008] 13 SCR 818 : (2009) 16 SCC 517

26 [2007] 5 SCR 491 : (2007) 6 SCC 59
27 [1972] 1 SCR 867 : (1971) 2 SCC 860
[2024] 2 S.C.R.  343

Vasantha (Dead) Thr. Lr. v. Rajalakshmi @ Rajam (Dead) Thr.Lrs.

of evidence documentary as well as oral to enable the

defendant to contest the claim against him; secondly to
give effect to the principle that law does not assist a person
who is inactive and sleeps over his rights by allowing
them when challenged or disputed to remain dormant
without asseting them in a court of law. The principle which
forms the basis of this rule is expressed in the maximum
vigilantibus, non dermientibus, jura subveniunt (the laws
give help to those who are watchful and not to those who
sleep). Therefore the object of the statutes of limitations
is to compel a person to exercise his right of action within
a reasonable time as also to discourage and suppress
stale, fake or fraudulent claims While this is so there are
two aspects of the statutes of limitation the one concerns
the extinguishment of the right if a claim or action is not
commenced with a particular time and the other merely bare
the claim without affecting the right which either remains
merely as a moral obligation or can be availed of to furnish
the consideration for a fresh enforceable obligation. Where
a statute, prescribing the limitation extinguishes the right,
it affects substantive rights while that which purely pertains
to the commencement of action without touching the right
is said to be procedural.…”
(Emphasis Supplied)
23. Part III of the Schedule to the Limitation Act details the time period
within which the declarations may be sought for: (a) declaration of
forgery of an instrument either issued or registered; (b) declaring
an adoption to be invalid or never having taken place; and (c) to
obtain any other declaration. Point (c) or in other words Article 58
governs the present dispute. This Court has in Shakti Bhog Food
Industries Ltd. v. Central Bank of India 28, (3-Judge Bench)
taken note of Article 58 of the Limitation Act 1963 vis-a-vis Article
113(Any suit for which no period of limitation stands provided in
the Schedule) and observed that the right to sue accrues ‘from
the date on which the cause of action arose first’. In the present
case, the suit for declaration was filed in 1993. This implies that the

28 [2020] 6 SCR 538 : (2020) 17 SCC 260

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cause of action to seek any other declaration i.e. a declaration of

Gopalakrishnan in the property, should have arisen only in the year
1990. There is nothing on record to show any cause of action having
arisen at this point in time. The possible causes of action would be
at the time of the Second Settlement Deed (1952) or Munusamy’s
deed of settlement in favour of Pavunammal(1976) or at the time of
Pavunammal’s vesting of the property in favour of Vasantha (1993)
or at the death of Pavunammal (2004) where apart from declaration,
he ought to have sought the relief of possession as well. It is clear
from the record that on no such possible occasion, a declaration
was sought, much less within the stipulated period of three years.
ISSUE II
24. We now proceed to examine whether the suit for declaration simpliciter
was maintainable in view of Section 34 of the SRA, 1963.
25. Section 34 reads as:
34. Discretion of Court as to declaration of status or
right.-
Any person entitled to any legal character, or to any right
as to any property, may institute a suit against any person
denying, or interested to deny, his title to such character
or right, and the Court may in its discretion make therein
a declaration that he is so entitled, and the plaintiff need
not in such suit ask for any further relief:
Provided that no Court shall make any such declaration
where the plaintiff, being able to seek further relief than
a mere declaration of title, omits to do so.
(Emphasis Supplied)
26. The learned senior counsel for the appellant has contended that it
has been settled by the Courts below that the appellant has been
in possession of the subject property since 1976. In view of the
proviso to Section 34, the suit of the plaintiff could not have been
decreed since the plaintiff sought for mere declaration without the
consequential relief of recovery of possession.
27. The learned counsel for the Respondent, in rebuttal, contended that
since at the time of filing of the suit, the life interest holder was alive,
she was entitled to be in possession of the property and therefore,
[2024] 2 S.C.R.  345

Vasantha (Dead) Thr. Lr. v. Rajalakshmi @ Rajam (Dead) Thr.Lrs.

the Plaintiff not being entitled to possession at the time of institution

of the suit, recovery of possession could not have been sought.
28. We now proceed to examine the law on this issue. As submitted by
the learned senior counsel for the Appellant, in Vinay Krishna v.
Keshav Chandra (2-Judge Bench)29, this Court while considering
Section 42 of the erstwhile Specific Relief Act, 1877 to be pari materia
with Section 34 of SRA, 1963 observed that the plaintiff’s not being
in possession of the property in that case ought to have amended
the plaint for the relief of recovery of possession in view of the bar
included by the proviso.
29. This position has been followed by this Court in Union of India v.
Ibrahim Uddin (2-Judge Bench)30, elaborated the position of a suit
filed without the consequential relief. It was observed:
“55. The section provides that courts have discretion as
to declaration of status or right, however, it carves out an
exception that a court shall not make any such declaration
of status or right where the complainant, being able to seek
further relief than a mere declaration of title, omits to do so.
56. In Ram Saran v. Ganga Devi [(1973) 2 SCC 60] this
Court had categorically held that the suit seeking for
declaration of title of ownership but where possession
is not sought, is hit by the proviso of Section 34 of the
Specific Relief Act, 1963 and, thus, not maintainable. In
Vinay Krishna v. Keshav Chandra [1993 Supp (3) SCC
129] this Court dealt with a similar issue where the plaintiff
was not in exclusive possession of property and had filed
a suit seeking declaration of title of ownership. Similar
view has been reiterated observing that the suit was not
maintainable, if barred by the proviso to Section 34 of the
Specific Relief Act. (See also Gian Kaur v. Raghubir Singh
[(2011) 4 SCC 567)
57. In view of the above, the law becomes crystal clear
that it is not permissible to claim the relief of declaration
without seeking consequential relief.

29 1993 Supp (3) SCC 129

30 [2012] 8 SCR 35 : (2012) 8 SCC 148
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58. In the instant case, the suit for declaration of title of

ownership had been filed, though Respondent 1-plaintiff
was admittedly not in possession of the suit property. Thus,
the suit was barred by the provisions of Section 34 of the
Specific Relief Act and, therefore, ought to have been
dismissed solely on this ground. The High Court though
framed a substantial question on this point but for unknown
reasons did not consider it proper to decide the same.”
30. In Venkataraja and Ors. v. Vidyane Doureradjaperumal (Dead)
thr. LRs (2-Judge Bench) 31, the purpose behind Section 34 was
elucidated by this Court. It was observed that the purpose behind
the inclusion of the proviso is to prevent multiplicity of proceedings.
It was further expounded that a mere declaratory decree remains
non-executable in most cases. This Court noted that the suit was
never amended, even at a later stage to seek the consequential relief
and therefore, it was held to be not maintainable. This position of law
has been reiterated recently in Akkamma and Ors. v. Vemavathi
and Ors. (2-Judge Bench) 32.
31. This Court in Executive Officer, Arulmigu Chokkanatha Swamy
Koil Trust, Virudhunagar v. Chandran and Others (2-Judge
Bench) 33 while reversing the High Court decree, observed that
because of Section 34 of the SRA, 1963, the plaintiff not being in
possession and claiming only declaratory relief, ought to have claimed
the relief of recovery of possession. It was held that the Trial Court
rightly dismissed the suit on the basis that the plaintiff has filed a
suit for a mere declaration without relief for recovery, which is clearly
not maintainable.
32. That apart, it is now well settled that the lapse of limitation bars
only the remedy but does not extinguish the title. Reference may be
made to Section 27 of the Limitation Act. This aspect was overlooked
entirely by the High Court in reversing the findings of the Courts
below. It was not justified for it to have overlooked the aspect of
limitation, particularly when deciding a dispute purely civil in nature.

31 [2013] 5 SCR 814 : (2014) 14 SCC 502

32 [2021] 10 SCR 1187 : 2021 SCC Online SC 1146
33 [2017] 5 SCR 473 : (2017) 3 SCC 702
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Vasantha (Dead) Thr. Lr. v. Rajalakshmi @ Rajam (Dead) Thr.Lrs.

33. Adverting to the facts of the present case, on a perusal of the plaint,
it is evident that the plaintiff was aware that the appellant herein was
in possession of the suit property and therefore it was incumbent
upon him to seek the relief which follows. Plaintiff himself has stated
that defendant no. 1 was in possession of the subject property and
had sought to transfer possession of the same to defendant no.2,
thereby establishing that he himself was not in possession of the
subject property. We are not inclined to accept the submission of
the learned counsel for the respondent on this issue. We note that
after the death of the life-estate holder in 2004, there was no attempt
made by the original plaintiff to amend the plaint to seek the relief of
recovery of possession. It is settled law that amendment of a plaint
can be made at any stage of a suit34, even at the second appellate
stage35.
34. In view of the above, the second issue is answered in the favour of
the Appellants herein and against the Respondent.
CONCLUSION
35. As evidenced from the discussion hereinabove, the judgment
impugned before us fails scrutiny at the threshold stage itself, i.e.
on limitation as also maintainability of the suit. This being the case,
the judgment of the Trial Court in O.S. No. 726 of 1993 as also the
First Appellate Court in S.C. Appeal Suit 47/99 FTC-II Appeal Suit
113/2002 which dismissed the suit of Gopalkrishnan on the grounds
of limitation cannot be faulted with.
36. The impugned judgment in Second Appeal No. 1926 of 2004 dated
27th September 2012 titled as Gopalakrishnan & Anr. v. Vasantha
& Ors. is set aside. The appeal is allowed in the above terms.
Pending application(s) if any, shall stand disposed of. The holding in
the judgments of the Learned Trial Court as also the First Appellate
Court are restored.

Headnotes prepared by: Ankit Gyan Result of the case:

Appeal allowed.

34 Harcharan v. State of Haryana, (1982) 3 SCC 408 (2-Judge Bench)

35 Rajender Prasad v. Kayastha Pathshala, (1981) Supp 1 SCC 56 (2-Judge Bench)
 [2024] 2 S.C.R. 348 : 2024 INSC 115

Chatrapal
v.
The State of Uttar Pradesh & Anr.
(Civil Appeal No. 2461 of 2024)
15 February 2024
[B.R. Gavai and Prashant Kumar Mishra,* JJ.]

Issue for Consideration

Inquiry Officer found that the charges levelled against the appellant
were duly established. Inquiry report was accepted and the
appellant was dismissed from service. Whether the dismissal of
the appellant was justified and was the High Court justified in
upholding the same.

Headnotes
Service Law – Findings recorded by Inquiry Officer – Interference
– Scope – Appellant appointed as Ardly (a class IV Post) in the
Bareilly Judgeship was later transferred and posted as Process
Server however, was being paid the salary of Ardly – Aggrieved,
appellant made representations – Appellant was subjected to
departmental inquiry on charges of misconduct, insubordination
alleging that he used inappropriate, derogatory and objectional
language and made false allegations against various higher
officials; and had sent the representations directly to the High
Court and Chief Minister/Minister without routing the same
through proper channel – Inquiry Officer found that the charges
levelled against the appellant were established – Appellant
dismissed – Dismissal upheld by High Court – Correctness:
Held: Finding of making false statement and allegation in his
representation not borne out from the record – Since, this finding
is the fulcrum of the reasoning to hold that charge no.1 is proved,
this finding in the inquiry report is perverse – Ordinarily the
findings recorded by the Inquiry Officer should not be interfered
by the appellate authority or by the writ court – However, when
the finding of guilt recorded by the Inquiry Officer is based on
perverse finding the same can always be interfered – Further,

* Author
[2024] 2 S.C.R.  349

Chatrapal v. The State of Uttar Pradesh & Anr.

Class-IV employee, when in financial hardship, may represent

directly to the superior but that by itself cannot amount to major
misconduct for which punishment of termination from service should
be imposed – Impugned judgment of the High Court as well as the
order terminating the appellant from service, set aside – Appellant
reinstated with all consequential benefits. [Paras 9, 11-13]

Case Law Cited

Union of India v. P. Gunasekaran, [2014] 13 SCR 1312 :
(2015) 2 SCC 610; State of Haryana v. Rattan Singh,
(1977) 2 SCC 491; Chennai Metropolitan Water Supply
and Sewerage Board v. T.T. Murali Babu, [2014] 1 SCR
987 : (2014) 4 SCC 108 – relied on.
Sawai Singh v. State of Rajasthan, [1986] 2 SCR 957 :
AIR 1986 SC 995; Santosh Bakshi vs. State of Punjab,
[2014] 6 SCR 138 : AIR 2014 SC 2966 – referred to.

List of Acts
U.P. Government Servant Conduct Rules.

List of Keywords
Class-IV employee; Departmental inquiry; Inquiry Officer; Dismissal;
Misconduct; Insubordination; Finding of guilt; Perverse findings;
Financial hardship; Termination from service; Reinstatement;
Consequential benefits.

Case Arising From

CIVIL APPELLATE JURISDICTION : Civil Appeal No.2461 of 2024
From the Judgment and Order dated 08.01.2019 of the High Court
of Judicature at Allahabad in WPC No. 297 of 2008

Appearances for Parties

P. K. Dey, Sr. Adv., Ms. Shilpi Dey Auditya, Ms. Shehla Chaudhary,
Md. Anas Chaudhary, Sumit Kumar Sharma, Subart, Ansar Ahmad
Chaudhary, Advs. for the Appellant.
Tanmaya Agarwal, Wrick Chatterjee, Ms. Aditi Agarwal, Vinayak
Mohan, Advs. for the Respondents..
350 [2024] 2 S.C.R.

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Judgment / Order of the Supreme Court

Judgment

Prashant Kumar Mishra, J.

Leave granted.
2. The present appeal, by special leave, is directed against the judgment
and order dated 08.01.2019 passed by the High Court of Judicature
at Allahabad in Writ Petition (C) No. 297 of 2008, whereby the High
Court has dismissed the petition of the appellant being devoid of merit.
3. The facts, briefly stated, are that the appellant was appointed on
permanent basis on the post of Ardly (a class IV Post) in the Bareilly
Judgeship. The appellant was transferred and posted as Process
Server in the Nazarat of outlying court of Baheri, District Bareilly on
24.08.2001. In compliance of the transfer order, the appellant joined
the Nazarat Branch in Baheri, District Bareilly as Process Server on
31.08.2001 but he was being paid the remuneration of Ardly.
3.1 Being aggrieved, the appellant made a representation on
20.01.2003 to the District Judge to pay the salary due to the post
of Process Server. The said representation was duly considered
by the competent authority and a report from the Munsarim in
the office of Civil Judge, Baheri, Bareilly was called for. As per
the report of Munsarim dated 27.02.2003, the appellant joined
the post of Process Server in the Court of Civil Judge, Baheri,
Bareilly on 31.08.2001 and since then is working on the said
post. Allegedly, after submission of the said report, the Central
Nazir started harassing the appellant and demanded illegal
amount of gratification for settling his dues.
3.2 Since the grievance of the appellant was not being redressed,
he made a representation dated 05.06.2003 to the Janapad
Nyaayaadeesh inter alia stating that he is deprived of the
allowance that is admissible to the incumbents who are posted at
an outlying court as Process Server. It is further stated that when
the appellant went to meet the Central Nazir on 04.06.2003,
he demanded bribe to get his work done. The District Judge,
Bareilly sought an explanation from the Central Nazir, Bareilly
Judgeship who in turn admitted that by mistake the salary of
the appellant has been shown as against the post of Ardly,
[2024] 2 S.C.R.  351

Chatrapal v. The State of Uttar Pradesh & Anr.

however, he denied having demanded illegal gratification from

the appellant.
3.3 The District Judge placed the appellant under suspension vide
order dated 21.06.2003 and initiated a departmental inquiry.
The Inquiry Officer vide memorandum dated 22.08.2003
served the charge sheet on the appellant on the charges
firstly, the appellant vide communication dated 05.06.2003 had
used inappropriate, derogatory and objectionable language
and made false allegations against the officers including the
District Judge as well as against the Presiding Officer of Aonla
Court and secondly, the appellant communicated letters and
representations to the Registrar General of High Court and
other officials of the State Government including the then Chief
Minister without routing the same through proper channel. The
Inquiry Officer, upon completion of enquiry, recorded in his report
dated 21.04.2006 that the charges levelled against the appellant
are duly established. The District Judge, Bareilly accepted the
inquiry report dated 21.04.2006 and vide order dated 30.04.2007
dismissed the appellant which was challenged in appeal before
the High Court and the same was dismissed vide order dated
19.09.2007 being devoid of any substance while affirming the
order dated 30.04.2007 passed by the Disciplinary Authority
imposing punishment of dismissal.
3.4 Being aggrieved by the order dated 19.09.2007 passed by
the Administrative Judge of the High Court of Allahabad, the
appellant filed the Writ Petition (C) No. 297 of 2008 before the
High Court which attained the same fate as that of the appeal.
Hence, the present appeal.
4. Learned counsel for the appellant would submit that the first
charge, in particular, is vague as no finding has been recorded by
the Inquiry Officer with regard to the allegations made in the letter
dated 05.06.2003 against the officials. Learned counsel would further
submit that if it is presumed that the language used in the complaint
constitutes flagrant breach of Rule 3 of the U.P. Government Servant
Conduct Rules, the quantum of punishment imposed on the appellant
is not commensurate to the guilt. Learned counsel for the appellant
next submits that the appellant was not supplied copy of various
documents including proposed evidence and thus he was prejudiced.
352 [2024] 2 S.C.R.

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It is lastly argued that the findings of guilt recorded by the enquiry

officer is perverse.
In support of his submissions, learned counsel for the appellant has
placed reliance on the decisions of this Court rendered in ‘Sawai
Singh vs. State of Rajasthan’1 and ‘Santosh Bakshi vs. State of
Punjab2’
5. On the contrary, the learned counsel for the High Court would submit
that the appellant is habitual of making false allegations against the
senior officers including the District Judge and the charges framed
against him are specific and definite and not vague.
6. We have heard learned counsel for the parties at length and perused
the case papers.
7. The appellant was subjected to the departmental inquiry on two charges
of misconduct and insubordination. For the first charge, it was alleged
that he used inappropriate, derogatory and objectional language and
made false allegations against the Central Nazir and higher officials and
earlier also he had lodged a false report against the Presiding Officer of
Aonla Court. For the second charge, he allegedly sent a representation
dated 05.06.2003 to the Registrar General of the High Court and
Harijan Society Welfare Minister as also to the Chief Minister without
using the proper channel and without permission of the Head of the
Department.
8. The Inquiry Officer has found both the charges to be proved. In
the discussion with respect to the first charge, it is mentioned in
the inquiry report that the appellant’s statement in his letter dated
05.06.2003 that he met the Central Nazir, Bareilly number of times
between 24.08.2001 to 15.01.2003 is false because from the order
dated 21.06.2003 of the District Judge, Bareilly it is clear that the
Central Nazir took charge at Bareilly on 23.07.2002, therefore, he
could not have met the Central Nazir, Bareilly before 23.07.2002.
9. However, the finding of the Inquiry Officer that the appellant’s
statement in his application dated 05.06.2003 that he met the
Central Nazir number of times between 24.08.2001 to 15.01.2003

1 [1986] 2 SCR 957 : AIR 1986 SC 995

2 [2014] 6 SCR 138 : AIR 2014 SC 2966
[2024] 2 S.C.R.  353

Chatrapal v. The State of Uttar Pradesh & Anr.

is not reflected in appellant’s representation. In fact, the application

dated 05.06.2003 was addressed to the Janapad Nyaayaadeesh
and the relevant statement is that the applicant met the addressee
i.e. Janapad Nyaayaadeesh number of times between 24.08.2001 to
15.01.2003. There is no statement that he met the Central Nazir during
this period. In respect of meeting the Central Nazir, his statement
is that he met him on 04.06.2003. Thus, the finding of making false
statement and allegation in his representation dated 05.06.2003 is
not borne out from the record. Since, this finding is the fulcrum of
the reasoning to hold that charge no. 1 is proved, in our considered
view, this finding in the inquiry report is perverse.
10. Insofar as the allegation that the appellant made false allegations
of discrimination on caste basis, it is significant to notice that the
appellant himself has not made any such allegation in his letter
dated 05.06.2003. In the said letter, he has stated that it was the
Central Nazir who told him that the District Judge is saying that the
appellant is a Harijan employee, and he hates the people of such
community. Thus, it is clear that the appellant himself has not made
any such allegation against the District Judge but it was the Central
Nazir who made that statement. The Inquiry Officer had referred to
the report of the Central Nazir dated 20.06.2003 which is available
on record. Regarding the above statement, the Central Nazir has
not denied specifically. He has only stated that the charges levelled
by the appellant are false and baseless. The Central Nazir has
neither made any specific denial that he has not demanded illegal
gratification of Rs. 3,000/- from the appellant. Even though, in his
letter dated 05.06.2003, the appellant has made specific allegation
to this effect against the Central Nazir.
11. The charge no. 2 against the appellant concerns directly sending
the representations to the High Court and Hon’ble Chief Minister/
Minister without routing the same through proper channel. In this
regard, it is suffice to observe that Class-IV employee, when in
financial hardship, may represent directly to the superior but that
by itself cannot amount to major misconduct for which punishment
of termination from service should be imposed. Even otherwise, the
appellant has cited examples of other employees of the District Court,
Bareilly who have sent representations directly to the superiors, but
no action has been taken against them.
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12. It is trite law that ordinarily the findings recorded by the Inquiry Officer
should not be interfered by the appellate authority or by the writ court.
However, when the finding of guilt recorded by the Inquiry Officer
is based on perverse finding the same can always be interfered as
held in Union of India vs. P. Gunasekaran3, State of Haryana
vs. Rattan Singh4 and Chennai Metropolitan Water Supply and
Sewerage Board vs. T.T. Murali Babu5. In P. Gunasekaran (supra),
the following has been held by this Court in para nos. 12, 13, 16 & 17:
“12. Despite the well-settled position, it is painfully disturbing
to note that the High Court has acted as an appellate
authority in the disciplinary proceedings, reappreciating
even the evidence before the enquiry officer. The finding
on Charge I was accepted by the disciplinary authority and
was also endorsed by the Central Administrative Tribunal. In
disciplinary proceedings, the High Court is not and cannot
act as a second court of first appeal. The High Court,
in exercise of its powers under Articles 226/227 of the
Constitution of India, shall not venture into reappreciation
of the evidence. The High Court can only see whether:
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure
prescribed in that behalf;
(c) there is violation of the principles of natural
justice in conducting the proceedings;
(d) the authorities have disabled themselves
from reaching a fair conclusion by some
considerations extraneous to the evidence and
merits of the case;
(e) the authorities have allowed themselves to
be influenced by irrelevant or extraneous
considerations;
(f) the conclusion, on the very face of it, is

3 [2014] 13 SCR 1312 : (2015) 2 SCC 610

4 (1977) 2 SCC 491
5 [2014] 1 SCR 987 : (2014) 4 SCC 108
[2024] 2 S.C.R.  355

Chatrapal v. The State of Uttar Pradesh & Anr.

so wholly arbitrary and capricious that no

reasonable person could ever have arrived at
such conclusion;
(g) the disciplinary authority had erroneously failed
to admit the admissible and material evidence;
(h) the disciplinary authority had erroneously
admitted inadmissible evidence which influenced
the finding;
(i) the finding of fact is based on no evidence.
13. Under Articles 226/227 of the Constitution of India,
the High Court shall not:
(i) reappreciate the evidence;
(ii) interfere with the conclusions in the enquiry,
in case the same has been conducted in
accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on
which findings can be based.
(vi) correct the error of fact however grave it may
appear to be;
(vii) go into the proportionality of punishment unless
it shocks its conscience.
16. These principles have been succinctly summed up
by the living legend and centenarian V.R. Krishna Iyer, J.
in State of Haryana v. Rattan Singh [(1977) 2 SCC 491 :
1977 SCC (L&S) 298] . To quote the unparalleled and
inimitable expressions: (SCC p. 493, para 4)
“4. … in a domestic enquiry the strict and sophisticated
rules of evidence under the Indian Evidence Act may
not apply. All materials which are logically probative for
a prudent mind are permissible. There is no allergy to
hearsay evidence provided it has reasonable nexus
and credibility. It is true that departmental authorities
356 [2024] 2 S.C.R.

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and administrative tribunals must be careful in

evaluating such material and should not glibly swallow
what is strictly speaking not relevant under the Indian
Evidence Act. For this proposition it is not necessary
to cite decisions nor textbooks, although we have
been taken through case law and other authorities
by counsel on both sides. The essence of a judicial
approach is objectivity, exclusion of extraneous
materials or considerations and observance of rules
of natural justice. Of course, fair play is the basis
and if perversity or arbitrariness, bias or surrender
of independence of judgment vitiate the conclusions
reached, such finding, even though of a domestic
tribunal, cannot be held good.”
(emphasis supplied)
17. In all the subsequent decisions of this Court up to the
latest in Chennai Metropolitan Water Supply and Sewerage
Board v. T.T. Murali Babu (2014) 4 SCC 108: (2014) 1 SCC
(L&S) 38, these principles have been consistently followed
adding practically nothing more or altering anything.”
13. Having considered the entire material available on record and keeping
in view that the appellant is a Class-IV employee against whom
charge no. 1 was found proved on the basis of perverse finding
and charge no. 2 is only about sending the representation to the
High Court directly without availing the proper channel, we deem it
appropriate to set-aside the impugned judgment of the High Court
as well as the order dated 30.04.2007 whereby the appellant was
terminated from service. Consequently, the appellant is reinstated
in service with all consequential benefits. The appeal is allowed.

Headnotes prepared by: Divya Pandey Result of the case:

Appeal allowed.
 [2024] 2 S.C.R. 357 : 2024 INSC 114

State by the Inspector of Police

v.
B. Ramu
(Criminal Appeal No. 801 of 2024)
12 February 2024
[B.R. Gavai and Sandeep Mehta,* JJ.]

Issue for Consideration

In a case involving recovery of huge quantity of narcotic substance
(232.5 kg of ganja), wherein the Respondent-accused was indicted
as being the conspirator for procurement/supply of the ganja so
recovered, High Court whether justified in granting anticipatory bail
in connection with the FIR registered for the offences punishable
u/ss.8(c), 20(b)(ii)(c) and 29(1), Narcotic Drugs and Psychotropic
Substances Act, 1985.

Headnotes
Narcotic Drugs and Psychotropic Substances Act, 1985 – s.37 –
Code of Criminal Procedure, 1973 – s.438 – Quantity of narcotic
substance seized multiple times the commercial quantity –
Anticipatory bail granted by High Court, satisfaction in terms
of the rider contained in s.37 not recorded – Challenge to:
Held: For entertaining a prayer for bail in a case involving recovery
of commercial quantity of narcotic drug or psychotropic substance,
the Court would have to mandatorily record the satisfaction in terms
of the rider contained in s.37, NDPS Act – In the event, the Public
Prosecutor opposes the prayer for bail either regular or anticipatory,
the Court would have to record a satisfaction that there are grounds
for believing that the accused is not guilty of the offence alleged
and that he is not likely to commit any offence while on bail – In
the present case, High Court not only omitted to record any such
satisfaction, but rather completely ignored the factum of recovery
of narcotic substance (ganja), multiple times the commercial
quantity – In case of recovery of such a huge quantity of narcotic
substance, the Courts should be slow in granting even regular
bail to the accused what to talk of anticipatory bail more so when
the accused is alleged to be having criminal antecedents – High

* Author
358 [2024] 2 S.C.R.

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Court failed to consider that the accused had criminal antecedents

and was already arraigned in two previous cases under the NDPS
Act – Impugned order being cryptic and perverse on the face of
the record is quashed and set aside. [Paras 9-12, 15]

List of Acts
Narcotic Drugs and Psychotropic Substances Act, 1985; Code of
Criminal Procedure, 1973.

List of Keywords
Huge quantity of narcotic substance; Ganja; Anticipatory bail; Bail;
Recovery of commercial quantity of narcotic drug or psychotropic
substance; Multiple times the commercial quantity; Criminal
antecedents.

Case Arising From

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.801
of 2024
From the Judgment and Order dated 25.01.2022 of the High Court
of Judicature at Madras in CRLOP No. 1067 of 2022
Appearances for Parties
V. Krishnamurthy, Sr. A.A.G., D.Kumanan, Mrs. Deepa. S, Sheikh
F. Kalia, Veshal Tyagi, Advs. for the Appellant.
G.Sivabalamurugan, Selvaraj Mahendran, C.Adhikesavan, S.B.
Kamalanathan, Sumit Singh Rawat, P.V. Harikrishnan, Karuppaiah
Meyyappan, Raghunatha Sethupathy B, Ms. Kanika Kalaiyarasan,
Abhishek Kalaiyarasan, Advs. for the Respondent.
Judgment / Order of the Supreme Court

Order
Mehta, J.
1. Heard.
2. This appeal is directed against the order dated 25.01.2022 passed
by the learned Single Judge of the Madras High Court whereby,
the application under Section 438 of Code of Criminal Procedure,
1973 preferred by the respondent-accused in connection with Crime
[2024] 2 S.C.R.  359

State by the Inspector of Police v. B. Ramu

No. 235 of 2021 registered at P.S. Erode Taluk, District-Erode was

allowed and the respondent-accused was granted anticipatory bail
in connection with the aforesaid FIR registered for the offences
punishable under Sections 8(c), 20(b)(ii)(c) and 29(1) of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (hereinafter being
referred to as ‘NDPS Act’).
3. On perusal of the case records, it becomes apparent that on search
of the house of Brinda/A1 and Kesavan/A2, both were found to be
in possession of 232.5 kg of ganja. The respondent-accused herein
was indicted as being the conspirator for procurement/supply of the
ganja so recovered.
4. As per the schedule to the NDPS Act, the commercial quantity
of ganja is 20kg. It is thus not in dispute that the quantity of the
narcotic substance seized in this case is well above commercial
quantity.
5. The learned Public Prosecutor appearing for the State in the
High Court opposed the prayer for grant of anticipatory bail to
the respondent-accused herein. The High Court considered the
application for grant of anticipatory bail and allowed the same in
the following manner:-
“3. The learned counsel appearing for the petitioner
submitted that the petitioner has not committed any
offence as alleged by the prosecution and he has been
falsely implicated in this case. He further submitted that
all the cases were put up cases by the police in order
to implicated him. Further he also submits that all the
accused were arrested and all were released in the
Trial Court in statutory bail. Hence, he prays for grant
of anticipatory bail.
4. The learned Additional Public Prosecutor appearing for
the respondent submitted that 3 previous cases pending
against the petitioner, investigation almost completed.
However, he vehemently opposed to grant anticipatory
bail to the petitioner.
5. Considering the facts and circumstances of the case, this
Court is inclined to grant anticipatory bail to the petitioner
with certain conditions.
360 [2024] 2 S.C.R.

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6. Accordingly, the petitioner is directed to be released on

bail in the event of arrest or on his appearance, within a
period of fifteen (15) days after lifting of lockdown or the
commencement of the Court’s normal functioning whichever
is earlier, before the learned Judicial Magistrate - I, Erode,
on condition that the petitioner shall execute a bond for
a sum of Rs.10,000/- (Rupees Ten Thousand only) with
two sureties, each for a like sum to the satisfaction of the
respondent police or the police officer who intends to arrest
or to the satisfaction of the learned Magistrate concerned,
3/6 https://www.mhc.tn.gov.in/judis Crl.O.P.No.1067 of
2022 failing which, the petition for anticipatory bail shall
stand dismissed and on further condition that:
[a] the petitioner is directed to deposit a sum of Rs.30,000/-
(Rupees Thirty Thousand only) to the credit of the
Registered Tamil Nadu Advocate Clerk Association,
Chennai within a period of two weeks from the date of
receipt of a copy of this order and shall produce the said
receipt before the Court below.
[b] the petitioner and the sureties shall affix their photographs
and Left Thumb Impression in the surety bond and the
Magistrate may obtain a copy of their Aadhar card or Bank
pass Book to ensure their identity.
[c] the petitioner is directed to report before the respondent
police on every Tuesday and Saturday at 10.30 a.m., until
further orders;
[d] the petitioner shall not tamper with evidence or witness
either during investigation or trial.
[e] the petitioner shall not abscond either during investigation
or trial.
[f] On breach of any of the aforesaid conditions, the learned
Magistrate/Trial Court is entitled to take appropriate action
against the petitioner in accordance with law as if the
conditions have been imposed and the petitioner released
on anticipatory bail by the learned Magistrate/Trial Court
himself as laid down by the Hon’ble Supreme Court in
P.K.Shaji vs. State of Kerala [(2005)AIR SCW 5560].
[2024] 2 S.C.R.  361

State by the Inspector of Police v. B. Ramu

[g] If the accused thereafter absconds, a fresh FIR can be

registered under Section 229A IPC.”
6. From the order reproduced supra, it is apparent that the learned Single
Judge totally ignored the submission of the Public Prosecutor that
the respondent-accused was arraigned in three more previous cases
(two of which involve offence under the NDPS Act). Furthermore, the
learned Single Judge also totally ignored the fact that the recovered
ganja was well in excess of the commercial quantity as provided in
the schedule to the NDPS Act.
7. During the course of submissions, learned counsel for the respondent
vehemently and fervently contended that during the intervening
period, the matter has progressed much ahead inasmuch as the
investigation has been concluded and charge-sheet has been filed.
Now the matter is posted for framing of charges against the accused.
8. Section 37 of the NDPS Act deals with bail to the accused charged
in connection with offence involving commercial quantity of a
narcotic drug or psychotropic substance. The provision is reproduced
hereinbelow for the sake of ready reference:-
“[37. Offences to be cognizable and non-bailable.—(1)
Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974),—
(a) every offence punishable under this Act shall be
cognizable;
(b) no person accused of an offence punishable for
[offences under Section 19 or Section 24 or Section
27-A and also for offences involving commercial
quantity] 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.
362 [2024] 2 S.C.R.

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(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 (2 of 1974), or any
other law for the time being in force on granting of bail]”
9. A plain reading of statutory provision makes it abundantly clear that
in the event, the Public Prosecutor opposes the prayer for bail either
regular or anticipatory, as the case may be, the Court would have
to record a satisfaction that there are grounds for believing that the
accused is not guilty of the offence alleged and that he is not likely
to commit any offence while on bail.
10. It is apposite to note that the High Court not only omitted to record
any such satisfaction, but has rather completely ignored the factum of
recovery of narcotic substance (ganja), multiple times the commercial
quantity. The High Court also failed to consider the fact that the
accused has criminal antecedents and was already arraigned in two
previous cases under the NDPS Act.
11. In case of recovery of such a huge quantity of narcotic substance, the
Courts should be slow in granting even regular bail to the accused
what to talk of anticipatory bail more so when the accused is alleged
to be having criminal antecedents.
12. For entertaining a prayer for bail in a case involving recovery of
commercial quantity of narcotic drug or psychotropic substance, the
Court would have to mandatorily record the satisfaction in terms of
the rider contained in Section 37 of the NDPS Act.
13. Manifestly, a very strange approach has been adopted by the learned
Single Judge in the impugned order whereby the anticipatory bail
was granted to the respondent on the condition that the appellant
would deposit a sum of Rs. 30,000/- to the credit of the registered
Tamil Nadu Advocate Clerk Association, Chennai along with various
other conditions. The condition no. [a] (supra) so imposed by the High
Court is totally alien to the principles governing bail jurisprudence
and is nothing short of perversity.
14. The fact that after investigation, the charge-sheet has been filed
against the respondent-accused along with other accused persons,
fortifies the plea of the State counsel that the Court could not have
recorded a satisfaction that the accused was prima facie not guilty
of the offences alleged.
[2024] 2 S.C.R.  363

State by the Inspector of Police v. B. Ramu

15. As a consequence, the impugned order is cryptic and perverse on

the face of the record and cannot be sustained. Thus, the same is
quashed and set aside.
16. The appeal is allowed in these terms.
17. The respondent-accused shall surrender before the learned trial
court within a period of 10 days from today.
18. Pending application(s), if any, shall stand disposed of.

Headnotes prepared by: Divya Pandey Result of the case:

Appeal allowed.
 [2024] 2 S.C.R. 364 : 2024 INSC 117

Deepak Kumar Shrivas & Anr.

v.
State of Chhattisgarh & Ors.
(Criminal Appeal No. 1007 of 2024)
19 February 2024
[Vikram Nath* and Satish Chandra Sharma, JJ.]

Issue for Consideration

Parties levelled counter-allegations against each other of having
extracted money for securing job for their relatives. High Court
whether justified in dismissing the writ petition of the appellant for
quashing the criminal proceedings against him.

Headnotes
Quashing – Parties made allegations against each other of
taking money for providing a job – Respondent no.6 filed FIR
against the appellant – High Court dismissed the writ petition
filed by the appellant for quashing the criminal proceedings
– Correctness:
Held: In the complaint made by the appellant in 2021 an enquiry
was made in which the fact that the respondent no.6 had stated
that she had paid Rs.4 lacs to the appellant for providing a job
to her daughter was recorded – Thus, respondent no.6 was well
aware of the complaint made by the appellant and thus cannot
raise a plea that she had no knowledge of the complaint made by
the appellant – Despite the same she did not lodge any complaint
against the appellant and his brother and waited for more than a
year to lodge the FIR in July, 2022 – According to the allegations
made in the FIR, the job was to be provided by the appellant
within three months of April, 2019 i.e. by July, 2019 – However,
the respondent no.6 did not take any action for a period of three
years till July, 2022 when the FIR in question was lodged – Thus,
the FIR suffers from a serious unexplained delay of three years –
Furthermore, there was totally an unlawful contract between the
parties where money was paid for securing job in the government
department/private sector – Apparently, a suit for recovery could
not have been filed for the said purpose and even if it could be

* Author
[2024] 2 S.C.R.  365

Deepak Kumar Shrivas & Anr. v. State of Chhattisgarh & Ors.

filed, it could be difficult to establish the same where the payment

was entirely in cash – Therefore, the respondent no.6 found out
a better medium to recover the said amount by building pressure
on the appellant and his brother by lodging the FIR – FIR lodged
not for criminal prosecution and for punishing the offender for the
offence committed but for recovery of money under coercion and
pressure – Impugned order set aside, proceeding arising out of
FIR in question quashed. [Paras 11-14, 16, 17]
Administration of Justice – Abuse of process of law– Parties
made allegations against each other of taking money for
providing a job and making false complaints – Police to
exercise heightened caution:
Held: Police should exercise heightened caution when drawn
into dispute pertaining to such unethical transactions between
private parties which appear to be prima facie contentious in light
of previous inquiries or investigations – The need for vigilance on
the part of the police is paramount. [Para 15]

List of Acts
Code of Criminal Procedure, 1973; Constitution of India.

List of Keywords
Quashing; Counter-allegations; Money extracted for securing
job; Police to exercise heightened caution; Resources of the law
enforcement agency; Abuse of process of law.

Case Arising From

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.1007
of 2024
From the Judgment and Order dated 11.07.2023 of the High Court of
Chhattisgarh at Bilaspur in WPCR No. 703 of 2022
Appearances for Parties
Sameer Shrivastava, Dr. Sangeeta Verma, Shivendra Dixit, Advs.
for the Appellants.
Gautam Narayan, Ms. Asmita Singh, Harshit Goel, Sujay Jain,
Sachin Patil, Kailas Bajirao Autade, Sunil Kumar Sethi, Advs. for
the Respondents.
366 [2024] 2 S.C.R.

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Judgment / Order of the Supreme Court

Judgment
Vikram Nath, J.
1. Leave granted.
2. As a law enforcement agency, the police force shoulders the vital
responsibility of preserving public order, guarding social harmony,
and upholding the foundations of justice. However, the current
case, full of counter-accusations of financial impropriety and broken
promises, highlights the complex matters that occasionally make
their way into the hands of the police force. Beyond the immediate
contours of the case, a broader question emerges regarding the
balancing of interests that ought to be done between addressing
unscrupulous private grievances and safeguarding public interests.
From the counter-allegations levelled against each other between the
parties in the present case, it becomes evident that the police finds
itself entangled in the irrelevant and trivial details of such unethical
private issues, diverting the resources away from the pursuit of more
consequential matters. The valuable time of the police is consumed in
investigating disputes that seem more suited for civil resolution. This
underscores the need for a judicious allocation of law enforcement
resources, emphasizing the importance of channelling their efforts
towards matters of greater societal consequence.
3. By means of this appeal, challenge is to the correctness of the
judgment and order dated 11.07.2023 passed by the Division Bench
of the High Court of Chhattisgarh in WPCR No.703 of 2022 dismissing
the writ petition of the appellant for quashing the criminal proceedings
arising out of FIR bearing Crime No.248 of 2022.
4. Relevant facts for deciding the present appeal are as follows:
a) The appellant made a complaint dated 06.04.2021 to the
Collector, District Janjgir-Champa (Chhattisgarh) alleging that the
respondent no.6 (Rajkumari Maravi) had allured the appellant
that she would secure a job for his brother -Raj Kumar Shivas
as she had good contacts with higher officers and demanded
substantial amount for doing this favour. The appellant got
allured and paid Rs.80,000/- cash at the first instance. Later
on an additional demand was made and, according to the
[2024] 2 S.C.R.  367

Deepak Kumar Shrivas & Anr. v. State of Chhattisgarh & Ors.

complaint made by the appellant, he has thereafter deposited

about Rs.20,000/- and odd in different bank accounts, details
of which were provided by respondent no.6. When nothing
happened and no job was provided to his brother, he approached
the respondent no.6 for returning the money paid by him upon
which she threatened him of false implication and later on she
stopped responding to his calls and started avoiding him.
b) The Collector apparently referred the said complaint dated
06.04.2021 to the Superintendent of Police of the District Janjgir-
Champa for enquiry. The enquiry is alleged to be entrusted
by the Superintendent of Police to the Station House Officer,
Police Station Shakti, District Janjgir-Champa. The Station
House Officer made detailed enquiries and also recorded
the statements of the appellant, respondent no.6 and other
persons who were sought to be referred to as witnesses and
ultimately submitted the report to the Superintendent of Police
on 25.07.2021.
c) The report mentioned interesting facts, according to which, both
the parties i.e. appellant and respondent no.6 were accusing
each other of having extracted money for securing job for their
relatives. As already stated, the appellant was trying to secure
a job for his brother whereas, according to respondent no.6, the
appellant had taken about Rs.4 lacs from her for securing a job
for her daughter. In the enquiry it was also found that when no
job was provided by the appellant to her daughter, the appellant
returned some amount by depositing it in her bank account.
Both the parties had alleged that false complaints were being
made against each other. Interestingly when in the enquiry the
Station House Officer required the appellant and respondent
no.6 to produce the relevant documents and also the details
of the call records and recorded conversations, they failed to
provide any such material. Accordingly, it was recommended
that the complaint deserves to be closed.
5. It appears that thereafter the respondent no.6 was successful in
lodging an FIR against the appellant on 27.07.2022, a copy of
which is filed as Annexure P-3. According to the contents of the
FIR, an amount of Rs.4 lacs has been taken by the appellant and
his brother, the other co-accused, for providing a job to the daughter
368 [2024] 2 S.C.R.

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of respondent no.6. The said amount was paid in April, 2019. The
transaction is said to be purely in cash and there are no bank
transactions. Before registering the FIR in this case also an enquiry
was made and a report was submitted to the Sub-Divisional Officer,
who directed for registration of an FIR. In this enquiry it was found
that both parties have made allegations against each other of taking
money for providing a job.
6. The appellant filed a petition under Article 226 of the Constitution
before the High Court of Chhattisgarh for quashing the FIR and the
proceedings arising therefrom. The said petition has since been
dismissed by the impugned order giving rise to filing of the present
appeal.
7. We have heard learned counsel for the parties.
8. Learned counsel for the appellant submitted that on the earlier
occasion upon a complaint submitted by the appellant to the Collector
of the district, an enquiry was conducted in which similar allegations
against each other were made by both the sides which were not
found to be substantiated and, therefore, lodging of the impugned FIR
after about one year of the said enquiry, is mala fide and an abuse
of the process of law. It was further submitted that the impugned FIR
is a counterblast and has been maliciously lodged only to resist the
appellant from recovering the amount paid by him to the respondent
no.6. It is also submitted that the alleged transaction according to
the FIR is of April, 2019 whereas the FIR has been lodged in July,
2022 after more than three years and, therefore, on the ground of
delay, the alleged FIR deserves to be quashed.
9. On the other hand, learned counsel for the State of Chhattisgarh
as also learned counsel for the respondents have submitted that a
cognizable offence was disclosed in the FIR and as such the High
Court has rightly dismissed the petition; the investigation must be
allowed to continue and if ultimately the police report is submitted
under section 173(2) Criminal Procedure Code, 1973 finding the
appellant prima facie guilty of the charge on the basis of the evidence
collected during the investigation, the appellant would have adequate
remedy of assailing the charge sheet and also claiming discharge at
the stage of framing of charges. There is no justification for scuttling
the investigation which may ultimately not only deprive the respondent
no.6 of her hard-earned money but also the offence committed by
[2024] 2 S.C.R.  369

Deepak Kumar Shrivas & Anr. v. State of Chhattisgarh & Ors.

the appellant would go unpunished. It was also submitted that it was

a clear case of cheating as the appellant had deceitfully induced
the respondent no.6 to provide a job to her daughter by taking
huge amount of money and thereafter neither providing the job nor
returning the money.
10. Having heard learned counsel for the parties, we proceed to analyse
the material on record and submissions advanced by the parties.
11. In the complaint made by the appellant in 2021 to the Collector an
enquiry has been made by the Station House Officer of the Police
Station concerned in which the fact that the respondent no.6 had
stated that she had paid Rs.4 lacs to the appellant for providing a job
to her daughter was recorded. This clearly means that respondent
no.6 was well aware of the complaint made by the appellant and in
the enquiry her statement had been actually recorded. The respondent
no.6 therefore cannot raise a plea that she had no knowledge of
the complaint made by the appellant. Despite the same she did not
lodge any complaint against the appellant and his brother and waited
for more than a year to lodge the FIR in July, 2022.
12. According to the allegations made in the FIR, the job was to be
provided by the appellant within three months of April, 2019 i.e. by
July, 2019. However, the respondent no.6 did not take any action for
a period of three years till July, 2022 when the FIR in question was
lodged. Thus, the FIR suffers from a serious delay of three years
which is totally unexplained.
13. A reading of the entire material on record clearly reflects that it was
totally an unlawful contract between the parties where money was
being paid for securing a job in the government department(s) or
private sector. Apparently, a suit for recovery could not have been
filed for the said purpose and even if it could be filed, it could be
difficult to establish the same where the payment was entirely in
cash. Therefore, the respondent no.6 found out a better medium
to recover the said amount by building pressure on the appellant
and his brother by lodging the FIR. Under the threat of criminal
prosecution, maybe the appellant would have tried to sort out and
settle the dispute by shelving out some money.
14. In conclusion, certain key observations from the factual matrix warrant
a closer reflection. Prima facie, the conduct exhibited by the parties
involved appears tainted with suspicion, casting a shadow over the
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veracity of their claims. The report from the previous inquiry reflects
a convoluted landscape and unveils a trail of unethical, maybe even
criminal, behaviour from both parties. The unexplained inordinate
delay in bringing these allegations to the police’s attention despite
knowledge of previous inquiry, raises even more doubts and adds a
layer of scepticism to the authenticity of the claims. The facts stated,
as well as the prior inquiry, reveal a shared culpability between
the parties, indicative of a complex web of deceit, and unethical
transactions where even civil remedies may not be sustainable. Thus,
the object of this dispute, manifestly rife with mala fide intentions of
only recovering the tainted money by coercion and threat of criminal
proceedings, cannot be allowed to proceed further and exploit the
time and resources of the law enforcement agency.
15. As parting suggestions, it becomes imperative to state that the
police should exercise heightened caution when drawn into dispute
pertaining to such unethical transactions between private parties which
appear to be prima facie contentious in light of previous inquiries
or investigations. The need for vigilance on the part of the police is
paramount, and a discerning eye should be cast upon cases where
unscrupulous conduct appears to eclipse the pursuit of justice. This
case exemplifies the need for a circumspect approach in discerning
the genuine from the spurious and thus ensuring that the resources
of the state are utilised for matters of true societal import.
16. For all the reasons recorded above, we are of the view that such
criminal prosecution should not be allowed to continue where
the object to lodge the FIR is not for criminal prosecution and for
punishing the offender for the offence committed but for recovery
of money under coercion and pressure and also for all the other
reasons stipulated above.
17. We, accordingly allow this appeal, and after setting aside the impugned
order passed by the High Court, quash the entire proceedings arising
out of FIR 248 of 2022.

Headnotes prepared by: Divya Pandey Result of the case:

Appeal allowed.
 [2024] 2 S.C.R. 371 : 2024 INSC 119

Chandigarh Housing Board

v.
Tarsem Lal
(Civil Appeal No. 1788 of 2024)
07 February 2024
[B.V. Nagarathna and Augustine George Masih, JJ.]

Issue for Consideration

Whether a notification issued by the appellant-Chandigarh Housing
Board calling for applications from both Schedule Castes and
Scheduled Tribes confer any benefit on the respondent (who
belonged to the Schedule Tribes community as recognised in the
State of Rajasthan and was living in Chandigarh for twenty years)
when there is no Presidential Order u/Art. 342 of the Constitution
of India issued with regard to Scheduled Tribes insofar as Union
Territory of Chandigarh is concerned.

Headnotes
Chandigarh Housing Board (Allotment, Management and Sale
of Tenements) Regulations, 1979 – Reservation – Allotment
of houses – Exclusively for Schedule Castes and Schedule
Tribes – The respondent herein had sought for allotment of
HIG house reserved for Scheduled Tribes category in terms of
the advertisement issued by the appellant-Chandigarh Housing
Board; that being aggrieved by non-allotment of a house, a
suit was filed by the respondent – The suit was decreed by
the Trial Court and judgment and decree was affirmed by the
First Appellate Court as well as in the second appeal by the
High Court – Propriety:
Held: The Presidential notification of a tribe or tribal community as
a Scheduled Tribe by the President of India u/Art. 342 is a sine qua
non for extending any benefits to the said community in any State
or U.T. – This implies that a person belonging to a group that is
recognized as a Scheduled Tribe in a State would be recognized a
Scheduled Tribe only within the said State and not in a U.T. where he
migrates if no such Presidential notification exists in the said U.T. – In
the instant case, merely because the appellant herein had issued a
Notification calling for applications from both Scheduled Castes and
372 [2024] 2 S.C.R.

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Scheduled Tribes did not confer any benefit by that Notification on

the respondent herein when there is no Presidential Order u/Art. 342
of the Constitution of India issued with regard to Scheduled Tribes
insofar as Union Territory of Chandigarh is concerned – The said
basic foundational fact goes against the respondent herein and the
invitation given by the appellant/Housing Board to Scheduled Tribes
was in fact contrary to the said basic tenets as well as the prevalent
law and by that reason, the respondent herein cannot also seek any
estoppel as against the appellant herein – The impugned judgment
of the High Court affirming the judgment of the First Appellate Court,
which in turn affirms the judgment of the Trial Court are all liable to
be set aside. [Paras 26, 31]

Case Law Cited

Bhaiya Lal v. Harikishan Singh, [1965] 2 SCR 877 : AIR
1965 SC 1557; State of Maharashtra v. Milind, [2000]
Suppl. 5 SCR 65 : (2001) 1 SCC 4; Action Committee
on Issue of Caste Certificate to Scheduled Castes and
Scheduled Tribes in the State of Maharashtra vs. Union
of India [1994] Suppl. 1 SCR 714 : (1994) 5 SCC 244
– followed.
Marri Chandra Shekhar Rao vs. Dean, Seth G. S.
Medical College, [1990] 2 SCR 843 : (1990) 3 SCC
130 – relied on.
Bir Singh vs. Delhi Jal Board, [2018] 10 SCR 513 :
(2018) 10 SCC 312; Director, Transport Department,
Union Territory Administration of Dadra and Nagar
Haveli, Silvassa vs. Abhinav Dipakbhai Patel, (2019) 6
SCC 434 – held inapplicable.

List of Acts
Constitution of India; Punjab Reorganization Act, 1966; Chandigarh
Housing Board (Allotment, Management and Sale of Tenements)
Regulations, 1979.

List of Keywords
Advertisement for dwelling units; Reservation; Allotment of
houses exclusively for Schedule Castes and Schedule Tribes;
Presidential Order u/Art. 342; Presidential notification of a tribe
[2024] 2 S.C.R.  373

Chandigarh Housing Board v. Tarsem Lal

or tribal community; Recognition of Scheduled Tribe in a State;

Migration of Schedule Tribe person to another State or Union
Territory; Claim of Schedule Tribe status in another State or
Union Territory.

Case Arising From

CIVIL APPELLATE JURISDICTION : Civil Appeal No.1788 of 2024
From the Judgment and Order dated 10.08.2018 of the High Court of
Punjab & Haryana at Chandigarh in RSA No. 1570 of 1991
Appearances for Parties
Mrs. Rachana Joshi Issar, Svarit Uniyal Mishra, Ms. Nidhi Tewari,
Advs. for the Appellant.
Shivendra Singh, Bikram Dwivedi, Puneett Singhal, Sanjeev
Chaudhary, Advs. for the Respondent.
Judgment / Order of the Supreme Court

Judgment
Leave granted.
2. Being aggrieved by judgment dated 10.08.2018 passed by the High
Court of Punjab and Haryana at Chandigarh, the appellant/Chandigarh
Housing Board has preferred this appeal.
3. Briefly stated, the facts pertinent to the adjudication of the present
appeal are that the appellant herein, vide advertisement dated
28.06.1983, had called for applications for allotment of houses
exclusively for Scheduled Castes and Scheduled Tribes and a total
of 35 houses in the HIG (Upper) and HIG (Lower) categories were
reserved for that purpose. This advertisement was issued pursuant
to Regulation 25 of the Chandigarh Housing Board (Allotment,
Management and Sale of Tenements) Regulations, 1979 which
makes a provision for reservation of 12.5 % of the total number of
dwelling units for Scheduled Castes and Scheduled Tribes. One of
the conditions stipulated for the applicants was that they should be
a domicile of Union Territory (U.T.) of Chandigarh or should have
been a bona fide resident of U.T. of Chandigarh for a period of at
least three years on the date of submission of the application. The
374 [2024] 2 S.C.R.

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respondent submitted his application and the draw of lots was held
on 09.09.1983. The list of successful applicants was published on
12.09.1983 wherein thirty houses were allotted.
4. Due to administrative confusion about the separate reservation for
the Scheduled Tribes within the reserved dwelling units, four houses,
two each in HIG(Upper) and HIG(Lower) categories were kept in
abeyance out of 35 houses since there were only four applicants
from the Scheduled Tribes category. A clarification was sought from
the Chandigarh Administration by the appellant owing to the fact
there was no Scheduled Tribe community which had been notified
by the President of India with regard to U.T. of Chandigarh under
Article 342 even though a notification under Article 341 for the
Scheduled Castes in Chandigarh had been issued. Thus, it was
enquired as to whether the Scheduled Tribes category could be
entitled to a minimum reservation of 5%. In response to the request
of the Appellant, the clarification issued by the Research Officer
to the Finance Secretary of the Chandigarh Administration vide
letter dated 21.09.1983 referred to the Brochure on Reservation for
Scheduled Castes and Scheduled Tribes and noted that even if the
population of the Scheduled Tribe community was less than 5%, a
minimum reservation of 5% could be made even for the Scheduled
Tribes in respect of all built houses/dwelling units. Being aggrieved
by the non-allotment of a house, the respondent-plaintiff approached
the civil Court.
5. The respondent instituted Civil Suit No. 327/1984 in the Court
of Senior Sub Judge, Chandigarh seeking a declaration that the
appellant’s decision to not allot houses earmarked for Scheduled
Tribes was mala fide. It was stated that he belongs to the Scheduled
Tribes community as recognized in the State of Rajasthan and had
been permanently residing in Chandigarh for twenty years.
6. The suit was contested by the appellant herein by averring that
no right much less a legal right to allotment of four houses kept in
abeyance could accrue to the Scheduled Tribes in the absence of
the notification of any Scheduled Tribe by the President of India in
so far as Union Territory of Chandigarh was concerned.
7. By judgment and decree of the trial court dated 09.01.1986, the
suit was decreed by the trial Court on the basis of the letter of
[2024] 2 S.C.R.  375

Chandigarh Housing Board v. Tarsem Lal

clarification dated 21.09.1983 from which the trial court inferred that
the Appellant was obliged to reserve a minimum of 5% dwelling units
for Scheduled Tribes. The said letter was found to be ‘good for all
purpose’ and all the four applicants belonging to the Schedules Tribe
category were held to be entitled to the allotment. While noting that
Article 342 of the Constitution had not been ‘made applicable to the
U.T. Chandigarh’, the trial court concluded that it would not mean
that Scheduled Tribes cannot get any benefit from the Chandigarh
Administration. The trial court reasoned that the advertisement dated
28.06.1983 did not stipulate that only members of the Scheduled
Tribes of Chandigarh could apply. Therefore, the respondent was
decreed to be entitled to allotment of the house at the price fixed
on the date of draw of lots dated 09.09.1983.
8. Being aggrieved by the judgment and decree of the trial Court,
the appellant herein preferred Civil Appeal No. 295/1990 before
the First Appellate Authority (Additional District Judge), which was
also dismissed. Hence, the appellant herein preferred Regular
Second Appeal No. 1570/1991 (O&M) before the High Court. By
the impugned judgment, the Regular Second Appeal has also been
dismissed. The High Court placed reliance on the Chandigarh
Administration’s letter of clarification dated 21.09.1983 (Exhibit
D-3) and the Ministry of Home Affairs’ Letter No. BC.12017/9/85
SC & BCD I dated 21.05.1985 (Exhibit P-8) to conclude that
it leaves no manner of doubt that Chandigarh Administration
instructed the Chandigarh Housing Board to keep the reservation
for allotment of dwelling units as aforementioned. Thus, issuance
of notification under Article 342 of the Constitution of India, pales
into insignificance. That the appellant is also a Scheduled Tribe
and holder of such certificate, even though from another State
(Rajasthan) and was not debarred as per the contents of the letter.
Hence, this appeal.
9. We have heard Mrs. Rachana Joshi Issar, learned counsel appearing
for the appellant and Shri Shivendra Singh, learned counsel for
respondent and perused the impugned order as well as the material
on record.
10. During the course of submissions, learned counsel for the appellant
drew our attention to three Constitution Bench judgments of this Court
in the case of Marri Chandra Shekhar Rao vs. Dean, Seth G. S.
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Medical College (1990) 3 SCC 130 (Marri Chandra Shekhar Rao);

Action Committee on Issue of Caste Certificate to Scheduled
Castes and Scheduled Tribes in the State of Maharashtra vs.
Union of India (1994) 5 SCC 244 (Action Committee) and Bir
Singh vs. Delhi Jal Board (2018) 10 SCC 312 (Bir Singh) in
order to contend that insofar as the Union Territory of Chandigarh
is concerned, firstly, there is no specific Presidential Order issued
insofar as Scheduled Tribes are concerned and secondly, that it is only
by a Presidential Order issued under Article 342 of the Constitution
of India that Scheduled Tribes could be recognized in an Union
Territory or a State could be issued. Admittedly, no such Presidential
Order with regard to Scheduled Tribes has been issued vis-a-vis the
Union Territory of Chandigarh. In this regard, reliance was placed on
Exhibit D-3 communication. Therefore, the applications inviting for
the allotment of flats insofar as Scheduled Tribes were concerned,
were sought to be clarified. That in the absence of there being any
such Presidential Order insofar as Scheduled Tribes communities are
concerned, the advertisement inviting applicants from the Scheduled
Tribes was not at all correct.
Further, it was contended that the respondent herein claims to belong
to Scheduled Tribes category insofar as the State of Rajasthan is
concerned. He had migrated to Union Territory of Chandigarh for
his employment and, therefore, having regard to judgment of this
Court in the case of Marri Chandra Shekhar Rao followed by
other judgments, respondent is not entitled to place reliance on his
caste status insofar as the State of Rajasthan is concerned and
enforce the same in the Union Territory of Chandigarh. It was further
submitted that the High Court was not right in interpreting letters
dated 21.09.1983 and 21.05.1985 by ignoring the fact that the caste
status could be claimed insofar as the State or Union Territory of
a person’s origin only and not carried to a State or Union Territory
to which the person migrates. Therefore, the impugned judgments
may be set aside and the suit filed by the respondent herein may
be dismissed.
11. Per contra, learned counsel for the respondent with reference to
the counter affidavit strenuously contended that the impugned
judgments and decrees are just and proper, which would not call
for any interference at the hands of this Court. It was submitted that
although there may be no Presidential Order issued with regard
[2024] 2 S.C.R.  377

Chandigarh Housing Board v. Tarsem Lal

to Scheduled Tribes under Article 342 of the Constitution of India

insofar as Union Territory of Chandigarh is concerned, Annexure
P-9 (colly) letter dated 25.11.1985 issued by the Ministry of Welfare,
Government of India was relied upon. The said document would
clearly indicate that insofar as a migrant, such as the respondent
herein is concerned, he could derive the benefits having regard to
his status in the State of origin; that the reference in the said letter
is only to State and not to any Union Territory. Therefore, by that
logic it was contended that if a person migrates from a State to an
Union Territory, it would imply that even if there is no Presidential
Order issued in terms of Article 342 of the Constitution, the migrant
is entitled to place reliance on his status as Scheduled Tribe in
the State of his origin and, therefore, seek the benefit in the Union
Territory to which he migrates.
In support of his submissions, learned counsel for the respondent
placed reliance on judgment of this Court in Director, Transport
Department, Union Territory Administration of Dadra and Nagar
Haveli, Silvassa vs. Abhinav Dipakbhai Patel (2019) 6 SCC 434
(Abhinav Dipakbhai Patel). Further, this Court in paragraph 66 of
the judgment Bir Singh while dealing with the case which arose from
Delhi Jal Board, did not express any view with regard to question
as far as other Union Territories were concerned and confined
the decision only with regard to National Capital Territory of Delhi.
Therefore, there is no judgment of this Court which states that if a
person migrates from a State where he is recognised as a Scheduled
Tribe to an Union Territory in which there is no Presidential Order
recognising any Scheduled Tribe nevertheless placing reliance on
the Presidential Order vis-a-vis the State of origin of the migrant,
benefit must be given to such a person. He therefore, submitted that
there is no merit in this appeal.
12. We have considered the arguments advanced at the bar in relation
to the facts of the case and the judgments of this Court.
13. It is not in dispute that the respondent herein had sought for allotment
of HIG house reserved for Scheduled Tribes category in terms of the
advertisement issued by the appellant herein; that being aggrieved
by non-allotment of a house, the suit which was decreed by the Trial
Court and which judgment and decree was affirmed by the First
Appellate Court as well as in the second appeal by the High Court.
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14. At the outset, we may refer to Articles 341 and 342 which read as
under:
“341. Scheduled Castes.-
(1) The President may with respect to any State or Union
territory, and where it is a State after consultation with
the Governor thereof, by public notification, specify
the castes, races or tribes or parts of or group within
castes, races or tribes which shall for the purposes
of this Constitution be deemed to be Scheduled
Castes in relation to that State or Union territory, as
the case may be.
(2) Parliament may by law include in or exclude from the
list of Scheduled Castes specified in a notification
issued under clause (1) any caste, race or tribe or
part of or group within any caste, race or tribe, but
save as aforesaid a notification issued under the
said clause shall not be varied by any subsequent
notification.
342. Scheduled Tribes. –
(1) The President may with respect to any State or Union
territory, and where it is a State after consultation with
the Governor thereof, by public notification, specify
the tribes or tribal communities or parts of or groups
within tribes or tribal communities which shall for
the purposes of this Constitution be deemed to be
Scheduled Tribes in relation to that State or Union
territory, as the case may be.
(2) Parliament may by law include in or exclude from
the list of Scheduled Tribes specified in a notification
issued under clause (1) any tribe or tribal community
or part of or group within any tribe or tribal community,
but save as aforesaid a notification issued under the
said clause shall not be varied by any subsequent
notification.”
15. Thus, the public notification of ‘tribes or tribal communities’ by the
President of India, upon consultation with the Governor, is a sine qua
[2024] 2 S.C.R.  379

Chandigarh Housing Board v. Tarsem Lal

non for deeming such tribes or tribal communities to be ‘Scheduled

Tribes’ in relation to that State or Union Territory for the purposes
of the Constitution.
16. With respect to the Union Territory of Chandigarh, we find that the
Parliament, vide the Punjab Reorganization Act, 1966 had created the
Union Territory of Chandigarh and made provision for amendment of
the Scheduled Castes and Schedules Tribes Orders. Section 27(2) of
the said Act provided for amendment of the Constitution (Scheduled
Castes) (Union Territories) Order, 1951, to include, with respect to
Chandigarh, 36 castes enlisted in Part V of the Ninth Schedule of
the said Act. A similar provision is also made for amendment of the
Constitution (Scheduled Tribes) (Union Territories) Order, 1951,
as directed in the Eleventh Schedule but the said Schedule does
not include any part or entry with respect the Union Territory of
Chandigarh.
In this context, it is apposite to refer to what the Constitution Bench
of this Court, speaking through Chief Justice Gajendragadkar, in
Bhaiya Lal v. Harikishan Singh, AIR 1965 SC 1557, held as it
expounded on the object of issuance of public notification under
Article 341 of the Constitution.
“10. … The object of Article 341(1) plainly is to provide
additional protection to the members of the Scheduled
Castes having regard to the economic and educational
backwardness from which they suffer. It is obvious that in
specifying castes, races or tribes, the President has been
expressly authorised to limit the notification to parts of or
groups within the castes, races or tribes, and that must
mean that after examining the educational and social
backwardness of a caste, race or tribe, the President
may well come to the conclusion that not the whole caste,
race or tribe but parts of or groups within them should
be specified. Similarly, the President can specify castes,
races or tribes or parts thereof in relation not only to the
entire State, but in relation to parts of the State where he is
satisfied that the examination of the social and educational
are backwardness of the race, caste or tribe justifies
such specification. In fact, it is well known that before a
notification is issued under Article 341(1), an elaborate
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enquiry is made and it is as a result of this enquiry that

social justice is sought to be done to the castes, races or
tribes as may appear to be necessary, and in doing justice,
it would obviously be expedient not only to specify parts
or groups of castes, races or tribes, but to make the said
specification by reference to different areas in the State.
Educational and social backwardness in regard to these
castes, races or tribes may not be uniform or of the same
intensity in the whole of the State; it may vary in degree or
in kind in different areas and that may justify the division
of the State into convenient and suitable areas for the
purpose of issuing the public notification in question.”
17. The absolute necessity of a public notification in terms of Articles 341
and 342 was explicated by a Constitution Bench of this Court in State
of Maharashtra v. Milind, (2001) 1 SCC 4 (‘Milind’) which held that
de hors a specific mention in the entry concerned in the Constitution
(Scheduled Tribes) Order, 1950 (as amended by Parliament), it was
impermissible to hold an inquiry and declare that any tribe or tribal
community to be included in the list of Scheduled Tribes.
While holding that Article 341(2) did permit anyone to seek such
modification and that it is not open to any judicial body to modify
or vary the Constitution (Scheduled Tribes) Order, 1950, this
Court expounded on the salutary purpose of deferring to the
Presidential order, as amended by Parliament while considering
the grant of any benefit to members of the Scheduled Tribe
community:
“11. By virtue of powers vested under Articles 341 and 342
of the Constitution of India, the President is empowered
to issue public notification for the first time specifying
the castes, races or tribes or part of or groups within
castes, races, or tribes which shall, for the purposes of
the Constitution be deemed to be Scheduled Castes or
Scheduled Tribes in relation to a State or Union Territory,
as the case may be. The language and terms of Articles
341 and 342 are identical. What is said in relation to
Article 341 mutatis mutandis applies to Article 342. The
laudable object of the said articles is to provide additional
protection to the members of the Scheduled Castes and
[2024] 2 S.C.R.  381

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Scheduled Tribes having regard to social and educational

backwardness from which they have been suffering since a
considerable length of time. The words “castes” or “tribes”
in the expression “Scheduled Castes” and “Scheduled
Tribes” are not used in the ordinary sense of the terms
but are used in the sense of the definitions contained in
Articles 366(24) and 366(25). In this view, a caste is a
Scheduled Caste or a tribe is a Scheduled Tribe only if
they are included in the President’s Orders issued under
Articles 341 and 342 for the purpose of the Constitution.
Exercising the powers vested in him, the President has
issued the Constitution (Scheduled Castes) Order, 1950
and the Constitution (Scheduled Tribes) Order, 1950.
Subsequently, some orders were issued under the said
articles in relation to Union Territories and other States
and there have been certain amendments in relation to
Orders issued, by amendment Acts passed by Parliament.
xxx
35. In order to protect and promote the less fortunate
or unfortunate people who have been suffering from
social handicap, educational backwardness besides
other disadvantages, certain provisions are made in
the Constitution with a view to see that they also have
the opportunity to be on par with the others in the
society. Certain privileges and benefits are conferred
on such people belonging to Scheduled Tribes by way
of reservations in admission to educational institutions
(professional colleges) and in appointments in services
of State. The object behind these provisions is noble
and laudable besides being vital in bringing a meaningful
social change. But, unfortunately, even some better-placed
persons by producing false certificates as belonging to
Scheduled Tribes have been capturing or cornering seats
or vacancies reserved for Scheduled Tribes defeating the
very purpose for which the provisions are made in the
Constitution. The Presidential Orders are issued under
Articles 341 and 342 of the Constitution recognising and
identifying the needy and deserving people belonging
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to Scheduled Castes and Scheduled Tribes mentioned

therein for the constitutional purpose of availing benefits of
reservation in the matters of admissions and employment. If
these benefits are taken away by those for whom they are
not meant, the people for whom they are really meant or
intended will be deprived of the same and their sufferings
will continue. Allowing the candidates not belonging to
Scheduled Tribes to have the benefit or advantage of
reservation either in admissions or appointments leads
to making mockery of the very reservation against the
mandate and the scheme of the Constitution.”
(underlining by us)
18. Learned counsel for the appellant has drawn our attention to the
judgment of this Court in Marri Chandra Shekhar Rao by placing
reliance on the following paragraphs:-
“13. It is trite knowledge that the statutory and constitutional
provisions should be interpreted broadly and harmoniously.
It is trite saying that where there is conflict between two
provisions, these should be so interpreted as to give
effect to both. Nothing is surplus in a Constitution and no
part should be made nugatory. This is well settled. See
the observations of this Court in Venkataramana Devaru
v. State of Mysore [1958 SCR 895, 918 : AIR 1958 SC
255] , where Venkatarama Aiyer, J. reiterated that the rule
of construction is well settled and where there are in an
enactment two provisions which cannot be reconciled with
each other, these should be so interpreted that, if possible,
effect could be given to both. It, however, appears to us
that the expression ‘for the purposes of this Constitution’
in Article 341 as well as in Article 342 do imply that the
Scheduled Caste and the Scheduled Tribes so specified
would be entitled to enjoy all the constitutional rights that
are enjoyable by all the citizens as such. Constitutional
right, e.g., it has been argued that right to migration or
right to move from one part to another is a right given to
all — to Scheduled Castes or Tribes and to non-scheduled
castes or tribes. But when a Scheduled Caste or Tribe
migrates, there is no inhibition in migrating but when
[2024] 2 S.C.R.  383

Chandigarh Housing Board v. Tarsem Lal

he migrates, he does not and cannot carry any special

rights or privileges attributed to him or granted to him in
the original State specified for that State or area or part
thereof. If that right is not given in the migrated State it
does not interfere with his constitutional right of equality
or of migration or of carrying on his trade, business or
profession. Neither Article 14, 16, 19 nor Article 21 is
denuded by migration but he must enjoy those rights in
accordance with the law if they are otherwise followed in
the place where he migrates. There should be harmonious
construction, harmonious in the sense that both parts or
all parts of a constitutional provision should be so read
that one part does not become nugatory to the other or
denuded to the other but all parts must be read in the
context in which these are used. It was contended that the
only way in which the fundamental rights of the petitioner
under Articles 14, 19(1)(d), 19(1)(e) and 19(1)(f) could be
given effect to is by construing Article 342 in a manner by
which a member of a Scheduled Tribe gets the benefit of
that status for the purposes of the Constitution throughout
the territory of India. It was submitted that the words “for
the purposes of this Constitution” must be given full effect.
There is no dispute about that. The words “for the purposes
of this Constitution” must mean that a Scheduled Caste
so designated must have right under Articles 14, 19(1)(d),
19(1)(e) and 19(1)(f) inasmuch as these are applicable
to him in his area where he migrates or where he goes.
The expression “in relation to that State” would become
nugatory if in all States the special privileges or the
rights granted to Scheduled Castes or Scheduled Tribes
are carried forward. It will also be inconsistent with the
whole purpose of the scheme of reservation. In Andhra
Pradesh, a Scheduled Caste or a Scheduled Tribe may
require protection because a boy or a child who grows in
that area is inhibited or is at disadvantage. In Maharashtra
that caste or that tribe may not be so inhibited but other
castes or tribes might be. If a boy or a child goes to that
atmosphere of Maharashtra as a young boy or a child and
goes in a completely different atmosphere or Maharashtra
where this inhibition or this disadvantage is not there,
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then he cannot be said to have that reservation which will

denude the children or the people of Maharashtra belonging
to any segment of that State who may still require that
protection. After all, it has to be borne in mind that the
protection is necessary for the disadvantaged castes or
tribes of Maharashtra as well as disadvantaged castes or
tribes of Andhra Pradesh. Thus, balancing must be done as
between those who need protection and those who need
no protection, i.e., who belong to advantaged castes or
tribes and who do not. Treating the determination under
Articles 341 and 342 of the Constitution to be valid for all
over the country would be in negation to the very purpose
and scheme and language of Article 341 read with Article
15(4) of the Constitution.”
19. The rationale for the aforesaid interpretation was further explained
by another Constitution Bench in Action Committee wherein this
Court relied upon the Constituent Assembly Debates to hold that
the list of Scheduled Castes, Scheduled Tribes and backward
classes in a given State would correspond to the disadvantages
and social hardships existing in the specific social context for a
particular caste, tribe or class in that State. Given the variance of
social context, the list of such castes, tribes or classes would be
totally non est in another State to which persons belonging thereto
may migrate. Thus, the learned judges wholly agreed with the
reasoning and conclusion in Marri Chandra Shekhar Rao and
observed as under:
“16. We may add that considerations for specifying a
particular caste or tribe or class for inclusion in the list of
Scheduled Castes/Schedule Tribes or backward classes
in a given State would depend on the nature and extent
of disadvantages and social hardships suffered by that
caste, tribe or class in that State which may be totally non
est in another State to which persons belonging thereto
may migrate. Coincidentally it may be that a caste or tribe
bearing the same nomenclature is specified in two States
but the considerations on the basis of which they have
been specified may be totally different. So also the degree
of disadvantages of various elements which constitute
the input for specification may also be totally different.
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Chandigarh Housing Board v. Tarsem Lal

Therefore, merely because a given caste is specified

in State A as a Scheduled Caste does not necessarily
mean that if there be another caste bearing the same
nomenclature in another State the person belonging to
the former would be entitled to the rights, privileges and
benefits admissible to a member of the Scheduled Caste
of the latter State “for the purposes of this Constitution”.
This is an aspect which has to be kept in mind and which
was very much in the minds of the Constitution-makers
as is evident from the choice of language of Articles 341
and 342 of the Constitution.”
20. Thereafter, the Constitution Bench of this Court in Bir Singh, being
seized of the dispute pertaining to SC/ST reservation for persons
who had migrated to the National Capital Territory of Delhi, reiterated
the well-settled principles enunciated in Marri Chandra Shekhar Rao
and Action Committee in the following words:
“34. Unhesitatingly, therefore, it can be said that a person
belonging to a Scheduled Caste in one State cannot be
deemed to be a Scheduled Caste person in relation to
any other State to which he migrates for the purpose of
employment or education. The expressions “in relation
to that State or Union Territory” and “for the purpose
of this Constitution” used in Articles 341 and 342 of
the Constitution of India would mean that the benefits
of reservation provided for by the Constitution would
stand confined to the geographical territories of a State/
Union Territory in respect of which the lists of Scheduled
32 Castes/Scheduled Tribes have been notified by the
Presidential Orders issued from time to time. A person
notified as a Scheduled Caste in State ‘A’ cannot claim
the same status in another State on the basis that he is
declared as a Scheduled Caste in State ‘A’.
xxx
36. The upshot of the aforesaid discussion would lead
us to the conclusion that the Presidential Orders issued
under Article 341 in regard to Scheduled Castes and
under Article 342 in regard to Scheduled Tribes cannot be
varied or altered by any authority including the Court. It is
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Parliament alone which has been vested with the power

to so act, that too, by laws made. Scheduled Castes and
Scheduled Tribes thus specified in relation to a State or a
Union Territory does not carry the same status in another
State or Union Territory. Any expansion/deletion of the list of
Scheduled Castes/Scheduled Tribes by any authority except
Parliament would be against the constitutional mandate
under Articles 341 and 342 of the Constitution of India.”
21. Learned counsel for the respondent placed reliance on the Constitution
Bench judgment of this Court in Bir Singh concerning the services
in the NCT of Delhi. In the said judgment in paragraph 68, it has
been categorically recorded as under:–
“68. The Affidavit of the Union does not touch upon the
details of Subordinate Services in other Union Territories.
Neither the authorities of the other Union Territories have
laid before the Court any relevant material in this regard.
We, therefore, refrain from addressing the issue in question
as far as other Union Territories are concerned and have
confined our discussions and the consequential views only
to the National Capital Territory of Delhi.”
22. In view of the aforesaid observations, we do not think that the
respondent can draw any parity from what the position is, insofar
as NCT of Delhi is concerned with regard to availing of benefits
by Scheduled Tribes, even though, there is no Presidential Order
with regard to Scheduled Tribes issued insofar as NCT of Delhi is
concerned. Further, the observations made above are in the context
of services. In the circumstances, we find that the respondent cannot
rely upon the judgment of this Court in Bir Singh.
23. This court, in Abhinav Dipakbhai Patel sustained the High Court’s
direction to appoint a person who had migrated to the Union Territory
of Dadra and Nagar Haveli and was a member of the Scheduled
Tribe ‘Dhodia’ community as an Assistant Motor Vehicle Inspector.
This Court noted that the Presidential notification issued for the
Union Territory of Dadra and Nagar Haveli extended the benefit of
reservation to the Scheduled Tribes mentioned therein. Therefore,
the reservation for Scheduled Tribes in the Union Territory of Dadra
and Nagar Haveli was held to be available to migrant Scheduled
Tribes. The significant fact is that there was a Presidential notification
[2024] 2 S.C.R.  387

Chandigarh Housing Board v. Tarsem Lal

for Scheduled Tribes insofar as the aforesaid Union Territory was

concerned.
24. In view of the aforesaid observations, we do not think that the
respondent can rely upon Abhinav Dipakbhai Patel. This is for the
simple reason that there is no Presidential notification for Scheduled
Tribes in Chandigarh unlike in the case of Dadra & Nagar Haveli.
25. In view of the aforesaid, we find that the appellant had erroneously
issued the advertisement inviting applications for allotment of houses
from both Scheduled Castes as well as Scheduled Tribes persons
because no such reservation for Scheduled Tribes could have
been made without strict compliance with Article 342. The effect of
the finding that the advertisement was issued without necessary
jurisdiction and authority would lead to the setting aside of the
impugned judgment and decrees on that ground alone.
26. The upshot of the above discussion is that:
i. The Presidential notification of a tribe or tribal community as a
Scheduled Tribe by the President of India under Article 342 is a
sine qua non for extending any benefits to the said community
in any State or U.T.
ii. This implies that a person belonging to a group that is recognized
as a Scheduled Tribe in a State would be recognized a
Scheduled Tribe only within the said State and not in a U.T.
where he migrates if no such Presidential notification exists in
the said U.T.
27. As far as the Annexure R-9, produced by the respondent herein
is concerned, it is noted firstly, that the said document is dated
25.11.1985 and the same was issued prior to the judgment of this
Court in Marri Chandra Shekhar Rao which is contrary to the said
judgment and wherein the position of law has been clearly enunciated.
Secondly, the reading of the said document would clearly indicate
that what has been emphasized there is with regard to the Scheduled
Tribes and Scheduled Castes persons migrating from the State of
his origin to another State, to which he has migrated. There is no
reference whatsoever to a case where a person claiming to be a
Scheduled Caste or Scheduled Tribe migrating from a State to a Union
Territory as such. By that logic, it would not imply that a person who
is recognized as a Scheduled Tribe in a State has to be Scheduled
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Tribe in an U.T. also wherein he migrates and can rely on his status
in the State of his origin. The said letter is also contrary to Article
342 of the Constitution and the spirit of the dictum of this court in
the case of Marri Chandra Shekhar Rao and, therefore, the same
would hold no water. Merely because in the said letter there is no
reference to migration of a person claiming to belong to Scheduled
Tribe in a State to a Union Territory, it does not, by that logic mean
that such a person would be entitled to claim benefit on the basis
of his status as a Scheduled Tribe in the State of his origin. For
immediate reference, letter dated 25.11.1985 is extracted as under–
“No. BC-12017/9/85-SC&BCD.I
Government of India/Bharat Sarkar
Ministry of Welfare/Kalyan Mantralaya
New Delhi: 25th November, 1985.
To
The Chairman,
Chandigarh Housing Board,
8-Jan Marg, Sector–9, Chandigarh – 160009
Subject : E
 ntitlement of Scheduled Tribe persons for
allotment of houses by the Chandigarh Housing
Board – Clarification of -
…
Sir,
I am directed to invite your attention to the Ministry of Home
Affair’s letter of even number dated 21st May 1985 on the
above subject and to say that the contents appearing at
the end of line 23 to 28 i.e. “It has ……………… migrated.”
may please be read as under:
“It has also been made clear in the latter that the migrated
person will be entitled to derive benefits admissible to the
Scheduled Castes/ Tribes from the State of his origin only
and not from the State to which he has migrated.”
2. A copy of the Ministry of Home Affairs letter No. BC-
16014-I/9/82-SC&BCD.I dated 22.2.85 containing the
instructions about issue of certificates to the migrants has
[2024] 2 S.C.R.  389

Chandigarh Housing Board v. Tarsem Lal

already been sent to you with our letter dated 21.5.85

referred to above.
Yours faithfully,
Sd/-
(Y.P. MARWAHA)
Assistant Director”
28. It is also unclear whether the aforesaid letter was at all marked in
evidence in the Suit.
29. In view of the judgments of this Court in the aforesaid cases, we
hold that insofar as a person claiming benefit having regard to his
status as a Scheduled Tribe in a State, when he migrates to a Union
Territory where a Presidential Order has not been issued at all
insofar Scheduled Tribe is concerned, or even if such a Notification
is issued, such an identical Scheduled Tribe does not find a place in
such a Notification, the person cannot claim his status on the basis
of his being noted as a Scheduled Tribe in the State of his origin.
30. Reliance placed on the judgment of this Court in Bir Singh by the
learned counsel for the respondent is also of no assistance since
the said case concerned granting of benefits to Scheduled castes
and Scheduled Tribes in the matter of employment and education
in a particular State and Union Territory and that a migrant to that
particular State or Union Territory cannot place reliance on his or
her status in the State of origin for the purpose of claiming similar
benefit in a State to which he or she has migrated. Reliance was
placed on paragraph 68 of the said judgment wherein this Court
noted that it had refrained from addressing the issue in question as
far as other Union Territories apart from the National Capital Territory
of Delhi are concerned, would not in any way further the case of
the respondent when the significant fact is that there has been no
notification issued by the President of India vis-à-vis Scheduled Tribe
in the Union Territory of Chandigarh is concerned.
31. In the instant case, merely because the appellant herein had issued
a Notification calling for applications from both Scheduled Castes and
Scheduled Tribes did not confer any benefit by that Notification on the
respondent herein when there is no Presidential Order at all under
Article 342 of the Constitution of India issued with regard to Scheduled
Tribes insofar as Union Territory of Chandigarh is concerned. The
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said basic foundational fact goes against the respondent herein and
the invitation given by the appellant/Housing Board to Scheduled
Tribes was in fact contrary to the said basic tenets as well as the
prevalent law and by that reason, the respondent herein cannot also
seek any estoppel as against the appellant herein.
32. The High Court lost sight of the aforesaid facts and instead placed
reliance on Exhibit P-8 letter dated 21.09.1983 and Exhibit D-3
letter dated 21.05.1985 to hold that there was reservation made
for Scheduled Tribe applicants also for allotment of dwelling units
of flats. In fact, in the letter dated 21.09.1983 (Exhibit P-8) it has
been expressly noted that there are no Scheduled Tribes notified
for Union Territory of Chandigarh but there are general instructions
on reservation for Scheduled Tribes enunciated in Appendix-3
Note 2 on the Brochure on Reservation of Scheduled Castes and
Scheduled Tribes. The said Brochure cannot override Article 342 of
the Constitution of India which empowers the President of India to
notify the Scheduled Tribes either for a State or for an Union Territory.
33. In the circumstances, we find that the impugned judgment of the
High Court affirming the judgment of the First Appellate Court, which
in turn affirms the judgment of the Trial Court are all liable to be set
aside and are hence set aside.
The Appeal is allowed in the aforesaid terms. No costs.

Headnotes prepared by: Ankit Gyan Result of the case:

Appeal allowed.
 [2024] 2 S.C.R. 391 : 2024 INSC 124

Kalinga @ Kushal
v.
State of Karnataka By Police Inspector Hubli
(Criminal Appeal No. 622 of 2013)
20 February 2024
[Bela M. Trivedi and Satish Chandra Sharma,* JJ.]

Issue for Consideration

Whether the extra judicial confession of the appellant-accused
was admissible, credible and sufficient for his conviction thereon
for the murder of his brother-PW-1’s son; whether the testimony
of PW-1 could be termed as reliable and trustworthy and; whether
the chain of circumstantial evidence was complete and consistent
for arriving at the conclusion of guilt.

Headnotes
Evidence – Extra judicial confession – Evidentiary value –
Case based on circumstantial evidence – Trial Court acquitted
all the accused persons – Appeal against acquittal – High
Court reversed the acquittal of the appellant and convicted
him largely based on the extra judicial confession allegedly
made by him before PW-1 – Correctness:
Held: Extra judicial confession is a weak type of evidence and
is generally used as a corroborative link to lend credibility to the
other evidence on record – It must be accepted with great care
and caution – If it is not supported by other evidence on record,
it fails to inspire confidence and shall not be treated as a strong
piece of evidence for the purpose of arriving at the conclusion of
guilt – The extent of acceptability of an extra judicial confession
depends on the trustworthiness of the witness before whom it is
given and the circumstances in which it was given – Prosecution
must establish that a confession was indeed made by the accused,
it was voluntary in nature and the contents of the confession
were true – In the present case, the extra judicial confession
is essentially based on the deposition of PW-1, the father of
the deceased whose testimony is fatal to the prosecution case
on multiple parameters – The doubtful existence of the extra

* Author
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judicial confession, unnatural prior and subsequent conduct of

PW-1, recovery of dead body in the presence of an unreliable
witness PW-2, contradictions regarding arrest, testimony of the
witnesses in support of the last seen theory etc. are some of the
inconsistencies which strike at the root of the prosecution case
– There exist serious doubts regarding the identity of the dead
body recovered from the well – Testimony of PW-1 not trustworthy
and reliable – Evidence on record fails the test laid down for the
acceptability of circumstantial evidence – Trial Court appreciated
the evidence in a comprehensive sense, High Court reversed
the view without arriving at any finding of perversity or illegality
therein – It took a cursory view of the matter and merely arrived at
a different conclusion on re-appreciation of evidence – Anomaly of
having two reasonably possible views in a matter is to be resolved
in favour of the accused – After acquittal, the presumption of
innocence in favour of the accused gets reinforced – High Court
erred in reversing the acquittal – Impugned judgment set aside –
Order of Trial Court restored, appellant acquitted. [Paras 14-16,
25-27 and 30]
Appeal against acquittal – Exercise of appellate powers by
High Court:
Held: High Court, in exercise of appellate powers, may re-appreciate
the entire evidence – However, reversal of an order of acquittal is
not to be based on mere existence of a different view or a mere
difference of opinion – To permit so would be in violation of the
two views theory – In order to reverse an order of acquittal in
appeal, it is essential to arrive at a finding that the order of the
Trial Court was perverse or illegal; or that the Trial Court did not
fully appreciate the evidence on record; or that the view of the
Trial Court was not a possible view. [Para 25]
Evidence – Extra judicial confession – Standard of proof:
Held: The standard required for proving an extra judicial confession
to the satisfaction of the Court is on the higher side and the
essential ingredients must be established beyond any reasonable
doubt – The standard becomes even higher when the entire case
of the prosecution necessarily rests on the extra judicial confession.
[Para 15]
Evidence – Circumstantial evidence – “Panchsheel” Principles:
[2024] 2 S.C.R.  393

Kalinga @ Kushal v. State of Karnataka By Police Inspector Hubli

Held: Essentially, circumstantial evidence comes into picture

when there is absence of direct evidence – For proving a case
on the basis of circumstantial evidence, it must be established
that the chain of circumstances is complete – It must also be
established that the chain of circumstances is consistent with the
only conclusion of guilt – The margin of error in a case based on
circumstantial evidence is minimal – For, the chain of circumstantial
evidence is essentially meant to enable the court in drawing an
inference – The task of fixing criminal liability upon a person on
the strength of an inference must be approached with abundant
caution. [Para 27]
Criminal Law – Minor inconsistencies vis-à-vis reasonable
doubt – Case based on circumstantial evidence – Plea of the
respondent-State that minor inconsistencies could not be
construed as reasonable doubts for ordering acquittal:
Held: No doubt, it is trite law that a reasonable doubt is essentially
a serious doubt in the case of the prosecution and minor
inconsistencies are not to be elevated to the status of a reasonable
doubt – A reasonable doubt is one which renders the possibility
of guilt as highly doubtful – Purpose of criminal trial is not only to
ensure that an innocent person is not punished, but it is also to
ensure that the guilty does not escape unpunished – In the present
case, the inconsistencies in the case of the prosecution are not
minor inconsistencies – Prosecution miserably failed to establish
a coherent chain of circumstances – The present case does not
fall in the category of a light-hearted acquittal, which is shunned
upon in law. [Para 29]

Case Law Cited

Chandrapal v. State of Chattisgarh [2022] 3 SCR 366 :
(2022) SCC On Line SC 705; Sanjeev v. State of H.P
(2022) 6 SCC 294 – relied on.
Sansar Chand v. State of Rajasthan [2010] 12 SCR
583 : (2010) 10 SCC 604; Piara Singh v. State of Punjab
[1978] 1 SCR 597 : (1977) 4 SCC 452; Mallikarjun v.
State of Karnataka [2019] 11 SCR 609 : (2019) 8 SCC
359; Hari Singh & Anr. v. State of Uttar Pradesh [2021]
10 SCR 1022 : Criminal Appeal No. 186 of 2018 (SC);
Sucha Singh v. State of Punjab [2003] Suppl. 2 SCR
35 : (2003) 7 SCC 643 – referred to.
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List of Acts
Penal Code, 1860.

List of Keywords
Extra judicial confession; Weak type of evidence; Circumstantial
evidence; Chain of circumstantial evidence; Appeal against
acquittal; Acquittal reversed; Two possible views; Conclusion of guilt;
Perversity or illegality; Cursory view; Presumption of innocence in
favour of accused; Beyond reasonable doubt; Minor inconsistencies;
Reasonable doubt; Inconsistencies not minor; Appellate powers;
Re-appreciation of evidence; Absence of direct evidence; Criminal
trial purpose; Stock witness.

Case Arising From

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 622
of 2013
From the Judgment and Order dated 28.03.2011 of the High Court
of Karnataka, Circuit Bench at Dharwad in Criminal Appeal No.130
of 2005
Appearances for Parties
Sharan Thakur, Mahesh Thakur, Siddharth Thakur, Shivamm
Sharrma, P.N. Singh, Mustafa Sajad, Ms. Keerti Jaya, Ranvijay Singh
Chandel, Dr. Sushil Balwada, Advs. for the Appellant.
Muhammed Ali Khan, A.A.G., V. N. Raghupathy, Omar Hoda, Ms.
Eesha Bakshi, Uday Bhatia, Kamran Khan, Manendra Pal Gupta,
Advs. for the Respondent.
Judgment / Order of the Supreme Court

Judgment
Satish Chandra Sharma, J.
1. Master Hrithik, aged 2.5 years, lost his life on the fateful day of
03.11.2002 in Hubli, Karnataka. PW-1, his father and complainant in
this case, filed a complaint and the allegation was levelled against
the appellant/accused, who is the younger brother of PW-1. After a
full-fledged trial, Trial Court acquitted the appellant from the charges
levelled upon him. The High Court reversed the order of acquittal and
[2024] 2 S.C.R.  395

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convicted the appellant. The mystery of Hrithik’s death continues as the

matter has landed before this Court in the form of the present appeal,
which assails the order dated 28.03.2011 passed by the High Court of
Karnataka (Circuit Bench at Dharwad) in Criminal Appeal No. 130/2005.
FACTUAL MATRIX
2. At the outset, we consider it apposite to note that there is considerable
divergence between the parties (as well as between the decisions
rendered by the Trial Court and the High Court) as regards the
sequence of events and timelines involved in this case. To avoid
any confusion or presumption, the facts delineated herein represent
the version of the prosecution for the purpose of understanding the
story. On 03.11.2002, at around 11 A.M., the son of PW-1 had gone
out for playing and went missing. PW-1 and other family members
of the child searched for him in and around the locality. Upon finding
no trace of the child till evening, a missing complaint was lodged at
around 10 P.M. by PW-1 at PS Vidyanagar, Hubli, Karnataka. The
complaint came to be registered as Crime No. 215/2002.
3. Fast forward to 14.11.2002, the appellant (also the brother of
PW-1) appeared at the house of PW-1 in a drunken state and
started blabbering about the missing incident of Hrithik and about
mishappening with the child. The encounter on 14.11.2002 happened
late at night and PW-1 did not pursue the same at that point of time.
On the morning of 15.11.2002, PW-1 went to his shop and returned
around 12:30 P.M. At this point, PW-1, his mother and wife enquired
about the child from the appellant and the appellant stated that he
had murdered Hrithik and thrown his body in the well. Thereafter,
PW-1 took the appellant to PS Vidyanagar for filing the complaint
which led to the registration of the First Information Report (FIR) in
this case.
4. It is the case of the prosecution that on reaching the police station,
the appellant confessed to the commission of crime as well as the
act of throwing the child in the well. The voluntary statement of the
accused, in the nature of extra judicial confession, was recorded
by PW-16 (Investigating Officer/IO of the case) as Ex.P.21. At the
instance of the appellant, PW-16 took PW-1, mother and wife of
PW-1 and panchas in a police jeep to a place near the back side
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of Kamat Cafe. On reaching there, the appellant took PW-16, PW-1

and panchas near the well and told them that the dead body of the
deceased was thrown in the said well. When they looked into the
well, a dead body of a child was found floating there. The dead body
was taken out and inquest panchnama was conducted. Thereafter,
spot panchnama was prepared and the body was sent for post
mortem. Thereafter, accused no. 2 and 3 were arrested and upon
their disclosure and at their instance, jewelry articles exhibited as
M.O.s 5 and 6 were recovered from PW-17, which were allegedly
taken off from the body of the deceased child and were sold off to
PW-17.
5. In this factual backdrop, PW-16 investigated the case and filed the
chargesheet. Upon committal of the case to the Court of Sessions,
charges were framed upon the three accused persons under Sections
201, 302, 363, 364 read with 34 of Indian Penal Code, 18601. Upon the
culmination of trial, the Trial Court acquitted all the accused persons
vide order dated 30.04.2004 passed by Ld. ASJ-01, Dharwad (Hubli).
6. While ordering acquittal of the accused persons, the Trial Court gave
the following reasons:
i. There is no eye witness to support the case of the prosecution
and the case is entirely based on circumstantial evidence.
ii. The prosecution case is built upon the extrajudicial confession
of the appellant and factum of recovery of the dead body from
the well in consequence of the information disclosed by the
appellant.
iii. The credibility of an extra judicial confession depends upon
the veracity of the witnesses before whom it is given and
the circumstances in which it was given. The statements of
PW-1 in the Court and in the complaint Ex.P1 are different.
In the complaint, PW-1 had mentioned about the involved
of co-accused persons, whereas his testimony in the Court
was completely silent regarding the involved of other accused
persons.

1 Hereinafter referred as “IPC”

[2024] 2 S.C.R.  397

Kalinga @ Kushal v. State of Karnataka By Police Inspector Hubli

iv. PW-1 stated that his wife and mother were also present when
the confession was made by the appellant. However, neither
wife nor mother of PW- 1 was examined by the prosecution
as a witness.
v. PW-1 deposed that after the confession was made by the
appellant, he took the appellant to the police station where he
disclosed the involvement of accused no. 2 and 3. However,
in the complaint Ex.P1 which was given by him at the police
station, there is no mention of accused no. 3. The contradiction
in this regard is material as, if the appellant had disclosed the
involvement of accused no. 2 and 3 before going to the police
station, there was no reason for PW-1 to skip the name of
accused no. 3 from Ex.P1.
vi. The Trial Court noted the multiplicity of versions by PW-1 and
held that an extra judicial confession must be free from suspicion,
which is not the case in the testimony of PW-1.
vii. The Trial Court also noted the discrepancy regarding the arrest
of the accused. PW-1 deposed that he took the appellant to the
police station after his disclosure, whereas PW-16 deposed that
after registering the complaint, he had arrested the appellant
from his house.
viii. No mention of the incident of utterance of certain words by
the appellant on 14.11.2002 in the complaint given by PW-1
on the following day.
ix. PW-1 took no steps in furtherance of the information supplied
by PW-5 that he had seen the appellant taking away the child
on 03.11.2002 or in furtherance of the information supplied by
PW-7, who had informed PW-1 on 10.11.2002 that he had seen
three people throwing something into the well. The conduct of
PW-1 was not found to be natural.
x. PW-1 failed to explain the discrepancy in the clothes allegedly
worn by the deceased and the clothes found on the body of
the deceased. Moreover, PW-12 deposed that at the time of
filing the complaint, he had enquired from PW-1 regarding any
ornaments on the child. PW-1 had replied in negative.
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xi. The theory of last seen was also rejected by the Trial Court and
PWs in that regard - PW-5, PW- 6, PW-7 and PW-18 - were
disbelieved.
7. The decision of the Trial Court was assailed before the High Court
by the State in appeal. The High Court analyzed the evidence on
record and partially allowed the appeal by holding the appellant guilty
for the commission of offences punishable under Sections 201, 302,
363, 364 of IPC. Notably, the High Court was in agreement with the
conclusion of acquittal regarding accused no. 2 and 3.
8. On a re-appreciation of evidence pitched against accused no.
2 and 3, the High Court agreed with the view of the Trial Court
that the evidence was not trustworthy. The theory of last seen,
as propounded to bring accused no. 2 and 3 within the ambit of
criminality, was rejected. Similarly, the allegation of recovery of
ornaments from PW-17 at the instance of the accused was also
rejected. Since, there is no divergence of opinion with respect to
accused no. 2 and 3, this Court is not required to delve further
into the same. The High Court set aside the view of the Trial Court
regarding the rejection of the voluntary extra judicial confession
of appellant and recovery of dead body of the deceased at his
instance. The High Court went on to convict the appellant on the
strength of the following reasons:
i. The extra judicial confession of the appellant was a voluntary
confession and there is no reason to doubt the same.
ii. Information disclosed by the appellant led to the discovery of
dead body of the deceased and minor discrepancies in the
version of PW-1 are not material.
iii. The Trial Court committed an error by not properly appreciating
the evidence of PW-1, especially the voluntary statement and
recovery of dead body.
SUBMISSIONS OF APPELLANT
9. Assailing the order of the High Court, the appellant submits that the
High Court did not appreciate the discrepancies in the evidence of
PW-1 and went on to accept the same. He further submits that the
High Court failed to take note of the improvements made by PW-1 at
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every stage. He further submits that the Trial Court had elaborately
appreciated the entire evidence on record and it was not open for
the High Court to reappreciate the entire evidence and arrive at a
different conclusion of its own. Further, it is submitted that the High
Court did not notice the absence of mother and wife of PW-1 from
the list of witnesses of the prosecution.
10. The appellant further submits that the finding of the Trial Court regarding
the sequence of arrest of the appellant has not been discussed at
all in the impugned order. It is further submitted that the High Court
did not examine the extra judicial confession of the appellant in its
correct perspective, especially in light of the suspicion raised by the
Trial Court. It is urged that the High Court did not subject the extra
judicial confession to a stern test and went on to place undue reliance
on the same. It is further contended that the High Court overlooked
the discrepancy between the description of clothes found on the dead
body and that indicated by PW-1 in his complaint. Lastly, it is submitted
that if two views were possible on a reappreciation of evidence, the
High Court must have adopted the view in favour of the accused,
thereby providing benefit of doubt to the appellant.
11. Per contra, it is submitted on behalf of the State that there is no
infirmity in the impugned order as it is based on a correct appreciation
of evidence. It is further submitted that the voluntary extra judicial
confession of appellant constituted crucial evidence and the fact
that it led to the discovery of the dead body of the deceased, added
credibility to the same. Reliance has been placed upon the decisions
of this Court in Sansar Chand v. State of Rajasthan2 and Piara
Singh v. State of Punjab3. It is further submitted that the Court
must not consider every doubt as a reasonable doubt and minor
discrepancies must not be allowed to demolish the entire testimony
of a witness. In this regard, reliance has been placed upon the
decisions of this Court in Mallikarjun v. State of Karnataka4 and
Hari Singh & Anr. v. State of Uttar Pradesh5.

2 [2010] 12 SCR 583 : (2010) 10 SCC 604

3 [1978] 1 SCR 597 : (1977) 4 SCC 452
4 [2019] 11 SCR 609 : (2019) 8 SCC 359
5 [2021] 10 SCR 1022 : Criminal Appeal No. 186 of 2018 (SC)
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12. We have heard Sh. Sharan Thakur, Advocate for the appellant and
Mr. Muhammed Ali Khan, AAG, for the respondent State.
DISCUSSION
13. We may now proceed to delineate the issues that arise for the
consideration of this Court, as follows:
i. Whether the extra judicial confession of the appellant/accused
was admissible, credible and sufficient for conviction of the
accused thereon?
ii. Whether the testimony of PW-1 could be termed as reliable
and trustworthy?
iii. Whether the chain of circumstantial evidence is complete and
consistent for arriving at the conclusion of guilt?
14. The conviction of the appellant is largely based on the extra judicial
confession allegedly made by him before PW-1. So far as an extra
judicial confession is concerned, it is considered as a weak type
of evidence and is generally used as a corroborative link to lend
credibility to the other evidence on record. In Chandrapal v. State
of Chattisgarh6, this Court reiterated the evidentiary value of an
extra judicial confession in the following words:
“11. At this juncture, it may be noted that as per Section
30 of the Evidence Act, when more persons than one are
being tried jointly for the same offence, and a confession
made by one of such persons affecting himself and some
other of such persons is proved, the court may take into
consideration such confession as against such other
person as well as against the person who makes such
confession. However, this court has consistently held that
an extra judicial confession is a weak kind of evidence
and unless it inspires confidence or is fully corroborated
by some other evidence of clinching nature, ordinarily
conviction for the offence of murder should not be made
only on the evidence of extra judicial confession. As held
in case of State of M.P. Through CBI v. Paltan Mallah, the

6 [2022] 3 SCR 366 : (2022) SCC On Line SC 705

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Kalinga @ Kushal v. State of Karnataka By Police Inspector Hubli

extra judicial confession made by the co-accused could

be admitted in evidence only as a corroborative piece of
evidence. In absence of any substantive evidence against
the accused, the extra judicial confession allegedly made
by the co-accused loses its significance and there cannot
be any conviction based on such extra judicial confession
of the co-accused.”
15. It is no more res integra that an extra judicial confession must
be accepted with great care and caution. If it is not supported by
other evidence on record, it fails to inspire confidence and in such
a case, it shall not be treated as a strong piece of evidence for
the purpose of arriving at the conclusion of guilt. Furthermore, the
extent of acceptability of an extra judicial confession depends on
the trustworthiness of the witness before whom it is given and the
circumstances in which it was given. The prosecution must establish
that a confession was indeed made by the accused, that it was
voluntary in nature and that the contents of the confession were
true. The standard required for proving an extra judicial confession
to the satisfaction of the Court is on the higher side and these
essential ingredients must be established beyond any reasonable
doubt. The standard becomes even higher when the entire case of
the prosecution necessarily rests on the extra judicial confession.
16. In the present case, the extra judicial confession is essentially
based on the deposition of PW-1, the father of the deceased.
Without going into the aspect of PW-1 being an interested witness
at the threshold, his testimony is fatal to the prosecution case on
multiple parameters. PW-1 deposed that the appellant had arrived
at his residence on 14.11.2002 and mentioned about the deceased.
Despite so, the appellant was allowed to leave the residence and no
action whatsoever was taken by PW-1. The incident took place on
03.11.2002 and despite lapse of 11 days, PW-1 had no clue about
his deceased son. On the eleventh day, when the appellant arrives at
his residence and mentions adversely about his deceased son, PW-1
does nothing about it. In fact, on the next day as well, PW-1 started
off normally and went to his shop in a routine manner. Thereafter, he
came back home in the afternoon of 15.11.2002 and confronted the
appellant about the incident. There is no explanation as to how the
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appellant arrived at his residence again on 15.11.2002. Nevertheless,

PW-1 deposed that when he, his mother and wife confronted the
appellant, he confessed to the murder of the deceased. Thereafter,
they took him to the police station.
17. Before we refer to the proceedings which took place at the police
station, it is of utmost relevance to note that the confession was
made before PW-1, his mother and wife. However, the mother and
wife of PW-1 were never examined as witnesses by the prosecution.
This glaring mistake raises a serious doubt on the very existence of
a confession, or even a statement, of this nature by the appellant.
18. Once the appellant was taken to the police station, as the examination
in chief of PW-1, the appellant confessed to the act of throwing the
deceased in the well along with accused no. 2 and 3. Notably, there
was no mention of the co-accused persons in the original statement
of the appellant, as per the examination in chief of PW-1. One finds a
third version of the same fact when the complaint Ex.P1 is perused.
The said complaint was given by PW-1 at the police station of
15.11.2002. As per this complaint, the appellant was queried by PW-1
and his mother (presence of wife not mentioned). Furthermore, as per
the complaint, the appellant confessed to the commission of offence
along with one other accused (accused no.2) only. The complaint
Ex.P1 is also silent on the episode that took place at the residence
of PW-1 on 14.11.2002, a day prior to the filing of complaint. There
is no explanation as to how and in what circumstances the incident
of 14.11.2002 was omitted from Ex.P1. The omission assumes great
importance in light of the fact that the incident of 14.11.2002 was
the precursor of the confrontation that followed the next day, which
culminated into the act of filing the complaint. The complaint Ex.P1
is also silent on the information received by PW-1 from PW-5 and
PW-6 that they had seen his child going with the appellant on the
date of incident. The introduction of these witnesses was an exercise
of improvement, as we shall see in the following discussion.
19. The confession was followed by two things – arrest of the appellant
and recovery of dead body of the deceased. The evidentiary aspects
concerning these facts are equally doubtful. As per the testimony of
PW-1, he had taken the appellant to the police station and he was
arrested there. Contrarily, PW-16/I.O. deposed that after recording
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the complaint, he had arrested the appellant from his house. The
mode and manner of arrest, especially the place of arrest, is doubtful.
It also raises a question on the aspect of confession - whether the
confession was recorded when the appellant himself visited the police
station with PW-1 or when he was arrested from his house and was
taken to the police station by PW-16. The confessions, one made
after a voluntary visit to the police station and the other made after
arrest from the house, stand on materially different footings from
the point of view of voluntariness. The likelihood of the latter being
voluntary is fairly lesser in comparison to the former.
20. The next element which weighed upon the High Court in reversing
acquittal is the recovery of dead body of the deceased at the instance
of the appellant. Notably, the element of recovery is based on the
same statement/confession of the appellant which, as observed above,
fails to inspire the confidence of the Court. The Trial Court has rightly
analyzed the evidence regarding the recovery of dead body and the
High Court fell in an error in accepting the evidence on its face value,
without addressing the reasonable doubts raised by the Trial Court.
21. The recovery of dead body from the well is not in question. However,
the proof of such recovery to be at the instance of the appellant is
essentially based on the disclosure statement made by the appellant.
Again, the prime witness for proving the disclosure statement is
PW-1, whose testimony has failed to inspire the confidence of the
Court, in light of the contradictions, multiplicity of versions and
material improvements. The other witness to prove the recovery is
PW-2, the panch. Notably, PW- 2 was a waiter at a restaurant and
he deposed that he had visited the police station himself. It is difficult
to accept that PW-2 just happened to visit the police station on his
own and ended up becoming a witness of recovery of the dead
body. Firstly, his visit to the police station does not fit in the normal
chain of circumstances as it is completely unexplained. A police
station is not per se a public space where people happen to visit
in the ordinary course of business and therefore, an explanation is
warranted. Secondly, a normal person would generally be hesitant in
becoming a witness to the recovery of a dead body. There is nothing
on record to indicate that any notice to join investigation was given
to PW-2 by the I.O./PW-16. In such circumstances, it would not be
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safe to rely upon the testimony of PW-2 as he could reasonably be

a stock witness of the I.O.
22. Furthermore, we deem it appropriate to note that the identity of the
dead body recovered from the well is also not beyond question. The
Trial Court had also noted the doubts regarding the identity of the
dead body, however, the identity of the deceased was held to be
established in light of the fact that the identification was done by PW-
1, father of the deceased. The Trial Court also relied upon the fact
that the identification was not challenged by either side. Be that as it
may, we consider it important to note that there exist serious doubts
regarding the identity of the dead body recovered from the well. The
description of the deceased given by PW-1 in his complaint Ex.P1
did not match with the description of the dead body. The clothes
found on the dead body were substantially different from the clothes
mentioned by PW-1 in his complaint. The presence of ornaments
was not mentioned in the complaint. Furthermore, identification of
the dead body by face was not possible as the body had started
decomposing due to lapse of time. Admittedly, the dead body was
recovered after 12 days of the incident from a well. Sensitive body
parts were found bitten by aquatic animals inside the well. The theory
of ornaments has already been held to be a figment of imagination
by the Trial Court and the High Court in an unequivocal manner.
Therefore, the prosecution case regarding the identity of the dead
body is not free from doubts.
23. Another circumstance which weighs against PW-1 in a material
sense is the deafening silence on his part when PW-5 and PW-6
informed him regarding the factum of the deceased being thrown
into the well. Notably, the said fact was brought to the knowledge of
PW-1 well before 15.11.2002. Despite so, PW-1 maintained silence
and did not even approach the police for investigation or information
on such a crucial aspect of investigation. An anxious father would
have rushed to the police station on receiving an information of this
nature. The subsequent conduct of PW-1, after the receipt of such
material information, is unnatural. Furthermore, PW-5 only saw the
appellant taking away the child, PW-6 also saw the appellant only
and PW-7 saw three persons throwing the child in the well. The
versions are manifold. In such circumstances, it cannot be held that
the testimony of PW-1 is trustworthy and reliable.
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24. Notably, it is a peculiar case wherein the appellant has been convicted
for the commission of murder without ascertaining the cause of death
in a conclusive manner. The report prepared by PW-14 reveals
drowning as the cause of death. For attributing the act of throwing
the deceased into the well upon the appellant, the prosecution has
relied upon PW-7 and PW-18, the witnesses in support of the last
seen theory. The testimonies of these witnesses have been held to
be incredible by both Trial Court and the High Court. We suffice to
observe that we agree with the findings of the said Courts on this
point. Furthermore, the post mortem reveals the time of death within
a time frame of 3 to 12 days. Allegedly, the death took place on
03.11.2002. Such a wide time frame concerning the crucial question
of time of death raises a serious doubt on the reliability of the post
mortem report. When this fact is seen in light of the already existing
doubts on the identity of the deceased, one is constrained to take
the report with a pinch of salt. More so, this discrepancy again brings
into question the element of recovery of the dead body and identity
of the deceased.
25. This Court cannot lose sight of the fact that the Trial Court had
appreciated the entire evidence in a comprehensive sense and
the High Court reversed the view without arriving at any finding of
perversity or illegality in the order of the Trial Court. The High Court
took a cursory view of the matter and merely arrived at a different
conclusion on a re-appreciation of evidence. It is settled law that the
High Court, in exercise of appellate powers, may reappreciate the
entire evidence. However, reversal of an order of acquittal is not to
be based on mere existence of a different view or a mere difference
of opinion. To permit so would be in violation of the two views theory,
as reiterated by this Court from time to time in cases of this nature.
In order to reverse an order of acquittal in appeal, it is essential to
arrive at a finding that the order of the Trial Court was perverse or
illegal; or that the Trial Court did not fully appreciate the evidence on
record; or that the view of the Trial Court was not a possible view.
26. At the cost of repetition, it is reiterated that the anomaly of having
two reasonably possible views in a matter is to be resolved in favour
of the accused. For, after acquittal, the presumption of innocence in
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favour of the accused gets reinforced. In Sanjeev v. State of H.P.7,

this Court summarized the position in this regard and observed as
follows:
“7. It is well settled that:
7.1. While dealing with an appeal against acquittal, the
reasons which had weighed with the trial court in acquitting
the accused must be dealt with, in case the appellate court
is of the view that the acquittal rendered by the trial court
deserves to be upturned (see Vijay Mohan Singh v. State
of Karnataka8, Anwar Ali v. State of H.P.9 )
7.2. With an order of acquittal by the trial court, the
normal presumption of innocence in a criminal matter gets
reinforced (see Atley v. State of U.P.10)
7.3. If two views are possible from the evidence on record,
the appellate court must be extremely slow in interfering
with the appeal against acquittal (see Sambasivan v.
State of Kerala11)”
27. It may be noted that the entire case of the prosecution is based on
circumstantial evidence. The principles concerning circumstantial
evidence are fairly settled and are generally referred as the
“Panchsheel” principles. Essentially, circumstantial evidence comes
into picture when there is absence of direct evidence. For proving a
case on the basis of circumstantial evidence, it must be established
that the chain of circumstances is complete. It must also be
established that the chain of circumstances is consistent with the
only conclusion of guilt. The margin of error in a case based on
circumstantial evidence is minimal. For, the chain of circumstantial
evidence is essentially meant to enable the court in drawing an
inference. The task of fixing criminal liability upon a person on the
strength of an inference must be approached with abundant caution.

7 (2022) 6 SCC 294

8 (2019) 5 SCC 436
9 (2020) 10 SCC 166)
10 AIR 1955 SC 807
11 [1998] 3 SCR 280 : (1998) 5 SCC 412
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Kalinga @ Kushal v. State of Karnataka By Police Inspector Hubli

As discussed above, the circumstances sought to be proved by the

prosecution are inconsistent and the inconsistencies in the chain
of circumstances have not been explained by the prosecution. The
doubtful existence of the extra judicial confession, unnatural conduct
of PW-1, recovery of dead body in the presence of an unreliable
witness PW-2, contradictions regarding arrest, unnatural prior and
subsequent conduct of PW-1, incredible testimony of the witnesses in
support of the last seen theory etc. are some of the inconsistencies
which strike at the root of the prosecution case. To draw an inference
of guilt on the basis of such evidence would result into nothing but
failure of justice. The evidence on record completely fails the test
laid down for the acceptability of circumstantial evidence. Therefore,
in light of the consolidated discussion, all three issues are hereby
answered in negative.
28. Before parting, we consider it our duty to refer to the catena of
judgments relied upon by the respondent to contend that minor
inconsistencies could not be construed as reasonable doubts for
ordering acquittal. Reference has been made to Sucha Singh v.
State of Punjab12, Mallikarjun13 and Hari Singh v. State of Uttar
Pradesh14.
29. No doubt, it is trite law that a reasonable doubt is essentially a serious
doubt in the case of the prosecution and minor inconsistencies are
not to be elevated to the status of a reasonable doubt. A reasonable
doubt is one which renders the possibility of guilt as highly doubtful.
It is also noteworthy that the purpose of criminal trial is not only to
ensure that an innocent person is not punished, but it is also to ensure
that the guilty does not escape unpunished. A judge owes this duty
to the society and effective performance of this duty plays a crucial
role in securing the faith of the common public in rule of law. Every
case, wherein a guilty person goes unpunished due to any lacuna on
the part of the investigating agency, prosecution or otherwise, shakes
the conscience of the society at large and diminishes the value of
the rule of law. Having observed so, the observations in this regard

12 [2003] Suppl. 2 SCR 35 : (2003) 7 SCC 643

13 [2019] 11 SCR 609 : Supra
14 [2021] Suppl. 10 SCR 1022 : Supra
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may not advance the case of the respondent in the present appeal.
It is so because the inconsistencies in the case of the prosecution
are not minor inconsistencies. As already discussed above, the
prosecution has miserably failed to establish a coherent chain of
circumstances. The present case does not fall in the category of a
light-hearted acquittal15, which is shunned upon in law.
30. In light of the foregoing discussion, we hereby conclude that the High
Court has erred in reversing the decision of acquittal. The evidence
of the prosecution, at best, makes out a case for suspicion, and not
for conviction. Accordingly, the impugned order and judgment are
set aside. We find no infirmity in the order of the Trial Court and
the same stands restored. Consequently, the appellant is acquitted
from all the charges levelled upon him. The appellant is directed to
be released forthwith, if lying in custody.
31. The captioned appeal stands disposed of in the aforesaid terms.
Interim applications, if any, shall also stand disposed of.
32. No order as to costs.

Headnotes prepared by: Divya Pandey Result of the case:

Appeal disposed of.

15 ‘Proof of Guilt’, Glanville Williams.

 [2024] 2 S.C.R. 409 : 2024 INSC 126

Manoj Kumar
v.
Union of India & Ors.
(Civil Appeal No. 2679 of 2024)
20 February 2024
[Pamidighantam Sri Narasimha* and Sandeep Mehta, JJ.]

Issue for Consideration

The appellant sought appointment as a primary school teacher.
The issue arising for consideration in the present case relates the
allocation of marks for additional qualifications, for which 10 marks
had been prescribed.

Headnotes
Service Law – Recruitment – Allocation of marks for additional
qualifications – An Institute issued an advertisement in March
2016 calling applications for appointment to the post of primary
school teachers – For the allocation of marks, additional
qualifications 10 marks had been prescribed – The appellant
herein is aggrieved by the denial of 6 marks for the additional
qualification of PG Degree that he held, on the ground that
his PG Degree was not “in the relevant subject” – Propriety:
Held: It is evident from the record that a candidate possessing a
Post Graduate Diploma and a Post Graduate Degree would be
entitled to allocation of 5 and 6 marks respectively for their additional
qualification – However, a person possessing an MPhil degree or a
professional qualification in the field would be entitled to allocation of
7 marks for their additional qualification – The additional qualifications
provided under clauses ‘a’ to ‘d’ are under two categories – While
‘a’, ‘b’, and ‘d’ relating to PG Diploma, PG Degree, and PhD are
general qualifications providing for 5, 6, and 10 marks respectively,
the category under ‘c’ relates to Professional Qualification in the
field – This is where specialization is prescribed – If one adds the
requirement of specialization to category ‘b’, i.e., PG Degree, then
that category becomes redundant – The whole purpose of providing
PG Degree independently and allocating a lesser quantum of 6
marks will be completely lost if such an interpretation is adopted
– This can never be the purpose of prescribing distinct categories

* Author
410 [2024] 2 S.C.R.

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– The Single Judge as well as the Division Bench of the High Court
did not really analyse the prescription of additional qualifications
and the distinct marks allocated to each of them, but confined their
decision to restraint in judicial review and dismissed the appellant’s
prayer – When a citizen alleges arbitrariness in executive action, the
High Court must examine the issue, of course, within the context of
judicial restraint in academic matters – While respecting flexibility
in executive functioning, courts must not let arbitrary action pass
through – For the reasons stated, this Court is of the opinion that
the decisions of the Single Judge and the Division Bench are not
sustainable. [Paras 12, 13]
Administration of Justice – Primary duty of constitutional
courts – Addressing injurious consequences arising from
arbitrary and illegal administrative actions:
Held: While the primary duty of constitutional courts remains
the control of power, including setting aside of administrative
actions that may be illegal or arbitrary, it must be acknowledged
that such measures may not singularly address repercussions of
abuse of power – It is equally incumbent upon the courts, as a
secondary measure, to address – The injurious consequences
arising from arbitrary and illegal actions – This concomitant duty to
take reasonable measures to restitute the injured is overarching
constitutional purpose – This is how one has to read constitutional
text – In public law proceedings, when it is realised that the
prayer in the writ petition is unattainable due to passage of time,
constitutional courts may not dismiss the writ proceedings on the
ground of their perceived futility – In the life of litigation, passage
of time can stand both as an ally and adversary – It is the duty
of the Court to transcend the constraints of time and perform the
primary duty of a constitutional court to control and regulate the
exercise of power or arbitrary action – By taking the first step,
the primary purpose and object of public law proceedings will be
subserved. [Paras 19, 20]
Administration of Justice – Restitution of the wrongful action
– discussed.
Administration of Justice – Alternative restitutory measure –
Monetary compensation:
Held: In the instant case, in exercise of primary duty, the action
of the respondents are set aside as being illegal and arbitrary – In
furtherance of duty to provide a reasonable measure for restitution,
[2024] 2 S.C.R.  411

Manoj Kumar v. Union of India & Ors.

the possibility was explored of directing the Institute to appoint the

appellant as a primary teacher in any other school run by them –
However, it seems that the only primary school run by the Institute
is the one for which they sought to fill vacancies and it is closed
since 2023 – In this situation, an alternative restitutory measure
in the form of monetary compensation is considered – Thus, the
Institute (respondent no. 2) is directed to pay an amount of Rs.
1,00,000/- as compensation. [Paras 25 and 26]

Case Law Cited

University Grants Commission v. Neha Anil Bobde,
[2013] 9 SCR 521 : (2013) 10 SCC 519; Tamil
Nadu Education Department Ministerial and General
Subordinate Services Association v. State of Tamil Nadu,
[1980] 1 SCR 1026 : (1980) 3 SCC 97; All India Council
for Technical Education v. Surinder Kumar Dhawan,
[2009] 3 SCR 859 : (2009) 11 SCC 726 – referred to.

Books and Periodicals Cited

Sir Clive Lewis, Judicial Remedies in Public Law (5th
edn, Sweet and Maxwell 2015); HWR Wade and CF
Forsyth, Administrative Law (11th edn, Oxford University
Press 2014) 596-597; Peter Cane, ‘Damages in Public
Law’ (1999) 9(3) Otago Law Review 489; Henry Woolf
and others, De Smith’s Judicial Review (8th edn, Sweet
and Maxwell 2018) 1026-1027.

List of Keywords
Service Law; Recruitment; Allocation of marks for additional
qualifications; Arbitrariness in executive action; Judicial review;
Academic matters; Judicial restraints; Administration of Justice;
Primary duty of constitutional courts; Transcending constraints
of time; Control and regulation of the arbitrary action; Restitution
of the wrongful action; Alternative restitutory measure; Monetary
compensation.

Case Arising From

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2679 of 2024
From the Judgment and Order dated 16.10.2018 of the High Court
of Delhi at New Delhi in LPA No. 158 of 2018
412 [2024] 2 S.C.R.

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Appearances for Parties

Ranjit Kumar Sharma, Adv. for the Appellant.
K. M. Nataraj, A.S.G., Amrish Kumar, Shailesh Madiyal, Navanjay
Mahapatra, Apoorv Kurup, T.A. Khan, T.S. Sabarish, Arun Kanwa,
Purnendu Bajpai, Advs. for the Respondents.
Judgment / Order of the Supreme Court

Judgment
Pamidighantam Sri Narasimha, J.
1. Leave granted.
2. This appeal is by the appellant seeking appointment as a primary
school teacher. He is aggrieved by the judgment of the Division Bench
of the High Court of Delhi dismissing the writ appeal,1 which was filed
against the order of the Single Judge dismissing his writ petition.2
3. Pt. Deendayal Upadhyaya Institute for the Physically Handicapped,
hereinafter referred to as the ‘Institute’, issued an advertisement
in March 2016 calling applications for appointment to the post of
primary school teachers. The vacancy circular issued for this purpose
provided the qualifications and the procedure for selection. The
basic qualification was senior secondary with a two-year diploma
or certificate course in ETE/JBT or B.EI.Ed. The candidates were
required to have passed the secondary level with Hindi as a subject.
The final selection was to be made after conducting an interview
of qualified candidates. The Institute reserved its right to evaluate,
review the process of selection, and shortlist candidates at any stage,
and its decision would be final and binding. This discretionary power
is notified under Clauses 14 and 19 of the vacancy circular. The
relevant clauses relied on by the Institute are as follows:
“14. Decision of the institute in all matters regarding
eligibility of the candidate, the stages at which such
scrutiny of eligibility is to be undertaken, the documents
to be produced for the purpose of conduct of interview,
selection and any other matter relating to recruitment will

1 L.P.A. No. 158/2018 dated 16.10.2018.

2 W.P. (C) No. 5279/2017 and C.M. 22382/2017 dated 24.01.2018.
[2024] 2 S.C.R.  413

Manoj Kumar v. Union of India & Ors.

be final and binding on the candidate. Further, the institute

reserves the right to stall/ cancel the recruitment partially/
fully at any stage during the recruitment process at its
discretion, which will be final and binding on the candidate.
19. Fulfilment of conditions of minimum qualification
shall not necessarily entitle any applicant to be called for
further process of recruitment, in case of large number
of applications, Institute reserves the right to short-list
applications in any manner as may be considered appropriate
and no reason for rejection shall be communicated and no
claim for refund of fee shall be entertained in any case.”
4. On 27.04.2016, the Institute deviated from the procedure prescribed
in the original advertisement/vacancy circular and issued a notification
dispensing with the interview requirement, which was a part of the
selection process for Group ‘B’ and ‘C’ posts. Instead, it prescribed
allocation of additional marks for essential qualifications, additional
qualifications, essential experience, and the written test.
5. The issue arising for consideration in the present case relates the
allocation of marks for additional qualifications, for which 10 marks
had been prescribed. The break-up of the 10 allocable marks is as
under:

SL Particulars Marks
2. Marks for Additional Qualifications (Maximum) 10
a PG Diploma 5
b PG Degree 6
c MPhil/ Professional Qualification in the Field 7
d PhD 10
6. It is evident from the above that a candidate possessing a Post
Graduate Diploma and a Post Graduate Degree would be entitled
to allocation of 5 and 6 marks respectively for their additional
qualification. However, a person possessing an MPhil degree or a
professional qualification in the field would be entitled to allocation
of 7 marks for their additional qualification.
7. When the results were declared on 22.05.2017, the appellant got an
aggregate of 57.5 marks, and respondent no. 3 got 58.25 marks. On
enquiry, the appellant came to know that marks of respondent no.
414 [2024] 2 S.C.R.

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3 are inclusive of the 7 marks that she was entitled to for holding
the professional qualification of Masters in Education (M.Ed.). The
appellant has no complaint against the allocation of 7 additional
qualification marks to respondent no. 3. He was however surprised
by the denial of 6 marks for the additional qualification of PG Degree
that he held, on the ground that his PG Degree was not “in the
relevant subject”.
8. The appellant’s simple case is that had he been allocated 6 marks
for the PG Degree that he possessed, he would be the highest in
the list by aggregating a total of 63.5 marks. Denial of 6 marks on
a new ground that the PG Degree held by him is not in the relevant
subject, he says, is illegal and arbitrary. He made a representation on
26.05.2017 for allocation of 6 marks. Due to inaction, he approached
the Delhi High Court by way of a writ of mandamus to the Union
and the Institute to remedy the injustice.
9. The learned Single Judge of the High Court refused to interfere by
following the principle laid down in the judgment of this Court in
University Grants Commission v. Neha Anil Bobde (Gadekar),3 where
it was held that in academic matters, the qualifying criteria must be
left to the discretion of the concerned institution. The appellant then
preferred a Writ Appeal, and the Division Bench also followed the
principle in Neha Anil Bobde, as reiterated in other decisions,4 and
held that in academic matters, the interference of the Court should
be minimum. In para 13 of its judgment, the High Court also relied on
Clauses 14 and 19 of the vacancy circular to hold that the Institute in
any event reserves the right to shortlist applications as it considers
appropriate. Thus, the appellant approached this Court in 2019 itself.
10. At the outset, we note that the procedure for selection was provided
in the vacancy circular issued in March 2016. Instead of following
the said procedure, the Institute chose to adopt a new method by its
notification dated 27.04.2016, wherein it dispensed with the interview
and prescribed the allocation of marks for additional qualifications. We
make it clear at this very stage that the appellant has not challenged
the variation in the original selection process of an interview and its

3 (2013) 10 SCC 519.

4 Tamil Nadu Education Department Ministerial and General Subordinate Services Association v. State
of Tamil Nadu (1980) 3 SCC 97; All India Council for Technical Education v. Surinder Kumar Dhawan
(2009) 11 SCC 726.
[2024] 2 S.C.R.  415

Manoj Kumar v. Union of India & Ors.

replacement with allocation of marks for additional qualifications.

The only challenge is that the denial of 6 marks for the additional
qualification of a PG Degree that he possesses is illegal and arbitrary.
On the other hand, the respondents raised the standard defence by
invoking Clauses 14 and 19 to submit that they have reserved the
right of shortlisting candidates as is considered appropriate. They
also submit that the appellant cannot be given the benefit of 6 marks
for additional qualifications as he did not possess the PG Degree in
the “relevant subject”.
11. Analysis: The standard argument made consistently and successfully
before the Single Judge and Division Bench must fail before us.
Clauses 14 and 19 of the vacancy circular do nothing more than
reserving flexibility in the selection process. They cannot be read
to invest the Institute with unbridled discretion to pick and choose
candidates by supplying new criteria to the prescribed qualification.
This is a classic case of arbitrary action. The submission based on
Clauses 14 and 19 must fail here and now.
12. The other submission of the respondent about restricting a “PG
Degree” to a “PG Degree in Relevant Subject” must also be rejected.
The illegality in adopting and applying such an interpretation is
evident from a simple reading of the notification dated 27.04.2016
providing for additional qualifications. The additional qualifications
provided under clauses ‘a’ to ‘d’ are under two categories. While
‘a’, ‘b’, and ‘d’ relating to PG Diploma, PG Degree, and PhD are
general qualifications providing for 5, 6, and 10 marks respectively,
the category under ‘c’ relates to Professional Qualification in the field.
This is where specialization is prescribed. If we add the requirement
of specialization to category ‘b’, i.e., PG Degree, then that category
becomes redundant. The whole purpose of providing PG Degree
independently and allocating a lesser quantum of 6 marks will be
completely lost if such an interpretation is adopted. This can never
be the purpose of prescribing distinct categories. No further analysis
is necessary. We reject this submission also.
13. The Single Judge as well as the Division Bench did not really analyse
the prescription of additional qualifications and the distinct marks
allocated to each of them, but confined their decision to restraint
in judicial review and dismissed the appellant’s prayer. When a
citizen alleges arbitrariness in executive action, the High Court must
416 [2024] 2 S.C.R.

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examine the issue, of course, within the context of judicial restraint in

academic matters. While respecting flexibility in executive functioning,
courts must not let arbitrary action pass through. For the reasons
stated above, we are of the opinion that the decisions of the Single
Judge and the Division Bench are not sustainable, and we hereby
set aside their judgments.
14. The story does not end here.
15. While reserving the judgment, we directed the respondents to file an
additional affidavit with respect to the availability of a vacant position.
Following the direction, respondents 1 and 2 have filed an affidavit.
Paragraph 3 and 4 of the affidavit read as under:
“3. I state that the applications were invited to fill up the
vacancy for Primary School Teacher at the Model Integrated
Primary School [hereinafter the ‘School’] which was run
by the Respondent No. 2 Institute. The Petitioner and the
Respondent had applied in the SC category for which there
was single post. The School has been closed on 01.04.2023
with the approval of the 128th Standing Committee held on
13.05.2022 and 49th General Council held on 26.05.2022.
I further state that the Respondent No. 3 who was select
in pursuance of aforementioned application had joined
the post of Primary Teacher on 02.04.2018 and has since
resigned on 24.10.2019.
4. I therefore state that on account of the closure of the
School, there is no vacancy in the post of Primary Teacher
to which the Petitioner and the Respondent No. 3 had
applied and which is the subject matter of the Special Leave
Petition. The letter dated 13/14.12.2023 of the Pt. Deendayal
Upadhyay National Institute for Persons with Physical
Disabilities (Divyangjan) to the Ministry of Law and Justice
is also annexed herewith for reference as Annexure A1.”
16. It is evident from the above that the school for which the advertisement
was issued was closed on 01.04.2023. In view of the closure of
the school, we cannot direct the respondent Institute to employ
the appellant as a primary school teacher. This is an unfortunate
situation where the Court finds that the action of the respondent
was arbitrary, but the consequential remedy cannot be given due to
[2024] 2 S.C.R.  417

Manoj Kumar v. Union of India & Ors.

subsequent developments. One stark reality of the situation is the

time that has passed between the order of 2018 impugned herein
and the judgment that we pronounce in 2024.
17. Judicial review of administrative action in public law is qualitatively
distinct from judicial remedies in civil law. In judicial review,
constitutional courts are concerned with the exercise of power by
the State and its instrumentalities.
18. Within the realm of judicial review in common law jurisdictions,
it is established that constitutional courts are entrusted with the
responsibility of ensuring the lawfulness of executive decisions, rather
than substituting their own judgment to decide the rights of the parties,
which they would exercise in civil jurisdiction.5 It has been held that
the primary purpose of quashing any action is to preserve order in
the legal system by preventing excess and abuse of power or to set
aside arbitrary actions. Wade on Administrative Law states that the
purpose of quashing is not the final determination of private rights,
for a private party must separately contest his own rights before the
administrative authority.6 Such private party is also not entitled to
compensation merely because the administrative action is illegal.7 A
further case of tort, misfeasance, negligence, or breach of statutory
duty must be established for such person to receive compensation.8
19. We are of the opinion that while the primary duty of constitutional courts
remains the control of power, including setting aside of administrative
actions that may be illegal or arbitrary, it must be acknowledged that
such measures may not singularly address repercussions of abuse
of power. It is equally incumbent upon the courts, as a secondary
measure, to address the injurious consequences arising from
arbitrary and illegal actions. This concomitant duty to take reasonable
measures to restitute the injured is our overarching constitutional
purpose. This is how we have read our constitutional text, and this
is how we have built our precedents on the basis of our preambular
objective to secure justice.9

5 Sir Clive Lewis, Judicial Remedies in Public Law (5th edn, Sweet and Maxwell 2015).
6 HWR Wade and CF Forsyth, Administrative Law (11th edn, Oxford University Press 2014) 596-597.
7 Peter Cane, ‘Damages in Public Law’ (1999) 9(3) Otago Law Review 489.
8 Henry Woolf and others, De Smith’s Judicial Review (8th edn, Sweet and Maxwell 2018) 1026-1027.
9 The Preambular goals are to secure Justice, Liberty, Equality, and Fraternity for all citizens.
418 [2024] 2 S.C.R.

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20. In public law proceedings, when it is realised that the prayer in the
writ petition is unattainable due to passage of time, constitutional
courts may not dismiss the writ proceedings on the ground of their
perceived futility. In the life of litigation, passage of time can stand both
as an ally and adversary. Our duty is to transcend the constraints of
time and perform the primary duty of a constitutional court to control
and regulate the exercise of power or arbitrary action. By taking the
first step, the primary purpose and object of public law proceedings
will be subserved.
21. The second step relates to restitution. This operates in a different
dimension. Identification and application of appropriate remedial
measures poses a significant challenge to constitutional courts,
largely attributable to the dual variables of time and limited resources.
22. The temporal gap between the impugned illegal or arbitrary action and
their subsequent adjudication by the courts introduces complexities
in the provision of restitution. As time elapses, the status of persons,
possession, and promises undergoes transformation, directly
influencing the nature of relief that may be formulated and granted.
23. The inherent difficulty in bridging the time gap between the illegal
impugned action and restitution is certainly not rooted in deficiencies
within the law or legal jurisprudence but rather in systemic issues
inherent in the adversarial judicial process. The protracted timeline
spanning from the filing of a writ petition, service of notice, filing
of counter affidavits, final hearing, and then the eventual delivery
of judgment, coupled with subsequent appellate procedures,
exacerbates delays. Take for example this very case, the writ petition
was filed against the action of the respondent denying appointment
on 22.05.2017. The writ petition came to be decided by the Single
Judge on 24.01.2018, the Division Bench on 16.10.2018, and then
the case was carried to this Court in the year 2019 and we are
deciding it in 2024. The delay in this case is not unusual, we see
several such cases when our final hearing board moves. Appeals of
more than two decades are awaiting consideration. It is distressing
but certainly not beyond us. We must and we will find a solution to
this problem.
24. It is in this reality and prevailing circumstance that we must formulate
an appropriate system for preserving the rights of the parties till
the final determination takes place. In the alternative, we may also
[2024] 2 S.C.R.  419

Manoj Kumar v. Union of India & Ors.

formulate a reasonable equivalent for restitution of the wrongful action.

25. Returning to the facts of the present case, in exercise of our primary
duty, we have set aside the action of the respondents as being illegal
and arbitrary. In furtherance of our duty to provide a reasonable
measure for restitution, we have explored the possibility of directing
the Institute to appoint the appellant as a primary teacher in any other
school run by them. However, it seems that the only primary school
run by the Institute is the one for which they sought to fill vacancies
and it is closed since 2023. In this situation, we must consider an
alternative restitutory measure in the form of monetary compensation.
26. We appreciate the spirit of the appellant who has steadfastly contested
his case like the legendary Vikram,10 from the year 2017 when he
was illegally denied the appointment by the executive order dated
22.05.2017, which we have set aside as being illegal and arbitrary.
In these circumstances, we direct the Institute (respondent no. 2)
to pay an amount of Rs. 1,00,000/- as compensation. This amount
shall be paid to the appellant within a period of six weeks from the
date of passing of this order.
27. For the reasons stated above, we allow the appeal and set aside the
judgment of the High Court in W.P. (C) No. 5279 of 2017 and C.M.
No. 22382 of 2017 dated 24.01.2018 and in L.P.A. No. 158 of 2018
dated 16.10.2018 and direct the Institute (respondent no. 2) to pay
Rs. 1,00,000/- as a compensation with cost quantified at Rs. 25,000/-.

Headnotes prepared by: Ankit Gyan Result of the case:

Appeal allowed.

10 Against Betala, in the famous Vetalapancavimsati, the original being the Kathasaritsagara work of the
11th Century by Somadeva.
 [2024] 2 S.C.R. 420 : 2024 INSC 113

Association for Democratic Reforms & Anr.

v.
Union of India & Ors.
(Writ Petition (C) No. 880 of 2017)
15 February 2024
[Dr Dhananjaya Y Chandrachud,* CJI, Sanjiv Khanna,*
B R Gavai, J B Pardiwala and Manoj Misra, JJ.]

Issue for Consideration

The matter pertains to the constitutional validity of the Electoral
Bond Scheme which introduced anonymous financial contributions
to political parties; as also the constitutional validity of the
provisions of the Finance Act 2017 which, among other things,
amended the provisions of the Reserve Bank of India Act 1934,
the Representation of the People Act 1951, the Income Tax Act
1961; as also whether unlimited corporate funding to political
parties, as envisaged by the amendment to s. 182(1) of the
Companies Act infringes the principle of free and fair elections
and violates Art. 14 of the Constitution; and whether the non-
disclosure of information on voluntary contributions to political
parties under the Electoral Bond Scheme and the amendments
to s. 29C of the RPA, s. 182(3) of the CA and s. 13A(b) of the
IT Act are violative of the right to information of citizens u/Art.
19(1)(a) of the Constitution.

Headnotes
Elections – Electoral process – Electoral Bond Scheme, 2018
– Electoral Bond Scheme introduced anonymous financial
contribution to political parties – Constitutional validity of:
Held: (per Dr Dhananjaya Y Chandrachud, CJI.) (for himself
and for B R Gavai, J B Pardiwala and Manoj Misra, JJ) Electoral
Bond Scheme is unconstitutional – Directions to the issuing bank
to stop the issuance of Electoral Bonds – SBI to submit: details
of Electoral Bonds purchased since 12 April 2019 till date to the
ECI including the date of purchase of each Electoral Bond, the
name of the purchaser of the bond and the denomination of the

* Authors
Ed. Note : Hon’ble Dr. Dhananjaya Y Chandrachud, CJI, pronounced the judgement of the Bench comprising
his lordship, Hon’ble Mr. Justice B.R. Gavai, Hon’ble Mr. Justice J.B. Pardiwala, Hon’ble Mr. Justice Manoj
Misra, while Hon’ble Mr. Justice Sanjiv Khanna pronounced his separate judgement.
[2024] 2 S.C.R.  421

Association for Democratic Reforms & Anr. v. Union of India & Ors.

Electoral Bond purchased; details of political parties which have

received contributions through Electoral Bonds since 12 April 2019
till date to the ECI, and each Electoral Bond encashed by political
parties – SBI to submit the said information to the ECI within the
period stipulated – ECI to publish the information shared by the
SBI on its official website – Electoral Bonds within the validity
period of fifteen days but have not been encashed by the political
party yet, to be returned by the political party or the purchaser to
the issuing bank – Constitution of India. [Paras 216, 219] – Held:
(per Sanjiv Khanna, J.) (Concurring with Dr Dhananjaya Y
Chandrachud, CJI.) (Concurring with conclusions albeit with
different reasonings) Electoral Bond Scheme is unconstitutional
and is struck down – Directions to ECI to ascertain the details
from the political parties and the State Bank of India, which issued
the Bonds, and the bankers of the political parties and thereupon
disclose the details and names of the donor/purchaser of the Bonds
and the amounts donated to the political party – Henceforth, the
issuance of fresh Bonds is prohibited – Electoral Bonds within
the validity period of fifteen days but have not been encashed by
the political party yet, to be returned by the political party or the
purchaser to the issuing bank. [Para 79]
Elections – Electoral process – Electoral Bond Scheme –
Amendment to s. 182 of the Companies Act, 2013 Act, deleting
the first proviso thereunder (as amended by the s. 154 of the
Finance Act, 2017) thereby permitting unlimited corporate
funding to political parties – First proviso to s. 182 provided
the limit of contribution by the company upto seven and a half
per cent of its average net profits during the three immediately
preceding financial years – Validity of:
Held: (per Dr Dhananjaya Y Chandrachud, CJI.) (for himself and
for B R Gavai, J B Pardiwala and Manoj Misra, JJ): Is arbitrary
and violative of Art. 14 – It infringes the principle of free and fair
elections – Amendment to s. 182 is manifestly arbitrary for treating
political contributions by companies and individuals alike; permitting
the unregulated influence of companies in the governance and
political process violating the principle of free and fair elections;
and treating contributions made by profit-making and loss-making
companies to political parties alike [Paras 215, 216] – Held: (per
Sanjiv Khanna, J.) Amendment to s. 182 of the Companies Act,
deleting the first proviso thereunder, is unconstitutional, and is
422 [2024] 2 S.C.R.

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struck down – Principle of proportionality applied which would

subsume the test of manifest arbitrariness – Furthermore, the claim
of privacy by a corporate or a company, especially a public limited
company would be on very limited grounds, restricted possibly to
protect the privacy of the individuals and persons responsible for
conducting the business and commerce of the company – It would
be rather difficult for a public (or even a private) limited company
to claim a violation of privacy as its affairs have to be open to the
shareholders and the public who are interacting with the body
corporate/company – Constitution of India – Art. 14 – Companies
Act, 2013 – s. 182. [Para 73]
Elections – Electoral process – Electoral Bond Scheme –
Non-disclosure of information on voluntary contributions to
political parties under the Electoral Bond Scheme and the
amendments to s. 29C of the Representation of the People
Act 1951, s. 182(3) of the Companies Act and s. 13A(b) of the
IT Act by the Finance Act, 2017 – If violative of Art. 19(1)(a):
Held: (per Dr Dhananjaya Y Chandrachud, CJI.) (for himself and
for B R Gavai, J B Pardiwala and Manoj Misra, JJ) Information
about funding to a political party is essential for a voter to exercise
their freedom to vote in an effective manner – Electoral Bond
Scheme and the impugned provisions-proviso to s. 29C(1) of the
RPA, s. 182(3) of the CA, and s. 13A(b) of the ITA to the extent
that they infringe upon the right to information of the voter by
anonymizing contributions through electoral bonds are violative of
Art 19(1)(a) and unconstitutional – Union of India was unable to
establish that the measure employed in Clause 7(4) of the Electoral
Bond Scheme is the least restrictive means to balance the rights
of informational privacy to political contributions and the right to
information of political contributions – Deletion of the mandate
of disclosing the particulars of contributions in s. 182(3) violates
the right to information of the voter since they would not possess
information about the political party to which the contribution was
made which, is necessary to identify corruption and quid pro quo
transactions in governance – Such information is also necessary for
exercising an informed vote – s. 29C exempts political parties from
disclosing information of contributions received through Electoral
Bonds whereas s. 182(3) applies to all modes of transfer – Both
must be read together – Only purpose of amending s. 182(3)
was to bring the provision in tune with the amendment under the
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RPA exempting disclosure requirements for contributions through

electoral bonds – Amendment to s. 182(3) becomes otiose in
terms of the holding that the Electoral Bond Scheme and relevant
amendments to the RPA and the IT Act mandating non-disclosure
of particulars on political contributions through electoral bonds is
unconstitutional [Paras 104, 168, 169, 172-174, 216] – Held: (per
Sanjiv Khanna, J.) On application of the doctrine of proportionality,
proviso to s. 29C(1) of the RPA, s. 182(3) of the CA, 2013, and
s. 13A(b) of the ITA, as amended by the Finance Act, 2017,
unconstitutional, and are struck down – Representation of the
People Act, 1951 – s. 29C – Companies Act, 2013 – s. 182(3)
– Income Tax Act, 1961 – s. 13A(b) – Constitution of India – Art.
19(1)(a). [Para 74]
Elections – Electoral process – Electoral Bond Scheme –
s. 31(3) of the RBI Act added by the Finance Act, 2017 to
effectuate the issuance of the Bonds which, as envisaged, are
not to mention the name of the political party to whom they
are payable, and hence are in the nature of bearer demand
bill or note – Challenge to:
Held: Per Sanjiv Khanna, J. Sub-section (3) to s. 31 of the RBI
Act, 1934 and the Explanation thereto introduced by the Finance
Act, 2017 is unconstitutional, and are struck down as it permits
issuance of Bonds payable to a bearer on demand by such person
– Finance Act, 2017 – Reserve Bank of India Act, 1934 – s. 31(3).
[Para 79]
Elections – Electoral process – Electoral Bonds Scheme, 2018
– Challenge to the Electoral Bond Scheme and the statutory
amendments mandating non-disclosure of information on
electoral financing; and provisions permitting unlimited
corporate funding to political parties – Parameters to test:
Held: (per Dr Dhananjaya Y Chandrachud, CJI, (for himself
and for B R Gavai, J B Pardiwala and Manoj Misra, JJ):
Courts must adopt a less stringent form of judicial review while
adjudicating challenges to legislation and executive action which
relate to economic policy as compared to laws relating to civil
rights such as the freedom of speech or the freedom of religion
– Amendments relate to the electoral process – Correspondence
between the Ministry of Finance and RBI that the Bonds were
introduced only to curb black money in the electoral process, and
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protect informational privacy of financial contributors to political

parties – Union of India itself classified the amendments as an
“electoral reform” – It cannot be said that the amendments deal
with economic policy [Paras 40, 42] – Held: (per Sanjiv Khanna,
J.) Scheme cannot be tested on the parameters applicable to
economic policy – Matters of economic policy normally pertain to
trade, business and commerce, whereas contributions to political
parties relate to the democratic polity, citizens’ right to know and
accountability in the democracy – Primary objective of the Scheme,
and relevant amendments, is electoral reform and not economic
reform – To give the legislation the latitude of economic policy, it
would be diluting the principle of free and fair elections. [Para 15]
Elections – Electoral process – Presumption of constitutionality
– Application, to electoral laws:
Held: (per Dr Dhananjaya Y Chandrachud, CJI, (for himself and
for B R Gavai, J B Pardiwala and Manoj Misra, JJ): Presumption
of constitutionality is based on democratic accountability, that is,
the legislators are elected representatives who are aware of the
needs of the citizens and are best placed to frame policies to
resolve them; and that they are privy to information necessary
for policy making which the Courts as an adjudicating authority
are not – However, the policy underlying the legislation must
not violate the freedoms and rights entrenched in Part III of the
Constitution and other constitutional provisions – Presumption of
constitutionality is rebutted when a prima facie case of violation
of a fundamental right is established – Onus then shifts on the
State to prove that the violation of the fundamental right is justified
– It cannot be said that the presumption of constitutionality does
not apply to laws which deal with electoral process [Paras 44,
45] – Held: (per Sanjiv Khanna, J.): Doctrine of presumption of
constitutionality has its limitations when the test of proportionality
is applied – Structured proportionality places an obligation on
the State at a higher level, as it is a polycentric examination,
both empirical and normative – While the courts do not pass a
value judgment on contested questions of policy, and give weight
and deference to the government decision by acknowledging
the legislature’s expertise to determine complex factual issues,
the proportionality test is not based on preconceived notion or
presumption – Standard of proof is a civil standard or a balance
of probabilities; where scientific or social science evidence is
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available, it is examined; and where evidence is inconclusive or

does not exist and cannot be developed, reason and logic may
suffice. [Para 18]
Elections – Electoral process – Electoral Bond Scheme, 2018
– Corporate donations to national parties through electoral
bonds – Annual audit reports of political parties from 2017-
18 to 2022-23 as available on website of ECI – Significance
– Doctrine of proportionality, application:
Held: (Per Sanjiv Khanna, J.) Data indicative of the quantum
of corporate funding through the anonymous Bonds – It clarifies
that majority of contribution through Bonds has gone to political
parties which are ruling parties in the Centre and the States –
More than 50% of the Electoral Bonds in number, and 94% of
the Electoral Bonds in value terms were for Rs.1 crore – This
supports the reasoning and conclusion on the application of the
doctrine of proportionality – Based on the analysis of the data
available, the Scheme fails to meet the balancing prong of the
proportionality test, however, the proportionality stricto sensu
not applied due to the limited availability of data and evidence.
[Paras 69, 74]
Elections – Electoral Process – Electoral Bond Scheme –
Infringement of the right to information of the voter, if satisfies
the proportionality standard vis-à-vis the purposes of curbing
black money; and protecting donor privacy:
Held: (per Dr Dhananjaya Y Chandrachud, CJI.) (for himself
and for B R Gavai, J B Pardiwala and Manoj Misra, JJ)
Purpose of curbing black money is not traceable to any of the
grounds in Art 19(2) – Electoral trusts are an effective alternative
through which the objective of curbing black money in electoral
financing can be achieved – Electoral Bond Scheme not being the
least restrictive means to achieve the purpose of curbing black
money in electoral process, there is no necessity of applying
the balancing prong of the proportionality standard – Electoral
Bond Scheme is not the only means for curbing black money in
Electoral Finance – There are other alternatives which substantially
fulfill the purpose and impact the right to information minimally
when compared to the impact of electoral bonds on the right to
information – Constitution of India – Art. 19(1) (a) and 19(2).
[Paras 116, 121, 124, 129, 130]
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Elections – Electoral process – Right to informational privacy,

if extends to financial contributions to a political party:
Held : (per Dr Dhananjaya Y Chandrachud, CJI.) (for himself
and for B R Gavai, J B Pardiwala and Manoj Misra, JJ) If the
right to informational privacy extends to financial contributions to
a political party, this Court needs to decide if the Electoral Bond
Scheme adequately balances the right to information and right to
informational privacy of political affiliation – Informational privacy
to political affiliation is necessary to protect the freedom of political
affiliation and exercise of electoral franchise – As regards, right
to informational privacy if can be extended to the contributions to
political parties, Electoral Bond Scheme has two manifestations
of privacy, informational privacy by prescribing confidentiality vis-
à-vis the political party; and informational privacy by prescribing
non-disclosure of the information of political contributions to the
public – Financial contributions to political parties are usually
made because they may constitute an expression of support to
the political party and that the contribution may be based on a quid
pro quo – Law permits contributions to political parties by both
corporations and individuals – Huge political contributions made
by corporations and companies should not be allowed to conceal
the reason for financial contributions made by another section
of the population: a student, a daily wage worker, an artist, or a
teacher – When the law permits political contributions and such
contributions could be made as an expression of political support
which would indicate the political affiliation of a person, it is the
duty of the Constitution to protect them – Contributions made as
quid pro quo transactions are not an expression of political support
– However, to not grant the umbrella of informational privacy to
political contributions only because a portion of the contributions
is made for other reasons would be impermissible – Constitution
does not turn a blind eye merely because of the possibilities of
misuse. [Paras 131, 138, 139, 142]
Doctrines/Principles – Principle of proportionality –
Proportionality standard test – Four prongs –– Explanation of:
Held: (per Dr Dhananjaya Y Chandrachud, CJI.) (for himself
and for B R Gavai, J B Pardiwala and Manoj Misra, JJ)
Proportionality standard is laid down to determine if the violation
of the fundamental right is justified – Proportionality standard is-the
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measure restricting a right must have a legitimate goal (legitimate

goal stage); the measure must be a suitable means for furthering
the goal (suitability or rational connection stage); the measure
must be least restrictive and equally effective (necessity stage);
and the measure must not have a disproportionate impact on
the right holder (balancing stage) – At the legitimate goal stage,
the Court is to analyze if the objective of introducing the law is a
legitimate purpose for the infringement of rights – Second prong
of the proportionality analysis requires the State to assess whether
the means used are rationally connected to the purpose – At
this stage, the court is required to assess whether the means,
if realised, would increase the likelihood of the purpose – It is
not necessary that the means chosen should be the only means
capable of realising the purpose – Next stage is the necessity
stage, wherein the Court is to determine if the means adopted
is the least restrictive means to give effect to the purpose – The
Court is to see, whether there are other possible means which
could have been adopted by the State; whether the alternative
means identified realise the objective in a ‘real and substantial
manner’; whether the alternative identified and the means used
by the State impact fundamental rights differently; and whether
on an overall comparison (and balancing) of the measure and
the alternative, the alternative is better suited considering the
degree of realizing the government objective and the impact on
fundamental rights – In the last stage, the Court undertakes a
balancing exercise to analyse if the cost of the interference with
the right is proportional to the extent of fulfilment of the purpose
– It is in this step that the Court undertakes an analysis of the
comparative importance of the considerations involved in the
case, the justifications for the infringement of the rights, and if
the effect of infringement of one right is proportional to achieve
the goal [Paras 105, 106, 117, 119, 156] – Held: (per Sanjiv
Khanna, J.) Four steps of test of proportionality are: first step is
to examine whether the act/measure restricting the fundamental
right has a legitimate aim, second step is to examine whether
the restriction has rational connection with the aim, third step
is to examine whether there should have been a less restrictive
alternate measure that is equally effective, and last stage is to
strike an appropriate balance between the fundamental right and
the pursued public purpose. [Para 25]
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Doctrines/Principles – Principle of proportionality – Test of

proportionality – Proportionality standard to balance two
conflicting fundamental rights – Foreign vis-à-vis Indian
jurisprudence:
Held: (per Dr Dhananjaya Y Chandrachud, CJI, (for himself
and for B R Gavai, J B Pardiwala and Manoj Misra, JJ):
Foreign case *Campbell v MGM Limited judgment adopts a double
proportionality standard – It employed a three step approach to
balance fundamental rights, first step to analyse the comparative
importance of the actual rights claimed, second step to lay down
the justifications for the infringement of the rights, and third to apply
the proportionality standard to both the rights – Said approach must
be slightly tempered to suit Indian jurisprudence on proportionality
– Indian Courts adopt a four prong structured proportionality
standard to test the infringement of the fundamental rights – In
the last stage, the Court undertakes a balancing exercise, wherein
the Court undertakes an analysis of the comparative importance
of the considerations involved in the case, the justifications for
the infringement of the rights, and if the effect of infringement
of one right is proportional to achieve the goal – Thus, the first
two steps laid down in Campbell case are subsumed within the
balancing prong of the proportionality analysis. [Paras 154, 156]
– Held: (per Sanjiv Khanna, J.) Test of proportionality employed
by courts in various jurisdictions like Germany, Canada, South
Africa, Australia and the United Kingdom, however, no uniformity
on application of test of proportionality or the method of using the
last two prongs – In the third prong, courts examine whether the
restriction is necessary to achieve the desired end, wherein they
consider whether a less intrusive alternative is available to achieve
the same ends, aiming for minimal impairment – As regards, the
fourth prong, the balancing stage, some jurists believe that balancing
is ambiguous and value-based, which stems from the premise of
rule-based legal adjudication, where courts determine entitlements
rather than balancing interests – However, proportionality is a
standard-based review rather than a rule-based one – Balancing
stage enables judges to consider various factors by analysing them
against the standards proposed by the four prongs of proportionality
– This ensures that all aspects of a case are carefully weighed
in decision-making – While balancing is integral to the standard
of proportionality, such an exercise should be rooted in empirical
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data and evidence as adopted by most of the countries – In

the absence of data and figures, there is a lack of standards by
which proportionality stricto sensu can be determined – However
many of the constitutional courts have employed the balancing
stage ‘normatively’ by examining the weight of the seriousness
of the right infringement against the urgency of the factors that
justify it – Findings of empirical legal studies provide a more solid
foundation for normative reasoning and enhance understanding
of the relationship between means and ends – Proportionality
analyses would be more accurate and would lead to better and
more democratic governance. [Paras 29, 31-33, 35]
Doctrines/Principles – Doctrine of proportionality –
Proportionality standard test to balance fundamental rights-
right to information and the right to informational privacy:
Held: (per Dr Dhananjaya Y Chandrachud, CJI.) (for himself and
for B R Gavai, J B Pardiwala and Manoj Misra, JJ) Proportionality
standard is an effective standard to test whether the infringement of
the fundamental right is justified – It would prove to be ineffective
when the State’s interest in question is also a reflection of a
fundamental right – Proportionality standard is by nature curated
to give prominence to the fundamental right and minimize the
restriction on it – If the single proportionality standard were employed
to the considerations in the instant case, at the suitability prong,
the Court would determine if non-disclosure is a suitable means for
furthering the right to privacy – At the necessity stage, the Court
would determine if non-disclosure is the least restrictive means
to give effect to the right to privacy – At the balancing stage, the
Court would determine if non-disclosure has a disproportionate
effect on the right holder – In this analysis, the necessity and the
suitability prongs would inevitably be satisfied because the purpose
is substantial: it is a fundamental right – Balancing stage will only
account for the disproportionate impact of the measure on the right
to information (the right) and not the right to privacy (the purpose)
since the Court is required to balance the impact on the right with
the fulfillment of the purpose through the selected means – Thus,
the Court while applying the proportionality standard to resolve
the conflict between two fundamental rights preferentially frames
the standard to give prominence to the fundamental right which
is alleged to be violated by the petitioners (in this case, the right
to information). [Paras 152-153]
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Doctrines/Principles – Double proportionality standard –

Application of, to both the rights-right to informational privacy
of the contributor and the right to information of the voter:
Held: (per Dr Dhananjaya Y Chandrachud, CJI.) (for himself
and for B R Gavai, J B Pardiwala and Manoj Misra, JJ) Double
proportionality standard is the proportionality standard to both the
rights (as purpose) to determine if the means used are suitable,
necessary and proportionate to the fundamental rights – First prong
of the analysis is whether the means has a rational connection
with both the purposes, that is, informational privacy of the political
contributions and disclosure of information to the voter – Further,
while applying the suitability prong to the purpose of privacy of
political contribution, the court must consider whether the non-
disclosure of information to the voter and its disclosure only when
demanded by a competent court and upon the registration of
criminal case has a rational nexus with the purpose of achieving
privacy of political contribution – Undoubtedly, the measure by
prescribing non-disclosure of information about political funding
shares a nexus with the purpose – Non-disclosure of information
grants anonymity to the contributor, thereby protecting information
privacy – It is certainly one of the ways capable of realizing the
purpose of informational privacy of political affiliation – Suitability
prong must next be applied to the purpose of disclosure of
information about political contributions to voters – There is no
nexus between the balancing measure adopted with the purpose of
disclosure of information to the voter – According to Clause 7(4) of
the Electoral Bond Scheme and the amendments, the information
about contributions made through the Electoral Bond Scheme is
exempted from disclosure requirements – This information is never
disclosed to the voter – Purpose of securing information about
political funding can never be fulfilled by absolute non-disclosure
– Measure adopted does not satisfy the suitability prong vis-à-vis
the purpose of information of political funding – The next stage is
the necessity prong, wherein the Court determines if the measure
identified is the least restrictive and equally effective measure –
Court must determine if there are other possible means which
could have been adopted to fulfill the purpose, and whether such
alternative means realize the purpose in a real and substantial
manner; impact fundamental rights differently; and are better suited
on an overall comparison of the degree of realizing the purpose
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and the impact on fundamental rights - On an overall comparison

of the measure and the alternative, the alternative is better suited
because it realizes the purposes to a considerable extent and
imposes a lesser restriction on the fundamental rights – Having
concluded that Clause 7(4) of the Scheme is not the least restrictive
means to balance the fundamental rights, there is no necessity
of applying the balancing prong of the proportionality standard.
[Paras 160-164, 168]
Doctrine/Principles – Doctrine of proportionality, when applied:
Held: (Per Sanjiv Khanna, J.) Proportionality principle is applied
by courts when they exercise their power of judicial review in
cases involving a restriction on fundamental rights – It is applied
to strike an appropriate balance between the fundamental right
and the pursued purpose and objective of the restriction. [Para 24]
Doctrine/Principles – Doctrine of proportionality – Application
of proportionality test to Electoral Bond Scheme, 2018 –
Legitimate purpose prong – Retribution, victimisation or
retaliation, if can be treated as a legitimate aim:
Held: (Per Sanjiv Khanna, J.) Retribution, victimisation or
retaliation cannot by any stretch be treated as a legitimate aim – This
would not satisfy the legitimate purpose prong of the proportionality
test – Neither the Scheme nor the amendments to the Finance
Act, 2017, rationally connected to the fulfilment of the purpose to
counter retribution, victimisation or retaliation in political donations
– It will also not satisfy the necessity stage of the proportionality
even if the balancing stage is ignored – Retribution, victimisation
or retaliation against any donor exercising their choice to donate
to a political party is an abuse of law and power – This has to be
checked and corrected – As it is a wrong, the wrong itself cannot
be a justification or a purpose – Cloak of secrecy, leads to severe
restriction and curtailment of the collective’s right to information
and the right to know – Transparency and not secrecy is the cure
and antidote. [Para 39]
Doctrine/Principles – Doctrine of proportionality – Application
of proportionality test to Electoral Bond Scheme, 2018 –
Rational nexus prong:
Held: (Per Sanjiv Khanna, J.) Donor may like to keep his identity
anonymous is a mere ipse dixit assumption – Plea of infringement
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of the right to privacy has no application at all if the donor makes

the contribution, that too through a banking channel, to a political
party – Identity of the purchaser of the Bond can always be revealed
upon registration of a criminal case or by an order/direction of the
court – Thus, the fear of reprisal and vindictiveness does not end
– So-called protection exists only on paper but in practical terms
is not a good safeguard even if it is accepted that the purpose
is legitimate – Under the Scheme, political parties in power may
have asymmetric access to information with the authorised bank
– They also retain the ability to use their power and authority of
investigation to compel the revelation of Bond related information
– Thus, the entire objective of the Scheme is contradictory and
inconsistent – Rational connection test fails since the purpose of
curtailing black or unaccounted-for money in the electoral process
has no connection or relationship with the concealment of the
identity of the donor – Payment through banking channels is easy
and an existing antidote – On the other hand, obfuscation of the
details may lead to unaccounted and laundered money getting
legitimised. [Paras 41, 42, 44]
Doctrine/Principles – Doctrine of proportionality – Application
of proportionality test to Electoral Bond Scheme, 2018 –
Necessity prong:
Held: (Per Sanjiv Khanna, J.) As per the Electoral Trust Scheme,
contributions could be made by a person or body corporate to the
trust which would transfer the amount to the political party – Trust is
thus, treated as the contributor to the political party and guidelines
were issued by the ECI to ensure transparency and openness in
the electoral process – When the necessity test is applied, the
Trust Scheme achieves the objective of the Union of India in a
real and substantial manner and is also a less restrictive alternate
measure in view of the disclosure requirements, viz. the right to
know of voters – Trust Scheme is in force and is a result of the
legislative process – In a comparison of limited alternatives, it is
a measure that best realises the objective of the Union of India in
a real and substantial manner without significantly impacting the
fundamental right of the voter to know. [Paras 50-51]
Doctrine/Principles – Doctrine of proportionality – Application
of proportionality test to Electoral Bond Scheme, 2018 – Fourth
prong-the balancing prong of proportionality:
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Held: (Per Sanjiv Khanna, J.) On application of the balancing

prong of proportionality, the Electoral Bond Scheme falls foul and
negates and overwhelmingly disavows and annuls the voters right in
an electoral process as neither the right of privacy nor the purpose
of incentivising donations to political parties through banking
channels, justify the infringement of the right to voters – Voters
right to know and access to information is far too important in a
democratic set-up so as to curtail and deny ‘essential’ information
on the pretext of privacy and the desire to check the flow of
unaccounted money to the political parties – While secret ballots
are integral to fostering free and fair elections, transparency-not
secrecy-in funding of political parties is a prerequisite for free and
fair elections – Confidentiality of the voting booth does not extend
to the anonymity in contributions to political parties. [Para 57]
Constitution of India – Balancing of conflicting fundamental
rights-right to information and the right to informational
privacy – Standard to be followed:
Held: (per Dr Dhananjaya Y Chandrachud, CJI.) (for himself
and for B R Gavai, J B Pardiwala and Manoj Misra, JJ) First
exercise that the Court must undertake while balancing two
fundamental rights is to determine if the Constitution creates a
hierarchy between the two rights in conflict, if yes, then the right
which has been granted a higher status would prevail over the
other right involved – And if not, the following standard must be
employed from the perspective of both the rights where rights A
and B are in conflict, whether the measure is a suitable means
for furthering right A and right B, whether the measure is least
restrictive and equally effective to realise right A and right B, and
whether the measure has a disproportionate impact on right A and
right B – Courts have used the collective interest or the public
interest standard, the single proportionality standard, and the
double proportionality standard to balance the competing interests
of fundamental rights – There is no constitutional hierarchy between
the right to information and the right to informational privacy of
political affiliation. [Paras 145-146, 157, 159]
Constitution of India – Fundamental right – Breach of – Burden
of proof:
Held: (per Dr Dhananjaya Y Chandrachud, CJI, (for himself
and for B R Gavai, J B Pardiwala and Manoj Misra, JJ): Courts
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cannot carve out an exception to the evidentiary principle which is

available to the legislature based on the democratic legitimacy which
it enjoys – In the challenge to electoral law, like all legislation, the
petitioners would have to prima facie prove that the law infringes
fundamental rights or constitutional provisions, upon which the
onus would shift to the State to justify the infringement [Para 45]
– Held: (per Sanjiv Khanna, J.) Once the petitioners are able to
prima facie establish a breach of a fundamental right, then the onus
is on the State to show that the right limiting measure pursues a
proper purpose, has rational nexus with that purpose, the means
adopted were necessary for achieving that purpose, and lastly
proper balance has been incorporated. [Para 17]
Constitution of India – Art. 14 – Doctrine of manifest
arbitrariness – Application of:
Held: (per Dr Dhananjaya Y Chandrachud, CJI.) (for himself
and for B R Gavai, J B Pardiwala and Manoj Misra, JJ) Doctrine
of manifest arbitrariness can be used to strike down a provision
where the legislature fails to make a classification by recognizing
the degrees of harm; and the purpose is not in consonance with
constitutional values – Legislative action can also be tested for
being manifestly arbitrary – There is, and ought to be, a distinction
between plenary legislation and subordinate legislation when they
are challenged for being manifestly arbitrary – Manifest arbitrariness
of a subordinate legislation has to be primarily tested vis-a-vis its
conformity with the parent statute – Doctrines/Principles. [Paras
198, 209]
Constitution of India – Art 19(1)(a) – Right to information,
scope of – Evolution of jurisprudence on right to information:
Held: (per Dr Dhananjaya Y Chandrachud, CJI.) (for himself
and for B R Gavai, J B Pardiwala and Manoj Misra, JJ) Right
to information can be divided into two phases – In the first phase,
the right to information is traced to the values of good governance,
transparency and accountability – In the second phase, the
importance of information to form views on social, cultural and
political issues, and participate in and contribute to discussions
is recognised – Crucial aspect of the expansion of the right to
information in the second phase is that right to information is not
restricted to information about state affairs, that is, public information
– It includes information which would be necessary to further
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participatory democracy in other forms – Right to information has

an instrumental exegesis, which recognizes the value of the right
in facilitating the realization of democratic goals – Beyond that, it
has an intrinsic constitutional value; one that recognizes that it is
not just a means to an end but an end in itself. [Paras 60, 64, 65]
Constitution of India – Art. 19(1)(a) – Right to vote – Right to
know – Significance:
Held: (Per Sanjiv Khanna, J.) Right to vote is a constitutional
and statutory right, grounded in Art 19(1)(a), as the casting of a
vote amounts to expression of an opinion by the voter – Citizens’
right to know stems from this very right, as meaningfully exercising
choice by voting requires information – Representatives elected
as a result of the votes cast in their favour, enact new, and amend
existing laws, and when in power, take policy decisions – Access
to information which can materially shape the citizens’ choice is
necessary for them to have a say – Thus, the right to know is
paramount for free and fair elections and democracy – Denying
voters the right to know the details of funding of political parties
would lead to a dichotomous situation – Funding of political
parties cannot be treated differently from that of the candidates
who contest elections – Democratic legitimacy is drawn not only
from representative democracy but also through the maintenance
of an efficient participatory democracy – In the absence of fair
and effective participation of all stakeholders, the notion of
representation in a democracy would be rendered hollow. [Paras
19, 21, 22]
Constitution of India – Fundamental rights – Conflict of –
Voter’s right to know vis-à-vis right to privacy:
Held: (Per Sanjiv Khanna, J.) Fundamental rights are not
absolute, legislations/policies restricting the rights may be enacted
in accordance with the scheme of the Constitution – Thread of
reasonableness applies to all such restrictions – Furthermore, Art.
14 includes the facet of formal equality and substantive equality –
Thus, the principle ‘equal protection of law’ requires the legislature
and the executive to achieve factual equality – This principle can
be extended to any restriction on fundamental rights which must
be reasonable to the identified degree of harm – If the restriction
is unreasonable, unjust or arbitrary, then the law should be struck
down – Further, it is for the legislature to identify the degree of
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harm – Voters right to know and access to information is far too

important in a democratic set-up so as to curtail and deny ‘essential’
information on the pretext of privacy and the desire to check the
flow of unaccounted money to the political parties. [Paras 56, 57]
Elections – Electoral Bond Scheme, 2018 – Clause 7(4), 2(a)
– Features of the Scheme:
Held: (per Dr Dhananjaya Y Chandrachud, CJI.) (for himself
and for B R Gavai, J B Pardiwala and Manoj Misra, JJ) Scheme
defines electoral bond “as a bond issued in the nature of promissory
note which shall be a bearer banking instrument and shall not carry
the name of the buyer or payee” – The Scheme also stipulates
that the information furnished by the buyer shall be treated as
confidential which shall not be disclosed by any authority except
when demanded by a competent court or by a law enforcement
agency upon the registration of criminal case – While it is true that
the law prescribes anonymity as a central characteristic of electoral
bonds, the de jure anonymity of the contributors does not translate
to de facto anonymity – The Scheme is not fool-proof – There are
sufficient gaps in the Scheme which enable political parties to know
the particulars of the contributions made to them – Electoral bonds
provide economically resourced contributors who already have a
seat at the table selective anonymity vis-à-vis the public and not
the political party. [Paras 102, 103]
Elections – Electoral process – Focal point of the electoral
process-candidate or political party:
Held: (per Dr Dhananjaya Y Chandrachud, CJI.) (for himself
and for B R Gavai, J B Pardiwala and Manoj Misra, JJ) Statutory
provisions relating to elections accord considerable importance to
political parties, signifying that political parties have been the focal
point of elections – ‘Political party’ is a relevant political unit in the
democratic electoral process in India – Voters associate voting
with political parties because of the centrality of symbols and its
election manifesto in the electoral process – Form of government
where the executive is chosen from the legislature based on the
political party or coalition of political parties which has secured the
majority – Prominence accorded to political parties by the Tenth
Schedule of the Constitution – Law recognises the inextricable link
between a political party and the candidate though vote is cast for
a candidate – Voters casts their votes based on two considerations:
[2024] 2 S.C.R.  437

Association for Democratic Reforms & Anr. v. Union of India & Ors.

the capability of the candidate as a representative and the ideology

of the political party. [Paras 80, 86, 89, 94]
Elections – Electoral democracy in India – Basis of:
Held: (per Dr Dhananjaya Y Chandrachud, CJI.) (for himself
and for B R Gavai, J B Pardiwala and Manoj Misra, JJ)
Electoral democracy in India is premised on the principle of political
equality, guaranteed by the Constitution in two ways – Firstly, by
guaranteeing the principle of “one person one vote” which assures
equal representation in voting, and secondly, the Constitution
ensures that socio-economic inequality does not perpetuate
political inequality by mandating reservation of seats for Scheduled
Castes and Scheduled Tribes in Parliament and State Assemblies
– Constitution guarantees political equality by focusing on the
‘elector’ and the ‘elected’ – However, political inequality continues
to persist in spite of the constitutional guarantees – Difference in
the ability of persons to influence political decisions because of
economic inequality is one of the factors – Economic inequality
leads to differing levels of political engagement because of the
deep association between money and politics – It is in light of the
nexus between economic inequality and political inequality, and the
legal regime in India regulating party financing that the essentiality
of the information on political financing for an informed voter must
be analyzed. [Paras 96-100]
Elections – Electoral process in India – Nexus between money
and electoral democracy:
Held: (per Dr Dhananjaya Y Chandrachud, CJI.) (for himself
and for B R Gavai, J B Pardiwala and Manoj Misra, JJ) Law
does not bar electoral financing by the public – Both corporates
and individuals are permitted to contribute to political parties which
is crucial for the sustenance and progression of electoral politics
– Primary way through which money directly influences politics is
through its impact on electoral outcomes – One way in which money
influences electoral outcomes is through vote buying – Another way
in which money influences electoral outcomes is through incurring
electoral expenditure for political campaigns – Enhanced campaign
expenditure proportionately increases campaign outreach which
influences the voting behavior of voters – Money also creates
entry-barriers to politics by limiting the kind of candidates and
political parties which enter the electoral fray – Challenge to the
438 [2024] 2 S.C.R.

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statutory amendments-provisions dealing with electoral finance

and the Electoral Bond Scheme cannot be adjudicated in isolation
without a reference to the actual impact of money on electoral
politics. [Paras 46-51, 55]
Election Symbols (Reservation and Allotment) Order, 1968 –
Allotment of symbols to political parties – Significance:
Held: (per Dr Dhananjaya Y Chandrachud, CJI.) (for himself and
for B R Gavai, J B Pardiwala and Manoj Misra, JJ) In terms of
the provisions of the Symbols Order, the ECI shall allot a symbol to
every candidate contesting the election – Symbols Order classifies
political parties into recognised political parties and unrecognised
political parties – Difference in the procedure under the Symbols
Order for allotting symbols to recognised political parties, registered
but unrecognised political parties and independent candidates
indicates both the relevance and significance of political parties in
elections in India – Purpose of allotting symbols to political parties
is to aid voters in identifying and remembering the political party –
Law recognises the inextricable link between a political party and
the candidate though the vote is cast for a candidate – Most of
the voters identified a political party only with its symbol and this
still continues to the day – Symbols also gain significance when
the names of political parties sound similar. [Paras 81, 84, 86, 87]
Words and Phrases – Privacy – Definition:
Held : (per Dr Dhananjaya Y Chandrachud, CJI.) (for himself
and for B R Gavai, J B Pardiwala and Manoj Misra, JJ) Privacy
is not limited to private actions and decisions – Privacy is defined
as essential protection for the exercise and development of other
freedoms protected by the Constitution, and from direct or indirect
influence by both State and non-State actors – Viewed in this
manner, privacy takes within its fold, decisions which also have a
‘public component’. [Para 133]

Case Law Cited

In the Judgment of Dr Dhananjaya Y Chandrachud, CJI

Roger Mathew v. South Bank of India, CA No. 8588/2019;
PUCL v. Union of India, [2003] 2 SCR 1136 : (2003) 4
SCC 399; ADR v. Union of India, [2002] 3 SCR 696 :
(2002) 5 SCC 294; Anjali Bhardwaj v. Union of India,
[2024] 2 S.C.R.  439

Association for Democratic Reforms & Anr. v. Union of India & Ors.

[2019] 2 SCR 199 : (2019) 18 SCC 246; Kanwar Lal Gupta

v. Amar Nath Chawla, [1975] 2 SCR 259 : 1975 SCC
(3) 646; Subash Chandra v. Delhi Subordinate Services
Selection Board, [2009] 12 SCR 978 : (2009) 15 SCC
458; Gujarat Mazdoor Sabha v. State of Gujarat, [2020]
13 SCR 886 : (2020) 10 SCC 459; Ramesh Chandra
Sharma v. State of Uttar Pradesh, [2023] 2 SCR 422 :
(2023) SCC OnLine SC 162; Shayara Bano v. Union
of India, [2017] 9 SCR 797 : (2017) 9 SCC 1; Rustom
Cavasjee Cooper v. Union of India, [1970] 3 SCR 530 :
(1970) 1 SCC 248; R.K Garg v. Union of India, [1982]
1 SCR 947 : (1981) 4 SCC 675; Premium Granites v.
State of Tamil Nadu, [1994] 1 SCR 579 : (1994) 2 SCC
691; Peerless General Finance and Investment Co v.
RBI, [1992] 1 SCR 406 : (1992) 2 SCC 343; BALCO
Employees Union v. Union of India, [2001] Suppl. 5 SCR
511 : (2002) 2 SCC 333; DG of Foreign Trade v. Kanak
Exports, [2015] 15 SCR 287 : (2016) 2 SCC 226; Swiss
Ribbons v. Union of India, [2019] 3 SCR 535 : (2019) 4
SCC 17; Pioneer Urban Land and Infrastructure Limited
v. Union of India, [2019] 10 SCR 381 : (2019) 8 SCC
416; State of Bombay v. FN Balsara, [1951] 1 SCR 682;
Dharam Dutt v. Union of India, [2003] Suppl. 6 SCR
151 : AIR 2004 SC 1295; Ramlila Maidan Incident, In
re, [2012] 4 SCR 971 : (2012) 5 SCC 1; Ameerunissa
Begum v. Mahboob Begum, [1953] 1 SCR 404 : (1952)
2 SCC 697; Vatal Nagaraj v. R Dayanand Sagar, [1975]
2 SCR 384 : (1975) 4 SCC 127; P Nalla Thampy Terah
v. Union of India, [1985] Supp. 1 SCR 622 : (1985) Supp
SCC 189; Common Cause (A Registered Society) v.
Union of India, [1996] 3 SCR 1208 : (1996) 2 SCC 752;
State of Punjab v. Sodhi Sukhdev Singh, [1961] 2 SCR
371; State of Uttar Pradesh v. Raj Narain, [1975] 3 SCR
333 : (1975) 4 SCC 428; SP Gupta v. Union of India,
(1981) Supp SCC 87; Dinesh Trivedi v. Union of India,
[1997] 3 SCR 93 : (1997) 4 SCC 306; Secy., Ministry
of Information & Broadcasting, Govt. of India v. Cricket
Assn. of Bengal, [1995] 1 SCR 1036 : (1995) 2 SCC 161;
Indian Express Newspapers v. Union of India, [1985] 2
SCR 287 : AIR 1986 SC 515; Romesh Thappar v. State
of Madras, [1950] 1 SCR 594 : AIR 1950 SC 124; DC
Saxena v. Hon’ble The Chief Justice of India, [1996]
440 [2024] 2 S.C.R.

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Suppl. 3 SCR 677 : (1996) 5 SCC 216; Supriyo v. Union

of India, 2023 INSC 920; Union of India v. Association
for Democratic Reforms, [2002] 3 SCR 696 : (2002) 5
SCC 294; Rameshwar Prasad v. Union of India, [2006] 1
SCR 562 : (2006) 2 SCC 1; Kihoto Hollohon v. Zachillhu,
[1992] 1 SCR 686 : (1992) Supp (2) SCC 651; Ravi S
Naik v. Union of India, [1994] 1 SCR 754 : AIR 1994 SC
1558; Subash Desai v. Principal Secretary, Governor of
Maharashtra, WP (C) No. 493 of 2022; Modern Dental
College & Research Centre v. State of Madhya Pradesh,
[2016] 3 SCR 575 : (2016) 4 SCC 346; Media One v.
Union of India, Civil Appeal No. 8129 of 2022; Sakal
Papers v. The Union of India, [1962] 3 SCR 842 : AIR
1962 SC 305; Express Newspapers v. Union of India,
[1959] 1 SCR 12 : AIR 1958 SC 578; Sodhi Shamsher
v. State of Pepsu, AIR 1954 SC 276; Kaushal Kishor v.
State of Uttar Pradesh, Writ Petition (Criminal) No. 113
of 2016; Superintendent, Central Prison, Fatehgarh v. Dr
Ram Manohar Lohia, [1960] 2 SCR 821 : AIR 1960 SC
633; Justice KS Puttaswamy v. Union of India, [2017] 10
SCR 569 : (2017) 10 SCC 1; In Re Noise Pollution, [2005]
Suppl. 1 SCR 624 : (2005) 5 SCC 733; Subramanian
Swamy v. Union of India, [2016] 3 SCR 865 : (2016) 7
SCC 221; Asha Ranjan v. State of Bihar, [2017] 1 SCR
945 : (2017) 4 SCC 397; Mazdoor Kisan Shakti Sangathan
v. Union of India, [2018] 11 SCR 586 : (2018) 17 SCC
324; Sahara India Real Estate Corporation Limited v.
Securities and Exchange Board of India, [2012] 12 SCR
256 : (2012) 10 SCC 603; Justice KS Puttaswamy v. Union
of India, [2018] 8 SCR 1 : (2019) 1 SCC 1; Central Public
Information Officer, Supreme Court of India v. Subash
Chandra Agarwal, [2010] 13 SCR 1120 : Civil Appeal No.
10044 of 2010; Aishat Shifa v. State of Karnataka, [2022]
5 SCR 426 : (2023) 2 SCC 1; Jayantilal Ranchhoddas
Koticha v. Tata Iron and Steel Co. Ltd., AIR 1958 Bom
155; Basheshar Nath v. CIT, [1959] Supp 1 SCR 528;
State of West Bengal v. Anwar Ali Sarkar, [1952] 1 SCR
284 : (1951) 1 SCC 1; Kathi Raning Rawat v. State of
Saurashtra, [1952] 1 SCR 435 : (1952) 1 SCC 215;
Budhan Chowdhury v. State of Bihar, [1955] 1 SCR 1045;
Ram Krishna Dalmia v. S R Tendolkar, [1959] SCR 279;
E P Royappa v. State of Tamil Nadu, [1974] 2 SCR 348 :
[2024] 2 S.C.R.  441

Association for Democratic Reforms & Anr. v. Union of India & Ors.

(1974) 4 SCC 3; Ajay Hasia v. Khalid Mujib Seheravardi,

[1981] 2 SCR 79 : (1981) 1 SCC 722; Sharma Transport
v. Government of Andhra Pradesh, [2001] Suppl. 5 SCR
390 : (2002) 2 SCC 188; State of Tamil Nadu v. Ananthi
Ammal, [1994] Suppl. 5 SCR 666 : (1995) 1 SCC 519;
Dr. K R Lakshmanan v. State of Tamil Nadu, [1996] 1
SCR 395 : (1996) 2 SCC 226; State of Andhra Pradesh
v. McDowell & Co., [1996] 3 SCR 721 : (1996) 3 SCC
709; Malpe Vishwanath Acharya v. State of Maharashtra,
[1997] Suppl. 6 SCR 717 : (1998) 2 SCC 1; Mardia
Chemicals Ltd. v. Union of India, [2004] 3 SCR 982 : (2004)
4 SCC 311; Natural Resources Allocation, In Re Special
Reference No. 1 of 2012, [2012] 9 SCR 311 : (2012) 10
SCC 1; Maneka Gandhi v. Union of India, [1978] 2 SCR
621 : (1978) 1 SCC 248; Navtej Singh Johar v. Union
of India, [2018] 7 SCR 379 : (2018) 10 SCC 1; Joseph
Shine v. Union of India, [2018] 11 SCR 765 : (2019) 3
SCC 39; Mohd. Hanif Quareshi v. State of Bihar, [1959]
SCR 629 : AIR 1958 SC 731; Binoy Viswam v. Union of
India, [2017] 7 SCR 1 : (2017) 7 SCC 59; Charanjit Lal
Chowdhuri v. Union of India, 1950 SCC 833; In Re Delhi
Laws Act 1912, 1951 SCC 568; Gwalior Rayon Silk Mfg.
(Wvg.) Co. Ltd. v. Assistant Commissioner of Sales Tax
and others, [1974] 2 SCR 879 : (1974) 4 SCC 98; Shri
Sitaram Sugar Co. Ltd. v. Union of India, [1990] 1 SCR
909 : (1990) 3 SCC 223; Khoday Distilleries Ltd. V. State
of Karnataka, [1995] Suppl. 6 SCR 759 : (1996) 10 SCC
304; State of Tamil Nadu v. P Krishnamurthy, [2006] 3
SCR 396 : (2006) 4 SCC 517; Kesavananda Bharati v.
State of Kerala, [1973] Suppl. 1 SCR 1 : (1973) 4 SCC
225; Indira Nehru Gandhi v. Raj Narain, [1978] 2 SCR
405 : (1975) Supp SCC 1; Digvijay Mote v. Union of India,
[1993] Suppl. 1 SCR 553 : (1993) 4 SCC 175; Kuldip
Nayar v. Union of India, [2006] Suppl. 5 SCR 1 : (2006)
7 SCC 1; People’s Union for Civil Liberties v. Union of
India, [2013] 12 SCR 283 : (2013) 10 SCC 1; Mohinder
Singh Gill v. Chief Election Commissioner, [1978] 2 SCR
272 : (1978) 1 SCC 405 – referred to.
FCC v. National Citizens Committee for Broadcasting,
436 US 775 (1978); *Campbell v. MGM Limited,
[2004] UKHL 22; Citizens United v. Federal Election
Commission, 558 U.S 310 – referred to.
442 [2024] 2 S.C.R.

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In the Judgment of Sanjiv Khanna, J

Swiss Ribbons (P.) Ltd. and Another v. Union of India
and Others, [2019] 3 SCR 535 : (2019) 4 SCC 17;
Pioneer Urban Land and Infrastructure and Another v.
Union of India and Others, [2019] 10 SCR 381 : (2019)
8 SCC 416 – held inapplicable.
Rojer Matthew v. South Indian Bank Ltd. And Ors., [2019]
16 SCR 1 : Civil Appeal No. 8588 of 2019; R.K. Garg
v. Union of India and Others, [1982] 1 SCR 947 : (1981)
4 SCC 675; Bhavesh D. Parish and Others v. Union of
India and Others, [2000] Suppl. 1 SCR 291 : (2000)
5 SCC 471; Directorate General of Foreign Trade and
Others v. Kanak Exports and Another, [2015] 15 SCR
287 : (2016) 2 SCC 226; Union of India v. Association for
Democratic Reforms and Another, [2002] 3 SCR 696 :
(2002) 5 SCC 294; People’s Union of Civil Liberties
(PUCL) and Another v. Union of India and Another, [2003]
2 SCR 1136 : (2003) 4 SCC 399; Kanwar Lal Gupta v.
Amar Nath Chawla & Ors., [1975] 2 SCR 259 : (1975)
3 SCC 646; K. S. Puttaswamy and Anr. v. Union of
India and Ors. [2017] 10 SCR 569 : (2017) 10 SCC 1;
Modern Dental College & Research Centre and Others
v. State of Madhya Pradesh and Others, [2016] 3 SCR
579 : (2016) 7 SCC 353; K. S. Puttaswamy (Retired)
and Anr. v. Union of India and Anr., [2018] 8 SCR 1 :
(2019) 1 SCC 1; Gujarat Mazdoor Sabha and Another
v. State of Gujarat, [2020] 13 SCR 886 : (2020) 10 SCC
459; Ramesh Chandra Sharma and Others v. State of
U.P. and Others, 2023 SCC OnLine SC 162; Anuradha
Bhasin v. Union of India and Others, [2020] 1 SCR 812 :
(2020) 3 SCC 637; Rustom Cavasjee Cooper v. Union of
India, [1970] 3 SCR 530 : (1970) 1 SCC 248; Maneka
Gandhi v. Union of India and Another, [1978] 2 SCR 621
: (1978) 1 SCC 248; Anoop Baranwal v. Union of India,
[2023] 9 SCR 1 : (2023) 6 SCC 161; R.C.Poudyal v.
Union of India and Others, [1993] 1 SCR 891 : (1994)
Supp 1 SCC 324; Shayara Bano v. Union of India, [2017]
9 SCR 797 : (2017) 9 SCC 1 – referred to.
Libman v. Quebec (A. G.), [1997] 3 SCR 569; RJR-
MacDonald Inc. v. Canada (Attorney General), [1995]
[2024] 2 S.C.R.  443

Association for Democratic Reforms & Anr. v. Union of India & Ors.

3 SCR 199; Thomson Newspapers Co. v. Canada

(A.G.), [1998] 1 SCR 877; R. v. Sharpe, [2001] 1 SCR
45; Harper v. Canada (A.G.), [2004] 1 SCR 827; R. v.
Bryan, [2007] 1 SCR 527; Mounted Police Association
of Ontario v. Canada (Attorney General), [2015] 1 SCR
3; Brown v. Socialist Workers Comm., 459 U.S. 87
(1982); Campbell v. MGM Limited, [2004] 2 AC 457;
My Vote Counts NPC v. President of the Republic of
South Africa and Ors., (2017) ZAWCHC 105, para
67; Jeffery Raymond McCloy and Others v. State
of New South Wales and Another, (2015) HCA 34;
Bernstein and Ors. v. Bester NO and Others, (1996)
ZACC 2; Federal Election Commission v. National
Right to Work Committee, 459 U.S. 197 (1982);
Buckley v. R Valeo, 424 U.S. 1 (1976); Grosjean v.
American Press Co., 297 U.S. 233 (1936); Nixon,
Attorney General of Missouri, et al v. Shrink Missouri
Government PAC et al, 528 U.S. 377 (2000); In re.S,
[2005] 1 AC 593; In Re. W, [2005] EWHC 1564 (Fam);
R. v. Oakes, [1986] 1 SCR 103; Canada (Attorney
General) v. JTI-Macdonald Corp., [2007] 2 S.C.R.
610; Alberta v. Hutterian Brethren of Wilson Colony,
and [2009] 2 S.C.R. 567; Clubb v. Edwards, (2019)
93 ALJR 448; Associated Provincial Picture Houses
Ltd v. Wednesbury Corporation, (1948) 1 KB 223 –
referred to.

Books and Periodicals Cited

In the Judgment of Dr Dhananjaya Y Chandrachud, CJI

Gayatri Devi and Santha Rama Rau, A Princess
remembers: The Memoirs of the Maharani of Jaipur,
(Rupa Publications 1995) [301]; Michael A. Collins,
Navigating Fiscal Constraints in “Costs of Democracy:
Political Finance in India” (edited by Devesh Kapur and
Milan Vaishnav) OUP 2018; Neelanjan Sircar, Money
in Elections: the Role of Personal Wealth in Election
Outcomes in Costs of Democracy: Political Finance in
India (ed. By Devesh Kapur and Milan Vaishnav) OUP
2018; Aradhya Sethia, “Where’s the party?: towards a
constitutional biography of political parties, Indian Law
444 [2024] 2 S.C.R.

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Review, 3:1, 1-32 (2019); Law Commission of India,

170th Report on the Reform of the Electoral Laws
(1999); Lok Sabha Debates, Companies Bill (16 May
1985); Santhanam Committee Report on Prevention of
Corruption, 1964 – referred to.
John Hart Ely Democracy and Distrust: A Theory of
Judicial Review (Harvard University Press, 2002);
Conrad Foreman, Money in Politics: Campaign Finance
and its Influence over the Political Process and Public
Policy, 52 UIC J. Marshall L. Rev. 185 (2018); D
Sunshine Hillygus, Campaign Effects on Vote Choice
in “The Oxford Handbook of American Elections and
Political Behavior” (Ed. Jan E. Leighley 2010); David
P. Baron, Electoral Competition with informed and
uninformed voters, American Political Science Review,
Vol. 88, No. 1 March 1994; Dominik Hangartner,
Nelson A Ruiz, Janne Tukiainen, Open or Closed? How
List Type Affects Electoral Performance, Candidate
Selection, and Campaign Effort, VAT Institute for
Economic Research Working Papers 120 (2019); Ben
Ansell and Jean Gingrich J (2021). Political Inequality.
The IFS Deaton Review of Inequalities, London:
Institute for Fiscal Studies; Joshua L. Kalla and David
E. Broockman, “Campaign Contributions Facilitate
Access to Congressional Officials: A Randomized
Field Experiment” (2016 60(3)) American Journal of
Political Science; Philip N Howard and Daniel Kreiss,
Political Parties and Voter privacy: Australia, Canada,
the United Kingdom, and United States in Comparative
Perspective, First Monday 15(12) 2010; Colin
Bennet, The politics of privacy and privacy of politics:
Parties, elections, and voter surveillance in Western
Democracies. First Monday, 18(8) 2013; Hon’ble Mr
Justice Andrew Cheung PJ, Conflict of fundamental
rights and the double proportionality test, A lecture in
the Common Law Lecture Series 2019 delivered at
the University of Hong Kong (17 September 2019);
Report of the Committee on Prevention of Corruption,
1964 [11.5] – referred to.
[2024] 2 S.C.R.  445

Association for Democratic Reforms & Anr. v. Union of India & Ors.

In the Judgment of Sanjiv Khanna, J

Suchindran Bhaskar Narayan and Lalit Panda, Money
and Elections-Necessary Reforms in Electoral Finance,
Vidhi 2018 at p. 19; Law Commission of India, Electoral
Reforms, Report No. 255, March 2015 – referred to.
John Parkinson and Jane Mansbridge (eds),
Deliberative Systems (1st edn, Cambridge University
Press 2012) 11; James S Fishkin, When the
People Speak: Deliberative Democracy and Public
Consultation (Oxford University Press 2011) 33– 34;
Aharon Barak, “Proportionality – Constitutional Rights
and their Limitations”, Cambridge University Press,
2012; David Bilchitz, “Necessity and Proportionality:
Towards a Balance Approach?“, (Hart Publishing,
Oxford and Portland, Oregon 2016); Aparna Chandra,
“Proportionality: A Bridge to Nowhere?”, (Oxford
Human Rights Journal 2020); Jochen von Bernstroff,
Proportionality Without Balancing: Why Judicial
Ad Hoc Balancing is Unnecessary and Potentially
Detrimental to Realisation of Collective and Individual
Self Determination, Reasoning Rights-Comparative
Judicial Engagement, (Ed. Liaora Lazarus); Bernhard
Schlink, ‘Abwägung im Verfassungsrecht’, Duncker
& Humblot, 1976, and Francisco J. Urbina, ‘Is It
Really That Easy? A Critique of Proportionality and
Balancing as Reasoning’ Canadian Journal of Law
and Jurisprudence, 2014; Robert Alexy, A Theory of
Constitutional Rights (Julian Rivers, trans. Oxford
Univ. Press 2002); Cabinet Directive on Law-making
in Guide to Making Federal Acts and Regulations
(2nd edn, Government of Canada; Niels Petersen,
‘Proportionality and judicial Activism: Fundamental
Rights Adjudication in Canada, Germany and South
Africa, (CUP 2017); Yun-chien Chand & Peng-Hsiang
Wang, The Empirical Foundation of Normative
Arguments in Legal Reasoning (Univ. Chicago
Coase-Sandor Inst. For L. & Econ., Res. Paper No.
745, 2016); Lee Epstein & Andrew D. Martin, An
Introduction to Empirical Legal Research 6 (2014);
Joshua B. Fischman, Reuniting “Is” and “Ought” in
Empirical Legal Scholarship, 162 U. Pa. L. Rev. 117
446 [2024] 2 S.C.R.

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(2013); Marilyn Strathern, Improving Ratings: Audit in

the British University System, European review, Vol.
5 Issue 3, pp. 305-321 (1997); Lord Neill of Bladen,
QC, ‘Fifth Report of the Committee on Standards
in Public Life: The Funding of Political Parties in
the United Kingdom’, 1998 pp 61-62; Francisco J.
Urbina, A Critique of Proportionality, American Journal
of Jurisprudence, Vol 57, 2012; Ronald Dworkin,
Taking Rights Seriously (Bloomsbury 2013), pp 41-
42; Robert Alexy, A Theory of Constitutional Rights,
(translated by Julian Rivers, first published 2002,
OUP 2010), pp. 47-48; Robert Alexy, A Theory of
Constitutional Rights (Julian Rivers, trans. Oxford
Univ. Press 2002); David Bilchitz, Necessity and
Proportionality: Towards a Balance Approach?, (Hart
Publishing, Oxford and Portland, Oregon 2016);
Adrienne Stone, Proportionality and its Alternatives,
Melbourne Legal Studies Research Paper Series
No. 848; John Braithwaite, Rules and Principles:
a Theory of Legal Certainty, Australian Journal of
Legal Philosophy 47 (2002); Harrison Moore, The
Constitution of the Commonwealth of Australia;
Jennifer L. Greenblatt, Putting the Government to
the (Heightened, Intermediate, or Strict) Scrutiny
Test: Disparate Application Shows Not All Rights and
Powers Are Created Equal, (2009) 10 Fla Coastal L
Rev 421 – referred to.

Website

In the Judgment of Dr Dhananjaya Y Chandrachud, CJI

Election Commission of India, Instructions to political
parties on manifestos dated 24.04.2015, https://
www.eci.gov.in/election-manifestos/; Election
Commission of India, Letter dated 26 May 2017,
No. 56/PPEMS/Transparency/2017 – referred to.

In the Judgment of Sanjiv Khanna, J

Charterpedia, Department of Justice, Government
of Canada, available at: https://www.justice.
[2024] 2 S.C.R.  447

Association for Democratic Reforms & Anr. v. Union of India & Ors.

gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art1.htm
– referred to.
List of Acts

In the Judgment of Dr Dhananjaya Y Chandrachud, CJI

Constitution of India; Finance Act, 2017; Companies Act,
1956; Reserve Bank of India Act, 1934; Representation of
the People Act, 1951; Income Tax Act, 1961; Companies
Act, 2013; Companies (Amendment) Act, 1960; Companies
(Amendment) Act, 1969; Companies (Amendment) Act, 1985;
Taxation Laws (Amendment) Act, 1978; Evidence Act, 1872;
Election and Other Related Laws (Amendment) Act, 2003;
Election Symbols (Reservation and Allotment) Order, 1968;
Conduct of Election Rules, 1961.

In the Judgment of Sanjiv Khanna, J

Constitution of India; Companies Act, 1956; Companies Act
of 2013; Finance Act, 2017; Income Tax Act, 1961; Reserve
Bank of India Act, 1934; Representation of the People Act,
1951; Foreign Contribution Regulation Act, 2010; Prevention
of Money Laundering Act, 2002.
List of Keywords

In the Judgment of Dr Dhananjaya Y Chandrachud, CJI

Electoral bond scheme, 2018; Electoral bond; Corporate

contributions; Curbing black money; Transparency; Judicial
review; Close association of politics and money; Non-
disclosure of information on electoral financing; Right to
information; Electoral process; Donor privacy; Informational
privacy of financial contributions to political parties; Privacy
vis-a-vis political party; Right to informational privacy; Judicial
approach; Balancing fundamental rights; Double proportionality
standard; Arbitrariness; Manifest arbitrariness; Indian
jurisprudence; Anonymous financial contributions to political
parties; Financial contributions to political parties; Financial
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contributions; Election Commission of India; Transparency of

political finance; Quid pro quo arrangements; Free and fair
elections; Presumption of constitutionality; Corporate funding;
Electoral campaigns; Excessive delegation; Principle of ‘one
person-one vote’; Non-disclosure of funding by companies;
Public domain; Corporate donations; Anonymity of donations
to political parties; Judicial restraint; Symbols Order; Electoral
democracy; Proportionality standard; Electoral Trusts; Political
contribution; Electronic transfer other than electoral bonds;
Right to informational privacy of political affiliation; Privacy;
Political beliefs; Political affiliation; Privacy of political affiliation;
Electoral franchise; Corrupt practices; Single proportionality
standard; Plenary legislation; Subordinate legislation; Removal
of contribution restrictions; Loss-making companies; Profit-
making companies.

In the Judgment of Sanjiv Khanna, J

Electoral Bonds Scheme, 2018; Electoral bonds; Electoral
process; Doctrine of proportionality; Corporate funding;
Ban on contributions to political parties; Contributions
by companies; Electronic Clearing System; Economic
policy; Judicial review; Electoral democracy; Burden of
proof; Doctrine of presumption of constitutionality; Test of
proportionality; Structured proportionality; Right to vote;
Right to know; Symbol allotted to political parties; Funding of
political parties; Democratic legitimacy; Substantive balance;
Diversity; Conscientiousness; Equal consideration; Donors of
a political party; Informational privacy of donors; Black money
in electoral finance; Retribution; Victimisation; Retaliation;
Quid pro quo; Multiple donors; Double proportionality; Single
proportionality standard; Principle of reasonableness; Right
of privacy; Balancing prong of proportionality; Principle of lis
pendens; Necessity test; Rational connection test; Standard
based review; Rule based legal adjudication; Empirical
deference; Transparency; Secrecy; Identities of donor;
Money laundering; Alternative measures; Electoral Trust
[2024] 2 S.C.R.  449

Association for Democratic Reforms & Anr. v. Union of India & Ors.

Scheme; Fundamental rights; Complementary rights; Law

Commission of India; Party wise donation; Test of manifest
arbitrariness.
Case Arising From
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.880 of 2017
(Under Article 32 of the Constitution of India)
With
Writ Petition (Civil) Nos.59 of 2018, 975 And 1132 of 2022
Appearances for Parties
Kapil Sibal, Sr. Adv., Prashant Bhushan, Ms. Neha Rathi, Pranav
Sachdeva, Ms. Alice Raj, Ms. Shivani Kapoor, Kamal Kishore, Ms.
Kajal Giri, Varinder Kumar Sharma, Varun Thakur, Gautam Bhatia,
Pradanns. S, Ms. Rupali Samuel, Ms. Aprajits Jamuel, Rishabh Parikh,
Shsntanu Sharma, Ms. Deeksha Gaur, Y K Prasad, Shadan Farasat,
Ms. Hrishika Jain, Aman Naqvi, Ms. Natasha Maheshwari, Rizwan,
Ms. Sachi Chopra, Nizam Pasha, Javedur Rahman, Mudassir, Arif
Ali, Ms. Aayushi Mishra, Advs. for the Petitioners.
R Venkataramani, AG, Tushar Mehta, SG, R Balasubramanian, Sr.
Adv., Raj Bahadur Yadav, Ms. Seema Bengani, Shyam Gopal, Ms.
Chinmayee Chandra, Kanu Agrawal, Rajat Nair, Raman Yadav,
Chitvan Singhal, Mrs. Shraddha Deshmukh, Ms. Sonali Jain, Abhishek
Kumar Pandey, Kartikay Aggarwal, Rajan Kumar Chourasia, Ms.
Shraddha Deshmukh, Ankur Talwar, Arvind Kumar Sharma, Amit
Sharma, Dipesh Sinha, Ms. Pallavi Barua, Ms. Aparna Singh, Advs.
for the Respondents.
Vijay Hansaria, Sanjay R Hegde, Sr. Advs. Ms. Sneha Kalita,
Ms. Kavya Jhawar, K.S.bhati, Ms. Jessy Kurian, Ms. Sr. Leona,
Pawanshree Agarwala, Suren Uppal, Aviral Kashyap, Shahrukh Ali,
Sanjeev Menon, Ms. Stuti Srivastava, Ms. Vimal Sinha, Rajesh Kumar,
P.B. Suresh, Prasanna S., Ms. Disha Wadekar, Ms. Deeksha Dwivedi,
Ms. Swati Arya, Yuvraj Singh Rathore, Varun K Chopra, Mehul
Sharma, Abhishek Kandwal, M/S. Vkc Law Offices, Kaleeswaram
Raj, Ms. Thulasi K Raj, Ms. Aparna Menon, Mohammed Sadique
T.A., Advs. for the Intervenors.
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Judgment / Order of the Supreme Court

Judgment
Dr Dhananjaya Y Chandrachud, CJI*

A. Background 4

i. Corporate Contributions ........................................... 5

ii. Curbing black money ................................................ 10

iii. Transparency .............................................................. 11

iv. Objections of RBI and ECI to the Electoral

Bond Scheme ............................................................. 13

v. Electoral Bond Scheme ............................................. 18

B. Issues ................................................................................. 23

C. Submissions ....................................................................... 24

i. Submissions of petitioners ....................................... 24

ii. Submissions of Union of India ................................. 36

D. The Scope of Judicial Review ......................................... 40

E. The close association of politics and money ................ 44

F. The challenge to non-disclosure of information

on electoral financing ...................................................... 50

i. Infringement of the right to information of the voter .. 51

a. The scope of Article 19(1)(a): tracing the right to

information ............................................................. 51

b. Right to information of a voter: exploring the

judgments in ADR and PUCL ............................... 55

c. The focal point of the electoral process:

candidate or political party .................................... 64
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Association for Democratic Reforms & Anr. v. Union of India & Ors.

d. The essentiality of information about political

funding for the effective exercise of the choice of
voting ..................................................................... 73

ii. Whether the infringement of the right to

information of the voter is justified ......................... 78

a. Curbing Black money ............................................. 80

b. Donor Privacy ......................................................... 95

I. Informational privacy of financial contributions to 96

political parties .......................................................

II. Privacy vis-à-vis political party ............................... 103

III. Balancing the right to information and the right

to informational privacy ......................................... 103

a) Judicial Approach towards balancing

fundamental rights: establishing the double
proportionality standard .................................. 103

b) Validity of the Electoral Bond Scheme,

Section 11 of the Finance Act and Section
137 of the Finance Act .................................... 113

c. Validity of Section 154 of the Finance Act amending

Section 182(3) to the Companies Act ................... 120

G. Challenge to unlimited corporate funding ..................... 124

i. The application of the principle of non-arbitrariness 127

a. Arbitrariness as a facet of Article 14 ..................... 127

b. Beyond Shayara Bano: entrenching manifest

arbitrariness in Indian jurisprudence ..................... 131

ii. Validity of Section 154 of the Finance Act 2017

omitting the first proviso to Section 182 of the
Companies Act ........................................................... 140

H. Conclusion and Directions .............................................. 149

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1. The petitioners have instituted proceedings under Article 32 of the

Constitution challenging the constitutional validity of the Electoral
Bond Scheme1 which introduced anonymous financial contributions to
political parties. The petitioners have also challenged the provisions
of the Finance Act 20172 which, among other things, amended the
provisions of the Reserve Bank of India Act 19343, the Representation
of the People Act 19514, the Income Tax Act 19615, and the Companies
Act 20136.
A. Background
2. Section 31 of the RBI Act stipulates that only the RBI or the Central
Government authorized by the RBI Act shall draw, accept, make, or
issue any bill of exchange or promissory note for payment of money
to the bearer of the note or bond. The Finance Act amended the RBI
Act by including Section 31(3) which permits the Central Government
to authorize any scheduled bank to issue electoral bonds.
3. To understand the context in which the legislative amendments
were introduced, it is necessary to juxtapose the amendments with
the regime on financial contributions to political parties. The law
relating to financial contributions to political parties focusses on (a)
contributions by corporate entities; (b) disclosure of information on
contributions; and (c) income tax exemptions for donations.
i. Corporate Contributions
4. The Companies Act 1956 and the provisions of the RPA, when they
were enacted did not regulate contributions to political parties by
companies and individuals. The Companies (Amendment) Act 1960
included Section 293A7 to regulate contributions by companies.

1 “Electoral Bond Scheme” or “Scheme”

2 “Finance Act”
3 Section 135 of the Finance Act 2017; “RBI Act”
4 Section 137 of the Finance Act 2017;“RPA”
5 Section 11 of the Finance Act 2017; “IT Act”
6 Section 154 of the Finance Act 2017; “Companies Act”
7 “293A. (1) Notwithstanding anything contained in section 293, neither a company in general meeting
nor its Board of directors shall, after the commencement of the Companies (Amendment) Act, 1960,
contribute-
(a) To any political party, or
(b) For any political purpose to any individual or body, any amount or amounts which or the aggregate
of which will, in any financial year, exceed twenty-five thousand rupees or five per cent of its
average net profits as determined in accordance with the provisions of sections 349 and 350 during
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Association for Democratic Reforms & Anr. v. Union of India & Ors.

The provision stipulated that companies cannot contribute to (a)

any political party; and (b) to any individual or body for any political
purpose, amounts exceeding twenty-five thousand rupees in a
financial year or five percent of its average net profits during the three
financial years immediately preceding the contribution, whichever
is greater. Companies were also required to disclose the amount
contributed in a financial year in their profit and loss accounts and
furnish particulars of the total amount contributed and the name of
the party, individual or entity to which or to whom such amount was
contributed. Companies defaulting in complying with the disclosure
requirement were punishable with a fine which could extend to
rupees five thousand.
5. The Companies (Amendment) Act 1969 amended Section 293A8 so
as to ban contributions to political parties and for political purposes.
Companies acting in contravention of the prohibition were punishable
with a fine which could extend to five thousand rupees, and every
officer who defaulted was punishable with imprisonment which could
extend to three years, besides being liable to fine.
6. The Companies (Amendment) Act 1985 amended Section 293A9 to

the three financial years immediately preceding, whichever is greater.

Explanation- Where a portion of a financial year of the company falls before the commencement of the
Companies (Amendment) Act, 1960, and a portion falls after such commencement, the latter portion
shall be deemed to be a financial year within the meaning, and for the purposes, of this sub-section.
(2) Every company shall disclose in its profit and loss account any amount or amounts contributed by it
under sub-section (1) to any political party or for any political purpose to any individual or body during
the financial year to which the account relates, giving particulars of the total amount contributed and the
name of the party, individual or body to which or to whom such amount has been contributed.
(3) If a company makes a default in complying with the provisions of sub-section (2), the company, and
every officer of the company who is in default shall be punishable with fine which may extend to five
thousand rupees.”
8 “Section 293A. (1) Notwithstanding anything contained in any other provision of this Act, neither a
company in general meeting nor its Board of directors shall, after the commencement of the Companies
(Amendment) Act 1960 contribute any amount or amounts-
(a) To any political party or
(b) For any political purpose to an individual or body.
(2) If a company contravenes the provisions of sub-section (1) then-
(i) the company shall be punishable with fine which may extend to five thousand rupees; and
(ii) every officer of the company who is in default shall be punishable with imprisonment for a
term which may extend to three years and shall also be liable to fine”
9 “293A. (1) Notwithstanding anything contained in any other provision of this Act-
(a) No Government company; and
(b) No other company which has been in existence for less than three financial years,
shall contribute any amount or amounts, directly or indirectly, -
(i) To any political party; or
(ii) For any political purpose to any person.
(2) A company, not being a company referred to in clause (a) or clause (b) of sub-section (1), may
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permit contributions to political parties and for political purposes once

again. The explanation of the phrase “political purpose” included
donations made to a person who in the knowledge of the donor is
carrying out any activity at the time of donation which can be regarded
as public support to a political party. Further, the direct or indirect
expenditure by companies on advertisements by or on behalf of
political parties or publications for the advantage of a political party
were also regarded as contributions for political purposes. Three other
restrictions, in addition to the earlier restriction prescribing a cap on
contributions and disclosure requirement were included. First, the
company (which is not a government company) should have been
in existence for more than three years; second, contributions could
only be made when a resolution authorizing the contributions had
been passed at a meeting of the Board of Directors; and third, the
penal consequences attached to the violations of the provision were

contribute any amount or amounts directly or indirectly-

(a) to any political party,-
(b) for any political purpose to any person:
Provided that the amount or, as the case may be, the aggregate of the amounts which may be so
contributed by a company in any financial year shall not exceed five percent of its average net profits
determined in accordance with the provisions of sections 349 and 350 during the three preceding
financial years.
Explanation.- Where a portion of a financial year of the company falls before the commencement of the
Companies (Amendment) Act, 1985, and a portion falls after such commencement, the latter portion
shall be deemed to be a financial year within the meaning, and for the purposes of this sub-section:
Provided further that no such contribution shall be made by a company unless a resolution authorizing
the making of such contribution is passed at a meeting of the Board of Directors and such resolution
shall, subject to the other provisions of this section, be deemed to be justification in law for the making
and the acceptance of the contribution authorized by it.
(3) Without prejudice to the generality of the provisions of sub-sections (1) and (2)-
(a) a donation or subscription or payment caused to be given by a company on its behalf or on its
account to a person who, to its knowledge, is carrying on any activity which, at the time at which
such donation or subscription or payment was given or made, can reasonably be regarded as likely
to effect public support for a political party shall also be deemed to be contribution of the amount of
such donation, subscription or payment to such person for a political purpose;
(b) the amount of expenditure incurred, directly or indirectly, by a company on advertisement in any
publication (being a publication in the nature of a souvenir brochure, tract, pamphlet or the like) by
or on behalf of a political party or for its advantage, shall also be deemed,-
(i) where such publication is by or on behalf of a political party, to be a contribution of such
amount to such political party, and
(ii) where such publication is not by or on behalf of but for the advantage of a political party, to
be a contribution for a political purpose to the publishing it.
(4) Every company shall disclose in its profit and loss account any amount or amounts contributed by
it to any political party or for any political purpose to any person during the financial year to which that
account relates, giving particulars of the total amount contributed and the name of the party or person to
which or to whom such amount has been contributed.
(5) If a company makes any contribution in contravention of the provisions of this section-
(a) the company shall be punishable with fine which may extend to three times the amount so
contributed; and
(b) every officer of the company who is in default shall be punishable with imprisonment for a term
which may extend to three years and shall also be liable to fine.
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made more stringent. A fine extendable to three times the amount

contributed could be imposed, and every officer of the company who
was in default of the provision was punishable for a term which could
extend to three years and be liable for fine.
7. Section 182 of the Companies Act 2013 substantively incorporated
the provisions of Section 293-A of the 1956 Act, as amended in
1985. Section 182 enables a company to contribute any amount
directly or indirectly to any political party. The provision bars a
Government company and a company which has been in existence
for less than three financial years from contributing to a political
party. The provisos to the provision prescribe the following two
conditions:
a. The aggregate of the amount contributed by the company in
any financial year shall not exceed seven and a half per cent of
its average net profits during the three immediately preceding
financial years;10 and
b. A contribution can be made only if the Board of Directors
issues a resolution authorizing the contribution at a meeting.
Such a resolution shall, subject to the other provisions of the
Section, be deemed to be a justification in law for the making
and acceptance of the contribution authorized by the Board.11
8. Sub-section (3) of Section 182 mandates every company to disclose
in its profit and loss account any amount contributed by it to any
political party during the financial year with specific particulars of the
total amount contributed along with the name of the political party
to which the contribution was made.
9. Section 182 of the Companies Act 2013 made two modifications
from Section 293-A of the Companies Act 1956: (a) the cap on the
contributions which can be made by companies was increased from
5 % to 7.5% of their average net profits; and (b) more stringent
consequences for violation of were imposed. The fine was extendable
to five times (instead of three times prescribed in the earlier provision)
of the contribution.

10 Companies Act, First proviso to Section 182(1).

11 Companies Act, second proviso to Section 182(1)
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10. The Finance Act 2017 made three changes to Section 182 of the
Companies Act:
a. The first proviso to Section 182(1) which prescribed a cap on
corporate funding was omitted;
b. Section 182(3) was amended to only require a disclosure of
the total amount contributed to political parties by a company
in a financial year and excluded the requirement to disclose
the particulars of the amount contributed to each political
party; and
c. Sub-section 3A was introduced, by which a company could
contribute to a political party only by a cheque, bank draft, or
electronic clearing system. The proviso to the sub-section states
that a company may also contribute through any instrument
issued pursuant to any scheme notified under any law for the
time being in force for contribution to political parties.
ii. Curbing black money
11. The Taxation Laws (Amendment) Act 1978 included Section 13A to
the IT Act exempting the income of political parties through financial
contributions and investments from income tax. The objects and
reasons of the Amending Act stipulated that tax exemption would
increase disposable funds from “legitimate sources”. However, to
secure the benefit of exemption, the following conditions prescribed
in the proviso were required to be fulfilled:
a. The political party was required to keep and maintain books of
account and other documents which would enable the Assessing
Officer to properly deduce its income;12
b. The political party had to maintain a record of voluntary
contributions in excess of twenty thousand rupees 13, along
with the name and address of the person who made such
contributions;14 and

12 IT Act, Proviso (a) to Section 13A

13 It was ten thousand rupees when Section 13A was introduced. It was increased to twenty thousand
rupees by the Election and Other Related Laws (Amendment) Act 2003
14 IT Act, Proviso (b) to Section 13A
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c. The accounts of the political party were required to be audited

by an accountant.15
12. By the Election and Other Related Laws (Amendment) Act 2003,
Sections 80GGB16 and 80GGC17 were inserted in the IT Act making
contributions made to political parties tax deductible. The speech of Mr
Arun Jaitley, the then Minister of Law and Justice while moving the Bill
indicates that contributions were made tax deductible to “incentivize
contributions” through cheque and other banking channels.
13. The Finance Act 2017 made the following amendments to Section
13A of the IT Act:
a. The political party was not required to maintain a record of
contributions if the contribution was received by electoral
bonds;18 and
b. The political party must receive a donation in excess of two
thousand rupees only by a cheque, bank draft, electronic clearing
system or through an electoral bond.19
iii. Transparency
14. The Election and Other Related Laws (Amendment) Act 2003
amended the provisions of the RPA. Section 29C of the RP Act was
introduced for requiring each political party to declare the details of the
contributions received. The treasurer of a political party or any other
person authorized by the political party must in each financial year
prepare a report in respect of the contributions in excess of twenty
thousand rupees received by the party from a person or company

15 IT Act, Proviso (c) to Section 13A

16 80GGB. “Deduction in respect of contributions made by companies to political parties-In computing the
total income of an assessee, being an Indian company, there shall be deducted any sum contributed by
it, in the previous year to any political party or an electoral trust:
Provided that no deduction shall be allowed under this section in respect of any sum contributed by way
of cash.”
17 80 GGC. “Deduction in respect of contributions made by any person to political parties- In computing the
total income of an assessee, being any person, except local authority and every artificial juridical person
wholly or partly funded by the Government, there shall be deducted any amount of contribution made by
him, in the previous year, to a political party [or an electoral trust] :
[Provided that no deduction shall be allowed under this section in respect of any sum contributed by
way of cash.]
Explanation.—For the purposes of sections 80GGB and 80GGC, “political party” means a political party
registered under section 29A of the Representation of the People Act, 1951 (43 of 1951).”
18 IT Act, amendment to Proviso (b) to Section 13A
19 IT Act, Proviso (d) to Section 13A
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other than Government companies in that financial year. The report

prepared must be submitted to the Election Commission before
the due date for furnishing a return of income of that financial year
under the IT Act.20 A political party which fails to submit the report
shall not be entitled to any tax relief as provided under the IT Act.21
15. The provision was amended by the Finance Act 2017 to include
a proviso by which the political party was not required to disclose
details of contributions received by electoral bonds.
Annexure I to this Judgment depicts in a tabular form the amendments
to the provisions of the RP Act, the IT Act, the Companies Act, and
the RBI Act by the Finance Act 2017.
16. The effect of the amendments introduced by the Finance Act to the
above legislations is that:
a. A new scheme for financial contribution to political parties is
introduced in the form of electoral bonds;
b. The political parties need not disclose the contributions received
through electoral bonds;
c. Companies are not required to disclose the details of
contributions made in any form; and
d. Unlimited corporate funding is permissible.
iv. Objections of RBI and ECI to the Electoral Bond Scheme
17. On 2 January 2017, the RBI wrote a letter to the Joint Secretary in
the Ministry of Finance on the proposal of the Government of India
to enable Scheduled Banks to issue electoral bearer bonds for the
purpose of donations to political parties before the Finance Act 2017
was enacted. The RBI objected to the proposal on the ground that:
a. The amendment would enable multiple non-sovereign entities to
issue bearer instruments. The proposal militated against RBI’s
sole authority for issuing bearer instruments which has the
potential of becoming currency. Electoral bonds can undermine
the faith in banknotes issued by the Central Bank if the bonds
are issued in sizable quantities;

20 RPA, Section 29C (3)

21 RPA, Section 29C (4)
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b. Though the identity of the person or entity purchasing the bearer

bond will be known because of the Know Your Customer22
requirement, the identities of the intervening persons/entities
will not be known. This would impact the principles of the
Prevention of Money Laundering Act 2002; and
c. The intention of introducing electoral bonds can be accomplished
by cheque, demand draft, and electronic and digital payments.
There is no special need for introducing a new bearer bond in
the form of electoral bonds.
18. On 30 January 2017, the Finance Ministry responded to the
observations of RBI and stated that:
a. RBI has not understood the core purpose of electoral bonds
which is to keep the identity of the donor secret while at the
same time ensuring that the donation is only made from tax
paid money; and
b. The fear that electoral bonds might be used as currency is
unfounded because there is a time limit for redeeming the bonds.
19. By a letter dated 4 August 2017, the Deputy Governor of the RBI
stated that India can consider issuing the electoral bonds on a
transitional basis through the RBI under the existing provisions of
Section 31(1) of the RBI Act. The RBI recommended the incorporation
of the following safeguards to minimize the inherent scope of misuse
of the bonds for undesirable activities:
a. The electoral bonds may have a maximum tenure of fifteen days;
b. The electoral bonds can be purchased for any value in multiples
of a thousand, ten thousand, or a lakh of rupees;
c. The purchase of electoral bonds would be allowed from a KYC
compliant bank account of the purchaser;
d. The electoral bonds can be redeemed only upon being deposited
into the designated bank account of an eligible political party;
e. The sale of electoral bonds will be open only for a limited period,
may be twice a year for seven days each; and
f. The electoral bonds will be issued only at RBI, Mumbai.

22 “KYC”
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20. The draft of the Electoral Bond Scheme was circulated to the RBI for its
comments. The draft conferred notified scheduled commercial banks,
apart from the RBI, with the power to issue electoral bonds. The RBI
objected to the draft Scheme by a letter dated 14 September 2017. The
RBI stated that permitting a commercial bank to issue bonds would “have
an adverse impact on public perception about the Scheme, as also the
credibility of India’s financial system in general and the central bank
in particular.” The RBI again flagged the possibility of shell companies
misusing bearer bonds for money laundering transactions. The RBI
recommended that electoral bonds may be issued in electronic form
because it would (a) reduce the risk of their being used for money
laundering; (b) reduce the cost; and (c) be more secure.
21. The Electoral Bond Scheme was placed for deliberation and guidance
by the RBI before the Committee of the Central Board. The Committee
conveyed serious reservations on the issuance of electoral bonds
in the physical form. The reservations were communicated by the
RBI to the Finance Minister by a letter dated 27 September 2017.
The reservations are catalogued below:
a. Issuance of currency is a ‘monopolistic function’ of a central
authority which is why Section 31 of the RBI Act bars any person
other than the RBI from issuing bearer bonds;
b. Issuance of electoral bonds in the scrips will run the risk of money
laundering since the consideration for transfer of scrips from
the original subscriber to a transferee will be paid in cash. This
will not leave any trail of transactions. While this would provide
anonymity to the contributor, it will also provide anonymity to
several others in the chain of transfer;
c. Issuance of electoral bonds in the scrip form could also expose
it to the risk of forgery and cross-border counterfeiting besides
offering a convenient vehicle for abuse by “aggregators”; and
d. The electoral bond may not only be seen as facilitating money
laundering but could also be projected (albeit wrongly) as
enabling it.
22. On 26 May 2017, the Election Commission of India23 wrote to the
Ministry of Law and Justice that the amendments to the IT Act,

23 “ECI”
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RPA, and Companies Act introduced by the Finance Act 2017

will have a “serious impact on transparency of political finance/
funding of political parties.” The letter notes that the amendment
to the RPA by which donations through electoral bonds were not
required to be disclosed is a retrograde step towards transparency
of donations:
“2(ii) It is evident from the Amendment which has been
made, that any donation received by a political party
through electoral bond has been taken out of the ambit
of reporting under the Contribution Report as prescribed
under Section 29C of the Representation of the People
Act 1951 and therefore, this is a retrograde step as far as
transparency of donations is concerned and this proviso
needs to be withdrawn.
(iii) Moreover, in a situation where contributions received
through Electoral Bonds is not reported, on perusal of
the Contribution reports of the political parties, it cannot
be ascertained whether the political party has taken any
donation in violation of provisions under Section 29B of
the Representation of the People Act 1951 which prohibits
the political parties from donations from Government
Companies and Foreign sources.”
23. Referring to the deletion of the provision in the Companies Act
requiring companies to disclose particulars of the amount contributed
to specific political parties, the ECI recommended that companies
contributing to political parties must declare party-wise contributions
in the profit and loss account to maintain transparency in the financial
funding of political parties. Further, the ECI also expressed its
apprehension to the deletion of the first proviso to Section 182(1)
by which the cap on corporate donations was removed. The ECI
recommended that the earlier provision prescribing a cap on corporate
funding be reintroduced because:
a. Unlimited corporate funding would increase the use of black
money for political funding through shell companies; and
b. Capped corporate funding ensured that only profitable
companies with a proven track record could donate to political
parties.
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v. Electoral Bond Scheme

24. On 2 January 2018, the Ministry of Finance in the Department of
Economic Affairs notified the Electoral Bond Scheme 2018 in exercise
of the power under Section 31(3) of the RBI Act. The Electoral Bond
is a bond issued in the nature of promissory note which is a bearer
banking instrument and does not carry the name of the buyer.24 The
features of the Scheme are as follows:
a. The Bond may be purchased by a person who is (i) a citizen
of India; or (ii) incorporated or established in India.25 ‘Person’
includes (a) an individual; (b) a Hindu undivided family; (c) a
company; (c) a firm; (d) an association of persons or a body
of individuals, whether incorporated or not; (e) every artificial
juridical person, not falling within any of the above categories;
and (f) any agency, office, or branch owned or controlled by
such a person. An individual can buy bonds either singly or
jointly with other individuals;26
b. An Electoral Bond can only be encashed by an eligible political
party.27 A political party, to be eligible to receive an electoral
bond, has to be registered under Section 29A of the RP Act,
and ought to have secured not less than one per cent of the
votes polled in the last general election to the House of the
People or the Legislative Assembly of the State.28 An eligible
political party can encash a bond only through a bank account
with an authorised bank.29 The scheme has notified the State
Bank of India as the bank authorised to issue and encash
bonds;30
c. The instructions issued by the Reserve Bank of India regarding
KYC apply to buyers of the bond. The authorised bank may
call for additional KYC documents if necessary;31

24 Electoral Bond Scheme, Clause 2(a)

25 Electoral Bond Scheme, Clause 3(1)
26 Electoral Bond Scheme, clause 3(3)
27 Electoral Bond Scheme, Clause 12
28 Electoral Bond Scheme, Clause 3(3)
29 Electoral Bond Scheme, Clause 3(4)
30 Electoral Bond Scheme, Clause 2(b)
31 Electoral Bond Scheme, Clause 4(2)
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d. Payments for the issuance of the bond are accepted in Indian

rupees, through demand draft, cheque, Electronic Clearing
System or direct debit to the buyer’s account. Where payment
is made by cheque or demand draft, it must be drawn in favour
of the issuing bank at the place of issue;32
e. The bonds are issued in denominations of Rs 1000, 10,000,
1,00,000, 10,00,000 and 1,00,00,000;33
f. The bond is valid for fifteen days from the date of issue. No
payment will be made to a political party if the bond is deposited
after the expiry of fifteen days34. If the bond is not encashed
within fifteen days, it will be deposited by the authorised bank
with the Prime Minister’s Relief Fund;35
g. A buyer who wishes to purchase electoral bond(s) can apply
in the format specified in Annexure II of the Scheme.36 The
issuing branch shall issue the bond if all the requirements are
fulfilled.37 The application shall be rejected if the application
is not KYC compliant or if the application does not meet the
requirements of the scheme;38
h. The bond issued is non-refundable;39
i. The information furnished by the buyer is to be treated as
confidential by the authorized bank. It shall be disclosed only
when demanded by a competent court or upon the registration
of criminal case by any law enforcement agency;40
j. The bond shall be available for purchase for a period of ten days
on a quarterly basis, in the months of January, April, July, and
October as specified by the Central Government.41 Bonds will

32 Electoral Bond Scheme, Clause 11

33 Electoral Bond Scheme, Clause 5
34 Electoral Bond Scheme, Clause 6
35 Electoral Bond Scheme, Clause 12(2)
36 Electoral Bond Scheme, Clause 7(1)
37 Electoral Bond Scheme, Clause 7(3)
38 Electoral Bond Scheme, Clause 7(4)
39 Electoral Bond Scheme, Clause 7(6)
40 Electoral Bond Scheme, Clause 7(4)
41 Electoral Bond Scheme, Clause 8(1)
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be available for an additional period of thirty days as specified

by the Central Government in a year when General Elections
to the House of People are to be held;42
k. No interest is payable on the bond.43 No commission, brokerage,
or any other charges for issue of a bond shall be payable by
the buyer against purchase of the bond;44
l. The value of the bonds shall be considered as income by way
of voluntary contributions received by an eligible political party
for the purpose of exemption from Income Tax under Section
13A of the IT Act;45 and
m. The bonds are not eligible for trading.46
25. The petitioners instituted proceedings under Article 32 seeking a
declaration that Electoral Bond Scheme and the following provisions
be declared unconstitutional:
a. Section 135 of the Finance Act 2017 and the corresponding
amendment in Section 31 of the RBI Act;
b. Section 137 of the Finance Act 2017 and the corresponding
amendment in Section 29C of the RP Act;
c. Section 11 of the Finance Act 2017 and the corresponding
amendment in Section 13A of the IT Act; and
d. Section 154 of the Finance Act 2017 and the corresponding
amendment to Section 182 of the Companies Act.
26. In its order dated 13 April 2019, this Court observed that the
amendments which have been challenged give rise to weighty
issues which have a bearing on the sanctity of the electoral
process. This Court directed all political parties, in the interim to
submit details of contributions received through electoral bonds
(with particulars of the credit received against each bond, date of
credit, and particulars of the bank account to which the amount

42 Electoral Bond Scheme, Clause 8(2)

43 Electoral Bond Scheme, Clause 9
44 Electoral Bond Scheme, Clause 10
45 Electoral Bond Scheme, Clause 13
46 Electoral Bond Scheme, Clause 14
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has been credited) to the ECI in a sealed cover. The prayer for
interim relief was rejected by observing that the operations under
the scheme are not placed behind “iron curtains incapable of
being pierced”:
“25. The financial statements of companies registered
under the Companies Act, 2013 which are filed with the
Registrar of Companies, are accessible online on the
website of the Ministry of Corporate Affairs for anyone.
They can also be obtained in physical form from the
Registrar of Companies upon payment of prescribed
fee. Since the Scheme mandates political parties to
file audited statement of accounts and also since the
Companies Act requires financial statements of registered
companies to be filed with the Registrar of Companies,
the purchase as well as encashment of the bonds,
happening only through banking channels, is always
reflected in documents that eventually come to the
public domain. All that is required is a little more effort
to cull out such information from both sides (purchaser
of bond and political party) and do some “match the
following”. Therefore, it is not as though the operations
under the Scheme are behind iron curtains incapable
of being pierced.”
27. The petitioners have also challenged the introduction of the Finance
Act as a Money Bill under Article 110 of the Constitution. The issue
of the scope of Article 110 has been referred to a seven-Judge
Bench and is pending adjudication.47 The petitioners submitted
that they would press the grounds of challenge to the Finance Act
independent of the issue on Money Bills in view of the upcoming
elections to Parliament.
28. By an order dated 31 October 2023, the batch of petitions was
directed to be listed before a Bench of at least five-Judges in view
of the provisions of Article 145(3) of the Constitution. It is in this
background that the challenge to the Electoral Bond Scheme and
the amendments is before the Constitution Bench.

47 Roger Mathew v. South Bank of India, CA No. 8588/2019

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B. Issues
29. The present batch of petitions gives rise to the following issues:
a. Whether unlimited corporate funding to political parties,
as envisaged by the amendment to Section 182(1) of the
Companies Act infringes the principle of free and fair elections
and violates Article 14 of the Constitution; and
b. Whether the non-disclosure of information on voluntary
contributions to political parties under the Electoral Bond Scheme
and the amendments to Section 29C of the RPA, Section
182(3) of the Companies Act and Section 13A(b) of the IT Act
are violative of the right to information of citizens under Article
19(1)(a) of the Constitution.
C. Submissions
i. Submissions of petitioners
30. Mr Prashant Bhushan, learned counsel made the following
submissions:
a. There is no rational basis for the introduction of electoral bonds.
The main objective of introducing the Electoral Bond Scheme
as reflected in the article written by the then Finance Minister,
Mr. Arun Jaitley was that it would enhance transparency in
electoral funding since electoral bond transactions can only
be made through legitimate banking channels. However, cash
donations are still permitted even after the introduction of the
Electoral Bond Scheme;
b. The Central Government ignored the objections which were
raised by both the RBI and the ECI to the Electoral Bond Scheme;
c. The statutory amendments and the Electoral Bond Scheme
which mandates non-disclosure of information of electoral
funding are unconstitutional because:
i. They defeat the purpose of introducing provisions
mandating disclosure of information on political funding in
the RPA and the Companies Act which was to enhance
transparency in electoral funding;
ii. They violate Article 19(1)(a) which guarantees to the voter
the right to information concerning the affairs of the public
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Association for Democratic Reforms & Anr. v. Union of India & Ors.

and the government.48 This includes the right to information

about financial contributions to political parties because the
Constitution through the Tenth Schedule recognizes that
political parties have a decisive control over the formation
of Government and voting by members of the Legislature
in the Legislative Assembly;
iii. They violate Article 21 because the non-disclosure of
information of political contributions promotes corruption49
and quid pro quo arrangements. The available data
indicates that more than ninety four percent of the total
electoral bonds are purchased in denominations of rupees
one crore. This indicates that bonds are purchased by
corporates and not individuals. The limited disclosure
clause in the Electoral Bond Scheme prevents investigating
agencies such as the Central Bureau of Investigation and
Enforcement Directorate from identifying corruption; and
d. They violate the rights of shareholders of Companies who are
donating money to political parties by preventing disclosure of
information to them; and
e. The statutory amendments and the Electoral Bond Scheme
subvert democracy and interfere with free and fair elections
because the huge difference in the funds received by ruling
parties in the States and Centre vitiates a level playing field
between different parties and between parties and independent
candidates.
31. Mr Kapil Sibal, learned senior counsel made the following submissions:
a. The amendments and the Electoral Bond Scheme skew free
and fair elections by permitting unlimited contributions to political
parties by corporate entities and removing the requirement of
disclosure of information about political funding;
b. Freedom of a voter in the negative connotation refers to the
freedom to cast their vote without interference and intimidation.
Freedom in the positive connotation includes the freedom to

48 Relied on PUCL v. Union of India, [2003] 2 SCR 1136 : (2003) 4 SCC 399; ADR v. Union of India, [2002]
3 SCR 696 : (2002) 5 SCC 294; Anjali Bhardwaj v. Union of India, [2019] 2 SCR 199 : (2019) 18 SCC 246
49 Relied on Kanwar Lal Gupta v. Amar Nath Chawla, [1975] 2 SCR 259 : 1975 SCC (3) 646
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vote on the basis of complete and relevant information. This

includes information about financial contributions to political
parties;
c. The argument of the Union of India that Courts should show
judicial restraint is erroneous because the amendments in
question relate to the electoral process and do not pertain to
economic policy;
d. The presumption of constitutionality should not apply to
statutes which alter the ground rules of the electoral process.
The principle underlying the presumption of constitutionality is
that the legislature represents the will of the people and that
it is validly constituted through free and fair elections. It would
be paradoxical to accord a presumption of constitutionality to
the very laws or rules that set the conditions under which the
legislature comes into being50;
e. Corporate funding per se is violative of the Constitution because
corporate entities are not citizens and thus, are not entitled to
rights under Article 19(1)(a);
f. The funds contributed to the Electoral Bond Scheme can be
used in any manner and their use is not restricted to electoral
campaigns;
g. The Electoral Bond Scheme severs the link between elections
and representative democracy because those elected are
inclined to fulfill the wishes of the contributors and not the voters.
This could be through direct quid pro quo where an express
promise is made to enact a policy in favour of the donor and
indirect quid pro quo where there is an influence through access
to policy makers;
h. The Scheme promotes information asymmetry where the
information about political donations is not disclosed to voters
but the Central Government is privy to such information through
the State Bank of India which is the authorized bank under the
Scheme. The information asymmetry will ensure that a larger
portion of the donations would be made to the ruling party at the

50 Relied on Subash Chandra v. Delhi Subordinate Services Selection Board, [2009] 12 SCR 978 : (2009)
15 SCC 458
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Centre. According to the data, the political party at the center

has received fifty seven percent of the total contributions made
through electoral bonds;
i. The Electoral Bond Scheme skews the principle of one person,
one vote because it gives the corporates a greater opportunity
to influence political parties and electoral outcomes;
j. The amendment to Section 182(3) permits: (i) loss making
companies to contribute to political parties; (ii) unlimited
contributions to political parties enabling significant policy
influence; and (iii) non-disclosure of information on political
funding to shareholders;
k. The amendments permitting non-disclosure of information on
political funding are violative of the right to information under
Article 19(1)(a). The right to information on funding of political
parties is a natural consequence of the judgment of this Court
in ADR (supra) and PUCL (supra) because the underlying
principle in the judgments is that an informed voter is essential
for a functioning democracy. Information about funding to political
parties is necessary for an informed voter since the Symbols
Order 1968 and the provisions of the Tenth Schedule allow
political parties to influence legislative outcomes and policies;
l. The infringement of the right to information does not satisfy the
proportionality standard vis-à-vis the purpose of curbing black
money. Even if the argument that the Electoral Bond Scheme fulfills
the purpose is accepted, non-disclosure of information on political
funding is not the least restrictive means to achieve the purpose;
m. The infringement of the right to information does not satisfy the
proportionality standard vis-à-vis the purpose of guaranteeing
informational privacy because:
i. Protecting donor privacy is not a legitimate purpose.
There is no legitimate expectation of informational privacy
to political contributions. The argument that it lies at the
heart of privacy conflates speech with money. Secrecy of
voting cannot be equated to political donations because
while the former is an expression of political equality, the
latter is contrary to political equality because it depends
on the economic capacity of the contributor;
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ii. Political funding is made to influence public policy. They

are public acts which are by their very nature subject to
public scrutiny; and
iii. Even if donor privacy is necessary, on a balance, the
public interest in free and fair elections trumps the private
interest in confidentiality. Further, this Court has to balance
between the possibility of victimization on the disclosure of
information and the infringement of the right to know; and
n. The amendment to Section 31 of the RBI Act is unconstitutional
because of excessive delegation since it does not set out the
contours of the Scheme.
32. Mr Shadan Farasat, learned counsel made the following submissions:
a. The Scheme does not effectively curb black money. Clause
14 of the Electoral Bond Scheme prohibits de jure trading of
the bonds. However, trading is de facto permissible. Nothing
prevents person A from purchasing the bond and trading it with
person B who pays through cash;
b. The right to information on political funding which is traceable to
Article 19(1)(a) can only be restricted on the grounds stipulated
in Article 19(2). The purposes of curbing black money and
recognizing donor privacy is not traceable to the grounds in
Article 19(2);
c. Even if the purposes are traceable to Article 19(2), the Scheme is
unreasonable and disproportionate to the purpose of “increasing
political funding through banking channels and reducing political
funding through non-banking channels” because:
i. The purpose is not satisfied: The regime still permits cash
funding up to Rupees two thousand. The operation of the
Scheme increases anonymous funding through electoral
bonds at the cost of contributions through regular banking
channels;
ii. There is no rational nexus between the means and the
purpose;
iii. Other less restrictive means of contributing through banking
channels are available; and
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iv. The fifth prong of the proportionality analysis as laid down

in Gujarat Mazdoor Sabha v. State of Gujarat51 and
Ramesh Chandra Sharma v. State of Uttar Pradesh52
that the legislation should have sufficient safeguard to
prevent abuse has also not been satisfied.
d. The statutory amendments and the Scheme are manifestly
arbitrary because (i) large scale corruption and quid pro quo
arrangements would go unidentified due to the non-disclosure
of information about political funding; (ii) they enable capture
of democracy by wealthy interests; and (iii) they infringe the
principle of ‘one person-one vote’ because a selected few
overpower the voice of the masses because of their economic
wealth;
e. The deletion of the limit on corporate contributions is
manifestly arbitrary53 because it (i) permits donations by loss
making companies; (ii) removes the control of shareholders
over the decisions of the Board; (iii) permits unlimited
contribution by corporates and thereby abrogates democratic
principles;
f. The provision permitting non-disclosure of funding by companies
is violative of the shareholders’ rights under:
i. Article 25 which includes the right of the shareholder to
know how the resources generated from their property are
utilized. Once a shareholder comes to know that a company
is financing a political party and their conscience does not
permit it, as an exercise of the right to conscience, the
shareholder should be entitled to sell those shares; and
ii. If the shareholder feels that the political contributions are
not a sound business decision, they must be entitled to
exit the business by selling the shares. The information
that would enable the shareholder to make such a decision
is not disclosed, thus, infringing upon their right under
Article 19(1)(g).

51 [2020] 13 SCR 886 : (2020) 10 SCC 459

52 [2023] 2 SCR 422 : 2023 SCC OnLine SC 162
53 Relied on Shayara Bano v. Union of India, [2017] 9 SCR 797 : (2017) 9 SCC 1
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33. Mr Nizam Pasha, learned counsel made the following submissions:

a. The Electoral Bond Scheme and the amendments are arbitrary
as they permit Indian registered companies to purchase electoral
bonds without considering their ownership and control. This goes
against foreign investment laws in India, treating companies
owned or controlled by non-resident Indian citizens as ‘foreign
owned or controlled companies,’ without rational justification;
b. The Electoral Bond Scheme is arbitrary due to its discriminatory
and non-transparent nature. It contradicts existing laws requiring
transparency and verification of the beneficial ownership and
source of funds; and
c. The amendments to Section 29C of the RPA and Section 182
of the Companies Act serve no purpose other than perpetuating
illegal ends, as they exempt companies’ purchase of electoral
bonds from public disclosure. This fails to achieve the scheme’s
stated objective of curbing cash donations.
34. Mr Vijay Hansaria, learned senior counsel made the following
submissions:
a. The objects and reasons of the Election and Other Related
Laws (Amendment) Act 2003 which amended the Companies
Act 1956, IT Act 1961, and the RPA indicates that the
amendments were made to incentivize contributions through
banking channels. Thus, the amendments to Section 13A of
the Income Tax Act and Section 29C of the RPA are contrary
to the object of inserting Section 13A and Section 80GGB and
Section 80GGC of the Income Tax Act;
b. Since 1959, when companies were permitted to contribute to
political parties, all companies were required to mandatorily
disclose the total contributions made and the name of party
to which they have contributed. Further, ceiling limits for total
contribution by companies were prescribed. The Finance Act
2017 does away with these transparency requirements; and
c. International perspectives on political funding regulations,
including those from the United States, the United Kingdom,
Switzerland and Singapore, emphasize the importance of
transparency, disclosure, and reporting in political contributions.
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These examples underscore the global consensus on

transparency in the political funding process.
35. Mr Sanjay R. Hegde, learned senior counsel made the following
submissions:
a. Public listed companies are subject to scrutiny since they raise
funds from the public. Information pertaining to the company is
essential to be brought to the public domain. This will enable
informed debates and discussions regarding the use of money
by such companies. Such information must particularly be made
available to shareholders to enable them to make an informed
choice with regard to trading of securities. Thus, the amendment
to the Companies Act which removes the requirement of
disclosure of information about political contributions is violative
of the right to information of shareholders which flows from
Article 19(1)(a);
b. Public listed companies should not be allowed to make
contributions without the consent of the majority of the
shareholders or the consent of three-fourths of shareholders;
c. Non-disclosure of information about political funding denies
shareholders the right to choice that flows from Article 21.
Shareholders are incapacitated from making a choice about
whether they wish to invest in shares of a company which has
contributed to a political party whose ideology that shareholder
does not agree with; and
d. The amendment to Section 182(3) perpetuates the pre-existing
inequality in power between shareholders and the Board/
Promoters/management and puts the shareholders in an even
weaker position violating the right to substantive equality under
Article 14.
36. Mr PB Suresh, learned counsel made the following submissions:
a. The Scheme and amendments violate Articles 14 and 15 by
disproportionately impacting regional political parties and political
parties which represent marginalised and backward sections
of the society. The representation of the backward classes is
low in the corporate sector. Thus, the Scheme has a disparate
impact on parties whose social base is derived from the SC/
STs and backward classes;
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b. The presumption of constitutionality does not apply in full rigour

to electoral laws because the incumbent legislators have a
vested interest in shaping the laws that would make it easier
for them to be re-elected;
c. The removal of the cap on corporate donations has strengthened
the position of major political parties and created more barriers
for the entry of new political parties; and
d. Political parties have a right to know the funding sources of rival
political parties to enable them to critique it before the public.
ii. Submissions of Union of India
37. The learned Attorney General for India made the following submissions:
a. Political parties are an integral product of a free and open society
and play an important role in the administration of the affairs
of the community. Accordingly, they are entitled to receive all
support, including financial contributions;
b. The Electoral Bond Scheme allows any person to transfer funds
to political parties of their choice through legitimate banking
channels instead of other unregulated ways such as direct
transfer through cash;
c. The Scheme ensures confidentiality of the contributions made
to political parties. The benefit of confidentiality to contributors
ensures and promotes contribution of clean money to political
parties;
d. Citizens do not have a general right to know regarding the
funding of political parties. Right to know is not a general right
available to citizens;
e. This Court has evolved the right to know for the specific
purpose of enabling and furthering the voter’s choice of electing
candidates free from blemish; and
f. The influence of contributions by companies to political parties
ought not to be examined by this Court. It is an issue of
democratic significance and should be best left to the legislature.
38. The learned Solicitor General of India made the following submissions:
a. The legal framework prior to the enactment of the Electoral Bond
Scheme was mostly cash-based which incentivized infusion of
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black money into political parties, and consequently, into the

electoral process in India. The Electoral Bond Scheme is an
improvement on the prior legal framework;
b. Donors to a political party often apprehended retribution from
other political parties. Such apprehension incentivized donors
to contribute unaccounted money to political parties to avoid
identification and victimization by other political parties. The
Electoral Bond Scheme maintains the confidentiality of donors
and thereby incentivizes them to contribute clean money to
political parties;
c. In case the donor is a public company, they will have to declare
the amount contributed in their books of account without
disclosing the name of the political party. Similarly, the political
parties will also have to disclose the total amount received
through electoral bonds in their annual audited accounts filed
before the Election Commission of India. This framework ensures
a balance between clean money coming into the system as
against the right to information of citizens;
d. The state has a positive obligation to safeguard the privacy
of its citizens, which necessarily includes the citizens’ right to
political affiliation. The right of a buyer to purchase electoral
bonds without having to disclose their preference of political
party secures the buyer’s right to privacy;
e. The Electoral Bond Scheme has been enacted in pursuance
of a legitimate state interest - to shift from cash driven,
unregulated and unaccounted cash based political donations
to a regulated, digital and legal political donation framework.
The provisions of the Electoral Bond Scheme have a specific
object and purpose of curbing black money and protecting
donor privacy:
i. Clause 3(3) imposes a pre-condition that only a registered
political party which has secured at least 1 per cent of the
votes polled in the last general election would be eligible to
receive bonds. This provision ensures that ghost political
parties are barred from seeking and receiving political
funding;
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ii. Clause 4 requires a buyer of electoral bonds to meet the

requisite KYC Norms. This ensures that only KYC compliant
persons are entitled to buy electoral bonds;
iii. The limited validity period of fifteen days ensures that the
bond is not used as a parallel currency;
iv. Clause 7(4) mandates the authorized bank to treat the
information furnished by a buyer as confidential which shall
not be disclosed to any authority, except when directed
by a competent court or upon registration of criminal case
by any law enforcement agency. This provision protects
the privacy and personal details of the buyer vis-à-vis the
state; and
v. Clause 11 mandates that all payments for the purchase
of electoral bonds shall be accepted through banking
channels. This provision curbs the circulation of black
money.
f. The right of a citizen to know how political parties are being
funded must be balanced against the right of a person to
maintain privacy of their political affiliations. Donating money to
one’s preferred party is a form political self-expression, which
lies at the heart of privacy;
g. Maintaining anonymity of donations to political parties is a part of
the concept of secret ballot because it enables a person to make
political choices without any fear of victimization or retaliation;
h. The right to information only operates against information in the
possession or in the knowledge of the state. It cannot operate
for seeking information not in the knowledge or possession of
the state;
i. The amendments to the RBI Act, RPA, and the IT Act are
intended to curb donations made by way of cash and other
means to political parties and secure the anonymity of donors;
j. The amendment to Section 182 of the Companies Act removes
the limitation of seven and a half percent of the net profits on
the amount contributed by political parties. The removal of the
contribution limit was intended to disincentivize creation of shell
companies;
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k. This Court has recognized that the legislature has a wide

latitude in matters concerning economic policy. Further, the
mere possibility that the law might be abused cannot be a
ground for holding the provision procedurally or substantially
unreasonable; and
l. The fact that one party receives substantially more support
through donations than other parties cannot in itself be a legal
ground to challenge the validity of the Electoral Bond Scheme.
D. The Scope of Judicial Review
39. The Union of India submitted that this Court must exercise judicial
restraint while deciding the challenge to the Electoral Bond Scheme
and the statutory amendments because they relate to economic policy.
For this purpose, the Union of India relied on a series of decisions
where this Court has held that Courts must follow judicial restraint
in matters concerning economic and financial policy.54
40. It is a settled position of law that Courts must adopt a less stringent
form of judicial review while adjudicating challenges to legislation
and executive action which relate to economic policy as compared
to laws relating to civil rights such as the freedom of speech or the
freedom of religion.55 More recently, in Swiss Ribbons v. Union of
India56, this Court while deciding a challenge to the constitutional
validity of provisions of the Insolvency and Bankruptcy Code 2016
observed that the legislature must be given “free play” in the joints
to experiment with economic policy. This position was also followed
in Pioneer Urban Land and Infrastructure Limited v. Union of
India57, where amendments to the Insolvency and Bankruptcy Code
were challenged.
41. The question is whether the amendments under challenge relate
to economic policy. While deciding on a constitutional challenge,
the Court does not rely on the ipse dixit of the government, that a

54 Rustom Cavasjee Cooper v. Union of India, [1970] 3 SCR 530 : (1970) 1 SCC 248; R.K Garg v. Union
of India, [1982] 1 SCR 947 : (1981) 4 SCC 675; Premium Granites v. State of Tamil Nadu, [1994] 1 SCR
579 : (1994) 2 SCC 691; Peerless General Finance and Investment Co v. RBI, [1992] 1 SCR 406 : (1992)
2 SCC 343, BALCO Employees Union v. Union of India, [2001] Suppl. 5 SCR 511 : (2002) 2 SCC 333.
55 RK Garg v. Union of India, [1982] 1 SCR 947 : (1981) 4 SCC 675 [8]; See Balco Employees Union v.
Union of India, [2001] Suppl. 5 SCR 511 : (2002) 2 SCC 333; DG of Foreign Trade v. Kanak Exports,
(2016) 2 SCC 226
56 [2019] 3 SCR 535 : (2019) 4 SCC 17
57 [2019] 10 SCR 381 : (2019) 8 SCC 416
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legislation is an economic legislation. Courts before classifying the

policy underlying a legislation as economic policy must undertake
an analysis of the true nature of the law. The amendment to Section
31 of the RBI Act can be classified as a financial provision to the
extent that it seeks to introduce a new form of a bearer banking
instrument. However, any resemblance to an economic policy ends
there. The amendments in question can be clubbed into two heads:
first, provisions mandating non-disclosure of information on electoral
financing; and second, provisions permitting unlimited corporate
funding to political parties. Both these amendments relate to the
electoral process.
42. In fact, it is evident from the correspondence between the Ministry
of Finance and RBI (which have been summarized above) on the
apprehensions of the Bonds being used as an alternative currency
that the Bonds were introduced only to curb black money in the
electoral process, and protect informational privacy of financial
contributors to political parties. The Union of India has itself classified
the amendments as an “electoral reform”. Thus, the submission of
the Union of India that the amendments deal with economic policy
cannot be accepted.
43. The second argument that this Court needs to address is to determine
the scope of judicial review to decide this batch of petitions. The
petitioners submitted that the presumption of constitutionality does
not apply since the Scheme deals with the electoral process. The
premise of the argument is that the presumption of constitutionality is
based on the principle that the elected body must be trusted to make
decisions and that principle should not be applied when the rules
changing the electoral process are themselves in challenge.58 It was
submitted that in such cases if a prima facie case of constitutional
violation is made out, the State bears a heavy burden of justifying
the law.
44. The presumption of constitutionality is based on two premises. First,
it is based on democratic accountability, that is, legislators are elected
representatives who are aware of the needs of the citizens and are

58 For this purpose, the petitioners referred to the representation-reinforcement model of judicial review
propounded by John Hart Ely in his book Democracy and Distrust: A Theory of Judicial Review (Harvard
University Press, 2002) and the judgment of this Court in Subash Chandra v. Delhi Subordinate Service
Selection Board, [2009] 12 SCR 978 : (2009) 15 SCC 458
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best placed to frame policies to resolve them59. Second, legislators are

privy to information necessary for policy making which the Courts as
an adjudicating authority are not. However, the policy underlying the
legislation must not violate the freedoms and rights which are entrenched
in Part III of the Constitution and other constitutional provisions. It is
for this reason that previous judgments of this Court have held that the
presumption of constitutionality is rebutted when a prima facie case of
violation of a fundamental right is established. The onus then shifts on
the State to prove that the violation of the fundamental right is justified.
In Dharam Dutt v. Union of India60, a two-Judge Bench of this Court
elucidated the principle in the following terms:
“49. In spite of there being a general presumption in favour
of the constitutionality of the legislation, in a challenge
laid to the validity of any legislation allegedly violating any
right or freedom guaranteed by clause (1) of Article 19 of
the Constitution, on a prima facie case of such violation
having been made out, the onus would shift upon the
respondent State to show that the legislation comes within
the permissible limits of the most relevant out of clauses
(2) to (6) of Article 19 of the Constitution, and that the
restriction is reasonable. The Constitutional Court would
expect the State to place before it sufficient material
justifying the restriction and its reasonability. On the State
succeeding in bringing the restriction within the scope of
any of the permissible restrictions, such as, the sovereignty
and integrity of India or public order, decency or morality
etc. the onus of showing that restriction is unreasonable
would shift back to the petitioner. Where the restriction on
its face appears to be unreasonable, nothing more would
be required to substantiate the plea of unreasonability. Thus
the onus of proof in such like cases is an ongoing shifting
process to be consciously observed by the Court called
upon to decide the constitutional validity of a legislation
by reference to Article 19 of the Constitution.”

59 See State of Bombay v. FN Balsara, [1951] 1 SCR 682

60 [2003] Supp. 6 SCR 151 : AIR 2004 SC 1295; Also see Ramlila Maidan Incident, In re, [2012] 4 SCR
971 : (2012) 5 SCC 1; State of Bombay v. FN Balsara, [1951] 1 SCR 682; Ameerunissa Begum v.
Mahboob Begum, [1953] 1 SCR 404 : (1952) 2 SCC 697
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45. The broad argument of the petitioners that the presumption of

constitutionality should not apply to a specific class of statutes, that
is, laws which deal with electoral processes cannot be accepted.
Courts cannot carve out an exception to the evidentiary principle which
is available to the legislature based on the democratic legitimacy
which it enjoys. In the challenge to electoral law, like all legislation,
the petitioners would have to prima facie prove that the law infringes
fundamental rights or constitutional provisions, upon which the onus
would shift to the State to justify the infringement.
E. The close association of politics and money
46. The law does not bar electoral financing by the public. Both corporates
and individuals are permitted to contribute to political parties. The
legal regime has not prescribed a cap on the financial contributions
which can be received by a political party or a candidate contesting
elections. However, Section 77 of the RPA read with Rule 90 of
the Conduct of Election Rules 196161 prescribes a cap on the total
expenditure which can be incurred by a candidate or their agent in
connection with Parliamentary and Assembly elections between the
date on which they are nominated and the date of the declaration of
the result. The maximum limit for the expenditure in a Parliamentary
constituency is between Rupees seventy five lakhs to ninety five
lakhs depending on the size of the State and the Union Territory.62
The maximum limit of election expenses in an Assembly constituency
varies between rupees twenty eight lakhs and forty lakhs depending
on the size of the State.63 However, the law does not prescribe any
limits for the expenditure by a political party. Explanation 1 to
Section 77 stipulates that the expenditure incurred by “leaders of a
political party” on account of travel for propagating the programme

61 Section 77 of the RPA read with Section 169 provides the Central Government in consultation with the
Election Commission, the power to prescribe the amount over which the total expenditure incurred by
the candidate or their agent in connection with Parliamentary election and Assembly election shall not
be exceeded. The total expenditure cap is prescribed in Rule 90 of the Conduct of Election Rules 1961
which is amended from time to time.
62 The expenditure limit is capped at seventy-five Lakhs for the states of Arunachal Pradesh, Goa, and
Sikkim, and the Union Territories of Andaman and Nicobar Islands, Chandigarh, Dadra and Nagar Haveli
and Daman and Diu, Lakshadweep, Puducherry, and Ladakh. For the remaining States and Union
Territories, the expenditure limit is capped at ninety-five Lakhs.
63 For State Assembly elections, the expenditure is capped at twenty-eight lakhs for the States of Arunachal
Pradesh, Goa, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim, and Tripura. Amongst the Union
Territories, the expenditure is capped at twenty-eight Lakhs for Puducherry and forty Lakhs for Delhi and
Jammu and Kashmir.
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of the political party shall not be deemed to be election expenditure.

Thus, there is an underlying dicohotomy in the legal regime. The
law does not regulate contributions to candidates. It only regulates
contributions to political parties. However, expenditure by the
candidates and not the political party is regulated. Be that as it may,
the underlying understanding of the legal regime regulating electoral
finance is that finance is crucial for the sustenance and progression
of electoral politics.
47. It is believed that money does not vote but people do. However,
studies have revealed the direct and indirect influence of money on
electoral politics.64 The primary way through which money directly
influences politics is through its impact on electoral outcomes.
48. One way in which money influences electoral outcomes is through
vote buying. Another way in which money influences electoral
outcomes is through incurring electoral expenditure for political
campaigns. Campaigns have a measurable influence on voting
behavior because of the impact of television advertisements,
campaign events, and personal canvassing.65 An informed voter
is one who is assumed to be aware of the policy positions of the
candidate or the party they represent and votes on a thorough
analysis of the pros and cons of electing a candidate. On the other
hand, an uninformed voter is assumed to not possess knowledge of
the policy positions of the candidates.66 Campaigns have an effect
on the voting behavior of both an informed and an uninformed voter.
The impact of campaigns on an informed voter is supplementary
because campaign activities enable an informed voter to be further
informed about the policies and ideology of the political party and the
candidate, and their views on specific issues. Electoral campaigns
reduce the uncertainty about candidates for an informed voter.
For an uninformed voter, electoral campaigns play a much more
persuasive role in influencing electoral behavior because campaigns
throw more light on candidates.

64 See Conrad Foreman, Money in Politics: Campaign Finance and its Influence over the Political Process
and Public Policy, 52 UIC J. Marshall L. Rev. 185 (2018)
65 See D Sunshine Hillygus, Campaign Effects on Vote Choice in “The Oxford Handbook of American
Elections and Political Behavior” (Ed. Jan E. Leighley 2010)
66 See David P. Baron, Electoral Competition with informed and uninformed voters, American Political
Science Review, Vol. 88, No. 1 March 1994
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49. Political parties use innovative techniques of campaigning by going

beyond the traditional methods of advertisements, door-to-door
campaigning and processions to increase outreach. For example,
political parties sponsor religious festivals and community fairs,
organize sporting matches and literary competitions where cash
awards are given.67 These outreach techniques leave a lasting
impression on the minds of uninformed voters. Thus, enhanced
campaign expenditure proportionately increases campaign outreach
which influences the voting behavior of voters.
50. Money also creates entry-barriers to politics by limiting the kind of
candidates and political parties which enter the electoral fray. Studies
have shown that money influences the selection of candidates by
political parties because parties would prefer fielding candidates who
would be able to substantially self-finance their campaign without
relying on the party for finance.68 In this manner, candidates who
belong to socio-economically weaker sections face added barriers
because of the close association of money and politics.
51. Money also excludes parties which are new to the electoral fray, and in
particular, parties representing the cause of marginalized communities.
Political parties which do not have enough finance have had to form
electoral coalitions with other established political parties who would in
exchange shoulder a lion’s share of the campaign expenditure of the
newly established political party extending to costs related to coalition
propaganda, print and digital advertising, vehicle and equipment hire,
political rallies, food transportation, and daily expenditure for party
cadres69. The compromises which newly formed political parties have
to make lead to a dilution of the ideology of the party in exchange of
its political sustenance. In this manner, money creates an exclusionary
impact by reducing the democratic space for participation for both
candidates and newer and smaller political parties.
52. The judgments of this Court have recognized the influence of
money on politics. They take a critical view of the role played by

67 Michael A. Collins, Navigating Fiscal Constraints in “Costs of Democracy: Political Finance in India”
(edited by Devesh Kapur and Milan Vaishnav) OUP 2018
68 See Neelanjan Sircar, Money in Elections: the Role of Personal Wealth in Election Outcomes in Costs of
Democracy: Political Finance in India (ed. By Devesh Kapur and Milan Vaishnav) OUP 2018
69 Michael A. Collins, Navigating Fiscal Constraints in “Costs of Democracy: Political Finance in India”
(edited by Devesh Kapur and Milan Vaishnav) OUP 2018
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big business and “big money” in the electoral process in India. The
decision in Kanwar Lal Gupta v. Amar Nath Chawla,70 notices that
money serves as an asset for advertising and other forms of political
solicitation that increases a candidate’s exposure to the public. The
court observed that the availability of large funds allows a candidate
or political party “significantly greater opportunity for the propagation
of its programme” in comparison to their political rivals. Such political
disparity, it was observed, results in “serious discrimination between
one political party or individual and another on the basis of money
power and that in turn would mean that “some voters are denied an
‘equal’ voice and some candidates are denied an ‘equal chance’”.
53. In Vatal Nagaraj v. R Dayanand Sagar,71 Justice V R Krishna Iyer
noted that candidates often evade the legal ceiling on expenditure
by using big money channelled by political parties. The court
acknowledged that large monetary inputs are “necessary evils of
modern elections”, which they hoped would be eradicated sooner
rather than later. In P Nalla Thampy Terah v. Union of India,72
a Constitution Bench of this Court was called upon to decide the
validity of Explanation 1 to Section 77 of the RPA which allowed
unlimited channelling of funds by political parties for the election of
their candidates. While upholding the constitutional validity of the
explanation, the Court noted that the petitioners were justified in
criticizing the statute for “diluting the principle of free and fair elections.”
54. In Common Cause (A Registered Society) v. Union of India,73
this Court dwelt on the ostentatious use of money by political parties
in elections to further the prospects of candidates set up by them.
Justice Kuldip Singh described the role of money in the electoral
process, which is relevant for contextualizing the issue:
“18. … [The General Elections] is an enormous exercise
and a mammoth venture in terms of money spent. Hundreds
and thousands of vehicles of various kinds are pressed
on to the roads in 543 parliamentary constituencies on
behalf of thousands of aspirants to power, many days

70 [1975] 2 SCR 259 : (1975) 3 SCC 646

71 [1975] 2 SCR 384 : (1975) 4 SCC 127
72 [1985] Supp. 1 SCR 622 : 1985 Supp SCC 189
73 [1996] 3 SCR 1208 : (1996) 2 SCC 752
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before the general elections are actually held. Millions

of leaflets and many million posters are printed and
distributed or pasted all over the country. Banners by the
lakhs are hoisted. Flags go up, walls are painted, and
hundreds of thousands of loudspeakers play out the loud
exhortations and extravagant promises. VIPs and VVIPs
come and go, some of them in helicopters and air-taxis.
The political parties in their quest for power spend more
than one thousand crore of rupees on the General Election
(Parliament alone), yet nobody accounts for the bulk of
money so spent and there is no accountability anywhere.
Nobody discloses the source of the money. There are no
proper accounts and no audit. From where does the money
come from nobody knows. In a democracy where rule of
law prevails this naked display of black money, by violating
the mandatory provisions of law, cannot be permitted.”
55. The challenge to the statutory amendments and the Electoral Bond
Scheme cannot be adjudicated in isolation without a reference to
the actual impact of money on electoral politics. This Court has in
numerous judgments held that the effect and not the object of the
law on fundamental rights and other constitutional provisions must
be determined while adjudicating its constitutional validity. The effect
of provisions dealing with electoral finance cannot be determined
without recognizing the influence of money on politics. Therefore,
we must bear in mind the nexus between money and electoral
democracy while deciding on the issues which are before us in this
batch of petitions.
F. The challenge to non-disclosure of information on electoral
financing
56. Section 29C of the RPA as amended by the Finance Act 2017 stipulates
that the political party need not disclose financial contributions
received through electoral bonds. Similarly, Section 13A of the IT Act
as amended does not require the political party to maintain a record
of contributions for contributions received through electoral bonds.
Section 182 of the Companies Act 2013 as amended by the Finance
Act 2017 by which the earlier requirement of disclosure of particulars
of the amount contributed by companies to political parties in their
profit and loss accounts was deleted. The company which has made
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financial contributions is now only required to disclose the total amount

contributed to political parties without disclosing specific particulars
about the political party to which the contribution was made.
57. Maintaining the anonymity of the contributor is a crucial and primary
characteristic of the Electoral Bond Scheme. The electoral bond is
defined as a bearer banking instrument which does not carry the name
of the buyer.74 The law mandates the authorized bank to not disclose
the information furnished by the buyer except when demanded by a
competent court or upon the registration of a criminal case by law
enforcement agencies.75
58. The amendments introduced by the Finance Act 2017 and the
Electoral Bond Scheme are challenged on the ground that the non-
disclosure of information about electoral contributions is violative of
the right to information of the voter which is traceable to Article 19(1)
(a) of the Constitution.
i. Infringement of the right to information of the voter
59. This segment of the judgment will discuss whether the amendments
and the Electoral Bond Scheme infringe the right to information of
the voter. For this purpose, we will discuss the scope of the right
to information, and whether the right extends to information on
contributions to political parties.
a. The scope of Article 19(1)(a): tracing the right to information
60. Article 19(1)(a) has been held to guarantee the right to information to
citizens. The judgments of this Court on the right to information can
be divided into two phases. In the first phase, this Court traced the
right to information to the values of good governance, transparency
and accountability. These judgments recognize that it is the role of
citizens to hold the State accountable for its actions and inactions
and they must possess information about State action for them to
accomplish this role effectively.
61. In the first phase, this Court delineated the scope of the right to
information in the context of deciding the disclosure of evidence
relating to affairs of the State. Provisions of the Indian Evidence Act

74 Electoral Bond Scheme, Clause 2(a)

75 Electoral Bond Scheme, Clause 7(4)
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stipulate that evidence which is relevant and material to proceedings

need not be disclosed to the party if the disclosure would violate
public interest. 76 In the 1960’s, this Court framed the issue of
disclosure of documents related to the affairs of the State in terms
of a conflict between public interest and private interest. This Court
observed that the underlying principle in the provisions of the Indian
Evidence Act bearing on the disclosure of evidence related to the
affairs of the State is that if such disclosure is denied, it would
violate the private interest of the party.77 So, when a party seeks
the disclosure of documents, and when such disclosure is denied
on the ground that it would violate public interest, there is a conflict
between private interest and public interest. In subsequent cases,
the courts cast the principle underlying the provisions of disclosure
in the Indian Evidence Act as a conflict between two conceptions
of public interest. This Court held that disclosure of information aids
the party to the proceedings. But beyond that, disclosure also serves
the public interest in the administration of justice.78
62. In State of Uttar Pradesh v. Raj Narain79, the respondent sought to
summon documents in an election petition. The State made a claim
of privilege from disclosure of documents. In his concurring opinion in
the Constitution Bench, Justice KK Mathew observed that there is a
public interest in the impartial administration of justice which can only
be secured by the disclosure of relevant and material documents.
The learned Judge reaffirmed this proposition by tracing the right to
information to Article 19(1)(a) of the Constitution:
“74. In a Government of responsibility like ours, where
all the agents of the public must be responsible for their
conduct, there can be but few secrets. The people of this
country have a right to know every public act, everything
that is done in a public way, by their public functionaries.
They are entitled to know the particulars of every public
transaction in all its bearing. The right to know, which is
derived from the concept of freedom of speech, though not

76 Indian Evidence Act 1872, Section 124

77 See State of Punjab v. Sodhi Sukhdev Singh, [1961] 2 SCR 371 : (1961) 2 SCR 371 [13]
78 See State of Punjab v. Sodhi Sukhdev Singh, [1961] 2 SCR 371 : (1961) 2 SCR 371 [Subba Rao J]
79 [1975] 3 SCR 333 : (1975) 4 SCC 428
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absolute, is a factor which should make one wary, when

secrecy is claimed for transactions which can, at any rate,
have no repercussion on public security.[…]”
63. This principle was further elucidated in SP Gupta v. Union of
India80. The Union of India claimed immunity against the disclosure
of the correspondence between the Law Minister, the Chief Justice
of the High Court of Delhi, and the Chief Justice of India on the
reappointment of Additional Judges. Justice P N Bhagwati while
discussing the position of law on claims of non-disclosure, observed
that the Constitution guarantees the “right to know” which is necessary
to secure “true facts” about the administration of the country. The
opinion recognised accountability and transparency of governance
as important features of democratic governance. Democratic
governance, the learned Judge remarked, is not restricted to voting
once in every five years but is a continuous process by which the
citizens not merely choose the members to represent themselves but
also hold the government accountable for their actions and inactions
for which citizens need to possess information81.
64. Our discussion indicates that the first phase of the jurisprudence on
the right to information in India focussed on the close relationship
between the right and open governance. The judgments in this phase
were premised on the principle that the citizens have a duty to hold
the government of the day accountable for their actions and inactions,
and they can effectively fulfil this duty only if the government is open
and not clothed in secrecy.
65. In the second phase of the evolution of the jurisprudence on the right
to information, this Court recognised the importance of information to
form views on social, cultural and political issues, and participate in
and contribute to discussions.82 Courts recognised that the relevance
of information is to not only to hold the government accountable but
also to discover the truth in a marketplace of ideas which would

80 1981 Supp SCC 87

81 Also see Dinesh Trivedi v. Union of India, [1997] 3 SCR 93 : (1997) 4 SCC 306 where this Court observed
that sunlight is the best disinfectant.
82 Secy., Ministry of Information & Broadcasting, Govt. of India v. Cricket Assn. of Bengal, [1995] 1 SCR
1036 : (1995) 2 SCC 161; Indian Express Newspapers v. Union of India, [1985] 2 SCR 287 : AIR 1986
SC 515 ; Romesh Thappar v. State of Madras, [1950] 1 SCR 594 : AIR 1950 SC 124
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ultimately secure the goal of self-development.83 This Court also

recognised that freedom of speech and expression includes the
right to acquire information which would enable people to debate
on social, moral and political issues. These debates would not only
foster the spirit of representative democracy but would also curb the
prevalence of misinformation and monopolies on information. Thus,
in the second phase, the Court went beyond viewing the purpose of
freedom of speech and expression through the lens of holding the
government accountable, by recognising the inherent value in effective
participation of the citizenry in democracy. This Court recognised
that effective participation in democratic governance is not just a
means to an end but is an end in itself. This interpretation of Article
19(1)(a) is in line with the now established position that fundamental
freedoms and the Constitution as a whole seek to secure conditions
for self-development at both an individual and group level.84 A crucial
aspect of the expansion of the right to information in the second
phase is that right to information is not restricted to information
about state affairs, that is, public information. It includes information
which would be necessary to further participatory democracy in other
forms and is not restricted to information about the functioning of
public officials. The right to information has an instrumental exegesis,
which recognizes the value of the right in facilitating the realization
of democratic goals. But beyond that, the right to information has an
intrinsic constitutional value; one that recognizes that it is not just a
means to an end but an end in itself.
b. Right to information of a voter: exploring the judgments in ADR
and PUCL
66. In Union of India v. Association for Democratic Reforms 85
(“ADR”), this Court traced the right of voters to have information about
the antecedents, including the criminal past, of candidates contesting
elections, to Article 19(1)(a) of the Constitution. In ADR (supra),
proceedings under Article 226 of the Constitution were instituted
before the High Court of Delhi seeking a direction to implement the
Law Commission’s recommendations to (a) debar candidates from

83 DC Saxena v. Hon’ble The Chief Justice of India, [1996] Supp. 3 SCR 677 : (1996) 5 SCC 216 [29]
84 See Supriyo v. Union of India, 2023 INSC 920 [213, 214]
85 [2002] 3 SCR 696 : (2002) 5 SCC 294.
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contesting elections if charges have been framed against them by a

Court in respect of certain offences; and (b) ensure that candidates
furnish details regarding criminal cases which are pending against
them. The High Court held that the Court cannot direct Parliament to
implement the recommendations of the Law Commission. However,
the High Court directed the ECI to secure information relating to (a)
the details of cases in which a candidate is accused of any offences
punishable with imprisonment;(b) assets possessed by a candidate,
their spouse and dependents; (c) facts bearing on the candidate’s
competence, capacity, and suitability for representing the people;
and (d) any other information which ECI considers necessary for
judging the capacity of the candidate fielded by the political party.
67. The Union of India appealed against the decision of the High Court
before this Court. This Court held that voters have a right to be
sufficiently informed about candidates so as to enable them to exercise
their democratic will through elections in an intelligent manner. Such
information was held to be necessary for elections to be conducted
in a “free and fair manner”:
“34. …the members of a democratic society should be
sufficiently informed so that they may influence intelligently
the decisions which may affect themselves and this would
include their decision of casting votes in favour of a
particular candidate. If there is a disclosure by a candidate
as sought for then it would strengthen the voters in taking
appropriate decision of casting their votes.
[…] we fail to understand why the right of a citizen/voter — a
little man — to know about the antecedents of his candidate
cannot be held to be a fundamental right under Article 19(1)
(a). In our view, democracy cannot survive without free and
fair election, without free and fairly informed voters. Votes
cast by uninformed voters in favour of X or Y candidate
would be meaningless. As stated in the aforesaid passage,
one-sided information, disinformation, misinformation and
non-information, all equally create an uninformed citizenry
which makes democracy a farce. Therefore, casting of a
vote by a misinformed and non-informed voter or a voter
having one-sided information only is bound to affect the
democracy seriously. Freedom of speech and expression
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includes right to impart and receive information which

includes freedom to hold opinions.”
68. This Court rejected the argument that information about a candidate
contesting elections cannot be compelled to be disclosed because
it is not “public information”. The three-Judge Bench held that
information that candidates are required to disclose is only limited to
aiding the voters in assessing whether they could cast their vote in a
candidate’s favour. The Court observed that the criminal background
of a candidate and assets of the candidate (through which it could
be assessed if the candidate has amassed wealth through corruption
when they were elected previously) would aid the voters to cast their
vote in an informed manner. This Court directed the ECI to call for
the following information on affidavit as a part of nomination:
a. Whether the candidate has been convicted, acquitted or
discharged of any criminal offence in the past and if convicted,
whether they are punished with imprisonment or fine;
b. In the six months prior to the filling of nomination papers,
whether the candidate was accused in any pending case for an
offence punishable with imprisonment for two years or more,
and in which a charge is framed or cognizance is taken by the
court of law;
c. The assets (immovable, movable, bank balances and others)
of a candidate and of his/her spouse and that of dependents;
d. Liabilities, if any, particularly whether there are any over dues
to any public financial institution or government dues; and
e. The educational qualifications of the candidate.
69. This Court observed that the ECI can ask candidates to disclose
information about the expenditure incurred by political parties to
maintain the purity of elections.86 However, the operative portion of
the judgment did not reflect this observation.

86 Paragraph 64(4): “To maintain the purity of elections and in particular to bring transparency in the process
of election, the Commission can ask the candidates about the expenditure incurred by the political
parties and this transparency in the process of election would include transparency of a candidate who
seeks election or re-election. In a democracy, the electoral process has a strategic role. The little man of
this country would have basic elementary right to know full particulars of a candidate who is to represent
him in Parliament where laws to bind his liberty and property may be enacted.”
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70. Pursuant to the decision of this Court in ADR (supra), Parliament

amended the RPA to incorporate some of the directions issued
by this Court.87 Section 33-B of RPA stipulated that the candidate
need not disclose any other information (other than the information
required by law) notwithstanding any judgment. In PUCL v. Union
of India88, proceedings were initiated before this Court under Article
32 for challenging Section 33-B of the RPA. Justice M B Shah,
writing for the majority, noted that the decision of the three-Judge
Bench in ADR (supra) tracing the right to know the antecedents of
candidates contesting elections had attained finality and Section
33-B was unconstitutional because it had the effect of rendering
the judgment of this Court inoperative. The learned Judge on an
independent interpretation also held that the right to information of
a voter is a facet of Article 19(1)(a).89
71. Justice Venkatarama Reddi observed in his concurring opinion
that there are two postulates which govern the right to vote : first,
the formulation of an opinion about candidates, and second, the
expression of choice based on the opinion formulated by casting
votes in favour of a preferred candidate. A voter must possess
relevant and essential information that would enable them to evaluate
a candidate and form an opinion for the purpose of casting votes.90
The learned Judge observed that the Constitution recognises the
right of a voter to know the antecedents of a candidate though the
right to vote is a statutory right91 because the action of voting is a
form of expression protected by Article 19(1)(a):
“Though the initial right cannot be placed on the pedestal
of a fundamental right, but, at the stage when the voter
goes to the polling booth and casts his vote, his freedom
to express arises. The casting of vote in favour of one

87 Section 33-A of the RPA required the candidate to furnish the following information:
(a) He is accused of any offence punishable with imprisonment for two years or more in a pending
case in which a charge has been framed by the court of competent jurisdiction; and
(b) He has been convicted of an offence other than any offence referred to in sub-section (1) or sub-
section (2), or covered in sub-section (3), of Section 8 and sentenced to imprisonment for one
year or more.
88 [2003] 2 SCR 1136 : (2003) 4 SCC 399
89 [2003] 2 SCR 1136 : (2003) 4 SCC 399 [18, 27]
90 [2003] 2 SCR 1136 : (2003) 4 SCC 399 [96]
91 The right to vote is classified as a statutory vote because only citizens who fulfill certain conditions (such
as the age) laid down in a statute can vote.
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or the other candidate tantamounts to expression of his

opinion and preference and that final stage in the exercise
of voting right marks the accomplishment of freedom of
expression of the voter. That is where Article 19(1)(a) is
attracted.”
72. In the context of the decision of this Court in ADR (supra), the
learned Judge observed that the Court issued specific directions for
the disclosure of certain information about candidates because of
a legislative vacuum, and that the directions issued to the ECI will
fill the vacuum until Parliament legislates on the subject. Thus, the
five directions which were issued by this Court in ADR (supra) were
not construed to be inflexible and immutable theorems. The learned
Judge observed that though the voters have a fundamental right to
know the antecedents of candidates, all the conceptions of this right
formulated by this Court in ADR (supra) cannot be elevated to the
realm of fundamental rights.
73. The majority was of the view that the voters have a fundamental
right to all the information which was directed to be declared by this
Court in ADR (supra). Justice Venkatarama Reddi disagreed. In the
opinion of the learned Judge, only certain information directed to be
disclosed in ADR (supra) is “crucial” and “essential” to the right to
information of the voter:
“109. In my view, the points of disclosure spelt out by this
Court in Assn. for Democratic Reforms case [Ed.: See full
text at 2003 Current Central Legislation, Pt. II, at p. 3]
should serve as broad indicators or parameters in enacting
the legislation for the purpose of securing the right to
information about the candidate. The paradigms set by the
Court, though pro tempore in nature as clarified supra, are
entitled to due weight. If the legislature in utter disregard of
the indicators enunciated by this Court proceeds to make
a legislation providing only for a semblance or pittance of
information or omits to provide for disclosure on certain
essential points, the law would then fail to pass the muster
of Article 19(1)(a). Though certain amount of deviation
from the aspects of disclosure spelt out by this Court
is not impermissible, a substantial departure cannot be
countenanced. The legislative provision should be such as
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to promote the right to information to a reasonable extent, if

not to the fullest extent on details of concern to the voters
and citizens at large. While enacting the legislation, the
legislature has to ensure that the fundamental right to know
about the candidate is reasonably secured and information
which is crucial, by any objective standards, is not denied.
[…] The Court has to take a holistic view and adopt a
balanced approach, keeping in view the twin principles that
the citizens’ right to information to know about the personal
details of a candidate is not an unlimited right and that at
any rate, it has no fixed concept and the legislature has
freedom to choose between two reasonable alternatives.
[…] But, I reiterate that the shape of the legislation need
not be solely controlled by the directives issued to the
Election Commission to meet an ad hoc situation. As I
said earlier, the right to information cannot be placed in
straitjacket formulae and the perceptions regarding the
extent and amplitude of this right are bound to vary.”
74. Justice Reddi held that Section 33-B was unconstitutional because:
a. Parliament cannot impose a blanket ban on the disclosure of
information other than the disclosure of information required by
the provisions of RPA. The scope of the fundamental right to
information may be expanded in the future to respond to future
exigencies and necessities. The provision had the effect of
emasculating the freedom of speech and expression of which
the right to information is a facet; and
b. The provision failed to give effect to an essential aspect of the
fundamental right, namely the disclosure of assets and liabilities
of the candidates.
75. Justice Reddi then proceeded to juxtapose the directions for disclosure
issued by this Court in ADR (supra) with the scope of the provisions
of the RPA mandating disclosure. The learned judge observed that
the extent of disclosure mandated in RPA is fairly adequate with
respect to past criminal records but not with regard to pending cases.92

92 ADR required disclosure related to information of whether the candidate has been convicted/acquitted or
discharged of any criminal offence in the past, and whether six months prior to the filing of the nomination
paper, whether the candidate has been accused in any pending case for an offence punishable with
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With respect to assets and liabilities, the learned Judge observed

that the disclosure of assets and liabilities is essential to the right
to information of the voter because it would enable voters to form
an opinion about whether the candidate, upon being elected in the
past, had amassed wealth in their name or their family Additionally,
information about dues which are payable by the candidate to public
institutions would enable voters to know the candidate’s dealing with
public money in the past.
76. Justice Reddi observed that the requirement to disclose assets of
the candidate’s family was justified because of the prevalence of
Benami transactions. Though mandating the disclosure of assets
and liabilities would infringe the right to privacy of the candidate and
their family, the learned Judge observed that disclosure which is in
furtherance of the right to information would trump the former because
it serves the larger public interest. Justice Reddi then observed that
disclosure of the educational qualifications of a candidate is not an
essential component of the right to information because educational
qualifications do not serve any purpose for the voter to decide
which candidate to cast a vote for since the characteristics of duty
and concern of the people is not “monopolised by the educated”.
A conclusion to the contrary, in the learned Judge’s opinion, would
overlook the stark realities of the society.93
77. The following principles can be deduced from the decisions of this
Court in ADR (supra) and PUCL (supra):
a. The right to information of voters which is traced to Article
19(1)(a) is built upon the jurisprudence of both the first and
the second phases in the evolution of the doctrine, identified
above. The common thread of reasoning which runs through
both the first and the second phases is that information which
furthers democratic participation must be provided to citizens.

imprisonment for more than two years and in which charge has been framed or cognizance is taken by
the Court. With respect to the first direction, law created a distinction between serious and non-serious
offences and mandates disclosure only if a candidate has been convicted of a serious offence. With
respect to the second direction, the provision only mandated the disclosure of cases in which charge has
been framed and excluded the disclosure of cases in which cognizance has been taken. The learned
Judge held that while the non-disclosure of conviction in a serious offence is a reasonable balance which
does not infringe the right to information, the non-disclosure of cases in which cognizance has been
taken would seriously violate the right to information of the voter particularly because framing of charges
gets delayed in a lot of cases.
93 [2003] 2 SCR 1136 : (2003) 4 SCC 399 [122]
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Voters have a right to information which would enable them to

cast their votes rationally and intelligently because voting is one
of the foremost forms of democratic participation;
b. In ADR (supra), this Court observed that while the disclosure of
information may violate the right to privacy of candidates and their
families, such information must be disclosed because it furthers
public interest.94 The opinion of Justice Venkatarama Reddi in
PUCL (supra) also followed the same line of reasoning. Justice
M B Shah writing for himself and Justice D M Dharmadhikari
held that the right to privacy would not be infringed because
information about whether a candidate is involved in a criminal
case is a matter of public record. Similarly, the assets or income
are normally required to be disclosed under the provisions of
the Income Tax Act; and
c. The voters have a right to the disclosure of information which
is “essential” for choosing the candidate for whom a vote
should be cast. The learned Judges in PUCL (supra) differed
to the extent of what they considered “essential” information
for exercising the choice of voting.
78. While relying on the judgments of this Court in ADR (supra) and PUCL
(supra) the petitioners argue that non-disclosure of information on
the funding of political parties is violative of the right to information
under Article 19(1)(a). This Court needs to consider the following
two issues to answer the question:
a. Whether the requirements of disclosure of information about
“candidates” can be extended to “political parties”; and
b. If the answer to (a) above is in the affirmative, whether
information on the funding of political parties is “essential”
for exercising choice on voting.
c. The focal point of the electoral process: candidate or political
party
79. The decisions in ADR (supra) and PUCL (supra) recognise the right
to information of a voter about candidates, which enables them to

94 In ADR (supra), this Court notes that such information would enable voters to determine if the candidate
is corrupt and would further openness in democracy. [Paragraph 41].
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cast their vote in an effective manner. The relief which was granted
by this Court in PUCL (supra) and ADR (supra) was restricted
to the disclosure of information about candidates contesting the
election because of the limited nature of the reliefs sought. The
ratio decidendi of the two judgments of this Court is that voters
have a right to receive information which is essential for them to
cast their votes. This Court has to first analyse if the ‘political party’
is a relevant ‘political unit’ in the electoral process to answer the
question whether funding details of political parties are essential
information for the voter to possess.
80. The Constitution of India did not make a reference to political parties
when it was adopted. A reference was made when the Tenth Schedule
was included in the Constitution by the Constitution (Fifty-Second)
Amendment Act 1985. However, even though the Constitution on
its adoption did not make a reference to political parties, statutory
provisions relating to elections accorded considerable importance to
political parties, signifying that political parties have been the focal
point of elections.
81. The ECI notified the Election Symbols (Reservation and Allotment)
Order 196895 in exercise of the powers conferred by Article 344 of
the Constitution read with Section 29A of the RPA and Rules 596
and 1097 of the Conduct of Election Rules 1961. In terms of the
provisions of the Symbols Order, the ECI shall allot a symbol to
every candidate contesting the election. The Symbols Order classifies
political parties into recognised political parties and unrecognised
political parties. The difference in the procedure under the Symbols
Order for allotting symbols to recognised political parties, registered
but unrecognised political parties and independent candidates
indicates both the relevance and significance of political parties in
elections in India.

95 “Symbols Order 1968”

96 Rule 5 provides the ECI the power to specify by notification, the symbols which may be chosen by
candidates at elections in parliamentary or assembly constituencies.
97 Rule 10 deals with the preparation of list of contesting candidates. Rule 10(5) states that the allotment
of the returning officer of any symbol to a candidate shall be final except where it is inconsistent with the
directions issued by the ECI, in which case the ECI may revise the allotment. Rule 10(6) states that every
candidate shall be informed of the symbol allotted to the candidate.
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82. A party is classified a National98 or a State recognised party99

based on the total percentage of votes secured at the last general
elections and (or) the number of candidates who have been returned
to the Legislative Assembly. Symbols are reserved for allocation to
recognised political parties.100 All candidates who are being set up by
a national or a State recognised party are to be allotted the symbol
reserved for that party for the purpose of contesting elections.101
83. Symbols other than those reserved for recognised political parties shall
be available for allotment to independent candidates and candidates
set up by political parties which are not recognised political parties in
terms of the Symbols Order.102 Candidates set up by a registered but
unrecognised political party may also be allotted a common symbol
if they fulfil certain conditions laid down in the Symbols Order.103
84. Thus, the Symbols Order creates a demarcation between candidates
set up by political parties and candidates contesting individually.
Political parties are allotted a Symbol such that all candidates who
are set up by that political party are allotted the Symbol of their
political party while contesting elections. Even within candidates
who are set up by political parties, the Symbols Order creates a
distinction between unrecognised but registered political parties and
recognised political parties. Recognised political parties shall continue
to be allotted the same symbol for all General elections until the time
these political parties fulfil the conditions for recognition under the
Symbols Order.104 The effect of the provisions of the Symbols Order
is that the symbols of certain political parties, particularly those which
have enjoyed the status of a recognised political party for long are
entrenched in the minds of the voters that they associate the symbol
with the political party.

98 Symbols Order 1968, Rule 6B

99 Symbols Order 1968, Rule 6A
100 Symbols Order 1968, Rule 5
101 Symbols Order 1968, Rule 8(1)
102 Ibid.
103 Symbols Order 1968, Rule 10B. The party is required to set up candidates in at least five percent of the
assembly constituencies.
104 A recognised National or a State Party shall continue to be treated as a recognised party even if the
political party does not fulfil the conditions at the next election to the General Assembly stipulated for
recognition as a recognised political party. However, it shall continue to be treated as a recognised
political party at the subsequent general election only if the party fulfils the conditions laid down.
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85. For unrecognised but registered political parties, though a common

symbol is allotted for all candidates being set up by the political
parties, the symbol is not “reserved” for the Party. The ECI could allot
different symbols to that political party in each General election. The
candidates of a registered but unrecognised political party may be
represented by a common symbol but the people would not attach
a specific symbol to the political party because the symbol by which
it is represented may change with every election.
86. The purpose of allotting symbols to political parties is to aid voters in
identifying and remembering the political party. The law recognises the
inextricable link between a political party and the candidate though
the vote is cast for a candidate. The literacy rate in India was 18.33
percent when the first General Election was held in 1951. Most of
the voters identified a political party only with its symbol and this still
continues to the day. In a few cases, the voters would not possess
any knowledge of the candidate being set up by the political party.
They would vote solely based on the symbol which is allotted to
the political party; knowledge of which they have obtained through
campaigning activities or its sustained presence in the electoral fray.
Gayatri Devi, the third Maharani consort of Jaipur who was later set
up as a candidate by the Swatantra Party, recalls in her Autobiography
that her team spent hours trying to persuade the voters that they had
to vote for the Symbol Star (which was the symbol of the Swatantra
Party) and not a symbol showing a horse and a rider because she
also rode a horse:105
“Since most of India is illiterate, at the polls people vote
according to a visual symbol of their party. […] The
Swatantra Party had a star. Baby, all my other helpers
and I spent endless frustrating hours trying to instruct the
women about voting for the star. On the ballot sheet, we
said, over and over again, this is where the Maharani’s
name will appear and next to it will be a star. But it was
not as simple as that. They noticed a symbol showing a
horse and a rider, agree with each other that the Maharani
rides so that must be her symbol. Repeatedly we said,

105 Gayatri Devi and Santha Rama Rau, A Princess remembers: The Memoirs of the Maharani of Jaipur,
(Rupa Publications 1995) [301].
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“No, no, that’s not the right one.” Then they caught sight
of the emblem of a flower. Ah, the flower of Jaipur – who
else could it mean but the Maharani? “No, no, no, not the
flower.” All right, the star. Yes, that seems appropriate for
the Maharani, but look, here is the sun. If the Maharani
is a star, then the sun must certainly mean the Maharaja.
We’ll vote for both. Immediately the vote would have been
invalidated. Even up to the final day, Baby and I were far
from sure that we had managed to get our point across.”
87. Symbols also gain significance when the names of political parties
sound similar. For example, political parties by the names of “Dravida
Munnetra Kazhagam”, “All Indian Anna Dravida Munnetra Kazhagam”,
“Dravida Kazhagam”, “Desiya Murpokku Dravida Kazhagam”, “Makkal
Desiya Murpokku Dravida Kazhagam”, “Kongu Desa Makkal Katchi”,
“Kongunadu Makkal Desia Katchi”, and “Kongunadu Makkal Katchi”
contest elections in Tamil Nadu. The names of all the political parties
bear similarities due to the usage of the same words with certain
additions or deletions. The allocation of Symbols to political parties
would help voters identify and distinguish between political parties
which have similar sounding names. It is precisely because of the
close association of the symbol with the political party by voters that
both factions of the party vie for the symbol that is allotted to the
Party when there is a split in a recognised political party.
88. India follows the open-list first past the post form of election in which
votes are cast for a candidate and the candidate who secures the
highest number of votes is chosen to represent the people of that
constituency. It could be argued that this system of elections gives
prominence to candidates and not political parties unlike the system of
closed list of elections where the voters do not have any knowledge
of the candidates that are set up by the Political Party.106
89. However, it cannot be concluded that the decision of voting is solely
based on the individual candidate’s capabilities and not the political
party merely because the voter has knowledge of the candidate who
has been set up by the political party. Such a conclusion cannot be

106 See Dominik Hangartner, Nelson A Ruiz, Janne Tukiainen, Open or Closed? How List Type Affects
Electoral Performance, Candidate Selection, and Campaign Effort, VAT Institute for Economic Research
Working Papers 120 (2019)
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definitively drawn particularly in view of the design of the electoral

voting machine which has a list of the names of the candidates who
are contesting the election from the constituency along with the
symbol of the political party which is fielding the candidate. Voters
casts their votes based on two considerations: the capability of the
candidate as a representative and the ideology of the political party.
90. Political parties publish electoral manifestos containing the ideology
of the party, major policies of the political party, plans, programmes
and other considerations of governance which would be implemented
if they came to power.107 While political manifestos do not necessarily
always translate to policies when the party is elected to power,
they throw light upon the integral nature of political parties in the
electoral system. By publishing an election manifesto, a political party
communicates to the voters that they must accord preference to
the political party. Party manifestos prod voters to look away from a
candidate centric and towards a party centric perception of elections.
91. Lastly, the prominence of political parties as electoral units is further
heightened by the form of government in India. India follows a
Westminister system of government which confers prominence to
political parties without strictly separating between the legislature
and the executive. The time-honoured convention of the cabinet form
of government is that the leader of the political party with absolute
majority must be called to form the government.108 The Council of
Ministers is appointed by the President on the aid and advice of
the Prime Minister.109 Political parties are intrinsic to this form of
government because of the very process of government formation.
The recommendations of the Sarkaria Commission on the exercise of
discretion by the Governor when no single political party commands
an absolute majority, which has been given judicial recognition in
Rameshwar Prasad v. Union of India,110 also prioritises political
parties making them central to the governance structure.111

107 Election Commission of India, Instructions to political parties on manifestos dated 24.04.2015, https://
www.eci.gov.in/election-manifestos/
108 Constitution of India 1950, Article 75. See, Aradhya Sethia, “Where’s the party?: towards a constitutional
biography of political parties, Indian Law Review, 3:1, 1-32 (2019)
109 Ibid.
110 [2006] 1 SCR 562 : (2006) 2 SCC 1
111 65. “Para 4.11.04 of the Sarkaria Commission Report specifically deals with the situation where no
single party obtains absolute majority and provides the order of preference the Governor should follow in
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92. The centrality of political parties in the electoral system is further

accentuated by the inclusion of the Tenth Schedule. The Tenth
Schedule deals with disqualification on the ground of defection from
the political party which set up the elected individual as its candidate.
Paragraph 2 provides the following grounds of defection:
a. Voluntarily giving up membership of the political party; and
b. Voting or abstaining from voting in the House contrary to direction
issued by the political party without obtaining prior permission
from the political party and when such voting has not been
condoned by the political party.
93. The underlying principle of anti-defection law which has been
recognised by a seven-Judge Bench of this Court in Kihoto
Hollohon v. Zachillhu,112 is that a candidate set up by a political
party is elected on the basis of the programme of that political
party. In the course of years, while deciding disputes related to the
Tenth Schedule, judgments of this Court have further strengthened
the centrality of political parties in the electoral system. In Ravi
S Naik v. Union of India113, this Court observed that voluntarily
giving up membership of a political party has a wider connotation
and includes not just resignation of the member from the party
and an inference can also be drawn from the conduct of the
member. In Subash Desai v. Principal Secretary, Governor of
Maharashtra,114 a Constitution Bench of this Court while interpreting
the provisions of the Tenth Schedule held that the political party
and not the legislature party (which consists of the members of
the House belonging to a particular political party) appoints the
Whip of a political party for the purposes of Paragraph 2(1)(b) of
the Tenth Schedule.115

selecting a Chief Minister. The order of preference suggested is:

a. An alliance of parties that was formed prior to the elections.;
b. The largest single party staking a claim to form the Government with the support of others,
including “independents”;
c. A post-electoral coalition of parties, with all the partners in the coalition joining the Government;
d. A post-electoral alliance of parties, with some of the parties in the alliance forming a Government
and the remaining parties, including “Independents” supporting the Government from outside.”
112 [1992] 1 SCR 686 : (1992) Supp (2) SCC 651 [4]
113 [1994] 1 SCR 754 : AIR 1994 SC 1558
114 WP (C) No. 493 of 2022
115 Subash Desai [113]
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94. In summation, a ‘political party’ is a relevant political unit in the

democratic electoral process in India for the following three
reasons:
a. Voters associate voting with political parties because of
the centrality of symbols in the electoral process;
b. The form of government where the executive is chosen
from the legislature based on the political party or coalition
of political parties which has secured the majority; and
c. The prominence accorded to political parties by the Tenth
Schedule of the Constitution.
d. The essentiality of information about political funding for the
effective exercise of the choice of voting
95. In ADR (supra) and PUCL (supra), this Court held that a voter has
a right to information which is essential for them to exercise their
freedom to vote. In the previous section, we have concluded that
political parties are a relevant political unit. Thus, the observations
of this Court in PUCL (supra) and ADR (supra) on the right
to information about a candidate contesting elections is also
applicable to political parties. The issue whether information
about the funding received by political parties is essential for an
informed voter must be answered in the context of the core tenets
of electoral democracy. The Preamble to the Constitution resolves
to constitute a social, economic, and politically just society where
there is equality of status and opportunity. The discourse which
has emanated within and outside the Courts is often restricted
to the ideals of social and economic justice and rarely includes
political inequality.
96. Electoral democracy in India is premised on the principle of political
equality which the Constitution guarantees in two ways. First, by
guaranteeing the principle of “one person one vote” which assures
equal representation in voting. The Constitution prescribes two
conditions with respect to elections to seats in Parliament which
guarantee the principle of “one person one vote” with respect to
every voter and amongst every State:
a. Each State shall be divided into territorial constituencies in
such a manner that the ratio between the population of each
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constituency and the number of seats allotted to it shall be the

same throughout the State;116 and
b. The total number of seats allotted to each State in Parliament
should be such that the ratio between the number of seats,
and the population of the State is the same for all States.117
97. Second, the Constitution ensures that socio-economic inequality
does not perpetuate political inequality by mandating reservation of
seats for Scheduled Castes and Scheduled Tribes in Parliament118
and State Assemblies.119
98. The Constitution guarantees political equality by focusing on the
‘elector’ and the ‘elected’. These two constitutional precepts foster
political equality in the following two ways. First, the Constitution
mandates that the value of each vote is equal. This guarantee ensures
formal political equality where every person’s vote is accorded equal
weightage. Second, the Constitution ensures that members of socially
marginalized groups are not excluded from the political process. This
guarantee ensures (a) equality in representation; and (b) equality in
influence over political decisions.
99. However, political inequality continues to persist in spite of the
constitutional guarantees. One of the factors which contributes to
the inequality is the difference in the ability of persons to influence
political decisions because of economic inequality. In a politically
equal society, the citizens must have an equal voice to influence
the political process.120 We have already in the preceding section
elucidated the close association of money and politics where we
explained the influence of money over electoral outcomes. However,
the influence of money over electoral politics is not limited to its
impact over electoral outcomes. It also spills over to governmental

116 Constitution of India 1950, Article 81 (2)(b). Also see Constitution of India, Article 170(2) where the
Constitution prescribes the same principle with respect to the composition of seats in Legislative
Assemblies of State
117 Constitution of India 1950, Article 81(2)(b)
118 Constitution of India 1950, Article 330 guarantees “as nearly as may be” proportional representation for
Scheduled Castes and Scheduled Tribes in Parliament.
119 Constitution of India 1950, Article 332 guarantees “as nearly as may be” proportional representation for
Scheduled Castes and Scheduled Tribes in Legislative Assemblies of the States.
120 See Ben Ansell and Jean Gingrich J (2021). Political Inequality. The IFS Deaton Review of Inequalities,
London: Institute for Fiscal Studies
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decisions. It must be recalled here that the legal regime in India does
not distinguish between campaign funding and electoral funding. The
money which is donated to political parties is not used by the political
party only for the purposes of electoral campaign. Party donations are
also used, for instance, to build offices for the political party and pay
party workers. Similarly, the window for contributions is not open for
a limited period only prior to the elections. Money can be contributed
to political parties throughout the year and the contributed money
can be spent by the political party for reasons other than just election
campaigning. It is in light of the nexus between economic inequality
and political inequality, and the legal regime in India regulating party
financing that the essentiality of the information on political financing
for an informed voter must be analyzed.
100. Economic inequality leads to differing levels of political engagement
because of the deep association between money and politics. At
a primary level, political contributions give a “seat at the table”
to the contributor. That is, it enhances access to legislators.121
This access also translates into influence over policy-making. An
economically affluent person has a higher ability to make financial
contributions to political parties, and there is a legitimate possibility
that financial contribution to a political party would lead to quid pro
quo arrangements because of the close nexus between money and
politics. Quid pro quo arrangements could be in the form of introducing
a policy change, or granting a license to the contributor. The money
that is contributed could not only influence electoral outcomes but
also policies particularly because contributions are not merely limited
to the campaign or pre-campaign period. Financial contributions
could be made even after a political party or coalition of parties form
Government. The possibility of a quid pro quo arrangement in such
situations is even higher. Information about political funding would
enable a voter to assess if there is a correlation between policy
making and financial contributions.

121 See Joshua L. Kalla and David E. Broockman, “Campaign Contributions Facilitate Access to Congressional
Officials: A Randomized Field Experiment” (2016 60(3)) American Journal of Political Science. A political
organization conducted an experiment to determine if there is a link between political contributions and
access to the policy makers. The Organization scheduled meetings between 191 Congressional offices
and the organization’s members who were campaign donors. When the Congressional offices were
informed that prospective attendees were political donor, policymakers made themselves available for
the meeting three to four times more often.
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101. For the information on donor contributions to be relevant and essential,

it is not necessary that voters have to take the initiative to peruse the
list of contributors to find relevant information which would enable
them to cast their vote effectively. Electronic and print media would
present the information on contributions received by political parties,
and the probable link between the contribution and the licenses which
were given to the company in an accessible format. The responses
to such information by the Government and political parties would
go a long way in informing the voter.
102. However, to establish the argument of quid pro quo arrangements
between the contributor and the political party, it is necessary that
the political party has knowledge of the particulars of funding to its
party. The political party to whom contributions are made cannot
enter into a quid pro quo arrangements if it is unaware of the donor.
The Scheme defines electoral bond “as a bond issued in the nature
of promissory note which shall be a bearer banking instrument and
shall not carry the name of the buyer or payee.”122 The Scheme also
stipulates that the information furnished by the buyer shall be treated
as confidential which shall not be disclosed by any authority except
when demanded by a competent court or by a law enforcement
agency upon the registration of criminal case.123
103. The submission of the Union of India is that the political party which
receives the contribution does not know of identity of the contributor
because neither the bond would have their name nor could the bank
discloses such details to the political party. We do not agree with this
submission. While it is true that the law prescribes anonymity as a
central characteristic of electoral bonds, the de jure anonymity of the
contributors does not translate to de facto anonymity. The Scheme
is not fool-proof. There are sufficient gaps in the Scheme which
enable political parties to know the particulars of the contributions
made to them. Clause 12 of the Scheme states that the bond
can be encashed only by the political party by depositing it in the
designated bank account. The contributor could physically hand over
the electoral bond to an office bearer of the political party or to the
legislator belonging to the political party, or it could have been sent

122 Electoral Bond Scheme; Clause 2(a)

123 Electoral Bond Scheme; Clause 7(4)
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to the office of the political party with the name of the contributor, or
the contributor could after depositing the electoral bond disclose the
particulars of the contribution to a member of the political party for
them to cross-verify. Further, according to the data on contributions
made through electoral bonds, ninety four percent of the contributions
through electoral bonds have been made in the denomination of one
crore. Electoral bonds provide economically resourced contributors
who already have a seat at the table selective anonymity vis-à-vis
the public and not the political party.
104. In view of the above discussion, we are of the opinion that the
information about funding to a political party is essential for a voter to
exercise their freedom to vote in an effective manner. The Electoral
Bond Scheme and the impugned provisions to the extent that they
infringe upon the right to information of the voter by anonymizing
contributions through electoral bonds are violative of Article 19(1)(a).
ii. Whether the infringement of the right to information of the voter
is justified
105. The next issue which falls for analysis is whether the violation of
the right to information is justified. This Court has laid down the
proportionality standard to determine if the violation of the fundamental
right is justified.124 The proportionality standard is as follows:
a. The measure restricting a right must have a legitimate goal
(legitimate goal stage);
b. The measure must be a suitable means for furthering the goal
(suitability or rational connection stage);
c. The measure must be least restrictive and equally effective
(necessity stage); and
d. The measure must not have a disproportionate impact on the
right holder (balancing stage).
106. The legitimate goal stage requires this Court to analyze if the objective
of introducing the law is a legitimate purpose for the infringement of
rights. At this stage, the State is required to discharge two burdens.
First, the State must demonstrate that the objective is legitimate.

124 Modern Dental College & Research Centre v. State of Madhya Pradesh, [2016] 3 SCR 575 : (2016) 4
SCC 346
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Second, the State must establish that the law is indeed in furtherance
of the legitimate aim that is contended to be served.125
107. The then Finance Minister, Mr. Arun Jaitley encapsulated the objective
of introducing the Electoral Bond Scheme thus:
a. An attempt was made in the past to incentivize donations to
political party through banking channels. Both the donor and
the donee were granted exemption from payment of tax if
accounts of contributions were maintained and returns were
filed. However, the situation had only marginally improved.
Political parties continued to receive funds through anonymous
sources; and
b. Donors have been reluctant in donating through the banking
channel because the disclosure of donor identity would entail
adverse consequences.
108. In other words, Mr. Jaitley stated that the main purpose of the
Scheme is to curb black money in electoral financing and this purpose
could be achieved only if information about political donations is
kept confidential. That is, donor privacy is a means to incentivize
contributions through the banking channel. However, Mr. Tushar
Mehta argued that protecting donor privacy is an end in itself. We
will now proceed to determine if the infringement of the right to
information of the voters is justified vis-à-vis the purposes of (a)
curbing black money; and (b) protecting donor privacy.
a. Curbing Black money
109. The petitioners argue that the infringement of the right to information
which is traceable to Article 19(1)(a) can only be justified if the
purpose of the restriction is traceable to the grounds stipulated in
Article 19(2). They argue that the purpose of curbing of black money
cannot be traced to any of the grounds in Article 19(2), and thus, is
not a legitimate purpose for restricting the right to information.
110. Article 19(2) stipulates that the right to freedom of speech and
expression can only be restricted on the grounds of: (a) the
sovereignty and integrity of India; (b) the security of the State; (c)
friendly relations with foreign states, (d) public order; (e) decency

125 See Media One v. Union of India, Civil Appeal No. 8129 of 2022 [77-79]
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or morality; (f) contempt of court; (g) defamation; and (h) incitement

to an offence. The purpose of curbing black money is traceable to
public interest. However, public interest is not one of the grounds
stipulated in Article 19(2). Of the rights recognized under Article 19,
only Article 19(1)(g) which guarantees the freedom to practice any
profession or to carry on any occupation, trade or business can be
restricted on the ground of public interest.126
111. In Sakal Papers v. The Union of India127, the constitutional validity of
the Newspaper (Price and Page) Act 1965 and the Daily Newspaper
(Price and Page) Order 1960 which regulated the number of pages
according to the price charged, prescribed the number of supplements
to be published and regulated the area for advertisements in the
newspapers was challenged on the ground that it violated the freedom
of press under Article 19(1)(a). The Union of India submitted that
the restriction on the freedom of press was justified because the
purpose of the law was to prevent unfair competition which was in
furtherance of public interest. It was argued that the restriction was
justified because the activities carried out by newspapers were also
traceable to the freedom to carry out a profession which could be
restricted on the ground of public interest under Article 19(6). Justice
JR Mudholkar writing for the Constitution Bench observed that the
impugned legislation “directly and immediately” curtails the freedom
of speech guaranteed under Article 19(1)(a), and the freedom cannot
be restricted on any ground other than the grounds stipulated in
Article 19(2).128 In Express Newspapers v. Union of India,129 a
Constitution Bench while deciding the constitutional challenge to
the Working Journalists (Conditions of Service) and Miscellaneous
Provisions Act 1955 held that a law violating Article 19(1)(a) would be
unconstitutional unless the purpose of the law falls “squarely within
the provisions of Article 19(2)”.130 In Kaushal Kishor v. State of Uttar

126 Constitution of India 1950; Article 19(6)

127 [1962] 3 SCR 842 : AIR 1962 SC 305
128 Ibid; Paragraph 36:”If a law directly affecting it is challenged, it is no answer that the restriction enacted
by it are justifiable under clauses (3) to (6). For the scheme of Article 19 is to enumerate different
freedoms separately and then to specify the extent of restrictions to which they may be subjected and
the objects for securing which this could be done.”
129 [1959] 1 SCR 12 : AIR 1958 SC 578
130 Also see, Indian Express Newspapers (Bombay) Pvt Limited v. Union of India, AIR 1986 SC 515;Sodhi
Shamsher v. State of Pepsu, AIR 1954 SC 276; Romesh Thappar v. State of Madras, [1950] 1 SCR 594
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Pradesh,131 a Constitution Bench of this Court answered the issue

whether the grounds stipulated in Article 19(1)(a) are exhaustive
of the restrictions which can be placed on the right to free speech
under Article 19(1)(a) affirmatively.
112. However, in the specific context of the right to information, this Court
has observed that the right can be restricted on grounds not traceable
to Article 19(1)(a). In PUCL (supra), one of the submissions was that
dangerous consequences would follow if the right to information is
culled out from Article 19(1)(a) because the grounds on which the
right can be restricted as prescribed in Article 19(2) are very limited.
Justice Reddi in his concurring opinion in PUCL (supra) observed
that the right under Article 19(1)(a) can be restricted on grounds
which are not “strictly within the confines of Article 19(2)”.132 For
this purpose, Justice Reddi referred to the observations of Justice
Jeevan Reddy in The Secretary, Ministry of Information v. Cricket
Association of Bengal133:
“99. […] This raises the larger question whether apart
from the heads of restriction envisaged by sub-article (2)
of Article 19, certain inherent limitations should not be
read into the article, if it becomes necessary to do so in
national or societal interest. The discussion on this aspect
finds its echo in the separate opinion of Jeevan Reddy, J.
in Cricket Assn. case [(1975) 4 SCC 428] . The learned
Judge was of the view that the freedom of speech and
expression cannot be so exercised as to endanger the
interest of the nation or the interest of the society, even if
the expression “national interest” or “public interest” has
not been used in Article 19(2). It was pointed out that such
implied limitation has been read into the First Amendment
of the US Constitution which guarantees the freedom of
speech and expression in unqualified terms.”
113. In Cricket Association of Bengal (supra), one of the submissions
of the petitioner (Union of India) was that the right to broadcast can
be restricted on grounds other than those stipulated in Article 19(2).

131 Writ Petition (Criminal) No. 113 of 2016

132 PUCL (supra), [111]
133 [1995] 1 SCR 1036 : 1995 AIR 1236
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Justice P B Sawant writing for himself and Justice S Mohan observed

while summarizing the law on freedom of speech and expression that
Article 19(1)(a) can only be restricted on the grounds mentioned in
Article 19(2).134 The learned Judge specifically refuted the argument
that the right can be restricted on grounds other than those stipulated
in Article 19(2). Such an argument, the learned Judge states, is to
plead for unconstitutional measures. However, while observing so,
Justice P B Sawant states that the right to telecast can be restricted
on the grounds mentioned in Article 19(2) and the “dictates of public
interest”:
“78. […] If the right to freedom of speech and expression
includes the right to disseminate information to as wide a
section of the population as is possible, the access which
enables the right to be so exercised is also an integral
part of the said right. The wider range of circulation of
information or its greater impact cannot restrict the content
of the right nor can it justify its denial. The virtues of the
electronic media cannot become its enemies. It may
warrant a greater regulation over licensing and control
and vigilance on the content of the programme telecast.
However, this control can only be exercised within the
framework of Article 19(2) and the dictates of public
interest.”
(emphasis supplied)
114. Justice Jeevan Reddy in the concurring opinion segregated the
grounds stipulated in Article 19(2) into grounds in furtherance of
“national interest” and “societal interest”. The learned Judge observed
that the grounds of sovereignty and integrity of India, the security of
the State, friendly relations with foreign State and public order are
grounds referable to national interest, and the grounds of decency,
morality, contempt of court, defamation and incitement of offence
are referable to state interest. The learned Judge then referred to
the judgment of the Supreme Court of the United States in FCC v.
National Citizens Committee for Broadcasting135, where it was
held that a station license can be denied on the ground of public

134 Ibid; [45].

135 436 US 775 (1978)
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interest. Justice Reddy observed that public interest is synonymous

to state interest which is one of the grounds underlying Article 19(2):
“189. Reference may also be made in this connection to
the decision of the United States Supreme Court in FCC
v. National Citizens Committee for Broadcasting [56 L Ed
2d 697 : 436 US 775 (1978)] referred to hereinbefore,
where it has been held that “to deny a station licence
because the public interest requires it is not a denial
of free speech”. It is significant that this was so said
with reference to First Amendment to the United States
Constitution which guarantees the freedom of speech and
expression in absolute terms. The reason is obvious. The
right cannot rise above the national interest and the
interest of society which is but another name for the
interest of general public. It is true that Article 19(2)
does not use the words “national interest”, “interest of
society” or “public interest” but as pointed hereinabove,
the several grounds mentioned in clause (2) are
ultimately referable to the interests of the nation and
of the society.”
(emphasis supplied)
115. The observations of Justice Sawant and the concurring opinion of
Justice Jeevan Reddy in Cricket Association of Bengal (supra)
that the right under Article 19(1)(a) can be restricted on the ground
of public interest even though it is not stipulated in Article 19(2)
must be understood in the specific context of that case. Cricket
Association of Bengal (supra), dealt with the access to and use
of a public good (that is, airwaves) for dissemination of information.
The Court distinguished airways from other means of dissemination
of information such as newsprint and held that since broadcasting
involves the use of a public good, it must be utilized to advance free
speech rights and plurality of opinion (that is, public interest).136 The
observations in Cricket Association of Bengal (supra) cannot be
interpreted to mean that other implied grounds of restrictions have
been read into Article 19(2).

136 Cricket Association of Bengal [201 (1)(a) and 201(1)(b)]

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116. From the above discussion, it is clear that the right to information
under Article 19(1)(a) can only be restricted based on the grounds
stipulated in Article 19(2). It could be argued that curbing black money
can be traced to the ground of “public order”. However, a Constitution
Bench of this Court has interpreted the ground “public order” to mean
“public safety and tranquility” and “disorder involving breaches of local
significance in contradistinction to national upheavals, such as civil
strife, war, affecting the security of the State.”137 Thus, the purpose
of curbing black money is not traceable to any of the grounds in
Article 19(2).
117. We proceed to apply the subsequent prongs of the proportionality
standard, even assuming that curbing black money is a legitimate
purpose for restricting the right to information. The second prong of
the proportionality analysis requires the State to assess whether the
means used are rationally connected to the purpose. At this stage,
the court is required to assess whether the means, if realised, would
increase the likelihood of curbing black money. It is not necessary
that the means chosen should be the only means capable of realising
the purpose. It is sufficient if the means used constitute one of the
many methods by which the purpose can be realised, even if it only
partially gives effect to the purpose.138
118. The respondents submit that before the introduction of the Electoral
Bond Scheme, a major portion of the total contributions received
by political parties was from “unknown sources”. For example,
immediately preceding the financial year (2016-17) in which the
Electoral Bond Scheme was introduced, eighty one percent of the
contributions (Rupees 580.52 Crores) were received by political
parties through voluntary contributions. Since the amount of voluntary
contributions is not regulated, it allowed the circulation of black money.
However, after the introduction of the Electoral Bond Scheme, forty-
seven percent of the contributions were received through electoral
bonds which is regulated money. The Union of India submitted
that providing anonymity to the contributors incentivizes them to
contribute through the banking channel. Assuming, for the purpose
of hypothesis that the Union of India is right on this prong, what it

137 Superintendent, Central Prison, Fatehgarh v. Dr Ram Manohar Lohia, [1960] 2 SCR 821 : AIR 1960 SC
633 [18]
138 Media One (supra) [100]
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urges is that non-disclosure of information about political expenditure

has a rational nexus with the goal, that is, curbing black money or
unregulated money.
119. The next stage of the proportionality standard is the least restrictive
means stage. At this stage, this Court is required to determine if
the means adopted (that is, anonymity of the contributor) is the
least restrictive means to give effect to the purpose based on the
following standard:139
a. Whether there are other possible means which could have been
adopted by the State;
b. Whether the alternative means identified realise the objective
in a ‘real and substantial manner’;
c. Whether the alternative identified and the means used by the
State impact fundamental rights differently; and
d. Whether on an overall comparison (and balancing) of the
measure and the alternative, the alternative is better suited
considering the degree of realizing the government objective
and the impact on fundamental rights.
120. Before we proceed to determine if the Electoral Bond Scheme is
the least restrictive means to curb black money in electoral funding,
it is important that we recall the regime on electoral funding. After
the amendments introduced by the Finance Act 2017, donations to
political parties exceeding rupees two thousand can only be made by
an account payee cheque drawn on a bank, an account payee bank
draft, the use of electronic clearing system through a bank account
or through an electoral bond.140 All contributions to political parties
through cash cannot be assumed to be black money. For example,
individuals who contribute to political parties in small donations
during party rallies usually contribute through cash. On the other
hand, contributions through the banking channel are certainly a form
of accounted transaction. Restricting the contributions to political
parties in cash to less than rupees two thousand and prescribing
that contributions above the threshold amount must only be made

139 See Justice KS Puttaswamy (5J) (supra) and Media One Broadcasting (supra) [103];
140 IT Act, Section 13A(d)
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through banking channels is itself intended to curb black money.

Thus, the legal regime itself provides other alternatives to curb black
money: contributions through cheques, bank draft, or electronic
clearing system. The Union of India submits that though there
are other alternatives through which circulation of black money in
electoral financing can be curbed, these alternatives do not realize
the objective in a “substantial manner” because most contributors
resort to cash donations as they “fear consequences from political
opponents” to whom donations were not made.
121. In addition to the alternatives identified above, the existing legal
regime provides another alternative in the form of Electoral Trusts
through which the objective of curbing black money in electoral
financing can be achieved. Section 2(22AA) of the IT Act defines an
Electoral Trust as a trust approved by the Board in accordance with
the scheme made in this regard by the Central Government. Section
13B of the IT Act states that any voluntary contributions received
by an electoral trust shall not be included in the total income of the
previous year of such electoral trust if the it distributes ninety five
percent of the aggregate donations received during the previous
year. In terms of Rule 17CA of the IT Rules 1962, the features of
an electoral trust are as follows:
a. An Electoral Trust may receive voluntary contribution from (i)
an individual who is a citizen of India; (ii) a company registered
in India; (iii) a firm or Hindu undivided family or an Association
of persons or a body of individuals residing in India;
b. When a contribution is made to an electoral trust, a receipt
recording the following information shall, inter alia, be provided:
(i) Name and address of the contributor; (ii) Permanent account
number of the contributor or the passport number if the
contributor is not a resident of India; (iii) Amount contributed;
(iv) The mode of contribution including the name and branch
of the bank and the date of receipt of such contribution; and
(v) PAN of the electoral trust;
c. Contributions to the electoral trust can only be made through
cheque, bank draft and electronic transfer. Contributions made
in cash shall not be accepted by the Electoral Trust;
d. The Electoral Trust shall spend five percent of the total
contributions received in a year subject to a limit of Rupees five
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hundred thousand in the first year of incorporation and Rupees

three hundred thousand in the second year.141 The remaining
money (that is, ninety five percent of the total contributions
received in that financial year along with any surplus from the
previous year) shall be distributed to political parties registered
under Section 29A of the RP Act;142
e. The political party to which the trust donated money shall
provide a receipt indicating the name of the political party, the
PAN and the amount of contribution received from the trust;143
f. The trust shall also maintain a list of persons from whom
contributions have been received and to whom they have been
distributed;144 and
g. The trust shall furnish a certified copy of the list of contributors
and list of political parties to whom contributions have been
made to the Commissioner of Income Tax along with the audit
report.145
122. In summary, an Electoral Trust is formed only for collecting political
contributions from donors. An electoral trust can contribute to more
than one party. To illustrate, if ten individuals and one company have
contributed to an Electoral Trust and the donations are contributed
to three political parties equally or unequally, the information about
which of the individuals contributed to which of the political parties
will not be disclosed. In this manner, the purpose of curbing black
money in electoral financing will be met. At the same time, there
would be no fear of consequences from political opponents because
the information as to which political party were made is not disclosed.
123. On 6 June 2014, the ECI circulated Guidelines for submission of
contribution reports of Electoral Trusts mandating in the interest of
transparency that all Electoral Trusts shall submit an Annual Report
containing details of contributions received and disbursed by them to
political parties. Pursuant to the Guidelines, Electoral Trusts submit

141 IT Rules 1962, Rule 17CA(8)(i)

142 IT Rules 1962, Rule 17CA(7) and Rules 17CA(8)(ii)
143 IT Rules 1962, Rule 17CA(9)
144 IT Rules 1962, Rule 17CA(11)(ii)
145 IT Rules 1962, Rule 17CA(14)
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Annual Reports to the ECI every year. For example, according to the
Annual Report of the Prudent Electoral Trust for the financial year 2021-
22, the Trust received contributions of a total of Rupees 4,64,83,00,116
from seventy contributors including individuals and companies. The
contributions were unequally distributed to the Aam Aadmi Party, All
India Congress Committee, Bharatiya Janata Party, Goa Congress
Committee, Goa Forward Party, Indian National Congress, Punjab Lok
Congress, Samajwadi Party, Shiromani Akali Dal, Telangana Rashtra
Samiti, and YSR Congress. From the report, it cannot be discerned
if contributor ‘A’ contributed to a particular political party. It can only
be concluded that contributor ‘A’ could have contributed to the Party.
124. Thus, even if the argument of the Union of India that the other
alternative means such as the other modes of electronic transfer
do not realize the objective of curbing black money substantially
because contributors would resort to cash donations due to the
fear of consequences is accepted, Electoral Trusts are an effective
alternative. There will be a lesser degree of “political consequences”
for contributions made to the Electoral Trust because the information
about which of the contributors contributed to which of the parties will
not be disclosed. It is only where the Electoral Trust contributes to one
political party, would there be a possibility of political consequences
and witch-hunting (assuming that there is a link between anonymity
and contributions). However, in that case, it is a choice expressly
made by the contributors. Additionally, the law mandates disclosure
only of contributions made above twenty thousand in a financial
year. So, for contributions less than twenty-five thousand, cheques
and other modes of electronic transfer are an effective alternative.
125. When these three methods of political contribution (electronic
transfer other than electoral bonds, contribution to Electoral Trust,
and Electoral Bonds) are placed on a continuum, transfer through
electronic means (other than electoral bonds) would be placed on
one end and Electoral Bonds would be placed on the other end. A
voter would receive complete information about contributions made
above twenty thousand to a political party in the case of electronic
transfer made directly to a political party other than through electoral
bonds.146

146 RPA; Section 29A

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126. With respect to contributions through electoral bonds, the voter would
not receive any information about financial contributions in terms of
Section 29C of RPA as amended by the Finance Act. This Court in
the interim order dated 31 October 2023 in the specific context of
contributions made by companies through electoral bonds prima facie
observed the voter would be able to secure information about the
funding by matching the information of the aggregate sum contributed
by the Company (as required to be disclosed under Section 182(3)
of the Companies Act as amended by the Finance Act) with the
information disclosed by the political party. However, on a detailed
analysis of the Scheme and the amendments we are of the opinion
that such an exercise would not reveal the particulars of the donations
because the Company under the provisions of Section 182 and the
political party are only required to disclose the consolidated amount
contributed and received through Electoral Bonds respectively. The
particulars about the political party to which the contributions were
made which is crucial to the right to information of political funding
cannot be identified through the matching exercise.
127. With respect to contributions to an Electoral Trust, a voter receives
partial information. The voter would know the total amount contributed
by the donor and that the donor contributed to one of the political
parties (in case the Electoral Trust has made contributions to multiple
parties). But the donor would not be aware of the exact details of
the contribution.
128. Assuming that anonymity incentivizes contributions through banking
channels (which would lead to curbing black money in the electoral
process), electoral bonds would be the most effective means in
curbing black money, followed by Electoral Trust, and then other
means of electronic transfer. This conclusion is premised on the belief
that the Electoral Bond curbs black money. However, the Scheme
is not fool-proof. The Electoral Bond Scheme does not provide any
regulatory check to prevent the trading of bonds though Clause 14
of the Electoral Bond Scheme states that the bonds shall not be
eligible for trading.
129. On an overall balance of the impact of the alternative means on the
right to information and its ability to fulfill the purpose, for contributions
below twenty thousand rupees, contributions through other means
of electronic transfer is the least restrictive means. For contributions
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above twenty thousand rupees, contributions through Electoral Trust is

the least restrictive means. Having concluded that the Electoral Bond
Scheme is not the least restrictive means to achieve the purpose of
curbing black money in electoral process, there is no necessity of
applying the balancing prong of the proportionality standard.
130. Based on the above discussion, we conclude that Electoral Bond
Scheme does not fulfill the least restrictive means test. The Electoral
Bond Scheme is not the only means for curbing black money in
Electoral Finance. There are other alternatives which substantially
fulfill the purpose and impact the right to information minimally when
compared to the impact of electoral bonds on the right to information.
b. Donor Privacy
131. The Union of India submitted that information about financial
contributions to political parties is not disclosed to protect the
contributor’s informational privacy to political affiliation. There are
two limbs to the argument of the Union of India with respect to the
purpose of donor privacy. First, that the State interest in introducing
the Electoral Bond Scheme which guarantees confidentiality (or
anonymity) to financial contributions is that it furthers donor privacy;
and second, this State interest facilitates a guaranteed fundamental
right. Thus, the submission of the State is that the right to information
can be restricted even if donor privacy is not traceable to the
grounds in Article 19(2) because privacy is a fundamental right in
itself. This Court needs to decide the following issues to determine
if the right to information of voters can be restricted on the ground
of donor privacy:
a. Whether the fundamental right to informational privacy
recognized by this Court in Justice KS Puttaswamy (9J) v.
Union of India147, includes information about a citizen’s political
affiliation; and
b. If (a) above is answered in the affirmative, whether financial
contribution to a political party is a facet of political affiliation.
If the right to informational privacy extends to financial contributions
to a political party, this Court needs to decide if the Electoral Bond

147 [2017] 10 SCR 569 : (2017) 10 SCC 1

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Scheme adequately balances the right to information and right to

informational privacy of political affiliation.
I. Informational privacy of financial contributions to political parties
132. In Justice KS Puttaswamy (9J) (supra), a nine-Judge Bench of
this Court held that the Constitution guarantees the right to privacy.
This Court traced the right to privacy to the constitutional ideals of
dignity, liberty, and the thread of non-arbitrariness that runs through
the provisions of Part III. The scope of the right to privacy discussed
in Justice KS Puttaswamy (9J) (supra) is summarized below:
a. The right to privacy includes “repose”, that is, the freedom from
unwanted stimuli, “sanctuary”, the protection against intrusive
observation into intimate decisions and autonomy with respect
to personal choices;
b. Privacy over intimate decisions includes decisions related to
the mind and body. Privacy extends to both the decision and
the process of arriving at the decision. A lack of privacy over
thought (which leads to decision-making) would suppress voices
and lead to homogeneity which is contrary to the values that
the Constitution espouses148;
c. Privacy over decisions and choices would enable the exercise
of fundamental freedoms such as the freedom of thought,
expression, and association freely without coercion;149
d. Privacy is attached to a person and not a space. The scope
of privacy cannot be restricted only to the “private” space; and
e. Privacy includes informational privacy. Information which may
seem inconsequential in silos can be used to influence decision
making behavior when aggregated.150
133. The content of privacy is not limited to “private” actions and decisions
such as the choice of a life partner, procreation and sexuality. Neither
is privacy merely defined from the point of direct State intrusion.

148 Justice Chandrachud (Paragraph 168), Justice Kaul (Paragraph 19)

149 Justice Chandrachud, Justice Chellameshwar, Justice Bobde (paragraph 25 and 29)
150 Justice Chandrachud (paragraph 170): “[…] Individually, these information silos may seem
inconsequential. In aggregation, they disclose the nature of the personality: food habits, language, health,
hobbies, sexual preferences, friendships, ways of dress and political affiliation. Justice Chelameshwar
(Paragraph 38), Justice Kaul (Paragaph 19)
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Privacy is defined as essential protection for the exercise and

development of other freedoms protected by the Constitution, and
from direct or indirect influence by both State and non-State actors.
Viewed in this manner, privacy takes within its fold, decisions which
also have a ‘public component’.
134. The expression of political beliefs is guaranteed under Article 19(1)
(a). Forming political beliefs and opinion is the first stage of political
expression. The freedom of political expression cannot be exercised
freely in the absence of privacy of political affiliation. Information
about a person’s political beliefs can be used by the State at a political
level, to suppress dissent, and at a personal level, to discriminate by
denying employment or subjecting them to trolls. The lack of privacy
of political affiliation would also disproportionately affect those whose
political views do not match the views of the mainstream.
135. In the specific context of exercising electoral franchise, the lack of
privacy of political affiliation would be catastrophic. It is crucial to
electoral democracy that the exercise of the freedom to vote is not
subject to undue influence. It is precisely for this reason that the law
recognizes certain ‘corrupt practices’ by candidates. These ‘corrupt
practices’ do not merely include ‘financial’ corrupt practices such as
bribery. They also include undue influence of the voters by an attempt
to interfere with the free exercise of electoral right151, publication of
false information about the personal character of any candidate152,
and providing vehicles for the free conveyance of electors153. The
law penalizes practices which have the effect of dis-franchising the
voter through illegitimate means.
136. Information about a person’s political affiliation can be used to dis-
enfranchise voters through voter surveillance.154 Voter databases
which are developed through surveillance identify voting patterns of
the electors and attempt to interfere with their opinions based on the
information. For example, the data of online purchase histories such
as the books purchased (which would indicate the ideological leaning

151 RPA, Section 123(2). The provision includes the threatening with injury including social ostracism and
ex-communication from any caste or community.
152 RPA; Section 123(4)
153 RPA; Section 123(5)
154 See Philip N Howard and Daniel Kreiss, Political Parties and Voter privacy: Australia, Canada, the United
Kingdom, and United States in Comparative Perspective, First Monday 15(12) 2010
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of the individual), clothing brands used (which would indicate the

social class to which the individual belongs) or the news consumed
or the newspapers subscribed (which would indicate the political
leanings or ideologies) can be used to draw on the relative political
affiliation of people. This information about the political affiliation of
individuals can then be used to influence their votes. Voter surveillance
gains particular significance when fewer people have attachments
to political parties.155
137. At a systemic level, information secured through voter surveillance
could be used to invalidate the foundation of the electoral system.
Information about political affiliation could be used to engage in
gerrymandering, the practice by which constituencies are delimited
based on the electoral preference of the voters.
138. Informational privacy to political affiliation is necessary to protect the
freedom of political affiliation and exercise of electoral franchise. Thus,
it follows from the judgment of this Court in Justice KS Puttaswamy
(9J) (supra) and the observations above that the Constitution
guarantees the right to informational privacy of political affiliation.
139. Having concluded that the Constitution guarantees a right to
informational privacy of political affiliation, it needs to be decided
if the right can be extended to the contributions to political parties.
The Electoral Bond Scheme has two manifestations of privacy:
first, informational privacy by prescribing confidentiality vis-à-vis the
political party; and second, informational privacy by prescribing non-
disclosure of the information of political contributions to the public.
The Union of India submitted that contributions made to political
parties must be protected both from the political party itself and
the public because donor privacy is an extension of the principle of
secret ballot and is a facet of free and fair elections. The petitioners
argue that equating political contributions with expression of political
preference through voting is flawed because it conflates money with
speech. The petitioners also argue that informational privacy does
not extend to political contributions because they are by their very
nature public acts which influence public policy, and thus, must be
subject to public scrutiny.

155 Colin Bennet, The politics of privacy and privacy of politics: Parties, elections, and voter surveillance in
Western Democracies. First Monday, 18(8) 2013
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140. The issue before this Court is not whether public funding of political
parties is permissible. Neither is the issue whether a restriction
can be placed on the contribution which can be made by a citizen
to a political party. If it was, then the question of whether financial
contribution to a political party is in furtherance of the right to freedom
of political speech and expression under Article 19(1)(a) or the right
to freedom to form associations under Article 19(1)(c) would arise.
However, that not being the case, this Court is not required to decide
whether financial contribution to a political party is protected by
Articles 19(1)(a) and 19(1)(c).
141. This Court in Justice KS Puttaswamy (9J) (supra) did not trace the
right to privacy to a particular provision of the Constitution such as
Article 21. Rather, this Court observed that privacy is crucial for the
fulfilment of the constitutional values of self-determination, autonomy
and liberty in addition to its essentiality for realizing the fundamental
freedoms such as the freedom of speech and expression. This Court
further held that the non-intrusion of the mind (the ability to preserve
beliefs, thoughts and ideologies) is as important as the non-intrusion
of the body. This Court (supra) did not hold that privacy is extendable
to the action of speech or the action of expression, both of which
are required to possess a communicative element to receive the
protection under Article 19(1)(a).156 Rather, the proposition in Justice
KS Puttaswamy (9J) is that privacy (including informational privacy) is
extendable to thoughts, beliefs, and opinions formed for the exercise
of speech and action. Thus, informational privacy would extend to
financial contributions to political parties even if contributions are not
traceable to Article 19(1)(a) provided that the information on political
contributions indicates the political affiliation of the contributor.
142. Financial contributions to political parties are usually made for two
reasons. First, they may constitute an expression of support to
the political party and second, the contribution may be based on a
quid pro quo. The law as it currently stands permits contributions
to political parties by both corporations and individuals. The huge
political contributions made by corporations and companies should
not be allowed to conceal the reason for financial contributions made
by another section of the population: a student, a daily wage worker,

156 See Romesh Thappar v. State of Madras, [1950] 1 SCR 594 (602)
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an artist, or a teacher. When the law permits political contributions

and such contributions could be made as an expression of political
support which would indicate the political affiliation of a person,
it is the duty of the Constitution to protect them. Not all political
contributions are made with the intent of attempting to alter public
policy. Contributions are also made to political parties which are not
substantially represented in the legislatures. Contributions to such
political parties are made purely with the intent of expressing support.
At this juncture, the close association of money and politics which
has been explained above needs to be recounted. Money is not
only essential for electoral outcomes and for influencing policies. It
is also necessary for true democratic participation. It is necessary for
enhancing the number of political parties and candidates contesting
the elections which would in-turn impact the demographics of
representatives in the Assembly. It is true that contributions made as
quid pro quo transactions are not an expression of political support.
However, to not grant the umbrella of informational privacy to political
contributions only because a portion of the contributions is made
for other reasons would be impermissible. The Constitution does
not turn a blind eye merely because of the possibilities of misuse.
II. Privacy vis-à-vis political party
143. The second issue is whether the right to privacy of political
contributions can be extended to include privacy vis-à-vis the political
party to which contributions are made since according to the Union
of India under the Electoral Bond Scheme, the political party to
which the contribution is made would not know the particulars of
the contributor. Hence, it is submitted that the scheme is akin to
the secret ballot.
144. We are unable to see how the disclosure of information about
contributors to the political party to which the contribution is made
would infringe political expression. The disclosure of the particulars
of the contributions may affect the freedom of individuals to the
limited extent that the political party with the information could coerce
those who have not contributed to them. However, we have already
held above that the scheme only grants de jure and not de facto
confidentiality vis-à-vis the political party. Under the current Scheme,
it is still open to the political party to coerce persons to contribute.
Thus, the argument of the Union of India that the Electoral Bond
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Scheme protects the confidentiality of the contributor akin to the

system of secret ballot is erroneous.
III. Balancing the right to information and the right to informational
privacy
a) Judicial Approach towards balancing fundamental rights:
establishing the double proportionality standard
145. At the core of governance is the conflict between different constitutional
values or different conceptions of the same constitutional value.
Countries with a written Constitution attempt to resolve these conflicts
by creating a hierarchy of rights within the constitutional order where
a few fundamental rights are subjected to others. For example,
Article 25 of the Indian Constitution which guarantees the freedom of
conscience, and the profession, practice and propagation of religion is
subject to public order, morality, health and other provisions of Part
III. The first exercise that the Court must undertake while balancing
two fundamental rights is to determine if the Constitution creates a
hierarchy between the two rights in conflict. If the Constitution does
not create a hierarchy between the conflicting rights, the Courts
must use judicial tools to balance the conflict between the two rights.
146. The judicial approach towards balancing fundamental rights has
evolved over the course of years. Courts have used the collective
interest or the public interest standard, the single proportionality
standard, and the double proportionality standard to balance the
competing interests of fundamental rights.
147. Before the proportionality standard was employed to test the validity
of the justification for the infringement of fundamental rights, Courts
balanced conflicting fundamental rights by according prominence
to one fundamental right over the other based on public interest.
This approach was undertaken through two modalities. In the
first modality, the Court while identifying the fundamental rights in
conflict circumscribed one of the fundamental rights in question
such that there was no real conflict between the rights. The Court
while circumscribing the right undertook an exercise of weighing the
relative constitutional values of the rights based on public interest. In
Re Noise Pollution157, writ petitions were filed seeking to curb noise

157 [2005] Suppl. 1 SCR 624 : (2005) 5 SCC 733

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pollution. A two-Judge Bench of this Court observed that those who

make noise often justify their actions based on freedom of speech
and expression guaranteed under Article 19(1)(a). However, this
Court observed that the right to freedom of speech and expression
does not include the freedom to “engage in aural aggression”. In
this case, there was no necessity for this Court to “balance” two
fundamental rights because the right in question (freedom of speech
and expression) was circumscribed to not include the actions
challenged (noise pollution). In Subramanian Swamy v. Union of
India158, Sections 499 and 500 of the Indian Penal Code 1860 which
criminalized defamation were challenged. A two-Judge Bench of this
Court framed the issue as a conflict between the right to speech and
expression under Article 19(1)(a) and the right to reputation traceable
to Article 21. In this case, the two Judge Bench held that the right
to speech and expression does not include the right to defame a
person. Justice Dipak Misra (as the learned Chief Justice then was)
observed that a contrary interpretation would completely abrogate
the right to reputation.159
148. In the second modality of the public interest approach, the Courts
undertook a comparison of the values which the rights (and the
conceptions of the rights) espouse and gave more weightage to the
right which was in furtherance of a higher degree of public or collective
interest. In Asha Ranjan v. State of Bihar160, this Court held that
when there is a conflict between two individuals with respect to their
right under Article 21, the facts and circumstances must be weighed
“on the scale of constitutional norms and sensibility and larger public
interest.” In PUCL (supra), one of the issues before this Court was

158 [2016] 3 SCR 865 : (2016) 7 SCC 221; Paragraph 11 “While one has a right to speech, others have a right
to listen or decline to listen. […] Nobody can indulge in aural aggression. If anyone increases his volume
of speech and that too with the assistance of artificial devices so as to compulsorily expose unwilling
persons to hear a noise raised to unpleasant or obnoxious levels, then the person speaking is violating
the right of others to a peaceful, comfortable and pollution-free life guaranteed by Article 21. Article 19(1)
(a) cannot be pressed into service for defeating the fundamental right guaranteed by Article 21.”
159 144: “[…] Reputation being an inherent component of Article 21, we do not think it should be allowed
to be sullied solely because another individual can have its freedom. It is not a restriction that has an
inevitable consequence which impairs circulation of thought and ideas. In fact, it is control regard being
had to another person’s right to go to court and state that he has been wronged and abused. He can
take recourse to a procedure recognised and accepted in law to retrieve and redeem his reputation.
Therefore, the balance between the two rights needs to be struck. “Reputation” of one cannot be allowed
to be crucified at the altar of the other’s right of free speech. The legislature in its wisdom has not thought
it appropriate to abolish criminality of defamation in the obtaining social climate.”
160 [2017] 1 SCR 945 : (2017) 4 SCC 397
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whether the disclosure of the assets of the candidates contesting

the elections in furtherance of the right to information of the voters
violates the right to privacy of candidates.161 Justice Reddi authoring
the concurring opinion observed that the right to information of the
assets of candidates contesting elections trumps the right to privacy
because the former serves a larger public interest. In Mazdoor
Kisan Shakti Sangathan v. Union of India162, proceedings under
Article 32 were initiated challenging orders issued under Section
144 of the Code of Criminal Procedure prohibiting protests in certain
areas in Delhi. The issue before this Court was whether the total
ban of protests at the Jantar Mantar Road would violate the right
to protest which is traceable to Articles 19(1)(a) and 19(1)(b). One
of the inter-related issues was whether the right to hold peaceful
demonstrations violates the right of peaceful residence under Article
21, and if it does, how this Court should balance the conflicting
fundamental rights. This Court observed that the Court must while
balancing two fundamental rights examine where the larger public
interest lies.163 This Court framed the following issue in the specific
context of the case: whether disturbances caused to residents by
the protest is a larger public interest which outweighs the rights of
protestors. The two-Judge Bench held that “demonstrations as it has
been happening” are causing serious discomfort to the residents,
and that the right to protest could be balanced with the right to
peaceful residence if authorities had taken adequate safeguards
such as earmarking specific areas for protest, placing restrictions
on the use of loudspeakers and on parking of vehicles around
residential places.
149. The judgment of this Court in Mazdoor Kisan Shakti (supra),
represents the gradual shift from the pre-proportionality phase to
the proportionality stage which signifies a shift in the degree of
justification and the employment of a structured analysis for balancing
fundamental rights. In Mazdoor Kisan Shakti (supra), this Court
applied one of the prongs of the proportionality standard (the least
restrictive means prong) while balancing the right to protest and
the right to peaceful residence. The Court identified other means

161 Ibid, [121]

162 [2018] 11 SCR 586 : (2018) 17 SCC 324
163 (2018) 17 SCC 324 [58]
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which would have infringed the right to a peaceful residence to a

lesser extent.
150. In 2012, a five-Judge Bench of this Court in Sahara India Real
Estate Corporation Limited v. Securities and Exchange Board
of India 164, used a standard which resembled the structured
proportionality standard used in Justice KS Puttaswamy (5J) v.
Union of India165 to balance the conflict between two fundamental
rights. This judgment marked the first departure from the series of
cases in which this Court balanced two fundamental rights based on
doctrinal predominance. In Sahara (supra), the petitioner submitted
a proposal for the repayment of OFCDs (optionally fully convertible
bonds) to the investors. The details of the proposals were published
by a news channel. Interlocutory applications were filed in the Court
praying for the issuance of guidelines for reporting matters which are
sub-judice. This Court resolved the conflict between the freedom of
press protected under Article 19(1)(a) and the right to free trial under
Article 21 by evolving a neutralizing device. This Court held that it has
the power to evolve neutralizing devices such as the postponement
of trial, retrial, change of venue, and in appropriate cases, grant
acquittal in case of excessive media prejudicial publicity to neutralize
the conflicting rights. This Court followed the Canadian approach
in evolving a two prong standard to balance fundamental rights
through neutralizing devices which partly resembled the structured
proportionality standard. The two-pronged test was as follows:166
a. There is no other reasonable alternative measure available
(necessity test); and
b. The salutary effects of the measure must outweigh the
deleterious effects on the fundamental rights (proportionality
standard).
151. Finally, this Court in Justice KS Puttaswamy (5J) (supra) applied
the structured proportionality standard to balance two fundamental
rights. In this case, a Constitution Bench of this Court while testing the
validity of the Aadhar Act 2016 had to resolve the conflict between the

164 [2012] 12 SCR 256 : (2012) 10 SCC 603

165 [2018] 8 SCR 1 : (2019) 1 SCC 1
166 (2012) 10 SCC 603 [42, 22]
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right to informational privacy and the right to food. Justice Sikri writing
for the majority held that the Aadhar Act fulfills all the four prongs of
the proportionality standard. In the final prong of the proportionality
stage, that is the balancing stage, this Court held that one of the
considerations was to balance the right to privacy and the right to
food. On balancing the fundamental rights, this Court held that the
provisions furthering the right to food satisfy a larger public interest
whereas the invasion of privacy rights was minimal.167
152. However, the single proportionality standard which is used to test
whether the fundamental right in question can be restricted for the
State interest (that is, the legitimate purpose) and if it can, whether
the measure used to restrict the right is proportional to the objective
is insufficient for balancing the conflict between two fundamental
rights. The proportionality standard is an effective standard to test
whether the infringement of the fundamental right is justified. It would
prove to be ineffective when the State interest in question is also a
reflection of a fundamental right.
153. The proportionality standard is by nature curated to give prominence
to the fundamental right and minimize the restriction on it. If this
Court were to employ the single proportionality standard to the
considerations in this case, at the suitability prong, this Court would
determine if non-disclosure is a suitable means for furthering the
right to privacy. At the necessity stage, the Court would determine
if non-disclosure is the least restrictive means to give effect to the
right to privacy. At the balancing stage, the Court would determine
if non-disclosure has a disproportionate effect on the right holder.
In this analysis, the necessity and the suitability prongs will
inevitably be satisfied because the purpose is substantial: it is a
fundamental right. The balancing stage will only account for the
disproportionate impact of the measure on the right to information
(the right) and not the right to privacy (the purpose) since the Court
is required to balance the impact on the right with the fulfillment
of the purpose through the selected means. Thus, the Court while
applying the proportionality standard to resolve the conflict between
two fundamental rights preferentially frames the standard to give
prominence to the fundamental right which is alleged to be violated

167 (2019) 1 SCC 1 [308]

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by the petitioners (in this case, the right to information).168 This could
well be critiqued for its limitations.
154. In Campbell v. MGM Limited169, Baroness Hale adopted the double
proportionality standard to adequately balance two conflicting
fundamental rights. In this case, the claimant, a public figure,
instituted proceedings against a newspaper for publishing details of
her efforts to overcome drug addiction. Baroness Hale applied the
following standard to balance the right to privacy of the claimant and
the right to a free press:
“141. […] This involved looking first at the comparative
importance of the actual rights being claimed in the
individual case; then at the justifications for interfering
with or restricting each of those rights; and applying the
proportionality test to each”
155. In Central Public Information Officer, Supreme Court of India v.
Subash Chandra Agarwal170, one of us (Justice D Y Chandrachud)
while authoring the concurring opinion adopted the double
proportionality standard as formulated in Campbell (supra). Referring
to the double proportionality standard, the concurring opinion observes
that the Court while balancing between two fundamental rights must
identify the precise interests weighing in favour of both disclosure and
privacy and not merely undertake a doctrinal analysis to determine
if one of the fundamental rights takes precedence over the other:
“113. Take the example of where an information applicant
sought the disclosure of how many leaves were taken by a
public employee and the reasons for such leave. The need
to ensure accountability of public employees is of clear
public interest in favour of disclosure. The reasons for the
leave may also include medical information with respect
to the public employee, creating a clear privacy interest in
favour of non-disclosure. It is insufficient to state that the
privacy interest in medical records is extremely high and

168 Hon’ble Mr Justice Andrew Cheung PJ, Conflict of fundamental rights and the double proportionality
test, A lecture in the Common Law Lecture Series 2019 delivered at the University of Hong Kong (17
September 2019)
169 [2004] UKHL 22
170 Civil Appeal No. 10044 of 2010
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therefore the outcome should be blanket non-disclosure.

The principle of proportionality may necessitate that the
number of and reasons for the leaves be disclosed and
the medical reasons for the leave be omitted. This would
ensure that the interest in accountability is only abridged
to the extent necessary to protect the legitimate aim of
the privacy of the public employee.”
156. Baroness Hale in Campbell (supra) employed a three step approach
to balance fundamental rights. The first step is to analyse the
comparative importance of the actual rights claimed. The second step
is to lay down the justifications for the infringement of the rights. The
third is to apply the proportionality standard to both the rights. The
approach adopted by Baroness Hale must be slightly tempered to
suit our jurisprudence on proportionality. The Indian Courts adopt a
four prong structured proportionality standard to test the infringement
of the fundamental rights. In the last stage of the analysis, the
Court undertakes a balancing exercise to analyse if the cost of the
interference with the right is proportional to the extent of fulfilment of
the purpose. It is in this step that the Court undertakes an analysis
of the comparative importance of the considerations involved in the
case, the justifications for the infringement of the rights, and if the
effect of infringement of one right is proportional to achieve the goal.
Thus, the first two steps laid down by Baroness Hale are subsumed
within the balancing prong of the proportionality analysis.
157. Based on the above discussion, the standard which must be followed
by Courts to balance the conflict between two fundamental rights
is as follows:
a. Does the Constitution create a hierarchy between the
rights in conflict? If yes, then the right which has been
granted a higher status will prevail over the other right
involved. If not, the following standard must be employed
from the perspective of both the rights where rights A and
B are in conflict;
b. Whether the measure is a suitable means for furthering
right A and right B;
c. Whether the measure is least restrictive and equally
effective to realise right A and right B; and
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d. Whether the measure has a disproportionate impact on

right A and right B.
b) Validity of the Electoral Bond Scheme, Section 11 of the Finance
Act and Section 137 of the Finance Act
158. To recall, Section 13A of the IT Act before the amendment mandated
that the political party must maintain a record of contributions in
excess of rupees twenty thousand. Section 11 of the Finance Act 2017
amended Section 13A creating an exception for contributions made
through Electoral Bonds. Upon the amendment, political parties are
not required to maintain a record of any contribution received through
electoral bonds. Section 29C of the RPA mandated the political party
to prepare a report with respect to contributions received in excess
of twenty thousand rupees from a person or company in a financial
year. Section 137 of the Finance Act amended Section 29C of the RPA
by which a political party is now not required to include contributions
received by electoral bonds in its report. As explained earlier, the
feature of anonymity of the contributor vis-à-vis the public is intrinsic
to the Electoral Bond Scheme. Amendments had to be made to
Section 13A of the IT Act and Section 29C of the RPA to implement
the Electoral Bond Scheme because the EBS mandates anonymity
of the contributor. In this Section, we will answer the question of
whether the EBS adequately balances the right to informational
privacy of the contributor and the right to information of the voter.
159. In Justice KS Puttaswamy (9J) (supra), this Court did not trace
the right to privacy only to Article 21. This Court considered privacy
as an essential component for the effective fulfillment of the all
entrenched rights. Article 25 of the Constitution is the only provision
in Part III which subjects the right to other fundamental rights.
Article 25 guarantees the freedom of conscience which means the
freedom to judge the moral qualities of one’s conduct.171 Financial
contributions to a political party (as a form of expression of political
support and belief) can be traced to the exercise of the freedom of
conscience under Article 25.172 It can very well be argued that the
right to information of the voter prevails over the right to anonymity
of political contributions which may be traceable to the freedom of

171 See Supriyo (supra) [238 , 239]; Aishat Shifa v. State of Karnataka, [2022] 5 SCR 426 : (2023) 2 SCC 1;
172 See Justice KS Puttaswamy v. Union of India, [2017] 10 SCR 569 : (2017) 10 SCC 1 [372] (opinion of
Justice Chelameswar);
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conscience recognized under Article 25 since it is subject to all other

fundamental rights, including Article 19(1)(a). However, the right
to privacy of financial contributions to political parties can also be
traced to Article 19(1) because the informational privacy of a person’s
political affiliation is necessary to enjoy the right to political speech
under Article 19(1)(a), the right to political protests under Article
19(1)(b), the right to form a political association under Article 19(1)
(c), and the right to life and liberty under Article 21. The Constitution
does not create a hierarchy amongst these rights. Thus, there is no
constitutional hierarchy between the right to information and the right
to informational privacy of political affiliation.
160. This Court must now apply the double proportionality standard, that
is, the proportionality standard to both the rights (as purposes) to
determine if the means used are suitable, necessary and proportionate
to the fundamental rights. The Union of India submitted that Clause
7(4) of the Electoral Bond Scheme balances the right to information
of the voter and the right to informational privacy of the contributor.
Clause 7(4) stipulates that the information furnished by the buyer
shall be treated as confidential by the authorized bank. The bank
has to disclose the information when it is demanded by a competent
court or upon the registration of a criminal case by a law enforcement
agency. It needs to be analyzed if the measure employed (Clause
7(4)) balances the rights or tilts the balance towards one of the
fundamental rights.
161. The first prong of the analysis is whether the means has a rational
connection with both the purposes, that is, informational privacy of
the political contributions and disclosure of information to the voter.
It is not necessary that the means chosen should be the only means
capable of realising the purpose of the state action. This stage of the
analysis does not prescribe an efficiency standard. It is sufficient if
the means constitute one of the many methods by which the purpose
can be realised, even if it only partially gives effect to the purpose.173
162. This Court while applying the suitability prong to the purpose of
privacy of political contribution must consider whether the non-
disclosure of information to the voter and its disclosure only when
demanded by a competent court and upon the registration of criminal

173 Media One Broadcasting (supra), [101]

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case has a rational nexus with the purpose of achieving privacy of

political contribution. Undoubtedly, the measure by prescribing non-
disclosure of information about political funding shares a nexus with
the purpose. The non-disclosure of information grants anonymity to
the contributor, thereby protecting information privacy. It is certainly
one of the ways capable of realizing the purpose of informational
privacy of political affiliation.
163. The suitability prong must next be applied to the purpose of disclosure
of information about political contributions to voters. There is no
nexus between the balancing measure adopted with the purpose of
disclosure of information to the voter. According to Clause 7(4) of
the Electoral Bond Scheme and the amendments, the information
about contributions made through the Electoral Bond Scheme is
exempted from disclosure requirements. This information is never
disclosed to the voter. The purpose of securing information about
political funding can never be fulfilled by absolute non-disclosure.
The measure adopted does not satisfy the suitability prong vis-à-
vis the purpose of information of political funding. However, let us
proceed to apply the subsequent prongs of the double proportionality
analysis assuming that the means adopted has a rational nexus with
the purpose of securing information about political funding to voters.
164. The next stage of the analysis is the necessity prong. At this stage,
the Court determines if the measure identified is the least restrictive
and equally effective measure. To recall, the Court must determine
if there are other possible means which could have been adopted
to fulfill the purpose, and whether such alternative means (a) realize
the purpose in a real and substantial manner; (b) impact fundamental
rights differently; and (c) are better suited on an overall comparison
of the degree of realizing the purpose and the impact on fundamental
rights.
165. The provisions of the RPA provide an alternative measure. Section
29C states that contributions in excess of rupees twenty thousand
received from a person or company for that financial year must be
disclosed by the political party through a report. The report must be
filled in the format prescribed in Form 24A of the Conduct of Election
Rules 1961. The form is annexed as Annexure II to this judgment.
A crucial component of this provision when juxtaposed with Section
13A of the IT Act must be noted. Section 13A of the IT Act requires
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the political party to maintain a record of the contributions made in

excess of rupees twenty thousand. Section 29C of the RPA requires
the political party to disclose information about contributions in
excess of rupees twenty thousand made by a person or company
in a financial year. Section 13A mandates record keeping of every
contribution. On the other hand, Section 29C mandates disclosure
of information of contributions beyond rupees twenty thousand per
person or per company in one financial year.
166. Section 29C(1) is one of the means to achieve the purpose of
protecting the informational privacy of political affiliation of individuals.
Parliament in its wisdom has prescribed rupees twenty thousand as
the threshold where the considerations of disclosure of information
of political contribution outweigh the considerations of informational
privacy. It could very well be debated whether rupees twenty thousand
is on the lower or higher range of the spectrum. However, that is
not a question for this Court to answer in this batch of petitions.
The petitioners have not challenged the threshold of rupees twenty
thousand prescribed for the disclosure of information prescribed by
Section 29C. They have only raised a challenge to the disclosure
exception granted to contributions by Electoral Bonds. Thus, this Court
need not determine if the threshold tilts the balance in favour of one
of the interests. We are only required to determine if the disclosure
of information on financial contributions in a year beyond rupees
twenty thousand is an alternative means to achieve the purposes of
securing the information on financial contributions and informational
privacy regarding political affiliation.
167. It must be recalled that we have held above that the right to information
of the voter includes the right to information of financial contributions
to a political party because of the influence of money in electoral
politics (through electoral outcomes) and governmental decisions
(through a seat at the table and quid pro quo arrangements between
the contributor and the political party). The underlying rationale of
Section 29C(1) is that contributions below the threshold do not have
the ability to influence decisions, and the right to information of
financial contributions does not extend to contributions which do not
have the ability to influence decisions. Similarly, the right to privacy
of political affiliations does not extend to contributions which may
be made to influence policies. It only extends to contributions made
as a genuine form of political support that the disclosure of such
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information would indicate their political affiliation and curb various

forms of political expression and association.
168. It is quite possible that contributions which are made beyond
the threshold could also be a form of political support and not
necessarily a quid pro quo arrangement, and contributions below
the threshold could influence electoral outcomes. However, the
restriction on the right to information and informational privacy of
such contributions is minimal when compared to a blanket non-
disclosure of information on contributions to political parties. Thus,
this alternative realizes the objective of securing disclosure for
an informed voter and informational privacy to political affiliation
in a ‘real and substantial manner’. The measure in the Electoral
Bond Scheme completely tilts the balance in favor of the purpose
of informational privacy and abrogates informational interests.
On an overall comparison of the measure and the alternative,
the alternative is better suited because it realizes the purposes
to a considerable extent and imposes a lesser restriction on
the fundamental rights. Having concluded that Clause 7(4) of
the Scheme is not the least restrictive means to balance the
fundamental rights, there is no necessity of applying the balancing
prong of the proportionality standard.
169. The Union of India has been unable to establish that the measure
employed in Clause 7(4) of the Electoral Bond Scheme is the least
restrictive means to balance the rights of informational privacy
to political contributions and the right to information of political
contributions. Thus, the amendment to Section 13A(b) of the IT Act
introduced by the Finance Act 2017, and the amendment to Section
29C(1) of the RPA are unconstitutional. The question is whether this
Court should only strike down the non-disclosure provision in the
Electoral Bond Scheme, that is Clause 7(4). However, as explained
above, the anonymity of the contributor is intrinsic to the Electoral
Bond Scheme. The Electoral Bond is not distinguishable from other
modes of contributions through the banking channels such as cheque
transfer, transfer through the Electronic Clearing System or direct
debit if the anonymity component of the Scheme is struck down.
Thus, the Electoral Bond Scheme 2018 will also consequentially
have to be struck down as unconstitutional.
c. Validity of Section 154 of the Finance Act amending Section
182(3) to the Companies Act
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170. Before the 2017 amendment, Section 182(3) of the Companies Act,
mandated companies to disclose the details of the amount contributed
to a political party along with the name of the political party to which
the amount was contributed in its profit and loss account. After the
amendment, Section 182(3) only requires the disclosure of the
total amount contributed to political parties in a financial year. For
example, under Section 182(3) as it existed before the amendment,
if a Company contributed rupees twenty thousand to a political party,
the company was required to disclose in its profit and loss account,
the details of the specific contributions made to that political party.
However, after the 2017 amendment, the Company is only required to
disclose that it contributed rupees twenty thousand to a political party
under the provision without disclosing the details of the contribution,
that is, the political party to which the contribution was made. The
profit and loss account of a company is included in the financial
statement which companies are mandated to prepare.174 A copy of
the financial statement adopted at the annual general meeting of the
company must be filed with the Registrar of Companies.175
171. As discussed in the earlier segment of this judgment, the Companies
Act 1956 was amended in 1960 to include Section 293A by which
contributions by companies to political parties and for political
purposes were regulated. Companies were permitted to contribute
within the cap prescribed. All such contributions were required to
be disclosed by the Company in its profit and loss account with
details. Companies which contravened the disclosure requirement
were subject to fine. It is crucial to note here that contributions to
political parties by companies were regulated long before the IT
Act was amended in 1978 to exempt the income of political parties
through voluntary contributions for tax purposes (ostensibly to curb
black money). It is clear as day light that the purpose of mandating
the disclosure of contributions made by companies was not merely
to curb black money in electoral financing but crucially to make
the financial transactions between companies and political parties
transparent. Contributions for “political purposes” was widely defined
in the 1985 amendment (which was later incorporated in Section 182
of the Companies Act 2013) to include expenditure (either directly or

174 The Companies Act 2013; Section 2(40)

175 The Companies At 2013; Section 137
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indirectly) for advertisement on behalf of political parties and payment

to a person “who is carrying activity which can be regarded as likely
to affect public support to a political party”. This indicates that the
legislative intent of the provision mandating disclosure was to bring
transparency to political contributions by companies. Companies have
always been subject to a higher disclosure requirement because
of their huge financial presence and the higher possibility of quid
pro quo transactions between companies and political parties. The
disclosure requirements in Section 182(3) were included to ensure
that corporate interests do not have an undue influence in electoral
democracy, and if they do, the electorate must be made aware of it.
172. Section 182(3) as amended by the Finance Act 2017 mandates
the disclosure of total contributions made by political parties. This
requirement would ensure that the money which is contributed to
political parties is accounted for. However, the deletion of the mandate
of disclosing the particulars of contributions violates the right to
information of the voter since they would not possess information
about the political party to which the contribution was made which, as
we have held above, is necessary to identify corruption and quid pro
quo transactions in governance. Such information is also necessary
for exercising an informed vote.
173. Section 182(3) of the Companies Act and Section 29C of the RPA
as amended by the Finance Act must be read together. Section 29C
exempts political parties from disclosing information of contributions
received through Electoral Bonds. However, Section 182(3) not only
applies to contributions made through electoral bonds but through
all modes of transfer. In terms of the provisions of the RPA, if a
company made contributions to political parties through cheque or
ECS, the political party had to disclose the details in its report. Thus,
the information about contributions by the company would be in the
public domain. The only purpose of amending Section 182(3) was
to bring the provision in tune with the amendment under the RPA
exempting disclosure requirements for contributions through electoral
bonds. The amendment to Section 182(3) of the Companies Act
becomes otiose in terms of our holding in the preceding section that
the Electoral Bond Scheme and relevant amendments to the RPA
and the IT Act mandating non-disclosure of particulars on political
contributions through electoral bonds is unconstitutional.
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174. In terms of Section 136 of the Companies Act, every shareholder in a

company has a right to a copy of the financial statement which also
contains the profit and loss account. The petitioners submitted that
the non-disclosure of the details of the political contributions made
by companies in the financial statement would infringe upon the
right of the shareholders to decide to sell the shares of a company
if a shareholder does not support the political ideology of the party
to which contributions were made. This it was contended, violates
Articles 19(1)(a), 19(1)(g), 21 and 25. We do not see the necessity
of viewing the non-disclosure requirement in Section 182(3) of the
Companies Act from the lens of a shareholder in this case when
we have identified the impact of non-disclosure of information on
political funding from the larger compass of a citizen and a voter. In
view of the above discussion, Section 182(3) as amended by the
Finance Act 2017 is unconstitutional.
G. Challenge to unlimited corporate funding
175. The Companies Act 1956,176 as originally enacted, did not contain any
provision relating to political contributions by companies. Regardless
of the same, many companies sought to make contributions to political
parties by amending their memorandum. In Jayantilal Ranchhoddas
Koticha v. Tata Iron and Steel Co. Ltd.,177 the decision of the
company to amend its memorandum enabling it to make contributions
to political parties was challenged before the High Court of Judicature
at Bombay. The High Court upheld the decision of the company to
amend its memorandum on the ground that there was no law prohibiting
companies from contributing to the funds of a party. Chief Justice M
C Chagla, cautioned against the influential role of “big business and
money bags” in throttling democracy. The learned Judge emphasized
that it is the duty of Courts to “prevent any influence being exercised
upon the voter which is an improper influence or which may be looked
at from any point of view as a corrupt influence.” Chief Justice Chagla
highlighted the grave danger inherent in permitting companies to
donate to political parties and hoped Parliament would “consider under
what circumstances and under what limitations companies should be
permitted to make these contributions”.

176 “1956 Act”

177 AIR 1958 Bom 155
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176. Subsequently, Parliament enacted the Companies (Amendment) Act

1960 to incorporate Section 293A in the 1956 Act. The new provision
allowed a company to contribute to: (a) any political party; or (b) for
any political purpose to any individual or body. However, the amount
of contribution was restricted to either twenty-five thousand rupees
in a financial year or five percent of the average net profits during
the preceding three financial years, whichever was greater. The
provision also mandated every company to disclose in its profit and
loss account any amount contributed by it to any political party or for
any political purpose to any individual or body during the financial
year to which that account relates by giving particulars of the total
amount contributed and the name of the party, individual, or body
to which or to whom such amount has been contributed.
177. In 1963, the Report of the Santhanam Committee on Prevention of
Corruption highlighted the prevalence of corruption at high political
levels due to unregulated collection of funds and electioneering by
political parties.178 The Committee suggested “a total ban on all
donations by incorporated bodies to political parties.” Subsequently,
Section 293A of the 1956 Act was amended through the Companies
(Amendment) Act 1969 to prohibit companies from contributing funds to
any political party or to any individual or body for any political purpose.
178. In 1985, Parliament again amended Section 293A, in the process
reversing its previous ban on political contributions by companies.
It allowed a company, other than a government company and any
other company with less than three years of existence, to contribute
any amount or amounts to any political party or to any person for any
political purpose. It further provided that the aggregate of amounts
which may be contributed by a company in any financial year shall
not exceed five percent of its average net profits during the three
immediately preceding financial years. This provision was retained
under Section 182 of the Companies Act 2013. The only change was
that the aggregate amount donated by a company was increased to
seven and a half percent of its average net profits during the three
immediately preceding financial years. Section 154 of the Finance
Act 2017 amended Section 182 of the 2013 Act to delete this limit
contained in the first proviso of the provision.

178 Report of the Committee on Prevention of Corruption, 1964 [11.5].

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179. At the outset, it is important to be mindful of the fact that the petitioners
are not challenging the vires of Section 182 of the 2013 Act. Neither
are the petitioners challenging the legality of contributions made by
companies to political parties. The challenge is restricted to Section
154 of the Finance Act 2017 which amended Section 182 of the
2013 Act.
i. The application of the principle of non-arbitrariness
180. The petitioners argue that Section 154 of the Finance Act 2017
violates Article 14 of the Constitution. The primary ground of challenge
is that the amendment to Section 182 of the 2013 Act is manifestly
arbitrary as it allows companies, including loss-making companies,
to contribute unlimited amounts to political parties. It has also been
argued that the law now facilitates the creation of shell companies
solely for the purposes of contributing funds to political parties. On
the other hand, the respondent has questioned the applicability of
the doctrine of manifest arbitrariness for invalidating legislation.
a. Arbitrariness as a facet of Article 14
181. At the outset, the relevant question that this Court has to answer is
whether a legislative enactment can be challenged on the sole ground
of manifest arbitrariness. Article 14 of the Constitution provides that
the State shall not deny to any person equality before the law or the
equal protection of laws within the territory of India. Article 14 is an
injunction to both the legislative as well the executive organs of the
State to secure to all persons within the territory of India equality
before law and equal protection of the laws.179 Traditionally, Article 14
was understood to only guarantee non-discrimination. In this context,
Courts held that Article 14 does not forbid all classifications but only
that which is discriminatory. In State of West Bengal v. Anwar Ali
Sarkar,180 Justice S R Das (as the learned Chief Justice then was)
laid down the following two conditions which a legislation must satisfy
to get over the inhibition of Article 14: first, the classification must
be founded on an intelligible differentia which distinguishes those
that are grouped together from others; and second, the differentia
must have a rational relation to the object sought to be achieved

179 Basheshar Nath v. CIT, [1959] Supp 1 SCR 528

180 [1952] 1 SCR 284 : (1951) 1 SCC 1; Also see State of Bombay v. FN Balsara, [1951] 1 SCR 682
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by the legislation. In the ensuing years, this Court followed this

“traditional approach” to test the constitutionality of a legislation on
the touchstone of Article 14.181
182. In E P Royappa v. State of Tamil Nadu,182 this Court expanded
the ambit of Article 14 by laying down non-arbitrariness as a limiting
principle in the context of executive actions. Justice P N Bhagwati
(as the learned Chief Justice then was), speaking for the Bench,
observed that equality is a dynamic concept with many aspects
and dimensions which cannot be confined within traditional and
doctrinaire limits. The opinion declared that equality is antithetic to
arbitrariness, further finding that equality belongs to the rule of law in
a republic, while arbitrariness belongs to the whim and caprice of an
absolute monarch. In Ajay Hasia v. Khalid Mujib Seheravardi,183 a
Constitution Bench of this Court considered it to be well settled that
any action that is arbitrary necessarily involves negation of equality.
Justice Bhagwati observed that the doctrine of non-arbitrariness can
also be extended to a legislative action. He observed that:
“[w]herever therefore there is arbitrariness in State action
whether it be of the legislature or of the executive or of an
“authority” under Article 12, Article 14 immediately springs
into action and strikes down such State action.”
183. Immediately after the judgment in Ajay Hasia (supra), Justice
E S Venkataramaiah (as the learned Chief Justice then was) in
Indian Express Newspapers (Bombay) (P) Ltd. v. Union of
India,184 laid down the test of manifest arbitrariness with respect
to subordinate legislation. It was held that a subordinate legislation
does not carry the same degree of immunity enjoyed by a statute
passed by a competent legislature. Therefore, this Court held that
a subordinate legislation “may also be questioned on the ground
that it is unreasonable, unreasonable not in the sense of not
being reasonable, but in the sense that it is manifestly arbitrary.”

181 Kathi Raning Rawat v. State of Saurashtra, [1952] 1 SCR 435 : (1952) 1 SCC 215; Budhan Chowdhury
v. State of Bihar, [1955] 1 SCR 1045; Ram Krishna Dalmia v. S R Tendolkar, [1959] SCR 279.
182 [1974] 2 SCR 348 : (1974) 4 SCC 3
183 [1981] 2 SCR 79 : (1981) 1 SCC 722
184 [1985] 2 SCR 287 : (1985) 1 SCC 641
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In Sharma Transport v. Government of Andhra Pradesh,185 this

Court reiterated Indian Express Newspapers (supra) by observing
that the test of arbitrariness as applied to an executive action cannot
be applied to delegated legislation. It was held that to declare a
delegated legislation as arbitrary, “it must be shown that it was not
reasonable and manifestly arbitrary.” This Court further went on to
define “arbitrarily” to mean “in an unreasonable manner, as fixed
or done capriciously or at pleasure, without adequate determining
principle, not founded in the nature of things, non-rational, not done or
acting according to reason or judgment, depending on the will alone.”
184. While this Court accepted it as a settled proposition of law that a
subordinate legislation can be challenged on the ground of manifest
arbitrariness, there was still some divergence as to the doctrine’s
application with respect to plenary legislation. In State of Tamil
Nadu v. Ananthi Ammal,186 a three-Judge Bench of this Court held
that a statute can be declared invalid under Article 14 if it is found
to be arbitrary or unreasonable. Similarly, in Dr. K R Lakshmanan
v. State of Tamil Nadu,187 a three-Judge Bench of this Court
invalidated a legislation on the ground that it was arbitrary and in
violation of Article 14. However, in State of Andhra Pradesh v.
McDowell & Co.,188 another three-Judge Bench of this Court held
that a plenary legislation cannot be struck down on the ground that
it is arbitrary or unreasonable. In McDowell (supra), this Court held
that a legislation can be invalidated on only two grounds: first, the
lack of legislative competence; and second, on the violation of any
fundamental rights guaranteed in Part III of the Constitution or of
any other constitutional provision.
185. This divergence became more apparent when a three-Judge Bench of
this Court in Malpe Vishwanath Acharya v. State of Maharashtra,189
invalidated certain provisions of the Bombay Rents, Hotel and Lodging
House Rates Control Act 1947 relating to the determination and fixation
of the standard rent. This Court declared the provisions in question
unreasonable, arbitrary, and violative of Article 14. However, the Court

185 [2001] Suppl. 5 SCR 390 : (2002) 2 SCC 188

186 [1994] Suppl. 5 SCR 666 : (1995) 1 SCC 519
187 [1996] 1 SCR 395 : (1996) 2 SCC 226
188 [1996] 3 SCR 721 : (1996) 3 SCC 709
189 [1997] Suppl. 6 SCR 717 : (1998) 2 SCC 1
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did not strike down the provisions on the ground that the extended
period of the statute was to come to an end very soon, requiring
the government to reconsider the statutory provisions. Similarly, in
Mardia Chemicals Ltd. v. Union of India,190 another three-Judge
Bench of this Court invalidated Section 17(2) of the Securitization
and Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002 for being unreasonable and arbitrary.
186. In Natural Resources Allocation, In Re Special Reference No. 1
of 2012,191 a Constitution Bench of this Court referred to McDowell
(supra) to observe that a law may not be struck down as arbitrary
without a constitutional infirmity. Thus, it was held that a mere finding
of arbitrariness was not sufficient to invalidate a legislation. The
Court has to enquire whether the legislation contravened any other
constitutional provision or principle.
b. Beyond Shayara Bano: entrenching manifest arbitrariness in
Indian jurisprudence
187. In Shayara Bano v. Union of India,192 a Constitution Bench of this
Court set aside the practice of Talaq-e-Bidaat (Triple Talaq). Section
2 of the Muslim Personal Law (Shariat) Act 1937 was also impugned
before this Court. The provision provides that the personal law of
the Muslims, that is Shariat, will be applicable in matters relating to
marriage, dissolution of marriage and talaq. Justice R F Nariman,
speaking for the majority, held that Triple Talaq is manifestly arbitrary
because it allows a Muslim man to capriciously and whimsically break
a marital tie without any attempt at reconciliation to save it. Thus,
Justice Nariman applied the principle of manifest arbitrariness for
the purpose of testing the constitutional validity of the legislation on
the touchstone of Article 14.
188. Justice Nariman traced the evolution of non-arbitrariness jurisprudence
in India to observe that McDowells (supra) failed to consider two
binding precedents, namely, Ajay Hasia (supra) and K R Lakshmanan
(supra). This Court further observed that McDowells (supra) did not
notice Maneka Gandhi v. Union of India,193 where this Court held

190 [2004] 3 SCR 982 : (2004) 4 SCC 311

191 [2012] 9 SCR 311 : (2012) 10 SCC 1
192 [2017] 9 SCR 797 : (2017) 9 SCC 1
193 [1978] 2 SCR 621 : (1978) 1 SCC 248
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that substantive due process is a part of Article 21 which has to be

read along with Articles 14 and 19 of the Constitution. Therefore,
Justice Nariman held that arbitrariness of a legislation is a facet of
unreasonableness in Articles 19(2) to (6) and therefore arbitrariness
can also be used as a standard to strike down legislation under Article
14. It held McDowells (supra) to be per incuriam and bad in law.
189. Shayara Bano (supra) clarified In Re Special Reference No. 1 of
2012 (supra) by holding that a finding of manifest arbitrariness is in
itself a constitutional infirmity and, therefore, a ground for invalidating
legislation for the violation of Article 14. Moreover, it was held that
there is no rational distinction between subordinate legislation and
plenary legislation for the purposes of Article 14. Accordingly, the test
of manifest arbitrariness laid down by this Court in Indian Express
Newspapers (supra) in the context of subordinate legislation was
also held to be applicable to plenary legislation. In conclusion, this
Court held that manifest arbitrariness “must be something done
by the legislature capriciously, irrationally and/or without adequate
determining principle.” It was further held that a legislation which is
excessive and disproportionate would also be manifestly arbitrary. The
doctrine of manifest arbitrariness has been subsequently reiterated
by this Court in numerous other judgments.
190. The standard of manifest arbitrariness was further cemented by the
Constitution Bench of this Court in Navtej Singh Johar v. Union of
India.194 In Navtej Singh Johar (supra), Section 377 of the Indian
Penal Code 1860 was challenged, inter alia, on the ground it is
manifestly arbitrary. Section 377 criminalized any person who has
had “voluntary carnal intercourse against the order of nature”. Chief
Justice Dipak Misra (writing for himself and Justice AM Khanwilkar)
held that Section 377 is manifestly arbitrary for failing to make a
distinction between consensual and non-consensual sexual acts
between consenting adults.195 Justice Nariman, in the concurring
opinion, observed that Section 377 is manifestly arbitrary for penalizing
“consensual gay sex”. Justice Nariman faulted the provision for (a)
not distinguishing between consensual and non-consensual sex for
the purpose of criminalization; and (b) criminalizing sexual activity

194 [2018] 7 SCR 379 : (2018) 10 SCC 1

195 WP (Criminal) 76 of 2016 [Chief Justice Misra, 239]
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between two persons of the same gender.196 Justice DY Chandrachud

noted that Section 377 to the extent that it penalizes physical
manifestation of love by a section of the population (the LGBTQ+
community) is manifestly arbitrary.197 Similarly, Justice Indu Malhotra
observed that the provision is manifestly arbitrary because the basis
of criminalization is the sexual orientation of a person which is not
a “rationale principle”198.
191. In Joseph Shine v. Union of India,199 a Constitution Bench of this
Court expressly concurred with the doctrine of manifest arbitrariness
as evolved in Shayara Bano (supra). In Joseph Shine (supra),
one of us (Justice D Y Chandrachud) observed that the doctrine
of manifest arbitrariness serves as a check against state action or
legislation “which has elements of caprice, irrationality or lacks an
adequate determining principle.” In Joseph Shine (supra), the validity
of Section 497 of the Indian Penal Code was challenged. Section
497 penalized a man who has sexual intercourse with a woman who
is and whom he knows or has a reason to believe to be the wife of
another man, without the “consent and connivance of that man” for
the offence of adultery. Justice Nariman observed that the provision
has paternalistic undertones because the provision does not penalize
a married man for having sexual intercourse with a married woman
if he obtains her husband’s consent. The learned Judge observed
that the provision treats a woman like a chattel:
“23. […] This can only be on the paternalistic notion of
a woman being likened to chattel, for if one is to use
the chattel or is licensed to use the chattel by the ―
licensor‖, namely, the husband, no offence is committed.
Consequently, the wife who has committed adultery is not
the subject matter of the offence, and cannot, for the reason
that she is regarded only as chattel, even be punished as
an abettor. This is also for the chauvinistic reason that the
third-party male has seduced her, she being his victim.
What is clear, therefore, is that this archaic law has long

196 Ibid,[Justice Nariman, 82]

197 Ibid, [Justice DY Chandrachud, 29]
198 Ibid, [Justice Malhotra, paragraph 14.9]
199 [2018] 11 SCR 765 : (2019) 3 SCC 39
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outlived its purpose and does not square with today‘s

constitutional morality, in that the very object with which it
was made has since become manifestly arbitrary, having
lost its rationale long ago and having become in today‘s
day and age, utterly irrational. On this basis alone, the
law deserves to be struck down, for with the passage of
time, Article 14 springs into action and interdicts such law
as being manifestly arbitrary.”
192. The learned Judge further observed that the “ostensible object of
Section 497” as pleaded by the State which is to preserve the sanctity
of marriage is not in fact the object of the provision because: (a) the
sanctity of marriage can be destroyed even if a married man has
sexual intercourse with an unmarried woman or a widow; and (b)
the offence is not committed if the consent of the husband of the
woman is sought.
193. Justice DY Chandrachud in his opinion observed that a provision
is manifestly arbitrary if the determining principle of it is not in
consonance with constitutional values. The opinion noted that Section
497 makes an “ostensible” effort to protect the sanctity of marriage
but in essence is based on the notion of marital subordination of
women which is inconsistent with constitutional values.200 Chief Justice
Misra (writing for himself and Justice AM Khanwilkar) held that the
provision is manifestly arbitrary for lacking “logical consistency” since
it does not treat the wife of the adulterer as an aggrieved person
and confers a ‘license’ to the husband of the woman.
194. It is now a settled position of law that a statute can be challenged
on the ground it is manifestly arbitrary. The standard laid down by
Justice Nariman in Shayara Bano (supra), has been citied with
approval by the Constitution Benches in Navtej Singh Johar (supra)
and Joseph Shine (supra). Courts while testing the validity of a
law on the ground of manifest arbitrariness have to determine if the
statute is capricious, irrational and without adequate determining
principle, or something which is excessive and disproportionate.
This Court has applied the standard of “manifest arbitrariness” in
the following manner:

200 (2019) 3 SCC 39 [Paragraph 35]

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a. A provision lacks an “adequate determining principle” if the

purpose is not in consonance with constitutional values. In
applying this standard, Courts must make a distinction between
the “ostensible purpose”, that is, the purpose which is claimed
by the State and the “real purpose”, the purpose identified by
Courts based on the available material such as a reading of
the provision201; and
b. A provision is manifestly arbitrary even if the provision does
not make a classification.202
195. This Court in previous judgments has discussed the first of the above
applications of the doctrine by distinguishing between the “ostensible
purpose” and the “real purpose” of a provision with sufficient clarity.
The application of the doctrine of manifest arbitrariness by Chief
Justice Misra and Justice Nariman in Navtej Singh Johar (supra) to
strike down a provision for not classifying between consensual and
non-consensual sex must be understood in the background of two
jurisprudential developments on the interpretation of Part III of the
Constitution. The first, is the shift from reading the provisions of Part
III of the Constitution as isolated silos to understanding the thread of
reasonableness which runs through all the provisions and elevating
unreasonable (and arbitrary) action to the realm of fundamental
rights. The second is the reading of Article 14 to include the facets
of formal equality and substantive equality. Article 14 consists of two
components. “Equality before the law” which means that the law must
treat everybody equally in the formal sense. “Equal protection of the
laws” signifies a guarantee to secure factual equality. The legislature
and the executive makes classifications to achieve factual equality.
The underlying premise of substantive equality is the recognition that
not everybody is equally placed and that the degree of harm suffered
by a group of persons (or an individual) varies because of unequal
situations. This Court has in numerous judgments recognized that
the legislature is free to recognize the degrees of harm and confine
its benefits or restrictions to those cases where the need is the
clearest.203 The corollary of the proposition that it is reasonable to

201 Justice Chandrachud, Justice Malhotra, and Justice Nariman in Navtej Singh Johar (supra); Justices
Chandrachud and Nariman in Joseph Shine (supra).
202 Chief Justice Misra in Navtej Singh Johar (supra)
203 Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731; Binoy Viswam v. Union of India, [2017] 7 SCR
1 : (2017) 7 SCC 59; Charanjit Lal Chowdhuri v. Union of India, (1950) SCC 833
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identify the degrees of harm, is that it is unreasonable, unjust, and

arbitrary if the Legislature does not identify the degrees of harm for
the purpose of law.
196. It is undoubtedly true that it is not the constitutional role of this Court
to second guess the intention of the legislature in enacting a particular
statute. The legislature represents the democratic will of the people,
and therefore, the courts will always presume that the legislature
is supposed to know and will be aware of the needs of the people.
Moreover, this Court must be mindful of falling into an error of equating
a plenary legislation with a subordinate legislation. In Re Delhi Laws
Act 1912,204 Justice Fazl Ali summed up the extent and scope of
plenary legislation and delegated legislation, in the following terms:
“32. The conclusions at which I have arrived so far may
now be summed up:
(1) The legislature must normally discharge its primary
legislative function itself and not through others.
(2) Once it is established that it has sovereign powers
within a certain sphere, it must follow as a corollary
that it is free to legislate within that sphere in any
way which appears to it to be the best way to give
effect to its intention and policy in making a particular
law, and that it may utilise any outside agency to any
extent it finds necessary for doing things which it is
unable to do itself or finds it inconvenient to do. In
other words, it can do everything which is ancillary
to and necessary for the full and effective exercise
of its power of legislation.
(3) It cannot abdicate its legislative functions, and
therefore while entrusting power to an outside agency,
it must see that such agency acts as a subordinate
authority and does not become a parallel legislature.
(4) The doctrine of separation of powers and the judicial
interpretation it has received in America ever since
the American Constitution was framed, enables the
American courts to check undue and excessive

204 (1951) SCC 568

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delegation but the courts of this country are not

committed to that doctrine and cannot apply it in
the same way as it has been applied in America.
Therefore, there are only two main checks in this
country on the power of the legislature to delegate,
these being its good sense and the principle that it
should not cross the line beyond which delegation
amounts to “abdication and self-effacement”.
197. In Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. v. Assistant Commissioner
of Sales Tax and others,205 a Constitution Bench of this Court held
that a subordinate legislation is ancillary to the statute. Therefore, the
delegate must enact the subordinate legislation “consistent with the
law under which it is made and cannot go beyond the limits of the
policy and standard laid down in the law.” Since the power delegated
by a statute is limited by its terms, the delegate is expected to “act in
good faith, reasonably, intra vires the power granted and on relevant
consideration of material facts.”206 This Court has to be cognizant of this
distinction. In fact, the doctrine of manifest arbitrariness, as developed
by this Court in Indian Express Newspapers (supra) in the context
of subordinate legislation, was applicable to the extent that “it is so
arbitrary that it could not be said to be in conformity with the statute
or that it offends Article 14 of the Constitution.”207
198. The above discussion shows that manifest arbitrariness of a
subordinate legislation has to be primarily tested vis-a-vis its
conformity with the parent statute. Therefore, in situations where
a subordinate legislation is challenged on the ground of manifest
arbitrariness, this Court will proceed to determine whether the
delegate has failed “to take into account very vital facts which either
expressly or by necessary implication are required to be taken into
consideration by the statute or, say, the Constitution.”208 In contrast,

205 [1974] 2 SCR 879 : (1974) 4 SCC 98

206 Shri Sitaram Sugar Co. Ltd. v. Union of India, (1990) 3 SCC 223
207 In Khoday Distilleries Ltd. V. State of Karnataka, (1996) 10 SCC 304, this Court reiterated Indian Express
Newspapers (supra) by holding that a delegated legislation is manifestly arbitrary if it “could not be
reasonably expected to emanate from an authority delegated with the law-making power.” Similarly, in
State of Tamil Nadu v. P Krishnamurthy, [2006] 3 SCR 396 : (2006) 4 SCC 517 this Court held that
subordinate legislation can be challenged on the ground of manifest arbitrariness to an extent “where the
court might well say that the legislature never intended to give authority to make such rules.”
208 Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, [1985] 2 SCR 287 : (1985) 1 SCC 641
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application of manifest arbitrariness to a plenary legislation passed by

a competent legislation requires the Court to adopt a different standard
because it carries greater immunity than a subordinate legislation.
We concur with Shayara Bano (supra) that a legislative action can
also be tested for being manifestly arbitrary. However, we wish to
clarify that there is, and ought to be, a distinction between plenary
legislation and subordinate legislation when they are challenged for
being manifestly arbitrary.
ii. Validity of Section 154 of the Finance Act 2017 omitting the
first proviso to Section 182 of the Companies Act
199. We now turn to examine the vires of Section 154 of the Finance
Act 2017. The result of the amendment is that: (a) a company, other
than a government company and a company which has been in
existence for less than three financial years, can contribute unlimited
amounts to any political party; and (b) companies, regardless of
the fact whether they are profit making or otherwise, can contribute
funds to political parties. The issue that arises for consideration is
whether the removal of contribution restrictions is manifestly arbitrary
and violates Article 14 of the Constitution.
200. As discussed in the earlier section, this Court has consistently
pointed out the pernicious effect of money on the integrity of the
electoral process in India. The Law Commission of India in its
170th Report also observed that “most business houses already
know where their interest lies and they make their contributions
accordingly to that political party which is likely to advance their
interest more.” 209 This issue becomes particularly problematic
when we look at the avenues through which political parties
accumulate their capital. Section 182 of the 2013 Act is one such
legal provision allowing companies to contribute to political parties.
The question before us is not how political parties expend their
financial resources, but how they acquire their financial resources
in the first instance.
201. The Preamble to the Constitution describes India as a “democratic
republic”: a democracy in which citizens are guaranteed political
equality irrespective of caste and class and where the value of

209 Law Commission of India, 170th Report on the Reform of the Electoral Laws (1999)
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every vote is equal. Democracy does not begin and end with
elections. Democracy sustains because the elected are responsive
to the electors who hold them accountable for their actions and
inactions. Would we remain a democracy if the elected do not
heed to the hue and cry of the needy? We have established the
close relationship between money and politics above where we
explained the importance of money for entry to politics, for winning
elections, and for remaining in power. That being the case, the
question that we ask ourselves is whether the elected would truly
be responsive to the electorate if companies which bring with them
huge finances and engage in quid pro quo arrangements with
parties are permitted to contribute unlimited amounts. The reason
for political contributions by companies is as open as day light.
Even the learned Solicitor General did not deny during the course
of the hearings that corporate donations are made to receive favors
through quid pro quo arrangements.
202. In Kesavananda Bharati v. State of Kerala,210 the majority of this
Court held that “republican and democratic form of government”
form the basic elements of the constitutional structure. Subsequently,
in Indira Nehru Gandhi v. Raj Narain,211 Justice H R Khanna
reiterated that the democratic set up of government is a part of the
basic features of the Constitution. Elections matter in democracy
because they are the most profound expression of the will of the
people. Our parliamentary democracy enables citizens to express
their will through their elected representatives. The integrity of the
electoral process is a necessary concomitant to the maintenance of
the democratic form of government.212
203. This Court has also consistently held that free and fair elections
form an important concomitant of democracy.213 In Kuldip Nayar

210 [1973] Suppl. 1 SCR 1 : (1973) 4 SCC 225

211 [1978] 2 SCR 405 : (1975) Supp SCC 1
212 In Indira Nehru Gandhi v. Raj Narain, [1978] 2 SCR 405 : (1975) Supp SCC 1, Justice Khanna observed
that periodical elections are a necessary postulate of a democratic setup as it allows citizens to elect their
representatives. He further observed that democracy can function “only upon the faith that elections are
free and fair and not rigged and manipulated, that they are effective instruments of ascertaining popular
will both in reality and form and are not mere rituals calculated to generate illusion of defence to mass
opinion.”
213 Digvijay Mote v. Union of India, (1993) 4 SCC 175; Union of India v. Association for Democratic Reforms,
(2002) 5 SCC 294.
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v. Union of India,214 a Constitution Bench of this Court held that

a democratic form of government depends on a free and fair
election system. In People’s Union for Civil Liberties v. Union
of India,215 this Court held that free and fair elections denote equal
opportunity to all people. It was further observed that a free and
fair election is one which is not “rigged and manipulated and the
candidates and their agents are not able to resort to unfair means
and malpractices.”
204. The integrity of the election process is pivotal for sustaining the
democratic form of government. The Constitution also places the
conduct of free and fair elections in India on a high pedestal. To this
purpose, Article 324 puts the Election Commission in charge of the
entire electoral process commencing with the issue of the notification
by the President to the final declaration of the result.216 However,
it is not the sole duty of the Election Commission to secure the
purity and integrity of the electoral process. There is also a positive
constitutional duty on the other organs of the government, including
the legislature, executive and the judiciary, to secure the integrity of
the electoral process.
205. During the course of the arguments, the learned Solicitor General
submitted that the limit of seven and a half percent of the average
net profits in the preceding three financial years was perceived as
a restriction on companies who would want to donate in excess of
the statutory cap. The learned Solicitor General further submitted
that companies who wanted to donate in excess of the statutory cap
would create shell companies and route their contributions through
them. Therefore, it was suggested that the statutory cap was removed
to discourage the creation of shell companies.
206. The limit on restrictions to political parties was incorporated in
Section 293A of the 1956 Act through the Companies (Amendment)
Bill 1985. The original restriction on contribution was five per cent
of a company’s average net profits during the three immediately
preceding financial years. The Lok Sabha debates pertaining to the
Companies Bill furnish an insight into why contribution restrictions

214 [2006] Suppl. 5 SCR 1 : (2006) 7 SCC 1

215 [2013] 12 SCR 283 : (2013) 10 SCC 1
216 Mohinder Singh Gill v. Chief Election Commissioner, [1978] 2 SCR 272 : (1978) 1 SCC 405
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were imposed in the first place. The then Minister of Chemicals and
Fertilizers and Industry and Company Affairs justified the contribution
restrictions, stating that:
“Since companies not having profits should not be
encouraged to make political contributions, monetary
ceiling as an alternative to a certain percentage of profits
for arriving at the permissible amount of political donation
has been done away with.”217
207. Thus, the object behind limiting contributions was to discourage
loss-making companies from contributing to political parties. In 1985,
Parliament prescribed the condition that only companies which
have been in existence for more than three years can contribute.
This condition was also included to prevent loss-making companies
and shell companies from making financial contributions to political
parties. If the ostensible object of the amendment, as contended
by the learned Solicitor General, was to discourage the creation of
shell companies, there is no justification for removing the cap on
contributions which was included for the very same purpose: to deter
shell companies from making political contributions. In fact, when
the proposal to amend Section 182 of the 2013 Act was mooted by
the Government in 2017, the Election Commission of India opposed
the amendment and suggested that the Government reconsider
its decision on the ground that it would open up the possibility of
creating shell companies. The relevant portion of the opinion of the
ECI is reproduced below:
“Certain amendments have been proposed in Section 182
of the Companies Act, where the first proviso has been
omitted and consequently the limit of seven and a half
percent (7.5 %) of the average net profits in the preceding
three financial years on contributions by companies has
been removed from the statute. This opens up the possibility
of shell companies being set up for the sole purpose of
making donations to political parties with no other business
of consequence having disbursable profits.”218

217 Lok Sabha Debates, Companies Bill (16 May 1985).

218 Election Commission of India, Letter dated 26 May 2017, No. 56/PPEMS/Transparency/2017
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208. After the amendment, companies similar to individuals, can make

unlimited contributions and contributions can be made by both profit-
making and loss-making companies to political parties. Thus, in
essence, it could be argued that the amendment is merely removing
classification for the purpose of political contribution between
companies and individuals on the one hand and loss-making and
profit-making companies on the other.
209. The proposition on the principle of manifest arbitrariness culled out
above needs to be recalled. The doctrine of manifest arbitrariness
can be used to strike down a provision where: (a) the legislature
fails to make a classification by recognizing the degrees of harm;
and (b) the purpose is not in consonance with constitutional values.
210. One of the reasons for which companies may contribute to political
parties could be to secure income tax benefit.219 However, companies
have been contributing to political parties much before the Indian
legal regime in 2003 exempted contributions to political parties.
Contributions are made for reasons other than saving on the Income
Tax. The chief reason for corporate funding of political parties is
to influence the political process which may in turn improve the
company’s business performance.220 A company, whatever may
be its form or character, is principally incorporated to carry out the
objects contained in the memorandum. However, the amendment
now allows a company, through its Board of Directors, to contribute
unlimited amounts to political parties without any accountability
and scrutiny. Unlimited contribution by companies to political
parties is antithetical to free and fair elections because it allows
certain persons/companies to wield their clout and resources to
influence policy making. The purpose of Section 182 is to curb
corruption in electoral financing. For instance, the purpose of
banning a Government company from contributing is to prevent
such companies from entering into the political fray by making
contributions to political parties. The amendment to Section 182
by permitting unlimited corporate contributions (including by shell
companies) authorizes unrestrained influence of companies on
the electoral process. This is violative of the principle of free and

219 IT Act, Section 80 GGB

220 Jayantilal Ranchhoddas Koticha v. Tata Iron & Steel Co. Ltd (supra)
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fair elections and political equality captured in the value of “one

person one vote”.
211. The amendment to Section 182 of the Companies Act must be read
along with other provisions on financial contributions to political parties
under the RPA and the IT Act. Neither the RPA nor the IT Act place
a cap on the contributions which can be made by an individual. The
amendment to the Companies Act when viewed along with other
provisions on electoral funding, seek to equalize an individual and
a company for the purposes of electoral funding.
212. The ability of a company to influence the electoral process through
political contributions is much higher when compared to that of an
individual. A company has a much graver influence on the political
process, both in terms of the quantum of money contributed to political
parties and the purpose of making such contributions. Contributions
made by individuals have a degree of support or affiliation to a political
association. However, contributions made by companies are purely
business transactions, made with the intent of securing benefits in
return. In Citizens United v. Federal Election Commission,221
the issue before the Supreme Court of the United States was
whether a corporation can use the general treasury funds to pay
for electioneering communication. The majority held that limitations
on corporate funding bans political speech (through contributions)
based on the corporate identity of the contributor. Justice Steven
writing for the minority on the issue of corporate funding observed
that companies and natural persons cannot be treated alike for the
purposes of political funding:
“In the context of election to public office, the distinction
between corporate and human speakers is significant.
Although they make enormous contributions to our society,
corporations are not actually members of it. They cannot
vote or run for office. Because they may be managed and
controlled by non-residents, their interests may conflict in
fundamental respects with the interests of eligible voters.
The financial resources, legal structure, and instrumental
orientation of corporations raise legitimate concerns about
their role in the electoral process.”

221 558 U.S 310

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213. In view of the above discussion, we are of the opinion that companies
and individuals cannot be equated for the purpose of political
contributions.
214. Further, Companies before the amendment to Section 182 could
only contribute a certain percentage of the net aggregate profits.
The provision classified between loss-making companies and profit-
making companies for the purpose of political contributions and for
good reason. The underlying principle of this distinction was that it is
more plausible that loss-making companies will contribute to political
parties with a quid pro quo and not for the purpose of income tax
benefits. The provision (as amended by the Finance Act 2017) does
not recognize that the harm of contributions by loss-making companies
in the form of quid pro quo is much higher. Thus, the amendment to
Section 182 is also manifestly arbitrary for not making a distinction
between profit-making and loss-making companies for the purposes
of political contributions.
215. Thus, the amendment to Section 182 is manifestly arbitrary for (a)
treating political contributions by companies and individuals alike; (b)
permitting the unregulated influence of companies in the governance
and political process violating the principle of free and fair elections;
and (c) treating contributions made by profit-making and loss-making
companies to political parties alike. The observations made above
must not be construed to mean that the Legislature cannot place
a cap on the contributions made by individuals. The exposition is
that the law must not treat companies and individual contributors
alike because of the variance in the degree of harm on free and
fair elections.
H. Conclusion and Directions
216. In view of the discussion above, the following are our conclusions:
a. The Electoral Bond Scheme, the proviso to Section 29C(1) of the
Representation of the People Act 1951 (as amended by Section
137 of Finance Act 2017), Section 182(3) of the Companies
Act (as amended by Section 154 of the Finance Act 2017),
and Section 13A(b) (as amended by Section 11 of Finance Act
2017) are violative of Article 19(1)(a) and unconstitutional; and
b. The deletion of the proviso to Section 182(1) of the Companies
Act permitting unlimited corporate contributions to political parties
is arbitrary and violative of Article 14.
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217. We direct the disclosure of information on contributions received

by political parties under the Electoral Bond Scheme to give
logical and complete effect to our ruling. On 12 April 2019, this
Court issued an interim order directing that the information of
donations received and donations which will be received must be
submitted by political parties to the ECI in a sealed cover. This
Court directed that political parties submit detailed particulars
of the donors as against each Bond, the amount of each bond
and the full particulars of the credit received against each bond,
namely, the particulars of the bank account to which the amount
has been credited and the date on which each such credit was
made. During the course of the hearing, Mr Amit Sharma, Counsel
for the ECI, stated that the ECI had only collected information on
contributions made in 2019 because a reading of Paragraph 14
of the interim order indicates that the direction was only limited
to contributions made in that year. Paragraphs 13 and 14 of the
interim order are extracted below:
“13. In the above perspective, according to us, the just
and proper interim direction would be to require all the
political parties who have received donations through
Electoral Bonds to submit to the Election Commission of
India in sealed cover, detailed particulars of the donors
as against each bond; the amount of each such bond
and the full particulars of the credit received against
each bond, namely, the particulars of the bank account
to which the amount has been credited and the date of
each such credit.
14. The above details will be furnished forthwith in respect
of Electoral Bonds received by a political party till date.
The details of such other bonds that may be received by
such a political party upto the date fixed for issuing such
bonds as per the Note of the Ministry of Finance dated
28.2.2019, i.e 15.5.2019 will be submitted on or before 30th
May, 2019. The sealed covers will remain in the custody
of the Election Commission of India and will abide by such
orders as may be passed by the Court.”
218. Paragraph 14 of the interim order does not limit the operation of
Paragraph 13. Paragraph 13 contains a direction in unequivocal
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terms to political parties to submit particulars of contributions received

through Electoral Bonds to the ECI. Paragraph 14 only prescribes a
timeline for the submission of particulars on contributions when the
window for Electoral Bond contributions was open in 2019. In view
of the interim direction of this Court, the ECI must have collected
particulars of contributions made to political parties through Electoral
Bonds.
219. In view of our discussion above, the following directions are issued:
a. The issuing bank shall herewith stop the issuance of Electoral
Bonds;
b. SBI shall submit details of the Electoral Bonds purchased since
the interim order of this Court dated 12 April 2019 till date to
the ECI. The details shall include the date of purchase of each
Electoral Bond, the name of the purchaser of the bond and the
denomination of the Electoral Bond purchased;
c. SBI shall submit the details of political parties which have
received contributions through Electoral Bonds since the interim
order of this Court dated 12 April 2019 till date to the ECI. SBI
must disclose details of each Electoral Bond encashed by
political parties which shall include the date of encashment and
the denomination of the Electoral Bond;
d. SBI shall submit the above information to the ECI within three
weeks from the date of this judgment, that is, by 6 March 2024;
e. The ECI shall publish the information shared by the SBI on its
official website within one week of the receipt of the information,
that is, by 13 March 2024; and
f. Electoral Bonds which are within the validity period of fifteen
days but that which have not been encashed by the political
party yet shall be returned by the political party or the
purchaser depending on who is in possession of the bond
to the issuing bank. The issuing bank, upon the return of
the valid bond, shall refund the amount to the purchaser’s
account.
220. Writ petitions are disposed of in terms of the above judgment.
221. Pending applications(s), if any, stand disposed of.
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Association for Democratic Reforms & Anr. v. Union of India & Ors.

ANNEXURE I

Section 29C, Representation of the People Act 1951

Prior to Amendment by the Finance Upon Amendment by Section 137
Act 2017 of the Finance Act, 2017
29C. Declaration of donation Section 29C. Declaration of donation
received by the political parties. - received by the political parties. –
(1) The treasurer of a political (1) The treasurer of a political
party or any other person party or any other person
authorized by the political authorized by the political
party in this behalf shall, in party in this behalf shall, in
each financial year, prepare each financial year, prepare
a report in respect of the a report in respect of the
following, namely; following, namely:
(a) the contribution in excess (a) the contribution in excess
of twenty thousand of twenty thousand
rupees received by such rupees received by such
political party from any political party from any
person in that financial person in that financial
year; year;
(b) the contribution in excess (b) the contribution in excess
of twenty thousand of twenty thousand
rupees received by rupees received by
such political party from such political party from
companies other than companies other than
Government companies Government companies
in that financial year. in that financial year.
(2) The report under sub-section Provided that nothing contained
(1) shall be in such form as in this subsection shall apply
may be prescribed. to the contributions received
by way of an electoral bond.
(3) The report for a financial
Explanation – For the purposes of
year under subsection (1)
this subsection, “electoral bond”
shall be submitted by the
means a bond referred to in the
treasurer of a political party or
Explanation to sub-section (3) of
any other person authorized
section 31 of the Reserve Bank
by the political party in this
of India Act, 1934.
behalf before the due date for
furnishing a return of income (2) The report under sub-section
of that financial year under (1) shall be in such form as
section 139 of the Income-tax may be prescribed.
Act, 1961 (43 of 1961), to the
Election Commission.
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(4) Where the treasurer of any (3) The report for a financial
political party or any other year under subsection
person authorized by the (1) shall be submitted by
political party in this behalf the treasurer of a political
fails to submit a report party or any other person
under sub-section (3) then, authorized by the political
notwithstanding anything party in this behalf before
contained in the Income-tax the due date for furnishing
Act, 1961 (43 of 1961), such a return of income of that
political party shall not be financial year under section
entitled to any tax relief under 139 of the Income-tax Act,
that Act. 1961 (43 of 1961), to the
Election Commission.
(4) Where the treasurer of any
political party or any other
person authorized by the
political party in this behalf
fails to submit a report
under sub-section (3) then,
notwithstanding anything
contained in the Income-tax
Act, 1961 (43 of 1961), such
political party shall not be
entitled to any tax relief under
that Act.
Section 182, Companies Act 2013
Prior to Amendment by the Finance Upon Amendment by Section 154
Act, 2017 of the Finance Act, 2017
182.Prohibitions and restrictions 182.Prohibitions and restrictions
regarding political contributions. regarding political contributions.
1) Notwithstanding anything 1) Notwithstanding anything
contained in any other provision contained in any other provision
of this Act, a company, other of this Act, a company, other
than a Government company than a Government company
and a company which has and a company which has
been in existence for less been in existence for less
than three financial years, than three financial years,
may contribute any amount may contribute any amount
directly or indirectly to any directly or indirectly to any
political party: political party:
[2024] 2 S.C.R.  561

Association for Democratic Reforms & Anr. v. Union of India & Ors.

Provided that the amount referred (First proviso omitted)

to in subsection (1) or, as the case
Provided that no such contribution
may be, the aggregate of the amount
shall be made by a company unless
which may be so contributed by the
a resolution authorising the making
company in any financial year shall
of such contribution is passed at a
not exceed seven and a half per
meeting of the Board of Directors
cent of its average net profits during
and such resolution shall, subject to
the three immediately preceding
the other provisions of this section,
financial years:
be deemed to be justification in law
Provided further that no such for the making of the contribution
contribution shall be made by authorised by it.
a company unless a resolution
authorising the making of such
contribution is passed at a meeting
of the Board of Directors and such
resolution shall, subject to the other
provisions of this section, be deemed
to be justification in law for the
making and the acceptance of the
contribution authorised by it.
Section 182 (3) Every company Section 182 (3) Every company
shall disclose in its profit and loss shall disclose in its profit and
account any amount or amounts loss account the total amount
contributed by it to any political contributed by it under this
party during the financial year to section during the financial year
which that account relates, giving to which the account relates.
particulars of the total amount (3A) Notwithstanding anything
contributed and the name of the contained in subsection (1), the
party to which such amount has contribution under this section shall
been contributed. not be made except by an account
payee cheque drawn on a bank
or an account payee bank draft or
use of electronic clearing system
through a bank account:
Provided that a company may
make contribution through any
instruments, issued pursuant to
any scheme notified under any
law for the time being in force,
for contribution to the political
parties.
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Section 13A, Income Tax Act 1995

Prior to Amendment by the Finance Upon Amendment by Section 11 of
Act, 2017 the Finance Act, 2017
13A. Special provision relating to 13A. Special provision relating to
incomes of political parties incomes of political parties
Any income of a political party Any income of a political party
which is chargeable under the head which is chargeable under the
“Income from house property” or head “Income from house property”
“Income from other sources” or or “Income from other sources” or
any income by way of voluntary any income by way of voluntary
contributions received by a political contributions received by a political
party from any person shall not party from any person shall not
be included in the total income of be included in the total income of
the previous year of such political the previous year of such political
party: party:
Provided that- Provided that-
(a) such political party keeps (a) such political party keeps
and maintains such books of and maintains such books of
account and other documents account and other documents
as would enable the Assessing as would enable the Assessing
Officer to properly deduce its Officer to properly deduce its
income therefrom; income therefrom;
(b) in respect of each such (b) in respect of each such
voluntary contribution in voluntary contribution other
excess of ten thousand than contribution by way
rupees, such political party of electoral bond in excess
keeps and maintains a record of ten thousand rupees, such
of such contribution and the political party keeps and
name and address of the maintains a record of such
person who has made such contribution and the name and
contribution; and address of the person who
has made such contribution;
(c) the accounts of such political
and
party are audited by an
accountant as defined in the (c) the accounts of such political
Explanation below sub- section party are audited by an
(2) of section 288. accountant as defined in
the Explanation below sub-
section (2) of section 288;
and
[2024] 2 S.C.R.  563

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Explanation.- For the purposes of (d) no donation exceeding

this section, “political party” means two thousand rupees is
an association or body of individual received by such political
citizens of India registered with the party otherwise than by an
Election Commission of India as a account payee cheque drawn
political party under paragraph 3 of on a bank or an account
the Election Symbols (Reservation payee bank draft or use of
and Allotment) Order, 1968, and electronic clearing system
includes a political party deemed to through a bank account or
be registered with that Commission through electoral bond.
under the proviso to subparagraph
Explanation.- For the purposes
(2) of that paragraph.
of this proviso, “electoral bond”
means a bond referred to in the
Explanation to sub- section (3) of
section 31 of the Reserve Bank of
India Act, 1934;
Provided also that such political
party furnishes a return of income
for the previous year in accordance
with the provisions of sub-section
(4B) of section 139 on or before the
due date under that section.
Section 31, Reserve Bank of India Act 1931
Prior to Amendment by the Finance Upon Amendment by Section 11 of
Act, 2017 the Finance Act, 2017
31. Issue of demand bills and 31. Issue of demand bills and
notes. notes.
1) No person in India other than 1) No person in India other than
the Bank or, as expressly the Bank or, as expressly
authorized by this Act, the authorized by this Act, the
Central Government shall Central Government shall
d r a w, a c c e p t , m a k e o r d r a w, a c c e p t , m a k e o r
issue any bill of exchange, issue any bill of exchange,
hundi, promissory note or hundi, promissory note or
engagement for the payment engagement for the payment
of money payable to bearer of money payable to bearer
on demand, or borrow, owe on demand, or borrow, owe
or take up any sum or sums or take up any sum or sums
of money on the bills, hundis of money on the bills, hundis
or notes payable to bearer on or notes payable to bearer on
demand of any such person: demand of any such person:
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Provided that cheques or drafts, Provided that cheques or drafts,

including hundis, payable to bearer including hundis, payable to bearer
on demand or otherwise may be on demand or otherwise may be
drawn on a person’s account with drawn on a person’s account with
a banker, shroff or agent. a banker, shroff or agent.
2) Notwithstanding anything 2) Notwithstanding anything
contained in the Negotiable contained in the Negotiable
Instruments Act, 1881, no Instruments Act, 1881, no
person in India other than person in India other than
the Bank or, as expressly the Bank or, as expressly
authorised by this Act, the authorised by this Act, the
Central Government shall Central Government shall
make or issue any promissory make or issue any promissory
note expressed to be payable note expressed to be payable
to the bearer of the instrument. to the bearer of the instrument.
3) Notwithstanding anything
contained in this section,
the Central Government may
authorise any scheduled
bank to issue electoral bond
Explanation.-For the purposes
of this subsection, ‘electoral
bond’ means a bond issued by
any scheduled bank under the
scheme as may be notified by the
Central Government.
[2024] 2 S.C.R.  565

Association for Democratic Reforms & Anr. v. Union of India & Ors.

ANNEXURE II
Conduct of Elections Rules, 1961
(Statutory Rules and Order)
[FORM 24A
222

(See rule 85B)

[This form should be filed with the Election Commission before the
due date for furnishing a return of the Political Party’s income of the
concerned financial year under section 139 of the Income-tax Act,
1961 (43 of 1961) and a certificate to this effect should be attached
with the Income-tax return to claim exemption under the Income-tax
Act, 1961 (43 of 1961).]
1. Name of Political Party:
2. Status of the Political Party:
(recognised/unrecognised)
3. Address of the headquarters of the Political Party:
4. Date of registration of Political Party with Election
Commission:
5. Permanent Account Number (PAN) and Income-tax Ward/
Circle where return of the political party is filed:_______
6. Details of the contributions received, in excess of rupees
twenty thousand, during the Financial Year:20 – . –20 .

Serial Name and PAN (if Amount of Mode of Remarks

number complete any_ and contribution contribution
address Income-Tax (Rs.) *(cheque/
of the Ward/Circle demand
contributing draft/cash)
person/
company

222 Ins. By Notifin. No. S.O. 1283(E), dated the 10th November, 2003.
566 [2024] 2 S.C.R.

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*In case of payment by cheque/demand draft, indicate name of the

bank and branch of the bank on which the cheque/demand draft
has been drawn.
7. In case the contributor is a company, whether the conditions
laid down under section 293A of the Companies Act, 1956 (1
of 1956) have been complied with (A copy of the certificate
to this obtained from the company should be attached).
Verification
I,______________________________(full name in Block letters),
son/daughter of ___________________________solemnly declare
that to the best of my knowledge and belief, the information given
in this Form is correct, complete and truly stated.
I further declare that I am verifying this form in my capacity as
______________________on behalf of the Political Party above
named and I am also competent to do so.

(Signature and name of the Treasurer/Authorised person)]

Date:____________________
Place:____________________
[2024] 2 S.C.R.  567

Association for Democratic Reforms & Anr. v. Union of India & Ors.

Sanjiv Khanna, J.
I have had the benefit of perusing the judgment authored by Dr. D.Y.
Chandrachud, the Hon’ble Chief Justice. I respectfully agree with the
findings and conclusions recorded therein. However, since my reasoning
is different to arrive at the same conclusion, including application of the
doctrine of proportionality, I am penning down my separate opinion.
2. To avoid prolixity, the contentions of the parties are not referred to
separately and the facts are narrated in brief.
3. Corporate funding of political parties has been a contentious issue
with the legislature’s approach varying from time to time. The
amendments to the Companies Act, 1956 reveal the spectrum of
views of the legislature. It began with regulations and restrictions in
19601 to a complete ban on contributions to political parties in 19692.
The ban was partially lifted in 1985 with restrictions and stipulations.3
The aggregate amount contributed to a political party in a financial
year could not exceed 5% of the average net profit during the three
immediately preceding financial years.4 A new condition stipulated
that the board of directors5 in their meeting would pass a resolution
giving legitimacy and authorisation to contributions to a political party.6
4. The Companies Act of 2013 replaced the Companies Act of 1956.
Section 182(1) of the Companies Act, 20137 permitted contributions
by companies of any amount to any political party, if the said company
had been in existence for more than three immediately preceding
financial years and is not a government company. The requirement
of authorisation vide Board resolution is retained.8 The cap of 5%
is enhanced to 7.5% of the average net profits during the three

1 The Companies (Amendment) Act 1960, s 100 inserted into the Companies Act 1956, s 293A which
stipulates that contributions to political parties cannot exceed 5% of the average net profit of the company
during the three immediately preceding financial years.
2 The Companies (Amendment) Act 1969, s 3 substituted of the Companies Act 1956, s 293A introducing
a ban on contributions to political parties.
3 The Companies (Amendment) Act 1985, s 2 replaced of the Companies Act 1956, s 293A bringing back
the 5% cap on contributions to political parties.
4 The Companies Act 1956, s 293A.
5 For short, the “Board”.
6 Second proviso to Section 293A(2), Companies Act, 1956.
7 As originally enacted.
8 Unamended second proviso to Section 182(1) of the Companies Act, 2013. This condition continues to
remain.
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immediately preceding financial years.9 It is also mandated that

the company must disclose the amount contributed by it to political
parties in the profit and loss account, including particulars of name
of political party and the amount contributed.10 In case of violation
of the terms, penalties stand prescribed.
5. The Finance Act, 2017 made several amendments to the Companies
Act, 2013, Income Tax Act, 1961, Reserve Bank of India11 Act,
1934, the Representation of the People Act, 1951, and the Foreign
Contribution Regulation Act, 2010. These changes were brought
in to allow contributions/donations through Electoral Bonds12. The
changes made by the Finance Act, 2017 to these legislations were
provided in a tabular format by the petitioners. For clarity, I have
reproduced the table below. The specific changes are highlighted
in bold and italics for ease of reference:
Section 182 of the Companies Act, 2013
Prior to Amendment by the Finance Post Amendment by Section 154 of the
Act, 2017 Finance Act, 2017
182. Prohibitions and restrictions 182. Prohibitions and restrictions
regarding political contributions- regarding political contributions-
(1) Notwithstanding anything contained (1) Notwithstanding anything contained
in any other provision of this Act, a in any other provision of this Act, a
company, other than a Government company, other than a Government
company and a company which has company and a company which has
been in existence for less than three been in existence for less than three
financial years, may contribute any financial years, may contribute any
amount directly or indirectly to any amount directly or indirectly to any
political party: political party:
Provided that the amount referred [First proviso omitted]
to in sub-section (1) or, as the case
may be, the aggregate of the amount
which may be so contributed by the
company in any financial year shall
not exceed seven and a half per
cent of its average net profits during
the three immediately preceding
financial years:

9 Unamended first proviso to Section 182(1) of the Companies Act, 2013.

10 Unamended Section 182(3) of the Companies Act, 2013.
11 For short, “RBI”.
12 For short, “Bonds”.
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Association for Democratic Reforms & Anr. v. Union of India & Ors.

Provided further that no such Provided that no such contribution

contribution shall be made by a company shall be made by a company unless
unless a resolution authorising the a resolution authorising the making of
making of such contribution is passed such contribution is passed at a meeting
at a meeting of the Board of Directors of the Board of Directors and such
and such resolution shall, subject to resolution shall, subject to the other
the other provisions of this section, provisions of this section, be deemed
be deemed to be justification in law to be justification in law for the making
for the making and the acceptance of of the contribution authorised by it.
the contribution authorised by it.
182 (3) Every company shall disclose 182 (3) Every company shall disclose
in its profit and loss account any in its profit and loss account the total
amount or amounts contributed amount contributed by it under this
by it to any political party during the section during the financial year to
financial year to which that account which the account relates.
relates, giving particulars of the
(3A) Notwithstanding anything
total amount contributed and the
contained in sub-section (1), the
name of the party to which such
contribution under this section shall
amount has been contributed.
not be made except by an account
payee cheque drawn on a bank or an
account payee bank draft or use of
electronic clearing system through
a bank account:
Provided that a company may make
contribution through any instrument,
issued pursuant to any scheme
notified under any law for the time
being in force, for contribution to the
political parties.

Section 13-A of the Income Tax Act, 1961

Prior to Amendment by the Finance Post Amendment by Section 11 of the
Act, 2017 Finance Act, 2017
13-A. Special provision relating to 13-A. Special provision relating to
incomes of political parties.— Any incomes of political parties.— Any
income of a political party which is income of a political party which is
chargeable under the head “Income chargeable under the head “Income
from house property” or “Income from house property” or “Income
from other sources” or “capital gains from other sources” or “capital gains
or” any income by way of voluntary or” any income by way of voluntary
contributions received by a political contributions received by a political
party from any person shall not be party from any person shall not be
included in the total income of the included in the total income of the
previous year of such political party: previous year of such political party:
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Provided that— Provided that—

(a) such political party keeps and (a) such political party keeps and
maintains such books of account and maintains such books of account and
other documents as would enable the other documents as would enable the
Assessing Officer to properly deduce Assessing Officer to properly deduce
its income therefrom; its income therefrom;
(b) in respect of each such voluntary (b) in respect of each such voluntary
contribution in excess of twenty contribution other than contribution
thousand rupees, such political party by way of electoral bond in excess of
keeps and maintains a record of twenty thousand rupees, such political
such contribution and the name and party keeps and maintains a record of
address of the person who has made such contribution and the name and
such contribution; and address of the person who has made
such contribution;
(c) the accounts of such political
party are audited by an accountant (c) the accounts of such political party
as defined in the Explanation below are audited by an accountant as defined
sub-section (2) of Section 288: in the Explanation below sub-section
(2) of Section 288 and:
Provided further that if the Treasurer of
such political party or any other person (d) no donation exceeding two
authorised by that political party in this thousand rupees is received by such
behalf fails to submit a report under political party otherwise than by an
sub-section (3) of Section 29-C of account payee cheque drawn on a
the Representation of the People Act, bank or an account payee bank draft
1951 (43 of 1951) for a financial year, or use of electronic clearing system
no exemption under this section shall through a bank account or through
be available for that political party for electoral bond.
such financial year.
Explanation.— For the purposes of this
Explanation.—For the purposes of proviso, “electoral bond” means a
this section, “political party” means a bond referred to in the Explanation
political party registered under Section to sub-section (3) of Section 31 of
29-A of the Representation of the the Reserve Bank of India Act, 1934
People Act, 1951 (43 of 1951). (2 of 1934).
Provided further that if the Treasurer of
such political party or any other person
authorised by that political party in this
behalf fails to submit a report under
sub-section (3) of Section 29-C of
the Representation of the People Act,
1951 (43 of 1951) for a financial year,
no exemption under this section shall
be available for that political party for
such financial year.
[2024] 2 S.C.R.  571

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Provided also that such political party

furnishes a return of income for the
previous year in accordance with
the provisions of sub-section (4B) of
Section 139 on or before the due date
under that section.
Explanation.—For the purposes of
this section, “political party” means a
political party registered under Section
29-A of the Representation of the
People Act, 1951 (43 of 1951).

Section 31 of the Reserve Bank of India Act, 1934

Prior to Amendment by the Finance Post Amendment by Section 135 of
Act 2017 the Finance Act 2017
Section 31. Issue of demand bills Section 31. Issue of demand bills and
and notes.— notes.—
(1) No person in India other than the (1) No person in India other than the
Bank, or, as expressly authorized by Bank, or, as expressly authorized by
this Act the Central Government shall this Act the Central Government shall
draw, accept, make or issue any bill draw, accept, make or issue any bill
of exchange, hundi, promissory note of exchange, hundi, promissory note
or engagement for the payment of or engagement for the payment of
money payable to bearer on demand, money payable to bearer on demand,
or borrow, owe or take up any sum or or borrow, owe or take up any sum or
sums of money on the bills, hundis or sums of money on the bills, hundis or
notes payable to bearer on demand notes payable to bearer on demand of
of any such person: any such person:
Provided that cheques or drafts, Provided that cheques or drafts,
including hundis, payable to bearer on including hundis, payable to bearer on
demand or otherwise may be drawn demand or otherwise may be drawn
on a person’s account with a banker, on a person’s account with a banker,
shroff or agent. shroff or agent.
(2) Notwithstanding anything contained 2) Notwithstanding anything contained
in the Negotiable Instruments Act, in the Negotiable Instruments Act,
1881 (26 of 1881), no person in India 1881 (26 of 1881), no person in India
other than the Bank or, as expressly other than the Bank or, as expressly
authorised by this Act, the Central authorised by this Act, the Central
Government shall make or issue Government shall make or issue
any promissory note expressed to any promissory note expressed to
be payable to the bearer of the be payable to the bearer of the
instrument. instrument.
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(3) Notwithstanding anything

contained in this section, the Central
Government may authorise any
scheduled bank to issue electoral
bond.
Explanation.— For the purposes of
this sub-section, “electroal bond”
means a bond issued by any
scheduled bank under the scheme
as may be notified by the Central
Government.

Section 29-C of the Representation of the People Act 1951

Prior to Amendment by the Finance Post Amendment by Section 137 of
Act 2017 the Finance Act 2017
29-C. Declaration of donation received 29-C. Declaration of donation received
by the political parties.— by the political parties.—
(1) The treasurer of the political party (1) The treasurer of the political party
or any other person authorised by the or any other person authorised by the
political party in this behalf shall, in political party in this behalf shall, in
each financial year, prepare a report each financial year, prepare a report
in respect of the following, namely:— in respect of the following, namely:—
(a) the contribution in excess of twenty (a) the contribution in excess of twenty
thousand rupees received by such thousand rupees received by such
political party from any person in that political party from any person in that
financial year; financial year;
(b) the contribution in excess of twenty (b) the contribution in excess of twenty
thousand rupees received by such thousand rupees received by such
political party from companies other political party from companies other
than Government companies in that than Government companies in that
financial year. financial year.
(2) The report under sub-section Provided that nothing contained in
(1) shall be in such form as may be this sub-section shall apply to the
prescribed. contributions received by way of an
electoral bond.
(3) The report for a financial year under
sub-section (1) shall be submitted by Explanation.— For the purposes of
the treasurer of a political party or this sub-section, “electoral bond”
any other person authorised by the means a bond referred to in the
political party in this behalf before Explanation to sub-section (3) of
the due date for furnishing a return Section 31 of the Reserve Bank of
of its income of that financial year India Act, 1934 (2 of 1934).
under Section 139 of the Income
(2) The report under sub-section (1) shall
Tax, 1961 (43 of 1961) to the Election
be in such form as may be prescribed.
Commission.
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(4) Where the treasurer of any political (3) The report for a financial year under
party or any other person authorised sub-section (1) shall be submitted by
by the political party in this behalf fails the treasurer of a political party or
to submit a report under sub-section any other person authorised by the
(3), then, notwithstanding anything political party in this behalf before
contained in the Income Tax Act, 1961 the due date for furnishing a return
(43 of 1961), such political party shall of its income of that financial year
not be entitled to any tax relief under under Section 139 of the Income Tax,
that Act. 1961 (43 of 1961) to the Election
Commission.
(4) Where the treasurer of any political
party or any other person authorised
by the political party in this behalf fails
to submit a report under sub-section
(3), then, notwithstanding anything
contained in the Income Tax Act, 1961
(43 of 1961), such political party shall
not be entitled to any tax relief under
that Act.

Section 2 of the Foreign Contribution Regulation Act, 2010

Prior to Amendment by the Finance Post Amendment by Section 236 the
Act 2017 Finance Act 2017
Section 2 (1) (j) Section 2 (1) (j)
(j) “foreign source” includes,— (j) “foreign source” includes,—
(i) the Government of any foreign (i) the Government of any foreign
country or territory and any agency country or territory and any agency of
of such Government; such Government;
(ii) any international agency, not (ii) any international agency, not
being the United Nations or any of being the United Nations or any of
its specialised agencies, the World its specialised agencies, the World
Bank, International Monetary Fund Bank, International Monetary Fund
or such other agency as the Central or such other agency as the Central
Government may, by notification, Government may, by notification,
specify in this behalf; specify in this behalf;
(iii) a foreign company; (iii) a foreign company;
(iv) a corporation, not being a foreign (iv) a corporation, not being a foreign
company, incorporated in a foreign company, incorporated in a foreign
country or territory; country or territory;
(v) a multi-national corporation referred (v) a multi-national corporation referred
to in sub-clause (iv) of clause (g); to in sub-clause (iv) of clause (g);
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(vi) a company within the meaning of (vi) a company within the meaning of
the Companies Act, 1956 (1 of 1956), the Companies Act, 1956 (1 of 1956),
and more than one-half of the nominal and more than one-half of the nominal
value of its share capital is held, either value of its share capital is held, either
singly or in the aggregate, by one or singly or in the aggregate, by one or
more of the following, namely— more of the following, namely—
(A) the Government of a foreign (A) the Government of a foreign country
country or territory; or territory;
(B) the citizens of a foreign country (B) the citizens of a foreign country or
or territory; territory;
(C) corporations incorporated in a (C) corporations incorporated in a
foreign country or territory; foreign country or territory;
(D) trusts, societies or other (D) trusts, societies or other associations
associations of individuals (whether of individuals (whether incorporated or
incorporated or not), formed or not), formed or registered in a foreign
registered in a foreign country or country or territory;
territory;
(E) foreign company;
(E) foreign company;
Provided that where the nominal
value of share capital is within the
limits specified for foreign investment
under the Foreign Exchange
Management Act, 1999 (42 of 1999),
or the rules or regulations made
thereunder, then, notwithstanding
the nominal value of share capital of
a company being more than one-half
of such value at the time of making
the contribution, such company shall
not be a foreign source.

6. The amended Companies Act, 2013 removes the cap on corporate

funding.13 The requirement that the contribution will require a resolution
passed at the meeting of the Board is retained. In the profit and loss
account, a company is now only required to disclose the total amount
contributed to political parties in a financial year.14 The requirement
to disclose the specific amounts contributed and the names of the
political parties is omitted. Section 182(3A), as introduced, stipulates
that the company could contribute to a political party only by way

13 First proviso to Section 182(1), Companies Act, 2013 has been omitted vide the Finance Act, 2017.
14 Section 182(3) of the Companies Act, 2013.
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of a cheque, Electronic Clearing System15, or demand draft.16 The

proviso to Section 182(3A) permits a company to contribute through
any instrument issued pursuant to any scheme notified under the
law, for the time being in force, for contribution to political parties.
7. Section 13A of the Income Tax Act, 1961,17 exempts income of political
parties, including financial contributions and investments, from income
tax. The object of providing a tax exemption is to increase the funds
of political parties from legitimate sources. However, conditions
imposed require political parties to maintain books of accounts and
other documents to enable the assessing officer to properly deduce
their income.18 Political parties are required to maintain records of the
name and addresses of persons who make voluntary contributions in
excess of Rs.20,000/-.19 Accounts of the political parties are required
to be audited.20
8. In 2003, Section 80GGB and 80GGC were inserted in the Income
Tax Act, 1961, permitting contributions to political parties. These
contributions are tax deductible, though they are not expenditure for
purposes of business, to incentivise contributions through banking
channels.21
9. By the Finance Act, 2017, Section 13A of the Income Tax Act, 1961,
was amended. Section 13A now stipulates that a political party is
not required to maintain a record of the contributions received by
Bonds.22 Further, donations over Rs.2,000/- are only permitted through
cheques, bank drafts, ECS or Bonds.23
10. Section 29C of the Representation of the People Act, 1951 was
introduced in 2003.24 The section requires each political party to
file a report for all contributions over Rs.20,000/- to the Election

15 For short, “ECS”.

16 Section 182(3A) of the Companies Act, 2013 was introduced vide Section 154 of the Finance Act, 2017.
17 As amended in 1978.
18 First proviso 1(a) to the unamended Section 13A of the Income Tax Act, 1961.
19 Second proviso to the unamended Section 13A of the Income Tax Act, 1961.
20 Third proviso to Section 13A Income Tax Act, 1961.
21 See Section 37 of the Income Tax Act, 1961.
22 Second proviso to Section 13A of the Income Tax Act, 1961.
23 Fourth proviso to Section 13A of the Income Tax Act, 1961.
24 Introduced vide Section 2, Election and Other Related Laws (Amendment) Act, 2003.
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Commission of India.25 The report is required to be filed before the

due date of filing income tax returns of the financial year under
the Income Tax Act, 1961. Failure to submit a report disentitles a
political party from any tax relief, as provided under the Income
Tax Act, 1961. Section 29C of the Finance Act, 2017, as amended,
stipulates that political parties are not required to disclose the details
of contributions received by Bonds.26
11. Section 31(3) of the RBI Act, 1934 was added by the Finance Act,
2017 to effectuate the issuance of the Bonds which, as envisaged,
are not to mention the name of the political party to whom they are
payable, and hence are in the nature of bearer demand bill or note.
12. On 02.01.2018, the Department of Economic Affairs, Ministry of Finance,
notified the Electoral Bonds Scheme, 201827 in terms of Section 31(3)
of the RBI Act, 1934.28 The salient features of this Scheme are:
⇒ Bonds are in the nature of a promissory note and bearer
instrument.29 They do not carry the name of the buyer or payee.30
⇒ Bonds can be purchased by any ‘person’31 who is a citizen of
India or who is a body corporate incorporated or established in
India.32 Any ‘person’ who is an individual can purchase Bonds
either singly or jointly with other individuals.33
⇒ Bonds are to be issued in denominations of Rs.1,000/-,
Rs.10,000/-, Rs.1,00,000/-, Rs.10,00,000/- and Rs.1,00,00,000/-.34
They are valid for a period of 15 days from the date of issue.35
The amount of Bonds not encashed within the validity period

25 For short, “ECI”.

26 Proviso to Section 29C(1) of the Representation of the People Act, 1951.
27 For short, “the Scheme”.
28 Finance Act, 2017 has also amended and added Section 31(3) to the RBI Act, 1934 as the Bonds in
question are bearer bonds like Indian currency. However, we do not think this amendment is required to
be separately adjudicated as it merely effectuates the Bonds scheme.
29 Paragraph 2(a) of the Scheme.
30 Ibid.
31 Paragraph 2(d) of the Scheme defines a ‘person’ to include an individual, Hindu undivided family,
company, firm, an association of persons or body of individuals, whether incorporated or not. It also
includes every artificial judicial person and any agency, office or branch owned by such ‘person’.
32 Paragraph 3(1) of the Scheme.
33 Paragraph 3(2) of the Scheme.
34 Paragraph 5 of the Scheme.
35 Paragraph 6 of the Scheme.
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of 15 days, would be deposited by the authorised bank to the

Prime Minister Relief Fund.36
⇒ The Bond is non-refundable.37
⇒ A ‘person’ who wishes to purchase a Bond is required to apply
in the specified format.38 Non-compliant applications are to be
rejected.
⇒ To purchase Bonds, a buyer is required to apply to the authorised
bank.39 RBI’s Know Your Customer40 requirements apply and
the authorised bank could ask for additional KYC documents,
if necessary.41
⇒ The payments for the issuance of Bonds are required to be
made in Indian rupees through demand draft, cheque, ECS or
direct debit to the buyer’s account.42
⇒ The identity and information furnished by the buyer for the
issuance of Bonds is to be treated as confidential by the
authorised issuing bank.43 The details, including identity, can
be disclosed only when demanded by a competent court or on
registration of any criminal case by any law enforcement agency.44
⇒ Only eligible political parties, meaning a party that is registered
under Section 29A of the Representation of the People Act, 1951,
and has secured not less than 1% of the votes polled in the
last general election to the House of People or the Legislative
Assembly, can receive a Bond.45
⇒ The eligible political party can encash the Bond through their
bank account in the authorised bank.46

36 Paragraph 12(2) of the Scheme.

37 Paragraph 7(6) of the Scheme.
38 Paragraph 7 of the Scheme.
39 Paragraph 2(b) of the Scheme defines an authorized bank as the State Bank of India and its specified
branches.
40 For short, “KYC”.
41 Paragraph 4 of the Scheme.
42 Paragraph 11 of the Scheme.
43 Paragraph 7(4) of the Scheme.
44 Ibid.
45 Paragraph 3(3) of the Scheme.
46 Paragraph 3(4) of the Scheme.
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⇒ The Bonds are made available for purchase for a period of 10

days every quarter, in the months of January, April, July and
October, as may be specified by the Central Government.47
They are also made available for an additional period of 30
days, as specified by the central government in a year where
general elections to the House of People are held.48
⇒ The Bonds are not eligible for trading, 49 and commission,
brokerage or other charges are not chargeable/payable for
issuance of a Bond.50
⇒ The value of the Bond is considered as income by way of
voluntary contributions to eligible political parties for the
purposes of tax exemption under Section 13A of the Income
Tax Act, 1961.51
13. In the afore-mentioned writ petitions filed under Article 32 of the
Constitution of India,52 the petitioners are seeking a declaration that
the Scheme and the relevant amendments made by the Finance Act,
2017, are unconstitutional.
14. The question of the constitutional validity of the Scheme and the
amendments introduced by the Finance Act, 2017 are being examined
by us. The question of introducing these amendments through a money
bill under Article 110 of the Constitution is not being examined by us.53
The scope of Article 110 of the Constitution has been referred to a
seven-judge Bench and is sub-judice.54 Further, a batch of petitions
challenging the amendments to the Foreign Contribution Regulation
Act, 2010 by the Finance Acts of 2016 and 2018 are pending. The
challenge to the said amendments is not being decided by us.
15. I fully agree with the Hon’ble Chief Justice, that the Scheme cannot
be tested on the parameters applicable to economic policy. Matters of

47 Paragraph 8(1) of the Scheme.

48 Paragraph 8(2) of the Scheme.
49 Paragraph 14 of the Scheme.
50 Paragraph 12 of the Scheme.
51 Paragraph 13 of the Scheme.
52 For short, “the Constitution”.
53 The Finance Act, 2017 was introduced and passed as a money bill by the Parliament under Article 110
of the Constitution.
54 Rojer Matthew v. South Indian Bank Ltd. and Ors., [2019] 16 SCR 1 : Civil Appeal No. 8588 of 2019.
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economic policy normally pertain to trade, business and commerce,

whereas contributions to political parties relate to the democratic
polity, citizens’ right to know and accountability in our democracy.
The primary objective of the Scheme, and relevant amendments
introduced by the Finance Act, 2017, is electoral reform and not
economic reform. Thus, the dictum and the principles enunciated
by this Court in Swiss Ribbons (P.) Ltd. and Another v. Union of
India and Others,55 and Pioneer Urban Land and Infrastructure
and Another v. Union of India and Others,56 relating to judicial
review on economic policy matters have no application to the present
case. To give the legislation the latitude of economic policy, we will be
diluting the principle of free and fair elections. Clearly, the importance
of the issue and the nexus between money and electoral democracy
requires us to undertake an in-depth review, albeit under the settled
powers of judicial review.
16. Even otherwise, it is wrong to state as a principle that judicial review
cannot be exercised over every matter pertaining to economic policy.57
The law is that the legislature has to be given latitude in matters
of economic policy as they involve complex financial issues.58 The
degree of deference to be shown by the court while exercising the
power of judicial review cannot be put in a straitjacket.
17. On the question of burden of proof, I respectfully agree with the
observations made by the Hon’ble Chief Justice, that once the
petitioners are able to prima facie establish a breach of a fundamental
right, then the onus is on the State to show that the right limiting
measure pursues a proper purpose, has rational nexus with that
purpose, the means adopted were necessary for achieving that
purpose, and lastly proper balance has been incorporated.
18. The doctrine of presumption of constitutionality has its limitations
when we apply the test of proportionality. In a way the structured
proportionality places an obligation on the State at a higher level, as
it is a polycentric examination, both empirical and normative. While

55 [2019] 3 SCR 535 : (2019) 4 SCC 17.

56 [2019] 10 SCR 381 : (2019) 8 SCC 416.
57 R.K. Garg v. Union of India and Others, (1981) 4 SCC 675.
58 Ibid. See also Bhavesh D. Parish and Others v. Union of India and Others, (2000) 5 SCC 471, and
Directorate General of Foreign Trade and Others v. Kanak Exports and Another, [2015] 15 SCR 287 :
(2016) 2 SCC 226.
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the courts do not pass a value judgment on contested questions of

policy, and give weight and deference to the government decision
by acknowledging the legislature’s expertise to determine complex
factual issues, the proportionality test is not based on preconceived
notion or presumption. The standard of proof is a civil standard or a
balance of probabilities;59 where scientific or social science evidence
is available, it is examined; and where such evidence is inconclusive
or does not exist and cannot be developed, reason and logic may
suffice.60
19. The right to vote is a constitutional and statutory right,61 grounded in
Article 19(1)(a) of the Constitution, as the casting of a vote amounts
to expression of an opinion by the voter.62 The citizens’ right to know
stems from this very right, as meaningfully exercising choice by
voting requires information. Representatives elected as a result of the
votes cast in their favour, enact new, and amend existing laws, and
when in power, take policy decisions. Access to information which
can materially shape the citizens’ choice is necessary for them to
have a say in how their lives are affected. Thus, the right to know
is paramount for free and fair elections and democracy.
20. The decisions in Association for Democratic Reforms (supra) and
People’s Union of Civil Liberties (PUCL) (supra) should not be
read as restricting the right to know the antecedents of a candidate
contesting the elections.63 The political parties select candidates who
contest elections on the symbol allotted to the respective political
parties64. Upon nomination, the candidates enjoy the patronage of
the political parties, and are financed by them. The voters elect a
candidate with the objective that the candidate’s political party will
come to power and fulfil the promises.

59 R. v. Oakes, [1986] 1 SCR 103.

60 See Libman v. Quebec (A.G.), [1997] 3 SCR 569; RJR-MacDonald Inc. v. Canada (Attorney
General), [1995] 3 SCR 199; Thomson Newspapers Co. v. Canada (A.G.), [1998] 1 S.C.R. 877; R.
v. Sharpe, [2001] 1 SCR 45; Harper v. Canada (A.G.), [2004] 1 SCR 827, at paragraph 77; R. v.
Bryan, [2007] 1 SCR 527, at paragraphs 16-19, 29; Mounted Police Association of Ontario v. Canada
(Attorney General), [2015] 1 SCR 3, at paragraphs 143-144.
61 Article 326, Constitution.
62 Union of India v. Association for Democratic Reforms and Another, [2002] 3 SCR 696 : (2002) 5 SCC
294, and People’s Union of Civil Liberties (PUCL) and Another v. Union of India and Another, [2003] 2
SCR 1136 : (2003) 4 SCC 399.
63 Ibid.
64 The Representation of the People Act, 1951 permits candidates not set up by a recognized political party,
that is independent candidates, to contest elections as well.
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21. The Hon’ble Chief Justice has referred to the Tenth Schedule of
the Constitution. The Schedule incorporates a provision for the
disqualification of candidates on the ground of defection, which
reflects the importance of political parties in our democracy. Section
77 of the Representation of the People Act, 1951, requires monetary
limits to be prescribed for expenditures incurred by candidates.65 As
political parties are at the helm of the electoral process, including its
finances, the argument that the right of the voter does not extend to
knowing the funding of political parties and is restricted to antecedents
of candidates, will lead to an incongruity. I, respectfully, agree with
Hon’ble the Chief Justice, that denying voters the right to know the
details of funding of political parties would lead to a dichotomous
situation. The funding of political parties cannot be treated differently
from that of the candidates who contest elections.66
22. Democratic legitimacy is drawn not only from representative democracy
but also through the maintenance of an efficient participatory
democracy. In the absence of fair and effective participation of all
stakeholders, the notion of representation in a democracy would be
rendered hollow. In a democratic set-up, public participation is meant
to fulfil three functions; the epistemic function of ensuring reasonably
sound decisions,67 the ethical function of advancing mutual respect
among citizens, and the democratic function of promoting “an inclusive
process of collective choice”.68 James Fishkin lists five criteria which
define the quality of a deliberative process.69 These are:
¾ Information (the extent to which participants are given access
to accurate and reliable information);

65 Under Explanation 1 to Section 77 of the Representation of the People Act, 1951, the expenditure
incurred by ‘leaders of political parties’ on account of travel for propagating the programme of the political
party, is not deemed to be election expenditure.
66 See observations of this court in Kanwar Lal Gupta v. Amar Nath Chawla & Ors., [1975] 2 SCR 259 :
(1975) 3 SCC 646.
67 This function is elaborated as to “produce preferences, opinions, and decisions that are appropriately
informed by facts and logic and are the outcome of substantive and meaningful consideration of relevant
reasons(...). Because the topics of these deliberations are issues of common concern, epistemically
well-grounded preferences, opinions, and decisions must be informed by, and take into consideration,
the preferences and opinions of fellow citizens”, Jane Mansbridge and others, ‘A Systemic Approach to
Deliberative Democracy’ in John Parkinson and Jane Mansbridge (eds), Deliberative Systems (1st edn,
Cambridge University Press 2012) 11.
68 Ibid at 12.
69 James S Fishkin, When the People Speak: Deliberative Democracy and Public Consultation (Oxford
University Press 2011) 33– 34.
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¾ Substantive balance (the extent to which arguments offered by

one side are answered by considerations offered by those who
hold other perspectives);
¾ Diversity (the extent to which major positions in the public are
represented by participants);
¾ Conscientiousness, (the degree to which participants sincerely
weigh the merits of the arguments); and
¾ Equal consideration (the extent to which arguments offered by
all participants are considered on its merits regardless of who
offered them).70
23. The State has contested the writ petitions primarily on three grounds:
(i) Donors of a political party often apprehend retribution from other
political parties or actors and thus their identities should remain
anonymous. The Bonds uphold the right to privacy of donors
by providing confidentiality. Further, donating money to one’s
preferred political party is a matter of self-expression by the
donor. Therefore, revealing the identity invades the informational
privacy of donors protected by the Constitution.71 The identity
of the donor can be revealed in exceptional cases, for instance
on directions of a competent court, or registration of a criminal
case by any law enforcement agency.72
(ii) The Scheme, by incentivising banking channels and providing
confidentiality, checks the use of black or unaccounted money
in political contributions.73
(iii) The Scheme is an improvement to the prior legal framework. It
has inbuilt safeguards such as compliance of donors with KYC
norms, bearer bonds having a limited validity of fifteen days
and recipients belonging to a recognised political party that
has secured more than 1% votes in the last general elections.
24. Hon’ble the Chief Justice has rejected the Union of India’s submissions
by applying the doctrine of proportionality. This is a principle applied

70 This is equally important from the perspective of the test of proportionality.

71 See K.S. Puttaswamy and Anr. v. Union of India and Ors. (9J) (Privacy), (2017) 10 SCC 1.
72 Paragraph 7(4) of the Scheme.
73 See Arun Jaitley, ‘Why Electoral Bonds Are Necessary’, Press Information Bureau, 2018.
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by courts when they exercise their power of judicial review in cases

involving a restriction on fundamental rights. It is applied to strike an
appropriate balance between the fundamental right and the pursued
purpose and objective of the restriction.
25. The test of proportionality comprises four steps:74
(i) The first step is to examine whether the act/measure restricting
the fundamental right has a legitimate aim (legitimate aim/
purpose).
(ii) The second step is to examine whether the restriction has
rational connection with the aim (rational connection).
(iii) The third step is to examine whether there should have been
a less restrictive alternate measure that is equally effective
(minimal impairment/necessity test).
(iv) The last stage is to strike an appropriate balance between the
fundamental right and the pursued public purpose (balancing
act).
26. In Modern Dental College & Research Centre and Others v.
State of Madhya Pradesh and Others,75 this Court had applied
proportionality in its four-part doctrinal form76 as a standard for
reviewing right limitations in India. This test was modified in K.S.
Puttaswamy (Retired) and Anr. (Aadhar) v. Union of India and
Anr. (5J),77 where this Court adopted a more tempered and nuanced
approach.78 The Court, inter alia, imposed a stricter test for the third
and fourth prongs, namely necessity and balancing stages of the
test of proportionality, as reproduced below.
“155. ...In order to preserve a meaningful but not unduly
strict role for the necessity stage, Bilchitz proposes the

74 See Aharon Barak, “Proportionality – Constitutional Rights and their Limitations”, Cambridge University
Press, 2012.
75 [2016] 3 SCR 579 : (2016) 7 SCC 353.
76 In Gujarat Mazdoor Sabha and Another v. State of Gujarat, (2020) 10 SCC 459, the Court added fifth
prong to proportionality test. It stipulated that the state should provide sufficient safeguards against the
abuse of such restriction. This was relied upon in Ramesh Chandra Sharma and Others v. State of U.P.
and Others, 2023 SCC OnLine SC 162.
77 [2018] 8 SCR 1 : (2019) 1 SCC 1.
78 See David Bilchitz, “Necessity and Proportionality: Towards a Balance Approach?“, (Hart Publishing,
Oxford and Portland, Oregon 2016). Also see Aparna Chandra, “Proportionality: A Bridge to Nowhere?”,
(Oxford Human Rights Journal 2020).
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following inquiry. First, a range of possible alternatives

to the measure employed by the Government must be
identified. Secondly, the effectiveness of these measures
must be determined individually; the test here is not whether
each respective measure realises the governmental
objective to the same extent, but rather whether it realises
it in a “real and substantial manner”. Thirdly, the impact
of the respective measures on the right at stake must be
determined. Finally, an overall judgment must be made as
to whether in light of the findings of the previous steps, there
exists an alternative which is preferable; and this judgment
will go beyond the strict means-ends assessment favoured
by Grimm and the German version of the proportionality
test; it will also require a form of balancing to be carried
out at the necessity stage.
156. Insofar as second problem in German test is
concerned, it can be taken care of by avoiding “ad hoc
balancing” and instead proceeding on some “bright-line
rules” i.e. by doing the act of balancing on the basis of
some established rule or by creating a sound rule...

xx xx xx
158. ...This Court, in its earlier judgments, applied German
approach while applying proportionality test to the case at
hand. We would like to proceed on that very basis which,
however, is tempered with more nuanced approach as
suggested by Bilchitz. This, in fact, is the amalgam of
German and Canadian approach. We feel that the stages,
as mentioned in Modern Dental College & Research Centre
and recapitulated above, would be the safe method in
undertaking this exercise, with focus on the parameters as
suggested by Bilchitz, as this projects an ideal approach
that need to be adopted.”
27. The said test was also referred to in Anuradha Bhasin v. Union
of India and Others,79 with the observation that the principle of
proportionality is inherently embedded in the Constitution under

79 [2020] 1 SCR 812 : (2020) 3 SCC 637.

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the doctrine of reasonable restriction. This means that limitations

imposed on a right should not be arbitrary or of excessive nature
beyond what is required in the interest of public. This judgment
thereupon references works of scholars/jurists who have argued that
if the necessity prong of the proportionality test is applied strictly,
legislations and policies, no matter how well intended, would fail the
proportionality test even if any other slightly less drastic measure
exists.80 Thereupon, the Court accepted the suggestion in favour of
a moderate interpretation of the necessity test. Necessity involves a
process of reasoning designed to ensure that only measures with a
strong relationship to the objective they seek to achieve can justify
an invasion of fundamental rights. The process thus requires a court
to reason through the various stages of moderate interpretation of
necessity in the following manner:
“(MN1) All feasible alternatives need to be identified, with
courts being explicit as to criteria of feasibility;
(MN2) The relationship between the government measure
under consideration, the alternatives identified in MN1 and
the objective sought to be achieved must be determined.
An attempt must be made to retain only those alternatives
to the measure that realise the objective in a real and
substantial manner;
(MN3) The differing impact of the measure and the
alternatives (identified in MN2) upon fundamental rights
must be determined, with it being recognised that this
requires a recognition of approximate impact; and
(MN4) Given the findings in MN2 and MN3, an overall
comparison (and balancing exercise) must be undertaken
between the measure and the alternatives. A judgment
must be made whether the government measure is the
best of all feasible alternatives, considering both the
degree to which it realises the government objective
and the degree of impact upon fundamental rights (“the
comparative component”).
28. Dr. Justice D.Y. Chandrachud, as his Lordship then was, in K.S.

80 Anuradha Bhasin (supra) at paragraph 71.

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Puttaswamy (5J)(Aadhar) (supra), had observed that the objective

of the second prong of rational connection test is essential to the
test of proportionality.81 Sanjay Kishan Kaul, J. in his concurring
opinion in K.S. Puttaswamy (9J) (Privacy) (supra) had held that
actions not only should be sanctioned by law, but the proposed
actions must be necessary in a democratic society for a legitimate
aim. The extent of interference must be proportionate to the need for
such interference and there must be procedural guarantees against
abuse of such interference.
29. The test of proportionality is now widely recognised and employed
by courts in various jurisdictions like Germany, Canada, South Africa,
Australia and the United Kingdom.82 However, there isn’t uniformity
in how the test is applied or the method of using the last two prongs
in these jurisdictions.
30. The first two prongs of proportionality resemble a means-ends review
of the traditional reasonableness analysis, and they are applied
relatively consistently across jurisdictions. Courts first determine if the
ends of the restriction serve a legitimate purpose, and then assess
whether the proposed restriction is a suitable means for furthering the
same ends, meaning it has a rational connection with the purpose.
31. In the third prong, courts examine whether the restriction is necessary
to achieve the desired end. When assessing the necessity of the
measure, the courts consider whether a less intrusive alternative is
available to achieve the same ends, aiming for minimal impairment.
As elaborated above, this Court Anuradha Bhasin (supra), relying
on suggestions given by some jurists,83 emphasised the need to
employ a moderate interpretation of the necessity prong. To conclude
its findings on the necessity prong, this Court is inter alia required
to undertake an overall comparison between the measure and its
feasible alternatives.84

81 Dr. Justice D.Y. Chandrachud was in minority in K.S. Puttaswamy (Aadhaar) (supra), albeit his
observations on the objective of the second prong of rational connection are good and in consonance
with the law on the subject.
82 We will be referring to certain facets of the proportionality enquiry employed by these countries in our
judgment. The test is also employed in various other jurisdictions like Israel, New Zealand, and the
European Union.
83 See David Bilchitz at supra note 76.
84 In Anuradha Bhasin (supra), the Court stipulated the following requirement for a conclusion of findings
on the necessity prong: “…A judgment must be made whether the government measure is the best of all
feasible alternatives, considering both the degree to which it realises the government objective and the
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32. We will now delve into the fourth prong, the balancing stage, in some
detail. This stage has been a matter of debate amongst jurists and
courts. Some jurists believe that balancing is ambiguous and value-
based.85 This stems from the premise of rule-based legal adjudication,
where courts determine entitlements rather than balancing interests.
However, proportionality is a standard-based review rather than a rule-
based one. Given the diversity of factual scenarios, the balancing stage
enables judges to consider various factors by analysing them against the
standards proposed by the four prongs of proportionality. This ensures
that all aspects of a case are carefully weighed in decision-making.
This perspective finds support in the work of jurists who believe that
constitutional rights and restrictions/measures are both principles, and
thus they should be optimised/balanced to their fullest extent.86
33. While balancing is integral to the standard of proportionality, such
an exercise should be rooted in empirical data and evidence. In
most countries that adopt the proportionality test, the State places
on record empirical data as evidence supporting the enactment
and justification for the encroachment of rights.87 This is essential
because the proportionality enquiry necessitates objective evaluation
of conflicting values rather than relying on perceptions and biases.
Empirical deference is given to the legislature owing to their
institutional competence and expertise to determine complex factual
legislation and policies. However, factors like lack of parliamentary
deliberation and a failure to make relevant enquiries weigh in on
the court’s decision. In the absence of data and figures, there is
a lack of standards by which proportionality stricto sensu can be

degree of impact upon fundamental rights…”

85 See Jochen von Bernstroff, Proportionality Without Balancing: Why Judicial Ad Hoc Balancing is
Unnecessary and Potentially Detrimental to Realisation of Collective and Individual Self Determination,
Reasoning Rights – Comparative Judicial Engagement, (Ed. Liaora Lazarus); Bernhard Schlink,
‘Abwägung im Verfassungsrecht’, Duncker & Humblot, 1976, and Francisco J. Urbina, ‘Is It Really
That Easy? A Critique of Proportionality and Balancing as Reasoning’ Canadian Journal of Law and
Jurisprudence, 2014.
86 According to Robert Alexy, the ‘Law of Balancing’ is as follows: “…the greater the degree of non-
satisfaction of, or detriment to, one principle, the greater must be the importance of satisfying the
other…” See Robert Alexy, A Theory of Constitutional Rights (Julian Rivers, trans. Oxford Univ. Press
2002).
87 For instance, in Canada, where the doctrine of proportionality is employed by courts, a cabinet directive
requires the standard to be incorporated into law-making. These guidelines stipulate that prior to
enactment of laws, the matter and its alternate solutions must be analysed, the relevant ministerial
department should engage in consultation with those who have an interest in the matter, and they should
analyse the impact of the proposed solution. See Cabinet Directive on Law-making in Guide to Making
Federal Acts and Regulations (2nd edn, Government of Canada).
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determined. Nevertheless, many of the constitutional courts have

employed the balancing stage ‘normatively’ 88 by examining the
weight of the seriousness of the right infringement against the
urgency of the factors that justify it. Examination under the first three
stages requires the court to first examine scientific evidence, and
where such evidence is inconclusive or does not exist and cannot
be developed, reason and logic apply. We shall subsequently be
referring to the balancing prong during our application of the test
of proportionality.
34. In Germany, the courts enjoy a high judicial discretion. The parliament
and the judiciary in Germany have the same goal, that is, to realise the
values of the German Constitution.89 Canadian courts, some believe,
in practice give wider discretion to the legislature when a restriction
is backed by sufficient data and evidence.90 The constitutional court
in South Africa, as per some jurists, collectively applies the four
prongs of proportionality instead of a structured application.91 While
proportionality is the predominant doctrine in Australia, an alternate
calibrated scrutiny test is applied by a few judges.92 It is based on
the premise that a contextual, instead of broad standard of review,
is required to be adopted for constitutional adjudication.
35. Findings of empirical legal studies provide a more solid foundation for
normative reasoning93 and enhance understanding of the relationship
between means and ends.94 In our view, proportionality analyses
would be more accurate when empirical inquiries on causal relations
between a legislative measure under review and the ends of such a
measure are considered. It also leads to better and more democratic
governance. While one cannot jump from “is” to “ought”, to reach an
“ought” conclusion, one has to rely on accurate knowledge of “is”,
for “is” and “ought” to be united.95 While we emphasise the need

88 The first and second steps, legitimate aim and rational connection prong, and to some extent necessity
prong, are factual.
89 See Article 1 and 20, Basic Law for the Federal Republic of Germany.
90 Niels Petersen, ‘Proportionality and judicial Activism: Fundamental Rights Adjudication in Canada,
Germany and South Africa, (CUP 2017).
91 Ibid.
92 See Annexure A.
93 See Yun-chien Chand & Peng-Hsiang Wang, The Empirical Foundation of Normative Arguments in Legal
Reasoning (Univ. Chicago Coase-Sandor Inst. For L. & Econ., Res. Paper No. 745, 2016).
94 Lee Epstein & Andrew D. Martin, An Introduction to Empirical Legal Research 6 (2014).
95 See Joshua B. Fischman, Reuniting “Is” and “Ought” in Empirical Legal Scholarship, 162 U. Pa. L. Rev.
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of addressing the quantitative/empirical deficit for a contextual and

holistic balancing analysis, the pitfalls of selective data sharing must
be kept in mind. After all, if a measure becomes a target, it ceases
to be a good measure.96
36. To avoid this judgment from becoming complex, I have enclosed as
an annexure a chart giving different viewpoints on the doctrine of
proportionality as a test for judicial review exercised by the courts to
test the validity of the legislation. The same is enclosed as Annexure-A
to this judgment.97
37. When we turn to the reply or the defence of the Union of India in
the present case, which we have referred to above,98 the matter of
concern is the first submission made regarding the purpose and
rationale of the Scheme and amendments to the Finance Act of
2017. Lest remains any doubt, I would like to specifically quote from
the transcript of hearing dated 01.11.2023, where on behalf of the
Union of India it was submitted:
“..the bottom line is this. What was really found? That
what is the reason, why a person who contributes to a
political party chooses the mode of unclean money as
a payment mode and Your Lordships would immediately
agree with me if we go by the practicalities of life. What
happens is, suppose one state is going for an election.
There are two parties, there are multiple parties, but
by and large there are two parties which go neck to
neck. Suppose I am a contractor. I’m not a company or
anything. I am a contractor and I’m supposed to give
my political contribution to Party A and Party B or Party
A or Party B, as the case may be. But the fear was if
I give by way of accounted money or by clean money,
by way of cheque, it would be easily identifiable. If I
give to party A and Party B forms the Government, I
would be facing victimization and retribution and vice

117 (2013).
96 Marilyn Strathern, Improving Ratings: Audit in the British University System, European review, Vol. 5
Issue 3, pp. 305-321 (1997).
97 Annexure A should not be read as an opinion of this Court or even as obiter dicta expressed by this Court.
The Annexure is only for the purpose of pointing out different viewpoints on the test of proportionality.
98 See paragraph 23 of this judgment.
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versa. If I give money to Party B and Party A continues

to be in Government, then I would be facing retribution
or victimization. Therefore, the safest course was to
pay by cash, so that none of the parties know what I
paid to which party, and both parties are happy that I
have paid something. So, that, the payment by cash
ensured confidentiality. Both parties would say that
one party would be given 100 crores, one party would
be given 40 crores, depending upon my assessment of
their winnability. But both would not know who is paid
what. My Lord, sometimes what used to happen is in
my business, I get only clean money or substantial
part of the clean money, but practicalities require that I
contribute to the political parties, and practicality again
requires that I contribute with a degree of confidentiality
so that I am not victimized in the future. And therefore
clean money used to be converted into unclean money.
White money is being converted into black money so
that it can be paid, according to them anonymously, and
according to me with confidentiality. And this is disastrous
for the economy when white money is converted into
black money.”
While introducing the Finance Act of 2017, the then Finance Minister
had elucidated that the main purpose of the Scheme was to curb the
flow of black money in electoral finance.99 This, it is stated, could be
achieved only if information about political donations and the donor
were kept confidential.100 It was believed that this would incentivise
donations to political parties through banking channels.
38. I am of the opinion that retribution, victimisation or retaliation cannot
by any stretch be treated as a legitimate aim. This will not satisfy the
legitimate purpose prong of the proportionality test. Neither is the
Scheme nor the amendments to the Finance Act, 2017, rationally
connected to the fulfilment of that purpose, namely, to counter
retribution, victimisation or retaliation in political donations. In our
opinion, it will also not satisfy the necessity stage of the proportionality
even if we have to ignore the balancing stage.

99 See Speech of Arun Jaitley, Minister of Finance, at paragraph 165, Budget 2017-18.
100 Ibid.
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39. Retribution, victimisation or retaliation against any donor exercising

their choice to donate to a political party is an abuse of law and
power. This has to be checked and corrected. As it is a wrong, the
wrong itself cannot be a justification or a purpose. The argument,
therefore, suffers on the grounds of inconsistency and coherence
as it seeks to perpetuate and accept the wrong rather than deal
with the malady and correct it. The inconsistency is also apparent
as the change in law, by giving a cloak of secrecy, leads to severe
restriction and curtailment of the collective’s right to information and
the right to know, which is a check and counters cases of retribution,
victimisation and retaliation. Transparency and not secrecy is the
cure and antidote.
40. Similarly, the second argument that the donor may like to keep his
identity anonymous is a mere ipse dixit assumption. The plea of
infringement of the right to privacy has no application at all if the
donor makes the contribution, that too through a banking channel, to
a political party. It is the transaction between the donor and the third
person. The fact that donation has been made to a political party
has to be specified and is not left hidden and concealed.101 What
is not revealed is the quantum of the contribution and the political
party to whom the contribution is made. Further, when a donor goes
to purchase a Bond, he has to provide full particulars and fulfil the
KYC norms of the bank.102 His identity is then asymmetrically known
to the person and the officers of the bank from where the Bond is
purchased.103 Similarly, the officers in the branch of the authorised
bank104 where the political party has an account and encashes the
Bond are known to the officers in the said bank.105
41. The argument raised by the Union of India that details can be
revealed when an order is passed by a court or when it is required for
investigation pursuant to registration of a criminal case106 overlooks the
fact that it is their stand that the identities of the contributors/donors

101 Section 182(3) of the Companies Act, 2013 requires companies to mention the total political contributions
made.
102 Paragraph 4 of the Scheme.
103 In terms of paragraph 2(b) of the Scheme, only State Bank of India and its specified branches are
allowed to issue Bonds.
104 Ibid.
105 Paragraph 3(4) of the Scheme.
106 See paragraph 7(4) of the Scheme.
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should be concealed because of fear of retaliation, victimisation and

reprisal. That fear would still exist as the identity of the purchaser
of the Bond can always be revealed upon registration of a criminal
case or by an order/direction of the court. Thus, the fear of reprisal
and vindictiveness does not evaporate. The so-called protection
exists only on paper but in practical terms is not a good safeguard
even if we accept that the purpose is legitimate. It fails the rational
nexus prong.
42. The fear of the identities of donors being revealed exists in another
manner. Under the Scheme, political parties in power may have
asymmetric access to information with the authorised bank. They
also retain the ability to use their power and authority of investigation
to compel the revelation of Bond related information.107 Thus, the
entire objective of the Scheme is contradictory and inconsistent.
43. Further, it is the case of the Union of India that parties in power at
the Centre and State are the recipients of the highest amounts of
donations through Bonds. If that is the case, the argument of retribution,
victimisation and retaliation is tempered and loses much of its force.108
44. The rational connection test fails since the purpose of curtailing
black or unaccounted-for money in the electoral process has no
connection or relationship with the concealment of the identity of the
donor. Payment through banking channels is easy and an existing
antidote. On the other hand, obfuscation of the details may lead to
unaccounted and laundered money getting legitimised.
45. The RBI had objected to the Scheme since the Bonds could change
hands after they have been issued. There is no check for the same
as the purchaser who has completed the KYC, whose identity is
thereupon completely concealed, may not be the actual contributor/
donor. In fact, the Scheme may enable the actual contributor/donor
to not leave any traceability or money trail.

107 Ibid.
108 In Brown v. Socialist Workers Comm., 459 U.S. 87 (1982), the Supreme Court of the United States of
America held that disclosure laws requiring the reporting of names and addresses of every campaign
contributor could be waived when “specific evidence of hostility, threats, harassment and reprisals”
existed, thus adopting a case-by-case approach. Marshall J., delivering the opinion of the court observed
that the Socialist Workers Party, a minor political party had historically been the object of harassment by
government officials and private parties. Therefore, the court held that the government was prohibited
from compelling disclosures from the said party, a minor political party, since there existed a reasonable
probability that the compelled disclosures would subject their donors, if identified, to threats, harassment
or reprisals.
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46. Money laundering can be undertaken in diverse ways. Political

contributions for a quid pro quo may amount to money laundering,
as defined under the Prevention of Money Laundering Act, 2002109.
The Financial Action Task Force110 has observed that the signatory
States are required to check money laundering on account of
contributions made to political parties.111 Article 7(3) of the United
Nations Convention against Corruption, 2003 mandates the state
parties to enhance transparency in political funding of the candidates
and parties.112 The said convention is signed and ratified by India.
By ensuring anonymity, the policy ensures that the money laundered
on account of quid pro quo or illegal connection escapes eyeballs
of the public.
47. The economic policies of the government have an impact on
business and commerce. Political pressure groups promote different
agendas, including perspectives on economic policies. As long as
these pressure groups put forward their perspective with evidence
and data, there should not be any objection even if they interact with
elected representatives. The position would be different if monetary
contributions to political parties were made as a quid pro quo to
secure a favourable economic policy. This would be an offence
under the Prevention of Corruption Act, 1988 and also under the
PMLA. Such offences when committed by political parties in power
can never see the light of the day if secrecy and anonymity of the
donor is maintained.
48. In view of the aforesaid observations, the argument raised by the
petitioners that there is no rational connection between the measure
and the purpose, which is also illegitimate, has merit and should be
accepted.
49. On the question of alternative measures, that is the necessity prong
of the proportionality test, it is accepted that post the amendments
brought about by the Finance Act, 2017, political parties cannot
receive donations in cash for amounts above Rs.2,000/-. However,
political parties do not have to record the details and particulars of

109 For short, “PMLA”.

110 For short, “FATF”.
111 Paragraph 3, Section B, International Standards on Combating Money Laundering and the Financing of
Terrorism and Proliferation – The FATF Recommendations, 2012.
112 See also United Nations General Assembly Resolution A/RES/S-32/1, 02.06.2021, para 12.
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donations received for amounts less than Rs.20,000/-.113 Therefore,

the reduction of the upper limit of cash donations from Rs.20,000/-
to Rs.2,000/- serves no purpose. It is open to the political parties to
bifurcate the law and camouflage larger donations in smaller stacks.
There is no way or method to verify the donor if the amount shown
in the books of the political party is less than Rs.2,000/-.
50. It is an accepted position that the Electoral Trust Scheme114 was
introduced in 2013 to ensure the secrecy of contributors. As per
the Trust Scheme, contributions could be made by a person or
body corporate to the trust. The trust would thereafter transfer the
amount to the political party. The trust is, therefore, treated as the
contributor to the political party. Interestingly, it is the ECI that had
issued guidelines dated 06.06.2014 whereby the trusts were required
to specify and give full particulars to the ECI of the depositors with
the trust and amounts which were subsequently transferred as a
contribution to the political party. The guidelines were issued by the
ECI to ensure transparency and openness in the electoral process.115
51. The trust can have multiple donors. Similarly, contributions are made
by the trust to multiple political parties. The disclosure requirements
provided in ECI’s guidelines dated 06.06.2014 only impose disclosure
requirements at the inflow and outflow points of the trust’s donations,
that is, the trust is required to provide particulars of its depositors
and the amounts donated to political parties, including the names of
the political parties. Thus, the Trust Scheme protects the anonymity
of the donors vis-à-vis their contributions to the political party. When
we apply the necessity test propounded in Anuradha Bhasin
(supra)116, the Trust Scheme achieves the objective of the Union of

113 This is inapplicable to Bonds under proviso (b) to Section 13A of the Income Tax Act, 1961.
114 For short, “Trust Scheme”.
115 Similarly, early campaign finance laws in the United Kingdom permitted trusts to donate to political
parties. It came to be disallowed since it was contrary to openness and accountability. See Suchindran
Bhaskar Narayan and Lalit Panda, Money and Elections – Necessary Reforms in Electoral Finance,
Vidhi 2018 at p. 19. See also Lord Neill of Bladen, QC, ‘Fifth Report of the Committee on Standards in
Public Life: The Funding of Political Parties in the United Kingdom’, 1998 pp 61-62.
116 As elaborated in paragraph 27] of this judgement, Anuradha Bhasin (supra) proposes a four sub-pronged
inquiry at the necessity stage of proportionality, that is (MN1) to (MN4). To arrive at the conclusion of
the necessity inquiry, this Court has proposed at (MN4) that: “…an overall comparison (and balancing
exercise) must be undertaken between the measure and the alternatives. A judgment must be made
whether the government measure is the best of all feasible alternatives, considering both the degree
to which it realises the government objective and the degree of impact upon fundamental rights (the
comparative component).”
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India in a real and substantial manner and is also a less restrictive

alternate measure in view of the disclosure requirements, viz. the
right to know of voters. The Trust Scheme is in force and is a result
of the legislative process. In a comparison of limited alternatives, it
is a measure that best realises the objective of the Union of India
in a real and substantial manner without significantly impacting the
fundamental right of the voter to know. The ECI, if required, can
suitably modify the guidelines dated 06.06.2014.
52. I would now come to the fourth prong. I would begin by first referring
to the judgment cited by Hon’ble the Chief Justice in the case
of Campbell v. MGM Limited117. This judgment adopts double
proportionality standard to adequately balance two conflicting
fundamental rights. Double proportionality has been distinguished
from the single proportionality standard in paragraph 152 of the
judgment authored by Hon’ble the Chief Justice. Campbell (supra)
states that the single proportionality test and the principle of
reasonableness are applied to determine whether a private right claim
offers sufficient justification for the interference with the fundamental
rights. However, this test may not apply when two fundamental rights
are at conflict and one has to balance the application of one right
and restriction of the other.
53. In Campbell (supra), Baroness Hale has suggested a three-step
approach to balance conflicting fundamental rights, when two rights
are in play. The first step is to analyse the comparative importance
of the fundamental rights being claimed in the particular case. In the
second step, the court should consider the justification for interfering
with or restricting each of these rights. The third step requires the
application of a proportionality standard to both these rights.
54. In a subsequent decision, the House of Lords (Lord Steyn) in In
re.S118, distilled four principles to resolve the question of conflict of
rights as under:
“17. (...) First, neither article has as such precedence
over the other. Secondly, where the values under the two
articles are in conflict, an intense focus on the comparative
importance of the specific rights being claimed in the

117 [2004] 2 AC 457.

118 [2005] 1 AC 593.
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individual case is necessary. Thirdly, the justifications for

interfering with or restricting each right must be taken into
account. Finally, the proportionality test must be applied to
each. For convenience I will call this the ultimate balancing
test. This is how I will approach the present case.”
55. The fourth principle, that is, the ultimate balancing test, was elaborated
upon by Sir Mark Potter in In Re. W119 in the following terms:
“53. (...) each Article propounds a fundamental right which
there is a pressing social need to protect. Equally, each
Article qualifies the right it propounds so far as it may be
lawful, necessary and proportionate to do so in order to
accommodate the other. The exercise to be performed
is one of parallel analysis in which the starting point is
presumptive parity, in that neither Article has precedence
over or “trumps” the other. The exercise of parallel analysis
requires the court to examine the justification for interfering
with each right and the issue of proportionality is to be
considered in respect of each. It is not a mechanical
exercise to be decided upon the basis of rival generalities.
An intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary before the ultimate balancing test in terms of
proportionality is carried out.”
56. Fundamental rights are not absolute, legislations/policies restricting
the rights may be enacted in accordance with the scheme of the
Constitution. However, it is now well settled that the provisions of
fundamental rights in Part III of the Constitution are not independent silos
and have to be read together as complementary rights.120 Therefore, the
thread of reasonableness applies to all such restrictions.121 Secondly,
Article 14, as observed by the Hon’ble Chief Justice in his judgment122
includes the facet of formal equality and substantive equality. Thus,
the principle ‘equal protection of law’ requires the legislature and the
executive to achieve factual equality. This principle can be extended

119 [2005] EWHC 1564 (Fam).

120 Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248; K.S. Puttaswamy (9J) (Privacy) (supra),
and Maneka Gandhi v. Union of India and Another, (1978) 1 SCC 248.
121 The test of single proportionality will apply.
122 See paragraphs 191 to 195 of the Hon’ble Chief Justice’s judgment.
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to any restriction on fundamental rights which must be reasonable

to the identified degree of harm. If the restriction is unreasonable,
unjust or arbitrary, then the law should be struck down. Further, it is
for the legislature to identify the degree of harm. I have referred to the
said observation in the context that there appears to be a divergent
opinion in K.S. Puttaswamy (9-J) (Privacy) (supra) as to whether
right of privacy is an essential component for effective fulfilment of
all fundamental rights or can be held to be a part or a component of
Article 21 and Article 19(1)(a) of the Constitution.
57. When we apply the fourth prong, that is the balancing prong of
proportionality, I have no hesitation or doubt, given the findings
recorded above, that the Scheme falls foul and negates and
overwhelmingly disavows and annuls the voters right in an electoral
process as neither the right of privacy nor the purpose of incentivising
donations to political parties through banking channels, justify the
infringement of the right to voters. The voters right to know and
access to information is far too important in a democratic set-up so
as to curtail and deny ‘essential’ information on the pretext of privacy
and the desire to check the flow of unaccounted for money to the
political parties. While secret ballots are integral to fostering free
and fair elections, transparency—not secrecy—in funding of political
parties is a prerequisite for free and fair elections. The confidentiality
of the voting booth does not extend to the anonymity in contributions
to political parties.
58. In K.S. Puttasamy (9-J) (Privacy) (supra), all opinions accept that
the right to privacy has to be tested and is not absolute. The right
to privacy must yield in given circumstances when dissemination
of information is legitimate and required in state or public interest.
Therefore, the right to privacy is to be applied on balancing the
said right with social or public interest. The reasonableness of
the restriction should not outweigh the particular aspect of privacy
claimed.123 Sanjay Kishan Kaul, J., in his opinion in K.S. Puttasamy
(9-J) (Privacy) (supra), has said that restriction on right to privacy
may be justifiable and is subject to the principle of proportionality
when considering the right to privacy in relation to its function in
society.

123 While giving the aforesaid finding, we are applying the single proportionality test.
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59. As observed above, the right to privacy operates in the personal

realm, but as the person moves into communal relations and activities
such as business and social interaction, the scope of personal space
shrinks contextually.124 In this context, the High Court of South Africa
in My Vote Counts NPC v. President of the Republic of South
Africa and Ors.125 observes that:
“(...) given the public nature of political parties and the
fact that the private funds they receive have a distinctly
public purpose, their rights to privacy can justifiably be
attenuated. The same principles must, as a necessary
corollary, apply to their donors. (...)”
(emphasis supplied)
60. The great underlying principle of the Constitution is that rights of
individuals in a democratic set-up is sufficiently secured by ensuring
each a share in political power.126 This right gets affected when a
few make large political donations to secure selective access to
those in power. We have already commented on pressure groups
that exert such persuasion, within the boundaries of law. However,
when money is exchanged as quid pro quo then the line between
persuasion and corruption gets blurred.
61. It is in this context that the High Court of Australia in Jeffery Raymond
McCloy and Others v. State of New South Wales and Another127,
observes that corruption can be of different kinds. When a wealthy
donor makes contribution to a political party in return of a benefit, it
is described as quid pro quo corruption. More subtle corruption arises
when those in power decide issues not on merits or the desires of
their constituencies, but according to the wishes and desires of those
who make large contributions. This kind of corruption is described as
‘clientelism’. This can arise from the dependence128 on the financial
support of a wealthy patron to a degree that it compromises the

124 See Bernstein and Ors. v. Bester NO and Others, (1996) ZACC 2, para 67.
125 My Vote Counts NPC v. President of the Republic of South Africa and Ors. (2017) ZAWCHC 105, para
67.
126 Harrison Moore, The Constitution of the Commonwealth of Australia, p.329 (1902).
127 (2015) HCA 34.
128 James Madison in the Federalist Paper No. 52 notes that a government must “depend on the people
alone”. This condition, according to Professor Lawrence Lessig, has two elements – first, it identifies a
proper dependency (“on the people”) and second, it describes that dependence as exclusive (“alone”).
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expectation, fundamental to representative democracy, that public

power will be exercised in public interest. This affects the vitality as
well as integrity of the political branches of government. While quid
pro quo and clientelistic corruption erodes quality and integrity of
government decision making, the power of money may also pose
threat to the electoral process itself. This phenomenon is referred
to as ‘war-chest’ corruption.129
62. In Jefferey Raymond (supra), the High Court of Australia had
referred to the decision of the Supreme Court of Canada in Harper
v. Canada (Attorney General)130, which upheld the legislative
restriction on electoral advertising. In Harper (supra), the Supreme
Court of Canada has held that the State can provide a voice to
those who otherwise might not be heard and the State can also
restrict voices that dominate political discourse so that others can
be heard as well.
63. The Supreme Court of the United States in Buckley v. R Valeo131
has commented on the concern of quid pro quo arrangements and
its dangers to a fair and effective government. Improper influence
erodes and harms the confidence in the system of representative
government. Contrastingly, disclosure provides the electorate with
information as to where the political campaign money comes from
and how it is spent. This helps and aides the voter in evaluating
those contesting elections. It allows the voter to identify interests
which candidates are most likely to be responsive to, thereby
facilitating prediction of future performance in office. Secondly,
it checks actual corruption and helps avoid the appearance of
corruption by exposing large contributions and expenditures to
the light of publicity. Relying upon Grosjean v. American Press
Co.132, it holds that informed public opinion is the most potent of all
restraints upon misgovernment. Thirdly, record keeping, reporting
and disclosure are essential means of gathering data necessary to
detect violations of contribution limitations.

129 See Federal Election Commission v. National Right to Work Committee, 459 U.S. 197 (1982), where the
petitioners submitted: “...substantial aggregations of wealth amassed by the special advantages which
go with the corporate form of organization should not be converted into political “war chests” which could
be used to incur political debts from legislators who are aided by the contributions...”
130 [2004] 1 SCR 827.
131 424 U.S. 1 (1976).
132 297 U.S. 233 (1936).
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64. In Nixon, Attorney General of Missouri, et al v. Shrink Missouri

Government PAC et al,133 the Supreme Court of the United States
observes that large contributions given to secure a political quid pro
quo undermines the system of representative democracy. It stems
public awareness of the opportunities for abuse inherent in a regime
of large contributions. This effects the integrity of the electoral process
not only in the form of corruption or quid pro quo arrangements, but
also extending to the broader threat of the beneficiary being too
compliant with the wishes of large contributors.
65. Recently, a five judge Constitution Bench of this Court in Anoop
Baranwal v. Union of India134 has highlighted the importance of
purity of electoral process in the following words:
“215. …Without attaining power, men organised as political
parties cannot achieve their goals. Power becomes,
therefore, a means to an end. The goal can only be to govern
so that the lofty aims enshrined in the directive principles
are achieved while observing the fundamental rights as
also the mandate of all the laws. What is contemplated is
a lawful Government. So far so good. What, however, is
disturbing and forms as we understand the substratum of
the complaints of the petitioner is the pollution of the stream
or the sullying of the electoral process which precedes the
gaining of power. Can ends justify the means?
216. There can be no doubt that the strength of a
democracy and its credibility, and therefore, its enduring
nature must depend upon the means employed to gain
power being as fair as the conduct of the Government after
the assumption of power by it. The assumption of power
itself through the electoral process in the democracy cannot
and should not be perceived as an end. The end at any
rate cannot justify the means. The means to gain power
in a democracy must remain wholly pure and abide by
the Constitution and the laws. An unrelenting abuse of the
electoral process over a period of time is the surest way
to the grave of the democracy. Democracy can succeed

133 528 U.S. 377 (2000).

134 [2023] 9 SCR 1 : (2023) 6 SCC 161.
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only insofar as all stakeholders uncompromisingly work at

it and the most important aspect of democracy is the very
process, the electoral process, the purity of which alone
will truly reflect the will of the people so that the fruits of
democracy are truly reaped.
217. The essential hallmark of a genuine democracy is
the transformation of the “Ruled” into a citizenry clothed
with rights which in the case of the Indian Constitution
also consist of fundamental rights, which are also being
freely exercised and the concomitant and radical change
of the ruler from an “Emperor” to a public servant. With
the accumulation of wealth and emergence of near
monopolies or duopolies and the rise of certain sections
in the Media, the propensity for the electoral process to
be afflicted with the vice of wholly unfair means being
overlooked by those who are the guardians of the rights
of the citizenry as declared by this Court would spell
disastrous consequences.”
66. The Law Commission of India in its 255th Report noted the concern
of financial superiority translating into electoral advantage.135 It was
observed that lobbying and capture give undue importance to big
donors and certain interest groups, at the expense of the ordinary
citizen, violating “the right of equal participation of each citizen in the
polity.”136 While noting the candidate-party dichotomy in the regulations
under Section 77 of the Representation of the People Act, 1951,
the Law Commission of India recommends to require candidates
to maintain an account of contributions received from their political
party (not in cash) or any other permissible donor.
67. At this stage, we would like to refer to the data as available on the
website of the ECI and the data submitted by the petitioners for a
limited purpose and objective to support our reasoning while applying
balancing. We have not stricto sensu applied proportionality as the
data is not sufficient for us. I also clarify that we have not opened
the sealed envelope given by the ECI pursuant to the directions of
this Court dated 02.11.2023.

135 Law Commission of India, Electoral Reforms, Report No. 255, March 2015.
136 R.C.Poudyal v. Union of India and Others, [1993] 1 SCR 891 : (1994) Supp 1 SCC 324.
602 [2024] 2 S.C.R.

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68. An analysis of the annual audit reports of political parties from 2017-
18 to 2022-23 showcases party-wise donations received through the
Bonds as reproduced below:
PARTY-WISE DONATION THROUGH BONDS (IN RS. CR)

Party 2017-18 2018-19 2019-20 2020-21 2021-22 2022-23

BJP 210.00 1,450.890 2,555.000 22.385 1,033.7000 1294.1499
INC 5.00 383.260 317.861 10.075 236.0995 171.0200
AITC 0.00 97.280 100.4646 42.000 528.1430 325.1000
NCP 0.00 29.250 20.500 0.000 14.0000 --
TRS 0.00 141.500 89.153 0.000 153.0000 --
TDP 0.00 27.500 81.600 0.000 3.5000 34.0000
YSR-C 0.00 99.840 74.350 96.250 60.0000 52.0000
BJD 0.00 213.500 50.500 67.000 291.0000 152.0000
DMK 0.00 0.000 45.500 80.000 306.0000 185.0000
SHS 0.00 60.400 40.980 0.000 -- --
AAP* 0.00 -- 17.765 5.950 25.1200 45.4500
JDU 0.00 0.000 13.000 1.400 10.0000 --
SP 0.00 0.000 10.840 0.000 3.2100 0.0000
JDS 6.03 35.250 7.500 0.000 0.0000 --
SAD 0.00 0.000 6.760 0.000 0.5000 0.0000
AIADMK 0.00 0.000 6.050 0.000 0.0000 0.0000
RJD 0.00 0.000 2.500 0.000 0.0000 --
JMM 0.00 0.000 1.000 0.000 0.0000 --
SDF 0.00 0.500 0.000 0.000 0.0000 0.0000
MGP 0.00 0.000 0.000 0.000 0.5500 --
TOTAL 221.03 2,539.170 3,441.324 325.060 2,664.8225 --

Asterisk (*) means that the AAP had declared their donations through Bonds/
Electoral Trust, but the party had not declared a separate amount for Bonds.

69. It is clear from the available data that majority of contribution through
Bonds has gone to political parties which are ruling parties in the
Centre and the States. There has also been a substantial increase
in contribution/donation through Bonds.
[2024] 2 S.C.R.  603

Association for Democratic Reforms & Anr. v. Union of India & Ors.

70. Petitioner no. 1 – Association for Democratic Reforms has submitted

the following table which showcases party-wise donation by corporate
houses to national parties:
PARTY-WISE CORPORATE DONATION
(NATIONAL PARTIES) (IN RS. Cr)

Party 2016-17 2017-18 2018-19 2019-20 2020-21 2021-22 Total

BJP 515.500 400.200 698.140 720.407 416.794 548.808 3,299.8500
INC 36.060 19.298 127.602 133.040 35.890 54.567 406.4570
NCP 6.100 1.637 11.345 57.086 18.150 15.280 109.5980
CPI(M) 3.560 0.872 1.187 6.917 9.815 6.811 29.1615
AITC 2.030 0.000 42.986 4.500 0.000 0.250 49.7660
CPI 0.003 0.003 0.000 0.000 0.000 0.000 0.0055
BSP 0.000 0.000 0.000 0.000 0.000 0.000 0.0000
TOTAL 563.253 422.010 881.260 921.950 480.649 625.716 3,894.8380

As per the said table, the data shows that the party-wise donation
by the corporate houses has been more or less stagnant from the
years 2016-17 to 2021-22. We do not have the comments or official
details in this regard from the Union of India or the ECI. The figures
support our conclusion, but I would not, without certainty, base my
analysis on these figures. However, we do have data of denomination/
sale of Bonds, as submitted by the petitioners, during the 27 phases
from March 2018 to July 2023, which is as under:
DENOMINATION WISE SALE OF EB DURING 27 PHASES
(MARCH, 2018-JULY, 2023)
No. of Electoral Amount
Denomination
Bonds Sold (In Rupees)
12,999 12,999 Crore
1 Crore
(54.13%) (94.25%)
7,618 761.80 Crore
10 Lakhs
(31.72%) (5.52%)
3,088 30.88 Crore
1 Lakh
(12.86%) (0.22%)
208 20.80 Lakh
10 Thousand
(0.86%) (0.001%)
99
1 Thousand 99,000
(0.41%)
Total 24,012 13791.8979 Cr.
604 [2024] 2 S.C.R.

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Analysis of this data shows that more than 50% of the Bonds in
number, and 94% of the Bonds in value terms were for Rs.1 crore.
This supports our reasoning and conclusion on the application of
the doctrine of proportionality. This is indicative of the quantum of
corporate funding through the anonymous Bonds.
71. The share of income from unknown sources for national parties
rose from 66% during the years 2014-15 to 2016-17 to 72% during
the years 2018-19 to 2021-22. Between the years 2019-20 to
2021-22 the Bond income has been 81% of the total unknown
income of national parties. The total unknown income, that is
donations made under Rs.20,000/-, sale of coupons etc. has not
shown ebbing and has substantially increased from Rs.2,550
crores during the years 2014-15 to 2016-17 to Rs.8,489 crores
during the years 2018-19 to 2021-22. To this we can add total
income of the national political parties without other known
sources, which has increased from Rs.3,864 crores during the
years 2014-15 to 2016-17 to Rs.11,829 crores during the years
2018-19 to 2021-22. The Bonds income between the years 2018-
19 to 2021-22 constitutes 58% of the total income of the national
political parties.137
72. Based on the analysis of the data currently available to us, along
with our previous observation asserting that voters’ right to know
supersedes anonymity in political party funding, I arrive at the
conclusion that the Scheme fails to meet the balancing prong of the
proportionality test. However, I would like to reiterate that I have not
applied proportionality stricto sensu due to the limited availability of
data and evidence.
73. I respectfully agree with the reasoning and the finding recorded by
Hon’ble the Chief Justice, holding that the amendment to Section
182 of the Companies Act, deleting the first proviso thereunder
should be struck down. While doing so, I would rather apply the
principle of proportionality which, in my opinion, would subsume
the test of manifest arbitrariness.138 In addition, the claim of privacy

137 “Parties’ unknown income rise despite electoral bonds”, The Hindu, 02.11.2023, pg.7.
138 The proportionality test, as adopted and applied by us, essentially checks, invalidates and does not
condone manifest arbitrariness. Proportionality analysis recognizes the thread of reasonableness which
[2024] 2 S.C.R.  605

Association for Democratic Reforms & Anr. v. Union of India & Ors.

by a corporate or a company, especially a public limited company

would be on very limited grounds, restricted possibly to protect the
privacy of the individuals and persons responsible for conducting the
business and commerce of the company. It will be rather difficult for
a public (or even a private) limited company to claim a violation of
privacy as its affairs have to be open to the shareholders and the
public who are interacting with the body corporate/company. This
principle would be equally, with some deference, apply to private
limited companies, partnerships and sole proprietorships.
74. In consonance with the above reasoning and on application of
the doctrine of proportionality, proviso to Section 29C(1) of the
Representation of the People Act 1951, Section 182(3) of the
Companies Act 2013 (as amended by the Finance Act 2017),
Section 13A(b) of the Income Tax Act 1961 (as amended by the
Finance Act 2017), are held to be unconstitutional. Similarly, Section
31(3) of the RBI Act 1934, along with the Explanation enacted by
the Finance Act 2017, has to be struck down as unconstitutional,
as it permits issuance of Bonds payable to a bearer on demand
by such person.
75. The petitioners have not argued that corporate donations should
be prohibited. However, it was argued by some of the petitioners
that coercive threats are used to extract money from businesses
as contributions virtually as protection money. Major opposition
parties, which may come to power, are given smaller amounts to
keep them happy. It was also submitted that there should be a cap
on the quantum of donations and the law should stipulate funds to
be utilised for political purposes given that the income of the political
parties is exempt from income tax. Lastly, suggestions were made
that corporate funds should be accumulated and the corpus equitably
distributed amongst national and regional parties. I have not in-depth
examined these aspects to make a pronouncement. However, the
issues raised do require examination and study.

is the underlying principle behind the first three prongs, legitimate aim, rational connection and necessity
test. The balancing analysis of the permissible degree of harm for a constitutionally permissible purpose
effectuates the guarantee of reasonableness. Therefore, any legislative action which is manifestly
arbitrary, would be disproportionate and will fall foul when we apply the principle of proportionality. See
also Shayara Bano v. Union of India, (2017) 9 SCC 1, where the Court held at paragraph 95, that
rationality, logic and reasoning are the triple underpinnings of the test of manifest arbitrariness.
606 [2024] 2 S.C.R.

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76. By an interim order dated 26.03.2021, this Court in the context of

contributions made by companies through Bonds had prima facie
observed that the voter would be able to secure information about
the funding by matching the information of aggregate sum contributed
by the company as required to be disclosed under Section 182(3) of
the Companies Act, as amended by the Finance Act 2017, with the
information disclosed by the political party. Dr. D.Y. Chandrachud,
Hon’ble the Chief Justice, rightly observes in his judgment that this
exercise would not reveal the particulars of donations, including the
name of the donor.
77. By the order dated 02.11.2023, this Court had asked for ECI’s
compliance with the interim order of this Court dated 12.04.2019.
Relevant portion whereof is reproduced below:
“In the above perspective, according to us, the just and
proper interim direction would be to require all the political
parties who have received donations through Electoral
Bonds to submit to the Election Commission of India in
sealed cover, detailed particulars of the donors as against
the each Bond; the amount of each such bond and the
full particulars of the credit received against each bond,
namely, the particulars of the bank account to which the
amount has been credited and the date of each such
credit.”
The intent of the order dated 12.04.2019 is that the ECI will continue
to maintain full particulars of the donors against each Bond; the
amount of each such Bond and the full particulars of the credit
received against each Bond, that is, the particulars of the bank
account to which the amount has been credited and the date of
each such credit. This is clear from paragraph 14 of the order
dated 12.04.2019 which had directed that the details mentioned
in paragraph 13 of the order dated 12.04.2019 will be furnished
forthwith in respect of the Bonds received by a political party till the
date of passing of the order.
78. In view of the findings recorded above, I would direct the ECI to
disclose the full particular details of the donor and the amount donated
to the particular political party through Bonds. I would restrict this
direction to any donations made on or after the interim order dated
[2024] 2 S.C.R.  607

Association for Democratic Reforms & Anr. v. Union of India & Ors.

12.04.2019. The donors/purchasers being unknown and not parties,

albeit the principle of lis pendens applies, and it is too obvious that
the donors/purchasers would be aware of the present litigation.
Hence, they cannot claim surprise.
79. I, therefore, respectfully agree and also conclude that:
(i) the Scheme is unconstitutional and is accordingly struck down;
(ii) proviso to Section 29C(1) of the Representation of the People
Act, Section 182(3) of the Companies Act, 2013, and Section
13A(b) of the Income Tax Act, 1961, as amended by the Finance
Act, 2017, are unconstitutional, and are struck down;
(iii) deletion of proviso to Section 182(1) to the Companies Act
of 2013, thereby permitting unlimited contributions to political
parties is unconstitutional, and is struck down;
(iv) sub-section (3) to Section 31 of the RBI Act, 1934 and the
Explanation thereto introduced by the Finance Act, 2017 are
unconstitutional, and are struck down;
(v) the ECI will ascertain the details from the political parties and
the State Bank of India, which has issued the Bonds, and the
bankers of the political parties and thereupon disclose the
details and names of the donor/purchaser of the Bonds and
the amounts donated to the political party. The said exercise
would be completed as per the timelines fixed by the Hon’ble
the Chief Justice;
(vi) Henceforth, as the Scheme has been declared unconstitutional,
the issuance of fresh Bonds is prohibited;
(vii) In case the Bonds issued (within the validity period) are with
the donor/purchaser, the donor/purchaser may return them
to the authorised bank for refund of the amount. In case the
Bonds (within the validity period) are with the donee/political
party, the donee/political party will return the Bonds to the
issuing bank, which will then refund the amount to the donor/
purchaser. On failure, the amount will be credited to the Prime
Ministers Relief Fund.
80. The writ petitions are allowed and disposed of in the above terms.
608 [2024] 2 S.C.R.

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Annexure - A
Standards of Review - Proportionality & Alternatives
Proportionality is a standard-based model. It allows factual and contextual
flexibility to judges who encounter diverse factual scenarios to analyse
and decide the outcome of factual clashes against the standards.
Proportionality, particularly its balancing prong, has been criticized by
jurists who contend that legal adjudication should be rule-based rather
than principle-based.139 They argue that this provides legal certainty by
virtue of rules being definitive in nature. In response, jurists in favour
of balancing contend that neither rules nor principles are definitive but
rather prima facie.140 Therefore, both rights and legislations/policies are
required to be balanced and realized to the optimum possible extent.
This jurisprudential clash is visible in the various forms and structures
of adoptions of proportionality. Generally, two models can be
differentiated from works of jurists.
1) Model I – Firstly, the traditional two stages of the means–end
comparison is applied. After having ascertained the legitimate
purpose of the law, the judge asks whether the imposed
restriction is a suitable means of furthering this purpose (rational
connection). Additionally in this model, the judge ascertains
whether the restriction was necessary to achieve the desired end.
The reasoning focuses on whether a less intrusive means existed
to achieve the same ends (minimal impairment/necessity).
2) Model II – This model adds a fourth step to the first model,
namely the balancing stage, which weighs the seriousness
of the infringement against the importance and urgency of the
factors that justify it.
In the table provided below, we have summarised the different
models of proportionality and its alternatives, as propounded by jurists
and adopted by courts internationally. We have also summarized
other traditional standards of review like the means-ends test and
Wednesbury unreasonableness for contextual clarity. In the last
column we have captured the relevant criticisms, as propounded
by jurists, to each such model.

139 Francisco J. Urbina, A Critique of Proportionality, American Journal of Jurisprudence, Vol 57, 2012. Also
see Ronald Dworkin, Taking Rights Seriously (Bloomsbury 2013), pp 41-42.
140 Robert Alexy, A Theory of Constitutional Rights, (translated by Julian Rivers, first published 2002, OUP
2010), pp. 47-48.
 Test/Model Scope of Test/Model Jurisdictions Applied Criticism
Four-stage In this model, all the four prongs of Germany The main premise of the criticisms
Proportionality proportionality test are employed, including Balancing was adopted by the of balancing is the wide discretion
the final balancing stage. German Constitutional Court in the available to judges.
According to Robert Alexy, values and 1950s as a new methodology for
interests (rights of citizens and objects of intensive judicial review of rights- To capture three contemporary
[2024] 2 S.C.R. 

legislations/policies) are both principles and restricting legislation. It stems criticisms in brief: (i) it leads to a
principles are optimization requirements.141 from the belief that the German comparison of incommensurable
They are norms and hence their threshold of Constitution posits an original idea values; 143 (ii) it fails to create
satisfaction is not strict, and can happen in of values, and the government and predictability in the legal system and
varying degrees. They must be satisfied to courts, both have a duty to realise is potentially dangerous for human
142
the greatest extent possible in the legal and these values. rights;144 and (iii) conversely, it is
factual scenarios, as they exist. All stages equally intrusive from the perspective
of the proportionality test therefore seek to of separation of powers.145
optimize relative to what is legally and factually
possible.
⇒ The rational connection and necessity
prongs of the proportionality test are
applicable to factual possibilities.
⇒ The balancing stage optimizes each
principle within what is legally possible, by
weighing the relevant competing principles.

141 See Robert Alexy, A Theory of Constitutional Rights (Julian Rivers, trans. Oxford Univ. Press 2002).
142 See Article 1 and 20, Basic Law for the Federal Republic of Germany.
143 See Francisco J. Urbina, ‘Is It Really That Easy? A Critique of Proportionality and Balancing as Reasoning’ Canadian Journal of Law and Jurisprudence, 2014; and
Bernhard Schlink, ‘Abwägung im Verfassungsrecht’, Duncker & Humblot, 1976.
144 Jochen von Bernstroff, Proportionality Without Balancing: Why Judicial Ad Hoc Balancing is Unnecessary and Potentially Detrimental to Realisation of Collective
Association for Democratic Reforms & Anr. v. Union of India & Ors.

and Individual Self Determination, Reasoning Rights – Comparative Judicial Engagement, (Ed. Liaora Lazarus);
609

145 Ibid.
Alexy proposes the ‘weight formula’,
610

which quantifies competing values (rights

of individuals) and interests (objective of
legislation/policy) by reducing them to
numbers. It is a method of thinking about
conflicting values/interests.
W1.2 = (I1 . W1 . R1 ) / (I2 . W2 . R2 )
⇒ W1.2 represents the concrete weight of
principle P1 relative to the colliding principle
P2.
⇒ I1 stand for intensity of interference with
P1. I2 stands for importance of satisfying
the colliding principle P2.
⇒ W1 and W2 stand for abstract weights of
colliding principles (P1 and P2).
⇒ When abstract weights are equal, as in
case of collision of constitutional rights (W1
and W2) – they cancel each other out.
⇒ R1 and R2 stands for reliability of empirical
and normative assumptions with regard
to the question of how intensive the
interpretation is.
The weight formula is thereupon reduced to
numbers on an exponential scale of 2.
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(i) The scale assigns following values to

intensity of interference (I) and abstract
weights (W)- light (l), moderate (m), and
serious (s) – in numbers these are – 20,
21, 22 – i.e., 1, 2 and 4 respectively.
(ii) To reliability (R), i.e., the epistemic side,
the values assigned are – reliable (r),
plausible (p) and not evidently false (e) –
in numbers these are - 20, 2-1, 2-2 – i.e., 1,
[2024] 2 S.C.R.

0.5 and 0.25

 Three-stage This model proposes limiting the proportionality Canada (i) In absence of the balancing stage,
Proportionality enquiry to its first three prongs, i.e., minus the Canada prefers to resolve cases the courts must be mindful of
balancing stage. in the first three prongs. Only in certain analytical weaknesses
Von Bernstorff argues against ad hoc balancing limited instances, does the Canadian of the necessity stage that can
based on two principal reasons: (i) ad hoc Supreme Court decide that a measure be dealt with at the balancing
balancing fails to erect stable and predictable survives the first three prongs stage.152
standards of human rights protection, allowing even but nevertheless fails at the final (ii) The core of the necessity test is
[2024] 2 S.C.R. 

the most intensive infringements of civil liberties to balancing stage.150 Despite this, past whether an alternate measure is as
be conveniently balanced out of existence when jurisprudence in Canada does affirm effective in achieving the purpose
the stakes are high enough; and (ii) the lack of the significance of final balancing as the measure under challenge,
predictability leads to a situation where every act of stage.151 while being less restrictive. But
parliament is threatened, however well intentioned, often, considerations of balancing
in the judicial balancing exercise and thus ad hoc may become disguised in the
balancing is potentially overly intrusive from a necessity prong, as the court must
separation of powers perspective.146 confront uncertainty in weighing
He, however, defends the use of judicially the efficacy of the alternatives.153
established bright-line rules for specific cases (iii) S o m e j u r i s t s / c o u r t s h a v e
where intensive interferences are at stake. The suggested a strict interpretation
bright line rule brings clarity to a law or regulation of necessity, where an alternate
that could be interpreted in multiple ways. Bright measure is only accepted as less
line rules constitute the ‘core’, ‘substance’ or restrictive when they prove to be
‘essence’ of a particular right, making human as effective as the measure under
rights categorical instead of open-ended in nature. challenge.

146 Jochen von Bernstroff, Proportionality Without Balancing: Why Judicial Ad Hoc Balancing is Unnecessary and Potentially Detrimental to Realisation of Collective
and Individual Self Determination, Reasoning Rights – Comparative Judicial Engagement, (Ed. Liaora Lazarus); Also see Bernhard Schlink, ‘Abwägung im
Verfassungsrecht’, Duncker & Humblot, 1976, pp. 192–219.
150 See Charterpedia, Department of Justice, Government of Canada, available at: https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art1.html. Also see Niels
Petersen (supra).
151 Ibid. Also see Canada (Attorney General) v. JTI-Macdonald Corp., [2007] 2 S.C.R. 610, at paragraph 46; Alberta v. Hutterian Brethren of Wilson Colony, and [2009]
2 S.C.R. 567, at paragraphs 72-78.
Association for Democratic Reforms & Anr. v. Union of India & Ors.

152 Niels Petersen, ‘Proportionality and judicial Activism: Fundamental Rights Adjudication in Canada, Germany and South Africa, (CUP 2017).
611

153 Ibid.
 A stricter evaluation of evidence becomes David Bilchitz has also proposed that
612

crucial at the necessity stage for an objective other alternatives must have both
standard of review, in contrast to ad hoc characteristics – equal realization
balancing. of the purpose and lesser invasion/
In Canada for instance, the onus of proof is on restriction on the right in question.154
the person seeking to justify the limit, which David Blichitz’s approach was
is generally the government.147 followed in Aadhar (5J) (Privacy)
⇒ The standard of proof is the civil standard (supra) case. This test was referenced
or balance of probabilities.148 in Anuradha Bhasin (supra), which
applied a moderate interpretation of
⇒ Where scientific or social science evidence the necessity test. To conclude the
is available, it will be required; findings of the necessity stage this
⇒ H owever, where such evidence is Court in Anuradha Bhasin (supra)
inconclusive, or does not exist and cannot suggests that an overall comparison
not be developed, reason and logic may be undertaken between the measure
suffice.149 and its feasible alternatives.
Means-ends The doctrine is similar to a reasonableness Australia The test is simplistic and gives limited
Test inquiry, albeit with some variation. The test was followed in Australia judicial flexibility. It does not account
In Australia, for instance, courts enquire b e f o r e t h e d e v e l o p m e n t o f for diverse factual scenarios.
whether a law is ‘reasonably appropriate and proportionality and is not frequently
adapted’ to achieving a legitimate end in a used in contemporary times.
manner compatible with the constitutionally
prescribed system of representative and
responsible government.
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147 R. v. Oakes [1986] 1 S.C.R. 103.

148 Oakes (supra).
149 Libman v. Quebec (A.G.), [1997] 3 S.C.R. 569; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Thomson Newspapers Co. v. Canada
(A.G.), [1998] 1 S.C.R. 877; R. v. Sharpe, [2001] 1 S.C.R. 45; Harper v. Canada (A.G.), [2004] 1 S.C.R. 827, at paragraph 77; R. v. Bryan, [2007] 1 S.C.R. 527,
at paragraphs 16-19, 29; Mounted Police Association of Ontario v. Canada (Attorney General), [2015] 1 S.C.R. 3, at paragraphs 143-144.
154 David Bilchitz, Necessity and Proportionality: Towards a Balance Approach?, (Hart Publishing, Oxford and Portland, Oregon 2016).
[2024] 2 S.C.R.
 Calibrated The essential elements of the approach are Australia Critics of this approach have
Scrutiny as follows:155 While proportionality is the emphasized that it takes away
(evolved ⇒ First, a judge determines the nature and predominant doctrine in Australia, from the flexibility that is required
means-ends intensity of the burden on the right by the this alternate test is applied by a while considering factually diverse
test) challenged law; few judges. These judges raise legal challenges. Therefore, the
test cannot substitute a contextually
⇒ Second, the judge calibrates ‘the concerns about the application of a guided judicial approach.156
[2024] 2 S.C.R. 

appropriate level of scrutiny to the risk test of structured proportionality and

posed to maintenance of the constitutionally suggest that it was best understood
prescribed system of representative and as ‘a tool’ of analysis, or ‘a means
responsible government; of setting out steps to a conclusion’,
‘not a constitutional doctrine’.
⇒ Third, the judge isolates and assesses the
importance of constitutionally permissible
purpose of the prohibition; and
⇒ Finally the judge applies the appropriate
level of scrutiny so as to determine
whether the challenged law is justified
as reasonably appropriate and adapted
to achieve that purpose in a manner
compatible with the maintenance of the
constitutionally prescribed system of
government,
The test is similar to some prongs of the
proportionality test. However, it is more rule
oriented instead of being standard/principle
oriented.

155 Judgment by Gagler J. in Clubb v. Edwards, (2019) 93 ALJR 448; Also see Adrienne Stone, Proportionality and its Alternatives, Melbourne Legal Studies Research
Paper Series No. 848
Association for Democratic Reforms & Anr. v. Union of India & Ors.

156 See John Braithwaite, Rules and Principles: a Theory of Legal Certainty, Australian Journal of Legal Philosophy 47 (2002).
613
 Strict Scrutiny This is considered one of the heightened forms United States of America Only a limited number of laws survive
614

Test of judicial review that can be used to evaluate The courts in the United States use under the strict scrutiny test. Its
the constitutionality of laws, regulations, a tiered approach of review with strict application is reserved for instances
or other governmental policies under legal scrutiny, intermediate scrutiny and where the most intensely protected
challenge.157 rational basis existing in decreasing fundamental rights are affected.
Strict scrutiny is employed in cases of violation degree of intensity.
of the most fundamental liberties guaranteed
to citizens in the United States of America.
For instance, it is employed in cases of
infringements on free speech.
The test places the burden on the
government to show a compelling, or
strong interest in the law, and that the law
is either very narrowly tailored or is the
least speech-restrictive means available to
the government.
The usual presumption of constitutionality
is removed, and the law must also pass
the threshold of both – necessity/end and
means.
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157 See Jennifer L. Greenblatt, Putting the Government to the (Heightened, Intermediate, or Strict) Scrutiny Test: Disparate Application Shows Not All Rights and
[2024] 2 S.C.R.

Powers Are Created Equal, (2009) 10 Fla Coastal L Rev 421.

 Unreasonableness A standard of unreasonableness is used for the Associated Provincial Picture The test is simplistic and is
/ Wednesbury judicial review of a public authority’s decision. H o u s e s L t d v. We d n e s b u r y traditionally only used for policies/
Principles A reasoning or decision is unreasonable (or Corporation 158 administrative decisions/delegated
irrational) when no person acting reasonably legislation.
could have arrived at it.
This test has two limbs:
[2024] 2 S.C.R. 

(i) The court is entitled to investigate the

action to check whether the authority has
considered and decided on matters which
they ought not to have considered, or
conversely, have refused to consider or
neglected to consider matters which they
ought to have considered.
(ii) If the above query is answered in favour
of the local authority, it may be held that,
although the local authority has ruled
on matters which they ought to have
considered, the conclusion they have
arrived at is nonetheless so unreasonable
that no reasonable authority could ever
have arrived at it.

Please note that:-

(i) The above table briefly summarises the different standards of constitutional review and it does not
elaborate on the said tests in detail;

158 (1948) 1 KB 223.

Association for Democratic Reforms & Anr. v. Union of India & Ors.
615
616 [2024] 2 S.C.R.

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(ii) the theories propounded by the jurists are not followed in

toto across the jurisdictions and this has been pointed out
appropriately; and
(iii) the table does not provide an exhaustive account of the full
range of standards of review employed internationally and is
restricted to the tests identified therein.

Headnotes prepared by: Nidhi Jain Result of the case:

Writ Petitions disposed of.
 [2024] 2 S.C.R. 617 : 2024 INSC 127

Dr. Mrs. Suman V. Jain

v.
Marwadi Sammelan through its
Secretary and Others
(Civil Appeal No. 1480 of 2012)
20 February 2024
[J.K. Maheshwari* and K.V. Viswanathan, JJ.]

Issue for Consideration

Whether in the facts of the case, withdrawal of resignation dated
25.03.2003 submitted by the appellant prior to the effective date,
i.e., 24.09.2003 ought to have been permitted; whether the letter of
the Management dated 08.04.2003 accepting the resignation was
final, binding and irrevocable and the rejection of the request for
withdrawal of such resignation was in accordance with law and; in
the facts of the case, what relief could be granted to the Appellant.

Headnotes
Service Law – Withdrawal of prospective resignation prior to
the effective date – Permissibility:
Held: In the absence of anything contrary in the provisions
governing the terms and conditions of the office or post and
in the absence of any legal contractual or constitutional bar, a
prospective resignation can be withdrawn at any time before it
becomes effective – Prospective or intending resignation would
be complete and operative on arrival of the indicated future date
in the absence of anything contrary in the terms and conditions
of the employment/contract – The intimation sent in writing to the
Competent Authority by the incumbent employee of his intention or
proposal to resign from his office/post from a future specified date
can be withdrawn at any time before it becomes effective – Letter
dtd. 25.03.2003 was an intimation of resignation from a prospective
date 24.09.2003, which could have been withdrawn by the appellant
prior to the effective date – There was no Rule/Regulation which
restrained such withdrawal – There was no prior consent to the
letter dtd. 08.04.2003 for accepting resignation w.e.f. 24.09.2003

* Author
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as ‘final, binding and irrevocable’ and therefore, by using such

words, the acceptance of resignation was unilateral – Withdrawal
of such resignation by appellant prior to the effective date was
permissible – Thus, the judgment of the House of Lords in “The
Rev. Oswald Joseph Reichel Vs. The Right Rev. John Fielder”
does not apply to the facts of the present case and the dismissal
of the petition of appellant on similarity of facts with the said case
was not correct and such findings by three fora are unsustainable
– On facts, the ratio of the judgment of the Constitution Bench
in Union of India and Others v. Gopal Chand Misra and Others
[1978] 3 SCR applies in full force – Orders passed by the College
Tribunal and the High Court set aside – Further, on peculiar facts
of this case, respondent no.1 to regularize the service period of
the appellant from 24.09.2003 (when they wrongly treated the
appellant as having resigned) till the date of joining the duty at
the new Institution as Principal on 01.10.2007 – Directions issued.
[Paras 28, 12, 27, 21, 31 and 29]
Doctrines/Principles – Principle of “vinculum juris” –
Discussed. [Para 24]

Case Law Cited

Union of India and Others Vs. Gopal Chand Misra and
Others, [1978] 3 SCR 12 : (1978) 2 SCC 301 – followed.
BSES Yamuna Power Limited Vs. Ghanshyam Chand
Sharma and Others, [2019] 14 SCR 546 : (2020) 3
SCC 346 – distinguished.
Air India Express Limited and Others Vs. Captain
Gurdarshan Kaur Sandhu, [2019] 12 SCR 980 : (2019)
17 SCC 129 – held inapplicable.
Srikantha S.M. Vs. Bharath Earth Movers Limited, [2005]
Supp. 4 SCR 156 : (2005) 8 SCC 314; Balram Gupta
Vs. Union of India and Another, [1987] 3 SCR 1173 :
1987 (Supp) SCC 228; Raj Kumar Vs. Union of India,
[1968] 3 SCR 857 : AIR 1969 SC 180 – relied on.
Century Spinning and Manufacturing Company Limited
and Another Vs. The Ulhasnagar Municipal Council and
Another, [1970] 3 SCR 854 : AIR 1971 SC 1021; Union
of India and Others Vs. M/s. Anglo Afghan Agencies
[2024] 2 S.C.R.  619

Dr. Mrs. Suman V. Jain v. Marwadi Sammelan through its

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Limited, [1968] 2 SCR 366 : AIR 1968 SC 718; New

Victoria Mills and Others Vs. Shrikant Arya, [2021] 11
SCR 750 : (2021) 13 SCC 771; B.L. Shreedhar and
Others Vs. K.N. Munireddy and Others, [2002] Supp.
4 SCR 601 : (2003) 2 SCC 355 – referred to.
The Rev. Oswald Joseph Reichel Vs. The Right Rev.
John Fielder (1889), House of Lords, XIV, 249 – held
inapplicable.

List of Acts
Maharashtra Universities Act, 1994.

List of Keywords
Prospective resignation; Withdrawal of prospective resignation;
Effective date; Intending resignation; Prior to the effective date;
Intention or proposal to resign; Intimation of resignation; Acceptance
of resignation; Principle of “vinculum juris”.

Case Arising From

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1480 of 2012
From the Judgment and Order dated 04.07.2008 of the High Court of
Bombay in AN No. 63 of 2008 & WP No. 1611 of 2004
Appearances for Parties
Varinder Kumar Sharma, Shantanu Sharma, Deeksha Gaur, Advs.
for the Appellant.
Ms. Nina Gupta, Dr. Lalit Bhasin, Ms. Vaishnavi Gupta, Ms. Radhika
Gupta, Aaditya Aniruddha Pande, Siddharth Dharmadhikari, Sourav
Singh, Aditya Krishna, Advs. for the Respondents.
Judgment / Order of the Supreme Court

Judgment
J.K. Maheshwari J.
1. The instant appeal arises out of the judgment dated 04.07.2008,
passed by the Division Bench of the ‘High Court of Judicature at
Bombay’ in Appeal No. 63 of 2008, whereby the Division Bench
dismissed the appeal preferred by the appellant and confirmed the
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order dated 08.08.2006 passed by learned Single Judge in Writ

Petition No. 1611 of 2004. The said writ petition was filed by the
appellant being aggrieved by an order dated 30.04.2004 passed by
the ‘Mumbai University and College Tribunal, Mumbai’ (hereinafter
referred to as “College Tribunal”) in ‘Civil Appeal No. 51 of 2003’.
Before the College Tribunal, the appellant filed an appeal to quash
the order dated 10.09.2003 passed by respondent No. 1 “Marwadi
Sammelan Trust” (hereinafter referred to as “Trust”) rejecting her
request for withdrawal of resignation vide letter dated 09.09.2003.
As such, this appeal is arising out of the orders passed by the three
fora before whom the challenge was made by the appellant to the
rejection of withdrawal of her prospective resignation, prior to the
effective date, and the rejection of her prayer for rejoining the duties.
FINDINGS OF THE COLLEGE TRIBUNAL
2. Assailing the rejection of request for withdrawal of the prospective
resignation prior to the effective date, appellant preferred an Appeal
No. 51 of 2003 before the College Tribunal. The College Tribunal
vide judgment dated 30.04.2004 was of the opinion that since it
was not an order of dismissal, removal or termination of service,
therefore, the appeal was not maintainable under Section 59(1)
of the Maharashtra Universities Act, 1994 (hereinafter referred
to as “1994 Act”) and on such, the question of limitation under
Section 59(2) does not arise. The College Tribunal having found
that the appeal is not maintainable, even delved into the question
of withdrawal of the prospective resignation before the effective
date on merits. After appreciating the facts, it was held in law that
the prospective resignation can be withdrawn before the expiry of
the intended date. However, on facts, it was held that there was an
implied understanding between the parties’ prohibiting withdrawal of
resignation. Hence, according to the College Tribunal, the present
case fell within the exception in the judgment of the House of Lords
in the case of “The Rev. Oswald Joseph Reichel Vs. The Right
Rev. John Fielder (1889), House of Lords, XIV, 249”, and hence,
the College Tribunal dismissed the appeal.
FINDINGS RECORDED BY THE LEARNED SINGLE JUDGE
3. The said judgment was challenged by filing a Writ Petition No.
1611 of 2004 before the Bombay High Court. Learned Single
Judge considered the question as to whether a right to withdraw
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the prospective resignation can be given up or abandoned? While

considering the same, learned Single Judge relied upon the judgment
of Rev. Oswald (supra) and after quoting the same, observed that
the right to withdraw the prospective resignation is capable of being
given up or waived off by the person who holds that right. Later,
the Court referred to the judgment on the principle of ‘estoppel’ and
‘waiver’ and in view of the letters dated 28.03.2003, 08.04.2003
and looking to the conduct of the appellant held that the findings
recorded by the tribunal on merits did not warrant any interference.
Learned Single Judge failed to appreciate the aspect about the
Tribunal having once found the appeal as not maintainable, as to
how far it was justified in confirming the findings and examining the
issue on merits.
FINDINGS OF THE DIVISION BENCH OF HIGH COURT
4. On challenge, the Division Bench confirmed those findings. In para
12 of the judgment, it was held that in normal circumstances, it was
open for the appellant to withdraw her resignation before it came into
effect, subject to a contract to the contrary. The Division Bench then
proceeded to consider the issue as to whether the Tribunal committed
any error in considering the factual aspect of the matter. The Division
Bench considered the correspondence made from the very inception,
i.e., letters dated 18.02.2003, 25.03.2003, 31.03.2003 and 11.8.2003
written by the appellant and letters dated 25.03.2003, 28.03.2003
and 08.04.2003 written by the management and observed that the
acceptance of withdrawal of resignation was not objected for quite
some time and that it reflected an understanding that the resignation
was irrevocable, final and binding between the parties. Relying upon
the judgment rendered in the case of Rev. Oswald (supra) and also
in the case of “Century Spinning and Manufacturing Company
Limited and Another Vs. The Ulhasnagar Municipal Council and
Another, AIR 1971 SC 1021” and “Union of India and Others Vs.
M/s. Anglo Afghan Agencies Limited, AIR 1968 SC 718” on the
issue of estoppel, the findings recorded by the College Tribunal and
the learned Single Judge of the High Court were affirmed.
ARGUMENTS RAISED
5. Learned counsel for the appellant placed reliance upon the judgment
of “Union of India and Others Vs. Gopal Chand Misra and Others,
(1978) 2 SCC 301” to contend that the decision of Rev. Oswald
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(supra) has been considered and distinguished in the said case. It

is submitted that in the absence of any contrary provision governing
the employment, prospective resignation given by an employee
can be withdrawn at any time before it becomes effective. Reliance
has further been placed on the judgments of “Srikantha S.M. Vs.
Bharath Earth Movers Limited, (2005) 8 SCC 314”; Balram Gupta
Vs. Union of India and Another, 1987 (Supp) SCC 228; “Air
India Express Limited and Others Vs. Captain Gurdarshan Kaur
Sandhu, (2019) 17 SCC 129” and “New Victoria Mills and Others
Vs. Shrikant Arya, (2021) 13 SCC 771”. It is pointed out that on
filing of an appeal before the Tribunal, there was a stay in favour
of the appellant till the disposal of the said appeal, i.e., 30.04.2004.
On disposal of the appeal by the College Tribunal and during the
pendency of the proceedings before the High Court, she secured
another job as Principal at M.M.P. Shah College and after joining
on 01.10.2007, she worked till the age of superannuation, i.e., till
31.10.2015. It is urged that the period from the date of acceptance of
the resignation till the joining in the new college may be directed to
be regularized on reinstatement, as otherwise, it may cause serious
prejudice to the appellant in the matter of payment of pension. It
is stated that, in the instant case, there was no written contract
or any contrary Rule governing the service of appellant, hence,
it is contended that she was entitled to withdraw the prospective
resignation. Learned Counsel contested the finding of implied contract
after referring to the correspondence between the appellant and the
management. According to the learned counsel, the said finding
was recorded without appreciating the contents of the letter in their
correct perspective. The College Tribunal, learned Single Judge and
the Division Bench, according to learned counsel have relied upon
the case of Rev. Oswald (supra) which was a judgment based on
the deed of resignation executed before the witnesses. Therefore,
the ratio of the said judgment is not applicable in the facts of this
case and the findings as recorded are not in conformity with the law.
6. Per contra, learned counsel for the Trust vehemently opposed the
stand taken by the appellant and argued in support of the reasonings
and findings of the impugned judgment. It is contended that the
present case is not a case of withdrawal of resignation from a future
effective date, rather it is a case where, by mutual understanding
resignation was accepted by the management and the controversy
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was put to rest. Learned counsel contends that in fact both parties
have mutually agreed and the controversy was put at rest by accepting
the resignation. Further, the doctrine of “locus poenitentiae” or the
opportunity for withdrawal of resignation by change of mind is of
no help to the appellant because the letter dated 08.04.2003 was
not objected for quite some time. According to the learned counsel,
from the correspondence between the appellant and the respondent
it is clear that the management intended to initiate departmental
inquiry and to avoid that inquiry, appellant submitted her resignation
from the prospective date, which was accepted as irrevocable, final
and binding. Thus, the findings recorded by the College Tribunal,
learned Single Judge and the Division Bench against the appellant
according to learned counsel warrants no interference. In support of
the contentions, reliance has been placed on “BSES Yamuna Power
Limited Vs. Ghanshyam Chand Sharma and Others, (2020) 3
SCC 346”, “B.L. Shreedhar and Others Vs. K.N. Munireddy and
Others, (2003) 2 SCC 355”, Air India Express Limited (supra),
Gopal Chand Misra (supra), Balram Gupta (supra) and The Rev.
Oswald (supra) and it has been submitted that this appeal deserves
to be dismissed.
7. Learned counsel for the Respondent Nos. 3 and 4 submits that
the College was run by the Trust affiliated by “Shreemati Nathibhai
Damodar Thackersey Women’s University” (hereinafter referred to
as “SNDT University”). As per Clause 8(3)(d) of SNDT Women’s
University Statute, the Governing Body of the management is
empowered to accept the resignation on giving six months’ notice or
payment of salary and the government has no role to play in refusal
or acceptance of the resignation. However, in the facts of the case,
once the resignation has been accepted by the Governing Body, the
findings as recorded by the Tribunal and High Court did not warrant
any interference.
8. In view of the findings recorded by the three fora, and the arguments
advanced by learned counsels for the parties in the facts of this case,
the following questions arise for determination before this Court –
A. Whether in the facts of the case, withdrawal of
resignation dated 25.03.2003 submitted by the
appellant prior to the effective date, i.e., 24.09.2003
ought to have been permitted?
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B. Whether in the facts of the case, letter of the

Management dated 08.04.2003 accepting the
resignation was final, binding and irrevocable; and
the rejection of the request for withdrawal of such
resignation was in accordance with law?
C. Whether in the facts of the case, what relief could
be granted to the Appellant?
DISCUSSION ON QUESTIONS (A) AND (B)
9. For the sake of convenience and since the discussion on the facts
and legal issues are common, questions (A) and (B) are taken up
together and dealt with simultaneously. On perusal of the findings
as recorded by the three fora, it is spelt out that relying upon the
judgment of the House of Lords in the case of Rev. Oswald (supra),
appeal, writ petition and the further appeal to Division Bench have
been dismissed. Therefore, we first need to analyze in detail the
said judgment. In the said case, the controversy arose from the
conduct of the ‘Vicar’ who was informed by the Bishop that he
must either submit to an inquiry or cease to hold his benefice.
On such proposal being made by the Bishop, the Vicar executed
an unconditional deed of resignation before the witnesses and
sent it to the Bishop’s Secretary on which the Bishop postponed
the formal acceptance of Vicar’s resignation until first of October.
However, on tenth of June, the Vicar by another document revoked
the earlier deed of resignation and communicated the same to
the Bishop’s Secretary on sixteenth of July. The Bishop in spite
of the revocation by Vicar, signed the document and accepted the
resignation from the first of October and declared the vicarage
void. Aggrieved by the same, the Vicar brought an action against
the Bishop and others seeking a declaration that he was a Vicar
and the acceptance of the resignation by the Bishop was void. He
also sought an injunction to restrain the defendants from treating
the benefice as vacant. The matter reached the House of Lords
in appeal, which affirmed the decision of the Court of Appeal and
held that the resignation was voluntary, absolute, validly executed
and irrevocable. Hence, the action brought by the Vicar was not
successful.
10. The judgment of Rev. Oswald (supra) was placed before the
Constitution Bench of this Court for consideration in the case of
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Gopal Chandra Misra (supra) and in para 69, it was distinguished

on facts and observed as thus –
"69. Reichal is no authority for the proposition that an
unconditional prospective resignation, without more,
normally becomes absolute and operative the moment
it is conveyed to the appropriate authority. The
special feature of the case was that Reichal had, of
his own free will, entered into a “perfectly binding
agreement” with the Bishop, according to which,
the Bishop had agreed to abstain from commencing
an inquiry into the serious charges against Reichal
if the latter tendered his resignation. In pursuance
of that lawful agreement, Reichal tendered his
resignation and did all to complete it, and the Bishop
also at the other end, abstained from instituting
proceedings against him in the Ecclesiastical Court.
The agreement was thus not a nudum pactum but
one for good consideration and had been acted upon
and “consummated before the supposed withdrawal
of the resignation of Mr. Reichal”, who could not,
therefore, be permitted “to upset the agreement” at
his unilateral option and withdraw the resignation
“without the consent of the Bishop”. It was in view
of these exceptional circumstances, Their Lordships
held Reichal’s resignation had become absolute and
irrevocable. No extraordinary circumstances of this
nature exist in the instant case.”
11. The Constitution Bench in the said case laid down the principles
with regard to prospective or potential resignation and held that
such resignation can be withdrawn at any time before it becomes
effective. The relevant paras 28, 29, and 41 are reproduced, for
ready reference, as thus –
"28. The substantive body of this letter (which has been
extracted in full in a foregoing part of this judgment)
is comprised of three sentences only. In the first
sentence, it is stated: “I beg to resign my office as
Judge, High Court of Judicature at Allahabad.” Had
this sentence stood alone, or been the only content of
this letter, it would operate as a complete resignation
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in praesenti, involving immediate relinquishment of

the office and termination of his tenure as Judge.
But this is not so. The first sentence is immediately
followed by two more, which read: “I will be on leave
till July 31, 1977. My resignation shall be effective
on August 1, 1977.” The first sentence cannot be
divorced from the context of the other two sentences
and construed in isolation. It has to be read along
with the succeeding two which qualify it. Construed
as a whole according to its tenor, the letter dated
May 7, 1977, is merely an intimation or notice of the
writer’s intention to resign his office as Judge, on
a future date viz. August 1, 1977. For the sake of
convenience, we might call this communication as a
prospective or potential resignation, but before the
arrival of the indicated future date it was certainly
not a complete and operative resignation because,
by itself, it did not and could not, sever the writer
from the office of the Judge, or terminate his tenure
as such.
29. Thus tested, sending of the letter dated May 7, 1977
by Appellant 2 to the President, did not constitute
a complete and operative resignation within the
contemplation of the expression “resigns his office”
used in proviso (a) to Article 217(1). Before the arrival
of the indicated future date (August 1, 1977), it was
wholly inert, inoperative and ineffective, and could
not, and in fact did not, cause any jural effect.
xxx xxx xxx xxx
41. The general principle that emerges from the foregoing
conspectus, is that in the absence of anything to the
contrary in the provisions governing the terms and
conditions of the office/post, an intimation in writing
sent to the competent authority by the incumbent,
of his intention or proposal to resign his office/post
from a future specified date can be withdrawn by him
at any time before it becomes effective, i.e. before
it effects termination of the tenure of the office/post
or the employment. ”
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12. As per the law laid down above by the Constitution Bench, the
prospective or intending resignation would be complete and operative
on arrival of the indicated future date in the absence of anything
contrary in the terms and conditions of the employment or contract.
The intimation sent in writing to the Competent Authority by the
incumbent employee of his intention or proposal to resign from his
office/post from a future specified date can be withdrawn at any time
before it becomes effective.
13. Now to appreciate the findings recorded by three fora, the facts of
the present case are required to be discussed with precision. In the
case at hand, the appellant was appointed as Principal on 01.07.1992
in “B.M. Ruia Girls and G.D. Birla Girls College” (hereinafter
referred to as “College”), affiliated to SNDT University and run
by respondent No. 1 – Trust. Her appointment was permanent,
and she was discharging the duties for a decade long period. In
the month of December 1998, the management of the Trust was
changed, and the functioning of the school was taken over by
the new management. In 2001, one Mr. Biani was appointed as
Convenor and it is alleged that there was interference in the day-
to-day functions and passing of lewd and inappropriate comments.
Distressed by it, the appellant along with her colleagues wrote a letter
dated 18.02.2003 containing some allegations and raised a protest.
It should also be noticed that one of the Trustees sent a letter to
appellant on 05.03.2003, stating that there are certain allegations
of financial irregularities and indiscipline against her, and she was
called upon to submit her justification. Appellant did not submit any
response to the said letter, and vide letter dated 04.03.2003, withdrew
her protest letter. On 25.03.2003, due to serious health issues, the
appellant submitted an intimation of resignation to the President of
Trust and informed that she wishes to resign from future date, i.e.,
24.09.2003. The President on the same date informed the appellant
that the Management Committee has decided to conduct a detailed
enquiry by a “Fact Finding Committee”. Appellant was directed to
proceed on leave for two months and hand over the charge to
one Mrs. Purvi Shah who shall work as “officiating Principal” with
immediate effect. Shortly within three days, i.e., on 28.03.2003, the
President informed the appellant to submit a fresh unconditional
resignation. For ready reference, the relevant portion of the said
letter is reproduced as under –
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“ xxx xxx xxx xxx

If you want to resign unconditionally of your own volition
with immediate effect and settle the controversy on this
footing, the management can perhaps consider your
request to drop the enquiry subject to affirmation of
managing committee. Your resignation with effect from
24.09.2003 is not acceptable to the management. Six
months’ notice can be waived on both sides in view of the
present situation is not mandatory. If you are not willing
to resign unconditionally with immediate effect, it is your
choice. If you want to resign with immediate effect, the
management may perhaps be persuaded to drop the
proposed enquiry in larger interest of the institute.
If no reply is received from you within 48 hours from receipt
of this letter, the management shall take appropriate action
in the matter as deemed fit.
xxx xxx xxx xxx ”
14. The appellant did not submit a fresh resignation and submitted
her response to the said letter on 31.03.2003 and requested the
management to consider her prayer to accept resignation from
prospective date, i.e., 24.09.2003. The relevant portion of the letter
specifying the reasons are reproduced as under –
“ xxx xxx xxx xxx
(1) As per Government statute, I am supposed to give
a 6 months’ notice before resigning from the post of
Principal. I would like to adhere to this government
rule.
(Ref. Dated )
(2) I have a total of approximately 7 months’ leave to my
credit which I would like to avail of before resigning.
Since I shall be receiving my remuneration from the
government, there will be no financial burden on the
management.
(3) Since I am already on long leave on medical advice,
I shall not be in a position to attend college till I am
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medically fit to do so in view of the very serious nature

of my brain and spine problems.
In view of the above, I request you to accept my resignation
valid from 24.09.2003. I am hopeful that the management
will take a sympathetic view of my request.
xxx xxx xxx xxx ”
15. Thereafter, the management vide letter dated 08.04.2003 accepted
the resignation in the following terms and replied to the appellant.
The necessary relevant portion is reproduced as thus –
“ xxx xxx xxx xxx
I acknowledge receipt of your letter dated 31.03.2003.
The management hereby accepts your unconditional
resignation with 6 months’ notice, i.e., with effect from 24th
September 2003 as final, binding and irrevocable. You
shall be on leave till 23.09.2003. As suggested by you, the
entire leave period shall be debited to your leave account.
In view of the above, the allegations and averments on
either side need not be dealt with. The same are not
admitted. The unpleasant dispute and the controversy is
thus closed on the above footing.
We have already appointed officiating Principal. We shall
proceed with the appointment of a regular Principal with
effect from 24.09.2003. The process shall be started soon.
During this period, you shall not represent the college
before any authority or elsewhere.
xxx xxx xxx xxx ”
16. From the above correspondence, it appears that the management
wanted unconditional resignation from appellant and to waive the
notice period mutually, they further proposed to consider dropping the
enquiry which was not accepted by the appellant. The appellant did
not submit any unconditional resignation and reiterated to consider
her resignation dated 25.03.2003 with effect from the future date
i.e., 24.09.2003 as prayed vide response dated 31.03.2003. The
management on its own accepted the said resignation from future
date but unilaterally mentioned as follows: – “hereby accept your
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unconditional resignation with six months’ notice w.e.f. 24.09.2003

as final, binding and irrevocable.”
17. The stand taken by the respondent that the contents of letter dated
11.08.2003 written by appellant is a sort of an implied understanding.
Hence, the contents of the letter is required to be reproduced to
appreciate the findings as recorded in this regard by the three fora
which reads as thus –
“ xxx xxx xxx xxx
This is to point out to you that some office bearers of
the managing committee have on certain occasions
(meetings, functions etc.) including a program held
in the college on 09.09.2003 made unsubstantiated,
unproved, incorrect and unauthentic allegations against
me publicly.
This is contrary to your own letter dated 08.04.2003 in
which it has been mentioned that “The allegations and
averments on either side need not be dealt with. The same
are not admitted. The unpleasant dispute and controversy
is thus closed on the above footing.
Making false allegations publicly amounts to character
assassination and defamation.
I therefore request you to ensure that henceforth members
of the managing committee do not publicly or otherwise
make false defamatory statements against me.
xxx xxx xxx xxx ”
On perusal of the same, the reference to the letter dated 08.04.2003
made in the said letter of 11.08.2003, referring to the contents,
particularly the lines “The allegations and averments on either side
need not be dealt with. The same are not admitted. The unpleasant
dispute and controversy thus end on above footing”, cannot be said
to be an acknowledgment of unconditional resignation. The consent
must be prior to the date of accepting the resignation. The contents
of letter dated 11.08.2003 do not indicate that it was an acceptance
of the resignation w.e.f. 24.09.2003 as final, binding and irrevocable.
On the basis of the contents of the letter dated 11.08.2003, we
cannot countenance the findings as recorded in impugned order,
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Dr. Mrs. Suman V. Jain v. Marwadi Sammelan through its

Secretary and Others

maintaining the order of rejection of her request to withdraw the

potential resignation with future date.
18. We have perused the above correspondence in detail. It does not
appear to us that the resignation was submitted by the appellant to
foreclose the commencement of any enquiry against her. Nothing
has been placed on record to demonstrate that the resignation was
submitted in lieu of the waiving of any departmental enquiry. Any
correspondence of the appellant showing prior consent has also not
been placed before us. The College Tribunal and the High Court
recorded the finding relying on the letter dated 08.04.2003 attributing
an acknowledgment by the appellant vide letter dated 11.08.2003.
The Courts below have treated it to be an implied understanding
or contract because the letter of 08.04.2003 was not replied to for
quite some time.
19. On perusal of the contents of the resignation letter dated 25.03.2003,
it is clear that the appellant requested to accept her resignation from
future date w.e.f. 24.09.2003 due to medical reasons. Vide letter dated
28.03.2003, the management demanded unconditional resignation
of appellant waiving the 6 months’ notice period by mutual consent,
which was not agreed and a reply was submitted on 31.03.2003
justifying the resignation from a prospective date. Thereafter, vide
letter dated 08.04.2003 the resignation dated 25.03.2003 was
accepted from a prospective date ‘unilaterally’ using the words “final,
binding and irrevocable.”
20. The judgment in Rev. Oswald (supra) was relied upon in the impugned
judgment to say that facts of the instant case are similar. In our view,
the case of Rev. Oswald (supra) was a case in which unconditional
deed of resignation was executed before the witnesses and sent
to the Bishop’s Secretary with an understanding of postponing the
formal acceptance until the future date. The resignation deed so
executed before witnesses was unilaterally withdrawn by the Vicar,
therefore, the House of Lords held that the resignation was voluntary,
absolute, validly executed and irrevocable.
21. In the case at hand, the unconditional resignation waiving the
requirement of six months’ notice as demanded by the Trust was not
submitted by the appellant. Without prior consent, the acceptance
of resignation vide letter dated 08.04.2003 using the words final,
binding and irrevocable was unilateral. In the subsequent letter dated
632 [2024] 2 S.C.R.

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11.08.2003, acceptance of the words “final, binding and irrevocable”

was not expressly made. In fact, it was in the context of the wordings
of the letter dated 08.04.2003 extracted hereinabove. The averments
in the letter dated 11.08.2003, which is after date of acceptance of
resignation also does not disclose any implied agreement to the
contents of the letter dated 08.04.2003. From above discussion, in our
view, we cannot accept the said line of reasonings recorded by three
fora. Therefore, in our view, the judgment of Rev. Oswald (supra)
does not apply to the facts of the present case. Thus, dismissal of
the petition of appellant on similarity of facts with the case of Rev.
Oswald (supra) is not correct and such findings by three for are
unsustainable. In our view, on the facts of this case, the ratio of the
judgment of the Constitutional Bench in the case of Gopal Chandra
Misra (supra) applies in full force.
22. Our said view is further fortified by the judgment of this Court in
Balram Gupta (supra), wherein reiterating the view taken in “Raj
Kumar Vs. Union of India, AIR 1969 SC 180”, this Court held
that till the resignation is accepted by the Competent Authority in
consonance with the rules governing the acceptance, the employee
has the ‘locus poenitentiae’, but not thereafter. On the facts referred
hereinabove of the present case, the withdrawal of the resignation
was made two weeks prior to the effective date, i.e., on 09.09.2003,
however, the appellant was having locus to withdraw the resignation
prior to the effective date of resignation.
23. In a later judgment of this Court in Srikantha S.M. (supra), the
principle of “vinculum juris” has been propounded, paras 26 and 27
whereof, are relevant therefore, reproduced as thus –
"26. On the basis of the above decisions, in our opinion,
the learned counsel for the appellant is right in
contending that though the respondent Company
had accepted the resignation of the appellant on
4-1-1993 and was ordered to be relieved on that
day, by a subsequent letter, he was granted casual
leave from 5-1-1993 to 13-1-1993. Moreover, he was
informed that he would be relieved after office hours
on 15-1-1993. The vinculum juris [[Ed.: vinculum (per
OED): A bond of union, a tie. Usually figurative, and
juris (per Black’s): Of Law; Of Right]], therefore, in our
[2024] 2 S.C.R.  633

Dr. Mrs. Suman V. Jain v. Marwadi Sammelan through its

Secretary and Others

considered opinion, continued and the relationship of

employer and employee did not come to an end on
4-1-1993. The relieving order and payment of salary
also make it abundantly clear that he was continued
in service of the Company up to 15-1-1993.
27. In the affidavit-in-reply filed by the Company, it was
stated that resignation of the appellant was accepted
immediately, and he was to be relieved on 4-1-1993.
It was because of the request of the appellant that
he was continued up to 15-1-1993. In the affidavit-in-
rejoinder, the appellant had stated that he reported
for duty on 15-1-1993 and also worked on that day.
At about 12.00 noon, a letter was issued to him
stating therein that he would be relieved at the close
of the day. A cheque of Rs 13,511 was paid to him
at 17.30 hrs. The appellant had asserted that he
had not received terminal benefits such as gratuity,
provident fund, etc. It is thus proved that up to 15-1-
1993, the appellant remained in service. If it is so, in
our opinion, as per settled law, the appellant could
have withdrawn his resignation before that date.
It is an admitted fact that a letter of withdrawal of
resignation was submitted by the appellant on 8-1-
1993. It was, therefore, on the Company to give effect
to the said letter. By not doing so, the Company has
acted contrary to the law and against the decisions
of this Court and hence, the action of the Company
deserves to be quashed and set aside. The High
Court, in our opinion, was in error in not granting
relief to the appellant. Accordingly, the action of the
Company as upheld by the High Court is hereby set
aside. ”
24. In the above case, on submitting the resignation, appellant was
relieved on 04.01.1993 granting leave from 05.01.1993 till 13.01.1993.
The effective date of resignation was prospective, i.e., 15.01.1993.
The appellant therein withdrew the resignation before the effective
date on 08.01.1993. The Company refused to accept such withdrawal
of resignation. In the said factual context, this Court set-aside such
an action of refusal to accept the withdrawal of resignation and
634 [2024] 2 S.C.R.

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explained the principle of “vinculum juris” holding that the relationship

of employer and employee did not come to an end on the date
of sending an intimation of withdrawal of resignation and it would
continue till the actual date of acceptance. In the said case, after
quashing the action of the company, this Court held that it would be
unjust to deny assignment of further work to the employee by the
employer and the employee was held entitled for salary and other
consequential benefits. In our view, the facts of the present case
are broadly similar to the said case.
25. Learned counsel for Trust has placed reliance on the judgment of
this Court in BSES Yamuna Power Limited (supra), however, the
facts of the said case are different. In the said case, the resignation
was treated as request for voluntary retirement however, the High
Court counting the past service of petitioner held him entitled for
pensionary benefits. The petitioner in the said case was regularized
on 22.12.1971. He submitted resignation on 07.07.1990, which
was accepted. The acceptance of the said resignation would have
resulted in forfeiture of past service. The High Court has treated it
as request for voluntary retirement and granted pensionary benefits.
Dealing with the said issue, this Court after referring the provision of
Rule 26 of Central Civil Services Pension Rules, 1972, clarified that
the resignation would have entailed forfeiture of service, and such
request cannot be treated as request for voluntary retirement. With
the said discussion, the judgment of the High Court was set-aside.
In our view, looking to the facts of this case, the said judgment is of
no help to the respondent.
26. The judgment of Captain Gurdarshan Kaur Sandhu (supra) has
been relied upon by the counsels for both sides, wherein this Court
in paragraph 12 reaffirmed the law laid down in Gopal Chandra
Misra (supra) and Balram Gupta (supra). The relevant para of the
said judgment is reproduced as thus –
"12. It is thus well settled that normally, until the resignation
becomes effective, it is open to an employee to
withdraw his resignation. When would the resignation
become effective may depend upon the governing
service regulations and/or the terms and conditions of
the office/post. As stated in paras 41 and 50 in Gopal
Chandra Misra [Union of India v. Gopal Chandra
[2024] 2 S.C.R.  635

Dr. Mrs. Suman V. Jain v. Marwadi Sammelan through its

Secretary and Others

Misra, (1978) 2 SCC 301 : 1978 SCC (L&S) 303],

“in the absence of anything to the contrary in the
provisions governing the terms and conditions of the
office/post” or “in the absence of a legal contractual or
constitutional bar, a ‘prospective resignation’ can be
withdrawn at any time before it becomes effective”.
Further, as laid down in Balram Gupta [Balram Gupta
v. Union of India, 1987 Supp SCC 228 : 1988 SCC
(L&S) 126], “If, however, the administration had made
arrangements acting on his resignation or letter of
retirement to make other employee available for his
job, that would be another matter. ”
In the said case, this Court carved out an exception on the basis of a
legal, contractual or a constitutional bar for withdrawal of prospective
resignation as referred in paragraph 50 of Gopal Chandra Misra
(supra). This Court referring to the “Civil Aviation Requirements,
2009” (hereinafter referred to as “CAR”) made a distinction that
the public interest would prevail over the interest of an employee’s
own interest. Interpreting Clause 3.7 of the CAR, the Court observed
that without appointment of pilots for operating the flights, the public
interest would be adversely affected. Thus, it was said that the
guiding idea of the eventuality specified therein were the parameters
required to be taken by employer in public interest and, the interest
of an employee cannot be given prominence over the public interest.
In our view, the said judgment has no application in the facts of
instant case wherein the charge of Principal was given on the date
of intimation of resignation itself, to one Mrs. Purvi Shah who was
appointed as “officiating Principal” with immediate effect, directing
the appellant to proceed on leave.
27. In view of the foregoing discussion, we answer question (A) and (B)
in favour of appellant and hold that letter dated 25.03.2003 is an
intimation of resignation from a prospective date i.e., 24.09.2003,
which could have been withdrawn by the appellant prior to the
effective date. There is no Rule or Regulation brought to our notice
which restrains such withdrawal. There was no prior consent to the
letter dated 08.04.2003 for accepting resignation w.e.f. 24.09.2003
as ‘final, binding and irrevocable’ which is on record and therefore,
by using such words, the acceptance of resignation was unilateral.
As discussed, there was no implied contract and understanding
636 [2024] 2 S.C.R.

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with prior consent. Therefore, the withdrawal of such resignation by

appellant prior to the effective date is permissible as per the law laid
down in the case of Gopal Chandra Misra (supra) and Srikantha
S.M. (supra). Learned counsel for the parties have also relied on
some more case law, but there is no need to burden our judgment
as the question of law as decided in those cases is one and the
same. It is further required to be observed that in view of the findings
recorded hereinabove, we are not examining the question about how
far the Tribunal was justified in dealing with the issue on merits. In
view of the above discussion, both the questions are answered in
favour of appellant.
ANALYSIS OF QUESTION (C)
28. In the absence of anything contrary in the provisions governing the
terms and conditions of the office or post and in the absence of any
legal contractual or constitutional bar, a prospective resignation can
be withdrawn at any time before it becomes effective as discussed
above. The Trust had made arrangements giving officiating charge
to the Principal in the place of appellant and as such there was no
prejudice to public interest.
29. In the peculiar facts of this case, it is clear that the effective date
of resignation was 24.09.2003. The College Tribunal granted stay
on 20.09.2003 which remained operative till the final judgment was
delivered by the College Tribunal on 30.04.2004. On filing of the writ
petition and appeal against the order of Writ Court, it was decided
against the appellant by the impugned judgment. During pendency of
litigation before the High Court, the appellant got selected on the post
of Principal in M.P.P. Shah College and on joining duty on 01.10.2007
worked till attaining the age of superannuation i.e., 31.10.2015.
Thus, because of the setting-aside of the orders impugned and due
to the superannuation, she cannot now be allowed to join the duty
in the respondent No. 1 institution. Simultaneously, it would not be
appropriate to give liberty to the Trust to initiate departmental action
for the allegations as raised in the letter of Trustee dated 05.03.2003,
especially after a lapse of more than 20 years, in particular when the
appellant had already attained the age of superannuation in 2015.
Therefore, while deciding the questions (A) and (B) in favour of
appellant, we deem it appropriate to direct the Trust to regularize the
service period of the appellant from 24.09.2003 (when they wrongly
[2024] 2 S.C.R.  637

Dr. Mrs. Suman V. Jain v. Marwadi Sammelan through its

Secretary and Others

treated the appellant as having resigned) till the date of joining the
duty at the new Institution as Principal on 01.10.2007. In the facts
of the case, the principle of ‘no work no pay’ would apply and the
appellant would not be entitled to back-wages and salary for such
regularized period, as she has not worked with the Trust. Thus, it
would suffice to observe that in view of her deemed continuance and
in view of our findings hereinabove, the period from 24.09.2003 to
01.10.2007 would be regularized by the respondent and be counted
as period spent on duty for all purposes including pension.
30. In view of the above discussion, we direct that on the regularization
of the period and treating the same as period spent on duty, the
service tenure of the appellant, both in the institution run by Trust
and in M.M.P. Shah College would be counted without any break in
service. Since she would have then completed minimum 20 years’
service required for pension under the Rules, she would be entitled
to her pension and other retiral benefits. The retiral and pensionary
benefits should be calculated and paid accordingly including the
arrears of pension. The said exercise be completed within a period
of four months from the date of this judgment. On failure to pay retiral
benefits/pension and arrears thereof within the time as specified, the
appellant shall be entitled to interest @ 7% per annum.
31. Accordingly, this appeal stands allowed in the above terms, and the
orders passed by the College Tribunal and the High Court stand
set-aside. Pending application(s), if any, shall also stand disposed
of. No order as to costs.

Headnotes prepared by: Divya Pandey Result of the case:

Appeal allowed.
 [2024] 2 S.C.R. 638 : 2024 INSC 125

Mohd Abaad Ali & Anr.

v.
Directorate of Revenue Prosecution Intelligence
(Criminal Appeal No. 1056 of 2024)
20 February 2024
[Sudhanshu Dhulia* and Prasanna Bhalachandra Varale, JJ.]

Issue for Consideration

Whether benefit of s.5 r/w. ss. 2 and 3 of the Limitation Act, 1963
can be availed in an appeal against acquittal.

Headnotes
Code of Criminal Procedure, 1973 – s. 378 – Limitation Act,
1963 – s. 5 r/w. ss.2 and 3 – Appellant herein faced trial u/s.
135(1)(b) of the Customs Act – Acquitted – Appeal against the
acquittal u/s. 378 of Cr.P.C. was filed before the High Court
along with an application for condonation of delay – The
said application was allowed – Against the said order, the
appellant moved u/s. 482 of Cr.P.C. on the grounds that s.5
of the Limitation Act would not apply in case of an appeal
against acquittal since the period of filing an appeal against
acquittal, has been prescribed u/s. 378(5) of CrPC itself, where
there is no provision for condonation of delay – Propriety:
Held: There is no doubt that where a special law prescribes a period
of limitation, s.5 of the Limitation Act would have no application,
subject only to the language used in the special statute – The
language prescribing a period of limitation is an important factor as
well – In the instant case, there is no such exclusionary provision
u/s. 378 of CrPC, or at any other place in the Code – The benefit
of s.5 r/w. ss.2 and 3 of the Limitation Act, 1963 can therefore be
availed in an appeal against acquittal – There is no force in the
contentions raised by the appellants as regards the non-application
of s.5 of the Limitation Act in the present case. [Para 11]

Case Law Cited

Kaushalya Rani v. Gopal Singh [1964] 4 SCR 982;
Mangu Ram v. Municipal Corporation of Delhi, [1976]
2 SCR 260 : (1976) 1 SCC 392 – referred to.
* Author
[2024] 2 S.C.R.  639

Mohd Abaad Ali & Anr. v. Directorate of Revenue

Prosecution Intelligence

Hukumdev Narain Yadav v. Lalit Narain Mishra, [1974]

3 SCR 31 : AIR 1974 SC 480; Gopal Sardar v. Karuna
Sardar, [2004] 2 SCR 826 : 2004 (4) SCC 252 – held
inapplicable.
Anjanabai v. Yeshwantrao Daulatrao Dudhe ILR (1961)
Bom 135 – referred to.

List of Acts
Code of Criminal Procedure, 1973; Limitation Act, 1963.

List of Keywords
Exclusionary provision; Benefit of s. 5 of Limitation Act in appeal
against acquittal.

Case Arising From

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1056
of 2024
From the Judgment and Order dated 20.01.2017 of the High Court
of Delhi at New Delhi in CRLMA No. 13802 of 2016 and CRLLP No.
330 of 2013
Appearances for Parties
Md. Shahid Anwar, Vijay Agarwal, Chetan, Mukul, Advs. for the
Appellants.
Vikramjit Banerjee, A.S.G., Mukesh Kumar Maroria, Mrs. Priyanka
Das, Nachiketa Joshi, Mrs. Merusagar Samantaray, Ishaan Sharma,
Advs. for the Respondent.
Judgment / Order of the Supreme Court

Judgment
Sudhanshu Dhulia, J.
Leave granted.
1. The present appellant was one of the four accused in a case instituted,
inter-alia under Section 135(1)(b) of Customs Act, 1962. He faced
trial (S.C. No. 33 of 2009) where he was ultimately acquitted by the
Additional Sessions Judge, North, Delhi vide order dated 06.10.2012.
640 [2024] 2 S.C.R.

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2. Against the order of acquittal, the Directorate of Revenue Intelligence

filed an appeal before the High Court on 27.06.2013. That appeal
against acquittal filed under Section 378 of CrPC was accompanied
by a delay condonation application, since the appeal was belated
by 72 days. The delay condonation application was allowed by the
Delhi High Court on 18.05.2016.
3. An application was then moved by the present appellant before
the High Court under Section 482 of CrPC for recalling of the said
order on grounds that Section 5 of the Limitation Act would not apply
in case of an appeal against acquittal since the period of filing an
appeal against acquittal, has been prescribed under Section 378(5) of
CrPC itself, where there is no provision for condonation of delay. By
order dated 20.01.2017 the Delhi High Court nonetheless dismissed
the application for recall filed by the appellant, although no reasons
were assigned while dismissing the application under Section 482.
4. This order has been challenged before us on the grounds that the
High Court has committed a patent error in allowing the belated appeal
against acquittal filed by public servant as the High Court has no
powers to condone the delay since the provisions of the Limitation
Act would not be applicable as Section 378 is a self-contained Code
as far as limitation is concerned since there is no period prescribed
in the Limitation Act for filing a appeal against acquittal.
5. In support of his argument, the learned counsel for the appellant Mr.
Vijay Kumar Aggarwal, has relied upon the judgment of this Court
in Kaushalya Rani v. Gopal Singh [1964] 4 SCR 982. The facts
of Kaushalya Rani are as follows: Kaushalya Rani had filed a case
against one Gopal Singh under Section 493 IPC and alternatively
under Section 496 IPC, alleging that Gopal Singh had deceitfully
made her believe that he is her lawfully married husband and thus
had sexual intercourse with her. Gopal Singh faced a trial in which
he was acquitted by the Trial Court and an appeal against acquittal
was filed by Kaushalya Rani under the Code of Criminal Procedure,
1898 (hereafter referred to as the “old CrPC”), under Section 417.
The appeal was filed beyond the period of 60 days as provided
under sub-section (4) of Section 417, i.e., the then prevailing
Criminal Procedure Code. The appeal was dismissed on grounds
of limitation by the Punjab & Haryana High Court. This matter was
thus taken by Kaushalya Rani before this Court. The case was filed
[2024] 2 S.C.R.  641

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Prosecution Intelligence

before this Court on a certificate of fitness granted by the Punjab &

Haryana High Court and the question for determination before this
Court was whether the provisions of Section 5 of the Limitation Act,
1908 (i.e. Act 9 of 1908 i.e. the old Limitation Act) would apply to
an application for special leave to appeal from an order of acquittal
under sub-section 3 of Section 417 of the old CrPC.
6. This Court on its interpretation of sub-section 4 of Section 4171 of old
CrPC and Section 29(2) of the old Limitation Act i.e. Indian Limitation
Act, 1908 held that Section 5 of the Limitation Act would not apply
in an application for leave to appeal under sub-section 3 of Section
417 of the old CrPC before High Court, in as much as Section 417
is a special code in itself and the limitation prescribed therein is 60
days and the court has no power to relax such a limitation to condone
the delay. Relying upon a full Bench judgment of the Bombay High
Court [Anjanabai v. Yeshwantrao Daulatrao Dudhe ILR (1961)
Bom 135] which held that Section 417(4) was special law within the
meaning of Section 29(2) of the Limitation Act. Thus, the appeal was
dismissed while relying on Section 29(2) of the old Limitation Act.
For ready convenience of this Court, Section 29(2) of the old Limitation
Act is reproduced below:
“(2) Where any special or local law prescribes for any suit,
appeal or application a period of limitation different from
the period prescribed therefore by the first schedule, the
provisions of Section 3 shall apply, as if such period were
prescribed therefor in that schedule, and for the purpose
of determining any period of limitation prescribed for any

1 Section 417 of the old CrPC is as follows:

417 (1) Subject to the provisions of sub-section (5), the State Government may, in any case, direct the
Public Prosecutor to present an appeal to the High Court from an original or appellate order of a acquittal
passed by any Court other than a High Court.
(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the
Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946
(XXXV of 1946), the Central Government may also direct the Public Prosecutor to present an appeal to
the High Court from the order of acquittal.
(3) If such an order of acquittal is passed in any case instituted upon the complaint and the High Court,
on an application made to it by the complainant in this behalf, grants special leave to appeal from the
order of acquittal, the complainant may present such an appeal to the High Court.
(4) No application under sub-section (3) for the grant of special leave to appeal from the order of acquittal
shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal.
(5) If, in any case, the application under sub-section (3) for the grant of special leave to appeal from an
order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1).
642 [2024] 2 S.C.R.

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suit, appeal or application by any special or local law—

(a) the provisions contained in Section 4, Sections 9 to 18,
and Section 22 shall apply only in so far as, and to the
extent to which, they are not expressly excluded by such
special or local law; and
(b) the remaining provisions of this Act shall not apply.”
A perusal of the aforesaid provision clearly shows that where there
is a special or local law prescribing the period of limitation in any
suit, appeal or application which is different from the period of
limitation prescribed in the first schedule of the Limitation Act, the
applicability of the Limitation Act will be only as regarding Section 4
and Sections 9 to 18 & 22 of the Limitation Act. The meaning thereby
afforded is that Section 5 of the old Act was expressly excluded
in cases where special law or local law provides for a period of
limitation. The learned counsel for the appellant would argue that
although in the present case, we are dealing with present Criminal
Procedure Code, 1973 and the new Limitation Act, 1963 however,
the provisions in the present Code for appeal against acquittal
i.e., under Section 378 of CrPC are of similar nature regarding
the prescription of a period of limitation for filing an appeal and
therefore the law as laid down by Kaushalya Rani (supra), would
apply in the present case as well.
7. This submission of the learned counsel is not correct. Subsequent
to the decision of this Court in Kaushalya Rani (supra), this Court
in Mangu Ram v. Municipal Corporation of Delhi (1976) 1 SCC
392, while dealing with a similar problem of limitation (in an appeal
against acquittal), distinguished Kaushalya Rani as Kaushalya Rani
was dealing with the old Criminal Procedure Code,1898 and the
old Limitation Act, 1908, where provisions were differently worded.
Under Section 378 of the new CrPC read with Section 29(2) of the
Limitation Act, 1963 though a limitation is prescribed, yet Section
29(2) of 1963 Act, does not exclude the application of Section 5.
Section 29(2) of Limitation Act, 1963 reads as under:-
“(2) Where any special or local law prescribes for any suit,
appeal or application a period of limitation different from
the period prescribed by the Schedule, the provisions of
Section 3 shall apply as if such period were the period
[2024] 2 S.C.R.  643

Mohd Abaad Ali & Anr. v. Directorate of Revenue

Prosecution Intelligence

prescribed by the Schedule and for the purpose of

determining any period of limitation prescribed for any
suit, appeal or application by any special or local law, the
provisions contained in Sections 4 to 24 (inclusive) shall
apply only insofar as, and to the extent to which, they
are not expressly excluded by such special or local law.”
(emphasis supplied)
The crucial difference here is of applicability of Section 5 of Limitation
Act. In both the Limitation Acts, i.e. Limitation Act of 1908 and the
present Limitation Act of 1963, the provision of extension of time
of limitation is given in Section 5 of the two Acts. Whereas 1908
Act specifically states that Section 5 will not apply when the period
of limitation is given in special Acts, the 1963 Act makes Section
5 applicable even in the special laws when a period of limitation is
prescribed, unless it is expressly excluded by such special law. A
comparative provision of Section 29(2) in the two Acts is given below:-

Section 29(2) of the Old Section 29(2) of the new

Limitation Act of 1908 Limitation Act of 1963
(2) Where any special or local law (2) Where any special or local law
prescribes for any suit, appeal or prescribes for any suit, appeal or
application a period of limitation application a period of limitation
different from the period prescribed different from the period prescribed
therefor by the first schedule, the by the Schedule, the provisions
provisions of section 3 shall apply of section 3 shall apply as if such
as if such period were prescribed period were the period prescribed
therefor in that schedule and for by the Schedule and for the
the purpose of determining any purpose of determining any period
period of limitation prescribed for of limitation prescribed for any
any suit, appeal or application by suit, appeal or application by any
any special or local law: special or local law, the provisions
(a) the provisions contained in contained in sections 4 to 24
section 4, sections 9 to 18, and (inclusive) shall apply only in so
section 22 shall apply only in so far as, and to the extent to which,
far as, and to the extent to which, they are not expressly excluded by
they are not expressly excluded such special or local law.
by such special or local law; and
(b) the remaining provisions of this
Act shall not apply.
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As Kaushalya Rani (supra) was decided under provisions of old

Limitation Act of 1908, this Court in Mangu Ram (supra) distinguished
Kaushalya Rani and held as under:
“There is an important departure made by the Limitation
Act, 1963 insofar as the provision contained in Section
29, sub-section (2), is concerned. Whereas, under the
Indian Limitation Act, 1908, Section 29, sub-section (2),
clause (b) provided that for the purpose of determining
any period of limitation prescribed for any suit, appeal or
application by any special or local law, the provisions of the
Indian Limitation Act, 1908, other than those contained in
Sections 4, 9 to 18 and 22, shall not apply and, therefore,
the applicability of Section 5 was in clear and specific terms
excluded, Section 29, sub-section (2) of the Limitation
Act, 1963 enacts in so many terms that for the purpose
of determining the period of limitation prescribed for any
suit, appeal or application by any special or local law the
provisions contained in Sections 4 to 24, which would
include Section 5, shall apply insofar as and to the extent
to which they are not expressly excluded by such special
or local law. Section 29, sub-section (2), clause (b) of
the Indian Limitation Act, 1908 specifically excluded the
applicability of Section 5, while Section 29, sub-section
(2) of the Limitation Act, 1963, in clear and unambiguous
terms, provides for the applicability of Section 5 and the
ratio of the decision in Kaushalya Rani case can, therefore,
have no application in cases governed by the Limitation
Act, 1963, since that decision proceeded on the hypothesis
that the applicability of Section 5 was excluded by reason
of Section 29(2)(b) of the Indian Limitation Act, 1908. Since
under the Limitation Act, 1963, Section 5 is specifically
made applicable by Section 29, sub-section (2), it can
be availed of for the purpose of extending the period of
limitation prescribed by a special or local law, if the applicant
can show that he had sufficient cause for not presenting
the application within the period of limitation. It is only if the
special or local law expressly excludes the applicability of
Section 5, that it would stand displaced. Here, as pointed
out by this Court in Kaushalya Rani case the time limit of
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sixty days laid down in sub-section (4) of Section 417 is

a special law of limitation and we do not find anything in
this special law which expressly excludes the applicability
of Section 5. It is true that the language of sub-section
(4) of Section 417 is mandatory and compulsive, in that it
provides in no uncertain terms that no application for grant
of special leave to appeal from an order of acquittal shall
be entertained by the High Court after the expiry of sixty
days from the date of that order of acquittal. But that would
be the language of every provision prescribing a period of
limitation. It is because a bar against entertainment of an
application beyond the period of limitation is created by a
special or local law that it becomes necessary to invoke
the aid of Section 5 in order that the application may be
entertained despite such bar. Mere provision of a period of
limitation in howsoever peremptory or imperative language
is not sufficient to displace the applicability of Section 5.
The conclusion is, therefore, irresistible that in a case
where an application for special leave to appeal from an
order of acquittal is filed after the coming into force of the
Limitation Act, 1963, Section 5 would be available to the
applicant and if he can show that he had sufficient cause
for not preferring the application within the time limit of
sixty days prescribed in sub-section (4) of Section 417, the
application would not be barred and despite the expiration
of the time limit of sixty days, the High Court would have
the power to entertain it.
(emphasis supplied)
8. Mr. Vijay Kumar Aggarwal, learned counsel would then rely upon two
cases, namely, Hukumdev Narain Yadav v. Lalit Narain Mishra
[AIR 1974 SC 480] and subsequently Gopal Sardar v. Karuna
Sardar [2004 (4) SCC 252].
9. Both the above mentioned cases were dealing with special laws where
a period of limitation was prescribed. Whereas Hukumdev Narain
Yadav (supra) relates to Election matter where Section 81 of the
Representation of People’s Act, 1951, prescribes a limitation of 45
days for filing an Election Petition, Gopal Sardar (supra) dealt with
the right of pre-emption under Section 8 of the West Bengal Land
646 [2024] 2 S.C.R.

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Reforms Act, 1955 which again prescribed three months limitation

for a bargadar and four months for a ‘raiyat’ to make an application
for pre-emption to the concerned authorities.
10. There can be no quarrel with the argument that where a special
law prescribes a period of limitation, Section 5 of the Limitation Act
would have no application, subject only to the language used in
the special statute. The language prescribing a period of limitation
is an important factor as well. For example, in the Representation
of Peoples Act, 1951 Section 81 prescribes limitation for presenting
an election petition as under :-
“81. Presentation of petitions.—(1) An election petition
calling in question any election may be presented on one
or more of the grounds specified in 207 [sub-section (1)]
of Section 100 and Section 101 to the 208 [High Court]
by any candidate at such election or any elector 209
[within forty-five days from, but not earlier than the date
of election of the returned candidate or if there are more
than one returned candidate at the election and dates of
their election are different, the later of those two dates].
Explanation.—In this sub-section, “elector” means a person
who was entitled to vote at the election to which the election
petition relates, whether he has voted at such election or not.
(2) [Omitted]
(3) Every election petition shall be accompanied by as
many copies thereof as there are respondents mentioned
in the petition [* * *] and every such copy shall be attested
by the petitioner under his own signature to be a true copy
of the petition.”
Section 86(1) further says that in case an election petition is filed
beyond a period of 45 days it shall be dismissed. Section 86(1)
reads as under:-
“86. Trial of election petitions.—(1) The High Court shall
dismiss an election petition which does not comply with
the provisions of Section 81 or Section 82 or Section 117.
Explanation.—An order of the High Court dismissing an
election petition under this sub-section shall be deemed
to be an order made under clause (a) of Section 98.”
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The election statute thus expressly bars filing of an election petition

beyond 45 days. The language of the statute, leaves no ambiguity
in this regard. “The High Court shall dismiss an election petition”,
is the language given in the statute. Simply put the Court has no
choice but to dismiss an election petition, which is filed beyond a
period of 45 days.
There is no scope for condoning the delay in an election matter.
Therefore in Hukumdev Narain Yadav (supra) it was stated as under:-
“17. Though Section 29(2) of the Limitation Act has been
made applicable to appeals both under the Act as well
as under the Code of Criminal Procedure, no case has
been brought to our notice where Section 29(2) has
been made applicable to an election petition filed under
Section 81 of the Act by virtue of which either Sections
4, 5 or 12 of the Limitation Act has been attracted. Even
assuming that where a period of limitation has not been
fixed for election petitions in the Schedule to the Limitation
Act which is different from that fixed under Section 81
of the Act, Section 29(2) would be attracted, and what
we have to determine is whether the provisions of this
Section are expressly excluded in the case of an election
petition….. In our view, even in a case where the special
law does not exclude the provisions of Sections 4 to 24
of the Limitation Act by an express reference, it would
nonetheless be open to the Court to examine whether
and to what extent the nature of those provisions or the
nature of the subject-matter and scheme of the special
law exclude their operation. The provisions of Section 3
of the Limitation Act that a suit instituted, appeal preferred
and application made after the prescribed period shall be
dismissed are provided for in Section 86 of the Act which
gives a peremptory command that the High Court shall
dismiss an election petition which does not comply with
the provisions of Sections 81, 82 or 117.
(emphasis supplied)
11. Later, while dealing another special statute viz West Bengal Land
Reforms Act, 1955 this Court in Gopal Sardar (supra) had an
occasion to comment on Mangu Ram (supra) where it says that the
648 [2024] 2 S.C.R.

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decision of Hukumdev Narain Yadav (supra) was not brought to

the notice of this Court when Mangu Ram (supra) was decided (we
have discussed Mangu Ram in the preceding paragraphs). Much
reliance has been placed by the learned counsel for the appellant
Shri Agarwal on this observation of the Court.
Hukumdev Narain Yadav as we have already discussed above
relates to election laws which falls in an entirely different category,
as far as period of limitation is concerned. A bare comment of this
Court that a case was not considered would not mean that the entire
findings of the court arrived in Mangu Ram (supra) are wrong. We
must appreciate Gopal Sardar for what it decides and the facts and
the context on which this decision is based. What were the facts of
Gopal Sardar and what were the findings of this Court? In Gopal
Sardar, this Court was again dealing with the period of limitation
relating to West Bengal Land Reforms Act, 1955 and the application
of Section 5 of the Limitation Act. Section 8 of the West Bengal
Land Reforms Act, 1955 gave certain right to a “raiyat” for transfer
of land of co-sharer, exercising his right of pre-emption but this
right had to be exercised “within a period of 4 months of the date
of cause of action”. The same Act in its Section 14-‘O’ and Section
19 while discussing the period of appeal provides that Section 5 of
the Limitation Act would apply. This Court thus came to a finding
that though Section 5 of the Limitation Act would apply in the case
of appeal but it will not apply in a case when the proceedings itself
had to be initiated in form of suit under Section 8 of the Act which
had to be done within a period of 4 months.
Section 8 of the West Bengal Land Reforms Act, 1955 reads as under:
“8. Right of purchase by co-sharer or contiguous
tenant.—(1) If a portion or share of a plot of land of a
raiyat is transferred to any person other than a co-sharer
of a raiyat in the plot of land, the bargadar in the plot of
land may, within three months of the date of such transfer,
or any co-sharer of a raiyat in the plot of land may, within
three months of the service of the notice given under
sub-section (5) of Section 5, or any raiyat possessing land
adjoining such plot of land, may, within four months of the
date of such transfer, apply to the Munsif having territorial
jurisdiction for transfer of the said portion or share of the
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plot of land to him, subject to the limit mentioned in Section

14-M on deposit of the consideration money together with
a further sum of ten per cent of that amount.
This is what this Court said on these two provisions:
“19. We conclude that Section 5 of the Limitation Act cannot
be pressed into service in aid of a belated application made
under Section 8 of the Act seeking condonation of delay.
The right of pre-emption conferred under Section 8 is a
statutory right besides being weak; it has to be exercised
strictly in terms of the said section and consideration of
equity has no place. On the facts found in these appeals,
applications under Section 8 were not made within four
months from the date of transfer but they were made four
years and six years after the date of transfer respectively
which were hopelessly barred by time. Benefit of Section 5
of the Limitation Act not being available to the applications
made under Section 8, Section 3 of the Limitation Act
essentially entails their dismissal.”
Neither Hukumdev Narain Yadav nor Gopal Sardar would help the
case of the appellant as both these cases deal with special laws which
prescribed a period of limitation and the expression of the language
contained in the law is very clear that under no circumstances can
such a limitation be condoned. The relevant provisions have already
been discussed earlier.
In the present case, there is no such exclusionary provision under
Section 378 of CrPC, or at any other place in the Code. The benefit
of Section 5 read with Sections 2 and 3 of the Limitation Act, 1963
can therefore be availed in an appeal against acquittal. There is
no force in the contentions raised by the appellants as regards the
non-application of Section 5 of the Limitation Act in the present case
and the appeal is therefore dismissed.
12. The interim order dated 20.03.2017 passed by this Court is hereby
vacated. The Registry is hereby directed to apprise these proceedings
to the Delhi High Court so that the matter may continue.

Headnotes prepared by: Ankit Gyan Result of the case:

Appeal dismissed.
 [2024] 2 S.C.R. 650 : 2024 INSC 121

The Tehsildar, Urban Improvement Trust and Anr.

v.
Ganga Bai Menariya (Dead) Through Lrs. and Others
(Civil Appeal No. 722 of 2012)
20 February 2024
[Vikram Nath and Rajesh Bindal,* JJ.]

Issue for Consideration

Civil Appeal No. 722 of 2012
The respondents-plaintiffs claimed that they had been granted patta
(lease) of the land by Gram Panchayat in the year 1959 and on
the basis thereof, they were continuing in possession. However,
the land was still being shown in the ownership of the Government.
A civil suit was filed by the respondents for permanent injunction
and for ownership and possession of the suit land. The suit was
filed as a notice was issued by the appellants u/s. 92A of the
Rajasthan Urban Improvement Act, 1959. Whether a suit simpliciter
for injunction was maintainable as the title of the property of the
plaintiff/respondent was disputed by the appellants/defendants.
C.A. Nos.8977/2012, 468/2013, 524/2013, 467/2013 and Civil
Appeal @ S.L.P.(C)No.25200/2013
In the aforesaid bunch of appeals and the Special Leave Petition, the
High Court had disposed of all the appeals, relying upon its earlier
judgment dated 14.07.2009 in S.B. Civil Second Appeal No.6/2008
titled as The Tehsildar, Urban Improvement Trust and another v.
Late Smt. Ganga Bai Menariya through legal representatives. The
aforesaid appeal decided by the High Court is subject matter of
consideration before this Court in C.A. No.722 of 2012.

Headnotes
Rajasthan Urban Improvement Act, 1959 – In C.A. No.722 of
2012, the trial Court found that the respondents-plaintiffs
were found to be in illegal possession of the land and were
not entitled to the injunction prayed for – It was specifically
noticed that the suit had not been filed for declaration as it was
merely for injunction and the encroachers on the land were
not found entitled to the relief of injunction – First Appellate
Court reversed the findings of the trial Court and the suit was

* Author
[2024] 2 S.C.R.  651

The Tehsildar, Urban Improvement Trust And Anr. v.

Ganga Bai Menariya (Dead) Through Lrs. And Others

decreed – The High Court upheld the judgment and decree of

the First Appellate Court – Propriety:
Held: The fact remains that no revenue record was produced by
the respondents-plaintiffs to show that the land in question was
ever mutated in their favour – In the evidence led, they were found
to be in possession as even the case set up by the appellants is
that they issued notice to the respondents-plaintiffs u/s. 92A of the
1959 Act – The respondents-plaintiffs while filing the civil suit did
not implead the Gram Panchayat as party – In such circumstances,
the respondents-plaintiffs were required to prove the document as
the competence of the Gram Panchayat to lease out the land itself
was in question – In the revenue record produced on record by
the appellants, it is shown that the land in question was shown in
ownership of Government – In the light of the aforesaid stand and
the evidence led on record by the appellants-defendants, it was
incumbent on the respondents to have proved their title on the
land, which they failed to establish – Further a suit simpliciter for
injunction may not be maintainable as the title of the property of
the plaintiff/respondent was disputed by the appellants/defendants
– In such a situation it was required for the respondent/plaintiff
to prove the title of the property while praying for injunction – In
opinion of this Court, the judgment of the High Court suffers from
patent illegality – Consequently, the judgment and decree of the
First Appellate Court as well as the High Court are set aside and
that of the Trial Court is restored. [Paras 20,21,21.1,21.2]
Rajasthan Panchayat (General) Rules, 1961 – r. 266 – In C.A.
Nos.8977/2012, 468/2013, 524/2013, 467/2013 and Civil Appeal
@ S.L.P.(C) No.25200/2013, civil suits were filed claiming
that the land in question was leased out to the plaintiffs by
the Gram Panchayat – In support of the plea, the plaintiff/
respondent placed on record the document dated 27.08.1985,
the lease deed – However, the same was not proved – The
trial Court came to the conclusion that no case was made out
by the plaintiff/respondent – Hence, the suit for permanent
injunction was dismissed – First Appellate Court passed the
decree of permanent injunction – Same was upheld by the
High Court – Propriety:
Held: As recorded by the Trial Court, the respondents/plaintiffs had
not been able to prove the document on the basis of which they were
claiming a right of possession of the property in question – Even if
the aforesaid document is considered, the sale was clearly violative
of Rule 266 of the 1961 Rules, under which aforesaid alleged lease
652 [2024] 2 S.C.R.

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deed/sale deed has been issued in favour of the respondents/plaintiffs

– In terms of Rule 266 of the 1961 Rules, only in certain specified
situation, the land could be transferred by way of sale on private
negotiation, namely, where any person has a plausible claim of title
to the land and auction may not fetch reasonable price or it may
not be the convenient mode for disposal of land or where such a
course is regarded by the Panchayat necessary for advancement of
Scheduled Castes and Scheduled Tribes or other Backward Classes
– Another situation envisaged is where the person is in possession
of land for more than 20 years but less than 42 years – Nothing
was produced on record to show that the due process required for
leasing out/sale of the land in favour of the respondents/plaintiffs
by private negotiation was followed – Gram Panchayat from whom
the land was taken was not impleaded as party to admit or deny
the allegations made by the respondents/plaintiffs in the plaint –
The impugned judgments of the High Court as well as the First
Appellate Court are set aside and that of the trial Court is restored
– Resultantly, the suits are dismissed. [Paras 29, 30]

Case Law Cited

Union of India v. Brahim Uddin and another, [2012] 8
SCR 35 : (2012) 8 SCC 148; Anathula Sudhakar v. P.
Buchi Reddy (Dead) by Lrs. and ors., [2008] 5 SCR
331 : (2008) 4 SCC 594 – referred to.

List of Acts
Rajasthan Urban Improvement Act, 1959; Indian Evidence Act,
1872; Rajasthan Panchayat (General) Rules, 1961.

List of Keywords
Lease of land by Gram Panchayat; Suit for permanent injunction;
Title of the property; Proving the title of the property while praying
for injunction.

Case Arising From

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 722 of 2012
From the Judgment and Order dated 14.07.2009 of the High Court of
Judicature for Rajasthan at Jodhpur in SBCSA No.6 of 2009
With
Civil Appeal Nos. 8977 of 2012, 468, 524, 467 of 2013 And 2687 of 2024
[2024] 2 S.C.R.  653

The Tehsildar, Urban Improvement Trust And Anr. v.

Ganga Bai Menariya (Dead) Through Lrs. And Others

Appearances for Parties

S. Niranjan Reddy, C. S. Mohan Rao, Sr. Advs., Ms. Aruna Gupta,
Ramesh Allanki, Lokesh Kumar Sharma, Syed Ahmad Naqvi, Ms.
Palak, Advs. for the Appellants.
V.K.Shukla, Sr. Adv., Rishabh Sancheti, Ms. Padma Priya, Anchit
Bhandari, Suyash Jain, Chirag Kalani, Karan Bhootra, Garvit Sharma,
K. Paari Vendhan, T. Mahipal, Vivek Gupta, Mrinmay Bhattmewara,
Manish Mogra, Ankit Verma, Dashrath Singh, Gp. Capt. Karan Singh
Bhati, Advs. for the Respondents.
Judgment / Order of the Supreme Court

Judgment
Rajesh Bindal, J.
1. Leave granted in S.L.P.(C)No.25200 of 2013.
2. This order will dispose of a bunch of appeals as common issues
are involved.
Civil Appeal No. 722 of 2012
3. In the case in hand, a Civil Suit1 was filed by the respondents for
permanent injunction and for ownership and possession of the suit
land. The Trial Court2 dismissed the suit, however, First Appellate
Court3 accepted the appeal and decreed the suit restraining the
defendants therein from interfering in the possession of the plaintiffs
in the suit land. The appeal preferred before the High Court4 by the
present appellants was dismissed. It is the aforesaid judgment5,
which is impugned before this Court.
4. The respondents filed the suit on 10.05.1999 for permanent injunction
against the appellants and also claimed ownership and possession
of the suit land, situated at Mauja Madri, Savina Road, measuring
35x38 i.e., 1,330 square yards on which a room measuring 20x30
feet had been constructed. It was claimed that the suit land was

1 Civil Sut Case No. 153/99ED

2 Civil Judge (K-Kha) City (South) Udaipur
3 Additional District Judge, Udaipur
4 Rajasthan High Court at Jodhpur
5 Judgement dated 14.07.2009 in Civil Second Appeal No. 06 of 2009
654 [2024] 2 S.C.R.

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purchased by the respondents-plaintiffs from Panchayat Titardi on

13.12.1959 and a boundary wall was constructed in the year 1960.
The suit was filed as a notice was issued by the appellants under
Section 92A of the 1959 Act6.
5. The stand taken by the appellants in the written statement was
that the land in question is a Government land (Bilanam Sarkar)
earmarked for grazing cattles (gochar land), which was forming
part of Khasra No. 1163 ( old Khasra No. 838) in village Mauza
Madri Menaria, Tehsil Girva. The Gram Panchayat, Titardi was
not competent to grant lease in respect to the aforesaid land,
especially when it was ear-marked for grazing cattles. Notice was
issued on receiving information that the respondents-plaintiffs
had encroached upon the land. It was also pleaded that Gram
Panchayat, Titardi was a necessary party but had not been
impleaded. In the revenue record, the land was still shown to be
owned by the Government. In case the claim of respondents-
plaintiffs was that it was given on lease to them, there was no
mutation entered on the basis thereof.
6. The Trial Court framed six issues as extracted below:
"1. Whether the land mentioned in para 1 of the suit is
the land and house in the ownership and possession
of the plaintiff? Plaintiff
2. Whether the defendants forcibly wanted to demolish
the plaintiff’s house? Plaintiff
3. Whether the plaintiff has tried to unauthorisedly
acquire the land which is in the ownership of Nagar
Vikas Pranyas? Defendant
4. Whether in absence of pleading the Gram Panchayat
Titardi as necessary party, the suit of the plaintiff is
not maintainable? Defendant
5. Whether the Gram Panchayat Titardi was not
authorized to issue the patta in favour of the plaintiff,
the patta issued in favour of plaintiff is forged?
Defendant

6 Rajasthan Urban Improvement Act, 1959

[2024] 2 S.C.R.  655

The Tehsildar, Urban Improvement Trust And Anr. v.

Ganga Bai Menariya (Dead) Through Lrs. And Others

6. Whether without declaration suit for injunction filed

by the plaintiff is not maintainable? Defendant”
7. Issues No. 1 to 3 and 5, being inter-related, were decided together.
The respondents-plaintiffs had not been able to make out the pleaded
case on the basis of evidence led by them and the same were decided
against them. Issue No. 4 was decided against the plaintiffs and in
favour of the defendants and so was the finding recorded on issue
No. 6. Finally, the Trial Court found that the respondents-plaintiffs were
found to be in illegal possession of the land and were not entitled to
the injunction prayed for. It was specifically noticed that the suit had
not been filed for declaration as it was merely for injunction and the
encroachers on the land were not found entitled to the relief of injunction.
8. In appeal before the First Appellate Court by the respondents, the
findings recorded by the Trial Court were reversed and the suit
was decreed. Even the issue regarding non-impleadment of Gram
Panchayat, Titardi as necessary party in the suit was reversed. So
was the position with regard to maintainability of the suit simpliciter
for injunction without praying for relief of declaration. This is despite
the fact that the respondents-plaintiffs had claimed their title or
legality of possession on the land from the Gram Panchayat, which
was not impleaded.
9. The High Court upheld the judgment and decree of the First Appellate
Court in an appeal filed by the present appellants. The High Court
noticed that allotment of land in favour of the respondents-plaintiffs
in the year 1959 was proved with the evidence of two witnesses,
who were members of the Gram Panchayat at the relevant time. The
High Court also recorded that patta (lease) is in existence, which
was granted by a statutory body, Gram Panchayat, Titardi. The
respondents-plaintiffs were entitled to decree of permanent injunction.
The suit simpliciter for injunction was held to be maintainable without
seeking declaration. The High Court found that no substantial question
of law was involved in the second appeal.
C.A. Nos.8977/2012, 468/2013, 524/2013, 467/2013 and Civil
Appeal @ S.L.P.(C)No.25200/2013
10. In the aforesaid bunch of appeals and the Special Leave Petition,
in which leave was granted, the High Court had disposed of all the
appeals, merely relying upon its earlier judgment dated 14.07.2009
656 [2024] 2 S.C.R.

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in S.B. Civil Second Appeal No.6/2008 titled as The Tehsildar,

Urban Improvement Trust and another v. Late Smt. Ganga Bai
Menariya through legal representatives. The aforesaid appeal
decided by the High Court is subject matter of consideration before
this Court in C.A. No.722 of 2012, which is being dealt with in the
present judgment.
ARGUMENTS
Civil Appeal No. 722 of 2012
11. Learned counsel for the appellants submitted that the findings
recorded by the First Appellate Court, as upheld by the High Court,
are erroneous. In fact, the judgment and decree of the Trial Court
was passed while properly appreciating the legal position and the
evidence produced on record. It is a case in which the respondents-
plaintiffs claimed that they had been granted patta (lease) of the
land by Gram Panchayat, Titardi in the year 1959 and on the basis
thereof, they were continuing in possession. However, the fact
remains that the land was still being shown in the ownership of the
Government. It was ear-marked for grazing cattles (pasture land).
The Gram Panchayat did not have any authority to lease out the
same. It cannot even change user of the land. Simpliciter a suit for
permanent injunction was filed without seeking a declaration of the
rights vested in the respondents-plaintiffs on the basis of documents
produced by them on record, which was not maintainable. Gram
Panchayat, Titardi from which the respondents-plaintiffs were claiming
rights in the property, was not even impleaded as party. The patta
(lease) in favour of the respondents-plaintiffs was sought to be proved
merely by producing two witnesses, who were claimed to be the
members of the Panchayat at the relevant time but not signatory to
the document. The record from Gram Panchayat was not summoned.
The High Court had failed to frame any substantial question of law.
C.A. Nos.8977/2012, 468/2013, 524/2013, 467/2013 and Civil
Appeal @ S.L.P.(C)No.25200/2013
12. Additional argument raised in the bunch of other appeals was that
the Gram Panchayat had granted patta (lease) in favour of the
respondents therein in contravention of Rule 266 of the 1961 Rules7

7 The Rajasthan Panchayat (General) Rules, 1961

[2024] 2 S.C.R.  657

The Tehsildar, Urban Improvement Trust And Anr. v.

Ganga Bai Menariya (Dead) Through Lrs. And Others

in terms of which the panchayat land could be sold by way of private

negotiation only in case it was not possible to fetch reasonable price
if the land was put to auction. Specific reasons were required to be
recorded. The respondents-plaintiffs being in illegal possession of
the land, notices were rightly issued for their eviction. It was after
following the due process of law, which could not be challenged
merely by filing a suit for injunction.
13. On the other hand, learned counsel for the respondents submitted
that it was claimed that the respondents-plaintiffs had title of the
property by way of lease executed by Gram Panchayat, Titardi on
13.12.1959. It is claimed by the appellants that chunk of land was
transferred by District Collector vide order dated 15.4.1989 to the
Urban Improvement Trust for extension of abadi. It was said to be
Government bilanam. There was no reference of gochar land, as
is sought to be claimed by the appellants. Notice was issued to the
respondents more than 19 years after the land was transferred to
Urban Improvement Trust. As the respondents wanted to protect their
right in the land as also possession, the suit was filed merely for
permanent injunction as they had title of the property on the basis
of patta executed by Gram Panchayat in their favour. There was no
need to file a suit for declaration. The patta (lease) executed by the
Gram Panchayat was exhibited. It was issued by the Sarpanch in
the presence of two witnesses. Both were examined as PW4 and
PW5. The documents being more than 30 years old, there was
presumption available under Section 90 of the 1872 Act8. There is
no error in the judgment and decree passed by the First Appellate
Court, as upheld by the High Court.
14. It was further argued that on 17.10.2012, the State Government
introduced a Scheme, whereby land in possession of persons prior
to the year 1965 was being regularised. In terms of that, 23.43
hectares of land in village Paneriyo Ki Madari was transferred
by the appellants to Municipal Council, Udaipur vide letter dated
29.01.2013. NOC was also issued by Municipal Council, Udaipur on
04.04.2013 for issuance of patta under the State Grants Act, 1961 to
the persons in possession of the land prior to 01.01.1965. Thus, in
view of this subsequent developments, the appellants have nothing

8 Section 90 of the Indian Evidence Act, 1872

658 [2024] 2 S.C.R.

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to do with the land in question. Number of pattas had already been

issued in favour of occupants of the land. In fact, for part of the land
in question, pattas have already been issued on 21.10.2012. The
aforesaid Scheme i.e. known as ‘Parshashan Shehron Ka Sang
Abhiyan, 2012’. It continued from time to time in the State till the
year 2020-21.
15. It was further submitted that a clarification was issued by the State
Government on 21.04.2022 regarding the Scheme of 2021 for
issuance of free hold patta. As per the aforesaid clarification, the
patta may be issued in favour of last purchaser in the absence of
link document, who purchased land after 31.12.2018.
16. Heard leaned counsel for the parties and perused the relevant
referred record.
DISCUSSION
Civil Appeal No. 722 of 2012
17. In the case in hand, the respondents claimed that they were
given the land measuring 1330 square yards on lease by Gram
Panchayat, Titardi on 13.12.1959. It is claimed that they were
in possession of the land ever since then. The fact remains that
no revenue record was produced by the respondents-plaintiffs to
show that the land in question was ever mutated in their favour.
In the evidence led, they were found to be in possession as even
the case set up by the appellants is that they issued notice to the
respondents-plaintiffs under Section 92A of the 1959 Act. To prove
the lease in their favour, the respondents-plaintiffs had produced in
evidence Ex.1, claimed to be lease deed dated 13.12.1959 executed
by the Gram Panchayat in favour of late Ganga Bai widow of Jai
Shankar Menaria. In the stand taken by the appellants, the land
being reserved for grazing cattles could not possibly be leased
out by the Gram Panchayat.
17.1. On one side, the plea sought to be taken by the respondents
is that the document being more than 30 years old, there
was presumption of truth in terms of Section 90 of the 1872
Act. This section provides that if the document is more than
30 years old and is being produced from proper custody, a
presumption is available to the effect that signatures and
every other part of such document, which purports to be in
[2024] 2 S.C.R.  659

The Tehsildar, Urban Improvement Trust And Anr. v.

Ganga Bai Menariya (Dead) Through Lrs. And Others

the handwriting of any particular person, is in that person’s

handwriting and in case a document is executed or attested,
the same was executed and attested by the persons by whom
it purports to be executed and attested. This does not lead
to a presumption that recitals therein are correct. (Reference
can be made to the judgment of this Court in Union of India
v. Brahim Uddin and another9.
18. Nothing was referred to by learned counsel for the respondents from
the record to show the reasons for producing copy of the document
in Court and not summoning the record from the Gram Panchayat
to prove execution of the alleged lease in their favour. The contents
of the documents were required to be proved. Effort was made to
prove the document by producing two witnesses. (PW4 and PW5
stated that the lease was granted in favour of the respondents). It
was signed by the Sarpanch. There was no material on record to
show that, except the oral statements of aforesaid two witnesses that
at the relevant time, namely, in the year 1959, they were members
of the Gram Panchayat otherwise the document Ex.1 (lease deed)
placed on record by the respondents-plaintiffs as such does not
contain their signatures. The document only contains signatures of
some Sarpanch who had attested the same stating to be true copy.
It was claimed that at the relevant time, Sarpanch was Kushal Singh,
however before the evidence could be led, he expired and hence
could not be produced in evidence. If the respondents-plaintiffs
wished to prove the contents of the document in question, they
could very well summon the record from the Gram Panchayat when
a specific plea taken by the appellants was that the document was
forged and the Gram Panchayat did not have competence to lease
out the land.
19. The respondents-plaintiffs while filing the civil suit did not implead the
Gram Panchayat as party. In such circumstances, the respondents-
plaintiffs were required to prove the document as the competence
of the Gram Panchayat to lease out the land itself was in question.
The Gram Panchayat could have filed the written statement admitting
or denying execution of the lease deed and place complete facts
before the Court as per records.

9 [2012] 8 SCR 35 : (2012) 8 SCC 148

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20. In the revenue record produced on record by the appellants, it

is shown that the land in question was shown in ownership of
Government (Bilanam Sarkar). Its new Khasra Number was 1163
and old Khasra Number is 838 in Mauza Madri Menaria, Tehsil
Girva. As per jamabandi Ex. A-1, the land forming part of Khasra No.
838 was shown to be non-agricultural reserved for grazing cattles
(shamlat deh).
21. In the light of the aforesaid stand and the evidence led on record by
the appellants-defendants, it was incumbent on the respondents to
have proved their title on the land, which they failed to establish. As
per the stand of the appellants, the respondents were encroachers
upon the land for which notice under Section 92A of the 1959 Act
was issued to them. The same was replied to by the respondents
stating therein that they have patta executed in their favour by the
Gram Panchayat.
21.1. Further a suit simpliciter for injunction may not be maintainable
as the title of the property of the plaintiff/respondent was
disputed by the appellants/defendants. In such a situation it
was required for the respondent/plaintiff to prove the title of
the property while praying for injunction. Reference can be
made to the judgment of this Court in Anathula Sudhakar v.
P. Buchi Reddy (Dead) by Lrs. and ors.10
21.2. In view of aforesaid discussions, in our opinion, the judgment
of the High Court suffers from patent illegality. Consequently,
the judgment and decree of the First Appellate Court as well
as the High Court are set aside and that of the Trial Court is
restored. As a consequence, the suit filed by the respondents
is dismissed.
C.A. Nos.8977/2012, 468/2013, 524/2013, 467/2013 and Civil
Appeal @ S.L.P.(C)No.25200/2013
22. In the aforesaid bunch of appeals, Radheshyam son of Bhagwati
Prasad and his family members, as detailed below filed five civil
suits praying for permanent injunction:

10 [2008] 5 SCR 331 : (2008) 4 SCC 594

[2024] 2 S.C.R.  661

The Tehsildar, Urban Improvement Trust And Anr. v.

Ganga Bai Menariya (Dead) Through Lrs. And Others

Case No. and Title Case No. & title Case No.& title
in Supreme Court in the Trial Court in the lower
of India Appellate Court
C.A. No.524/2013 Original Civil Civil Appeal
Suit No.60/2002- No.01/2004
Urban Improvement
Radheshyam v. (72/03)-Radheshyam
Trust v. Radhey
Secretary, Urban v. Secretary, Urban
Shyam Tripathi
Improvement Trust Improvement Trust
C.A. No.8977/ 2012 Original Civil Civil Appeal
Suit No.61/2002- No.03/2004 (75/03)-
Nagar Vikas Pranyas
Sumitra Devi v. Sumitra Devi v.
v. Sumitra Devi
Secretary, Nagar Secretary, Nagar
Vikas Pranyas Vikas Pranyas
C.A.No.467/2013 Original Civil Civil Appeal
Suit No.78/2002- No.02/2004 (74/03)-
Urban Improvement
Vipin Kumar v. Vipin Kumar v.
Trust v. Vipin Kumar
Secretary, Urban Secretary, Urban
S/o Radhey Shyam
Improvement Trust Improvement Trust
Tripathi
C.A.No.468 of 2013 Original Civil Civil Appeal
Suit No.60/2002- No.04/2004 (76/03)-
U.I.T. Udaipur v.
Sumitra Devi v. Sumitra Devi v.
Sumitra Devi W/o
Secretary, Urban Secretary, Urban
Radhe Shyam
Improvement Trust Improvement Trust
Tripathi
C.A. arising Original Civil Civil Appeal
out of S.L.P.(C) Suit No.62/2002- No.11/2004 (73/03)-
No.25200/2013 Radhey Shyam v. Radhey Shyam v.
Secretary, Urban Secretary, Urban
Urban Improvement
Improvement Trust, Improvement Trust,
Trust v. Radhey
Udaipur Udaipur
Shyam Tripathi s/o
Bhagwati Prasad
Tripathi
22.1. The Trial Court decided the suits vide judgment and decree
dated 30.04.2008. The First Appellate Court decided the appeals
vide judgment dated 19.04.2004.
22.2. Civil Suits were filed claiming that the land in question was
leased out to the plaintiffs on 27.08.1985 (as is evident from
662 [2024] 2 S.C.R.

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the judgment of the Trial Court). However, in the documents

annexed with the I.A.No.148204 in C.A. No.8977 of 2012, the
transaction is shown to be sale. Though no prayer was made
in the suit seeking a declaration as owner of the land as it was
simpliciter for permanent injunction still the Trial Court framed
the issue ‘whether the disputed plot is of the ownership and
possession of the plaintiff’. The second issue frame was ‘as
to whether the plaintiff is entitled to permanent injunction’.
Both the issues were taken up together. While discussing the
Issue no.1, the court recorded the ownership part was not to
be gone into as it was merely a suit for permanent injunction
but still it was to be considered as to whether the possession
was valid or not. In support of his plea the plaintiff/respondent
placed on record the document dated 27.08.1985, the lease
deed. However, the same was not proved. The court also
considered about the right of the Gram Panchayat to lease
out the land with reference to the Rules applicable therefor.
Finally, the Trial Court came to the conclusion that no case
was made out by the plaintiff/respondent. Hence, the suit for
permanent injunction was dismissed by the Trial Court on
30.04.2003.
22.3. The judgment and decree in all the suits were challenged by
filing appeals. The First Appellate Court without considering
the fact as to whether the alleged lease deed Ext.E-1 was
proved by the respondent-plaintiff in accordance with law,
had shifted the burden on defendants to prove otherwise.
The issue regarding competence of the Gram Panchayat to
lease out the land was just brushed aside. The appeal was
accepted and decree of permanent injunction was passed by
the First Appellate Court against which the appeal(s) were filed
by the present appellants before the High Court. The same
was disposed of in terms of the impugned judgment, though
the issues were not identical.
22.4. It is admitted by all the respondents/plaintiffs in the bunch of
appeals that the individual lease deeds were issued in their
favour on 27.08.1985 by the Gram Panchayat.
22.5. The stand of the appellants is that the lease deeds were
executed in contravention of Rule 266 of the 1961 Rules,
which provides that Panchayat may transfer any land by way
[2024] 2 S.C.R.  663

The Tehsildar, Urban Improvement Trust And Anr. v.

Ganga Bai Menariya (Dead) Through Lrs. And Others

of private negotiation in case any person has a plausible claim

of title and auction may not fetch reasonable price, where for
reasons to be recorded in writing, the Panchayat thinks that
auction would not be convenient mode for disposal or where
such a course is regarded by the Panchayat for advancement
of Scheduled Castes and Scheduled Tribes or other Backward
Classes.
23. In Chapter XIII of the 1961 Rules, complete procedure has been
provided for sale of abadi land.
23.1. Rule 255 defines ‘abadi land’ to mean nazul land lying within
the inhabited areas of Panchayat circle.
23.2. Under Rule 256, a person desirous of purchasing the abadi
land can file an application in writing along with requisite fee.
23.3. On receipt of application, in terms of Rule 257, a plan of the
land in question is to be prepared specifying the boundaries
of the land to be sold.
23.4. After the plan is ready, local inspection of the site is to be made
by three nominated Panchs who will submit their opinion on
the following issues:
(a) whether the sale applied for will affect the facilities for
going and coming enjoyed by the villagers;
(b) whether such sale will affect the rights of easements owned
by other persons;
(c) whether such sale will affect beauty and cleanliness of
the locality; and
(d) such other matters as may appear to be relevant (Rule 258).
23.5. A provisional decision is to be taken by the Panchayat as to
whether the proposed sale should or should not be made
(Rule 259).
23.6. If the decision is to sell the land, public notice is to be issued
on Form ‘L’ inviting objections to the proposed sale (Rule 260).
23.7. Objections, if any, received are to be dispose of after affording
opportunity of hearing to the objector (Rule 261).
664 [2024] 2 S.C.R.

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23.8. If no objections are received, the Panchayat shall pass a

resolution and order for sale of the land by auction and date
and time thereof shall be fixed (Rule 262).
23.9. The procedure for auction, deposit of earnest money,
confirmation of sale have been provided in Rules 262 and 265.
23.10. Rule 266 provides for transfer of abadi land by private
negotiations in certain specified situations, namely:
(a) where any person has a plausible claim of the title of
the land and the auction may not fetch reasonable price;
(b) where for the reasons to be recorded in writing, the
Panchayat opines that auction may not be convenient
mode for disposal of land;
(c) where such a course is regarded by the Panchayat
necessary for advancement of Scheduled Castes and
Scheduled Tribes or other backward classes; and
(d) where the persons are in possession of abadi land for
20 years or more but less than 42 years.
24. In the aforesaid situation, the land can be transferred by passing a
resolution by the Panchayat.
25. Relevant Rule 266 is extracted below:
“266. Transfer of abadi land by private negotiation. – (1)
The Panchayat may transfer any abadi land by way of sale
by private negotiation in the following cases:-
(a) Where any person has a plausible claim of title to the
land and an auction may not fetch reasonable price;
(b) where for reasons to be recorded in writing the
Panchayat thinks that an auction would not be a
convenient mode of disposal of the land;
(c) where such course is regarded by the Panchayat
necessary for the advancement of Scheduled Castes
and Scheduled Tribes or other Backward Classes.
(d) where the persons are in possession of the abadi
land for 20 years or more but less than 42 years,
[2024] 2 S.C.R.  665

The Tehsildar, Urban Improvement Trust And Anr. v.

Ganga Bai Menariya (Dead) Through Lrs. And Others

one-third of the prevailing market price and in case

of possession of over 40 years, one sixth of the
prevailing market price shall be charged.
(2) The Panchayat may, by resolution, transfer by way of
sale without charging any price therefore, any abadi land
of which the probable value does not exceed Rs. 200/- in
favour of any institution for a public purpose.”
26. The allotment to all the allottees was on the same day i.e. 27.08.1985.
Along with I.A. No. 148204 of 2023 in C.A. No. 8977 of 2012, a copy
of the register of sale deeds of populated land on Form No. 49 has
been annexed as Annexure R-6. The sale deeds of land in favour of
the respondents are shown at Sr. Nos. 104 to 109. With reference
to Sr. Nos. 104 to 106, 108 and 109, the same are annexed as
Annexures R-1 to R-5, whereas the sale deed executed in favour
of Sanjay Kumar son of Radheshyam (Sr. No. 107) is not available.
In the appeals being considered by this Court, the matter pertaining
to Sanjay Kumar son of Radheshyam is not under consideration.
27. The following table will show the area leased out to the family
members of the same persons on the same date:

Sr. Name Serial No./ Area in

No. Settlement No. Sq.ft.
1. Radheshyam S/o Bhagwati 104 6120
Prasad R/o Manva Kheda
2. Sumitra Devi W/o Radheshyam 105 7645
R/o Manva Kheda
3. Vipin Kumar S/o Radheyshyam 106 4500
Tripathi R/o Manva Kheda
4. Sumitra Devi W/o Radheshyam 108 6104
R/o Manva Kheda
5. Radheshyam s/o Bhagwati 109 6097
Prasad R/o Manva Kheda
28. In Civil Appeal No. 8977 of 2012, originally the suit was filed by the
respondent only for permanent injunction in the year 2002 with the
pleading that on 09.02.2002, an employee of the Town Improvement
Trust visited the spot and threatened the respondent for forcible
dispossession. Gram Panchayat, Village Kaladwas was not even
666 [2024] 2 S.C.R.

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impleaded as party. No declaration was sought that the respondent

was owner in possession of the plot, hence she could claim injunction.
The only evidence led was in the form of copy of lease deed dated
27.08.1985 where the plaintiff appeared as PW1.
29. As recorded by the Trial Court, the respondents/plaintiffs had not
been able to prove the document on the basis of which they were
claiming a right of possession of the property in question. Even if
the aforesaid document is considered, the sale was clearly violative
of Rule 266 of the 1961 Rules, under which aforesaid alleged lease
deed/sale deed has been issued in favour of the respondents/plaintiffs.
In terms of Rule 266 of the 1961 Rules, only in certain specified
situation, the land could be transferred by way of sale on private
negotiation, namely, where any person has a plausible claim of title
to the land and auction may not fetch reasonable price or it may
not be the convenient mode for disposal of land or where such a
course is regarded by the Panchayat necessary for advancement of
Scheduled Castes and Scheduled Tribes or other Backward Classes.
Another situation envisaged is where the person is in possession
of land for more than 20 years but less than 42 years. Nothing was
produced on record to show that the due process required for leasing
out/sale of the land in favour of the respondents/plaintiffs by private
negotiation was followed. Gram Panchayat from whom the land was
taken was not impleaded as party to admit or deny the allegations
made by the respondents/plaintiffs in the plaint.
30. For the reasons, mentioned above, we find merit in the present
appeals. The same are accordingly allowed. The impugned judgments
of the High Court as well as the First Appellate Court are set aside
and that of the Trial Court is restored. Resultantly, the suits are
dismissed.
31. Before parting with the order, we are pained to note certain facts
which show total casualness on the part of the appellants. As
has been noticed above, in the bunch of five appeals bearing
C.A.No(s).8977/2012, 468/2013, 524/2013, 467/2013 and Civil
Appeal arising out of S.L.P.(C)No.25200/2013, challenge was to the
order passed by the High Court in five different second appeals.
Five different suits were filed by five persons of the family which
were assigned different numbers though decided on the same day
by separate judgments. Five different appeals were filed before the
[2024] 2 S.C.R.  667

The Tehsildar, Urban Improvement Trust And Anr. v.

Ganga Bai Menariya (Dead) Through Lrs. And Others

First Appellate Court and when the matter was taken to the High
Court, five different appeals were filed. The same were disposed of
on 18.04.2012.
32. When five different suits were filed by different persons while filing the
documents with the paper book filed in this Court, it was incumbent
upon the appellants to place on record correct copies of the judgments
of the Trial Court as well as the First Appellate Court for each of the
case. However, it is evident from the paper books of the aforesaid
five appeals that in all the appeals the Trial Court judgment placed on
record was passed in Case No.60/2002 titled as Smt. Sumitra Devi
w/o Radheshyam Tripathi dated 30.04.2003 and the judgment of the
First Appellate Court placed on record in all the appeals is Misc. Civil
Appeal No.01 of 2004 titled as Radheshyam son of Bhagwati Prasad
Tripathi dated 19.04.2004. The related judgments of the individual
cases before the Trial Court and the lower Appellate Court have not
been placed on record in the respective appeals. With great deal
of effort to join the loose ends, we could find out the details from
the title of the impugned judgment of the High Court as the same
mentioned the civil suit number as well as the appeal number in
the First Appellate Court which was different in all five cases. It is
evident from the table enumerated in para 19.1 of the judgment. We
can only observe that the parties need to be more careful while filing
the pleadings in this Court and so the Registry of this Court as any
error therein may be disastrous for any of the parties.

Headnotes prepared by: Ankit Gyan Result of the case:

Appeals disposed of.
 [2024] 2 S.C.R. 668 : 2024 INSC 128

Ram Singh
v.
The State of U.P.
(Criminal Appeal No. 206 of 2024)
21 February 2024
[Abhay S. Oka and Ujjal Bhuyan,* JJ.]

Issue for Consideration

As per PW-1-informant (son of the deceased), on the fateful evening
when he and his brother were sitting in the open space in front
of the entrance door of his house, his mother was sitting close by
on a cot and some neighbours were also sitting on another cot,
the appellant came along with co-accused on whose instigation
he fired on PW-1 but he slipped below the cot and the bullet hit
his mother who died immediately. While the co-accused was
acquitted on the same set of evidence, whether the conviction of
the appellant u/s.301 r/w 302, u/s.307 IPC and his sentence were
justified when there was no recovery of the weapon of crime, non-
examination of ballistic expert.

Headnotes
Evidence – Non-recovery of the weapon of crime – Non-
obtaining of ballistic opinion and non-examination of ballistic
expert – When fatal:
Held: Non-recovery of the weapon of crime by itself would not be
fatal to the prosecution case – When there is such non-recovery,
there would be no question of linking the empty cartridges and
pellets seized during investigation with the weapon allegedly used
in the crime – Obtaining of ballistic report and examination of the
ballistic expert is not an inflexible rule – When there is direct eye
witness account which is found to be credible, omission to obtain
ballistic report and non-examination of ballistic expert may not be
fatal to the prosecution case but if the evidence tendered including
that of eye witnesses do not inspire confidence or suffer from
glaring inconsistencies coupled with omission to examine material
witnesses, the omission to seek ballistic opinion and examination of
the ballistic expert may be fatal – In the present case, the evidence
of the eyewitnesses suffer from serious lacunae and cannot be said
to be credible – That apart, material witnesses were not examined
* Author
[2024] 2 S.C.R.  669

Ram Singh v. The State of U.P.

– Thus, the evidence tendered on behalf of the prosecution cannot

be said to be full proof so much so that non-recovery of the main
material evidence i.e., weapon of offence, non-obtaining of ballistic
opinion and non-examination of ballistic expert would be immaterial
– Prosecution did not prove the accusation against the appellant
beyond all reasonable doubt – Also, on the same set of evidence,
the trial court gave the benefit of doubt to the co-accused primarily
on the ground that there was a grudge between the accused and
PW-1 – Appellant given benefit of doubt – Conviction and sentence
set aside – Order of the trial Court and the High Court quashed.
[Paras 29, 30, 33 and 34]
Evidence – Same set of evidence – Conviction of one accused
and acquital of the other – Impermissibility:
Held: When there is similar or identical evidence of eyewitnesses
against two accused by ascribing them the same or similar role,
the court cannot convict one accused and acquit the other – Any
lingering doubt about the involvement of an accused in the crime
he is accused of committing, must weigh on the mind of the court
and in such a situation, the benefit of doubt must be given to the
accused – This is more so when the co-accused is acquitted by
the trial court on the same set of evidence. [Paras 32, 33]

Case Law Cited

Javed Shaukat Ali Qureshi Vs. State of Gujarat, [2023]
12 SCR 220 : (2023) 9 SCC 164; Munna Lal Vs. State
of U.P., [2023] 3 SCR 224 : (2023) SCC Online SC 80;
Gurucharan Singh Vs. State of Punjab, [1963] 3 SCR
585 : AIR 1963 SC 340; Sukhwant Singh Vs. State of
Punjab, [1995] 2 SCR 1190 : (1995) 3 SCC 367; State
of Punjab Vs. Jugraj Singh, [2002] 1 SCR 998 : (2002)
3 SCC 234; Gulab Vs. State of U.P., [2021] 9 SCR 678 :
(2022) 12 SCC 677; Pritinder Singh Vs. State of Punjab,
[2023] 10 SCR 1033 : (2023) 7 SCC 727 – relied on.

List of Acts
Penal Code, 1860.

List of Keywords
Non-recovery of weapon of crime; Non-examination of ballistic
expert; Ballistic opinion; Non-obtaining of ballistic opinion;
670 [2024] 2 S.C.R.

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Gunshot injury; Not proved beyond reasonable doubt; Glaring

inconsistencies; Evidence of eyewitnesses not credible; Material
witnesses; Same set of evidence; Benefit of doubt.

Case Arising From

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 206
of 2024
From the Judgment and Order dated 05.02.2018 of the High Court
of Judicature at Allahabad in CRLA No. 1611 of 1983
Appearances for Parties
Pradeep Kumar Mathur, Chiranjeev Johri, Chandra Nand Jha, M.K.
Tiwari, Sitesh Kumar, Arvind Kumar, Advs. for the Appellant.
Rana Mukherjee, Sr. Adv., Samarth Mohanty, Ankit Goel, Advs. for
the Respondent.
Judgment / Order of the Supreme Court

Judgment
Ujjal Bhuyan, J.
This appeal is directed against the judgment and order dated
05.02.2018 passed by the High Court of Judicature at Allahabad
in Criminal Appeal No. 1611 of 1983, confirming the conviction and
sentence imposed on the appellant by the Additional Sessions Judge,
Non-metropolitan Area, Kanpur in Sessions Trial No. 297 of 1982.
2. In the sessions trial, appellant Ram Singh was convicted under
Section 301 read with Section 302 of the Indian Penal Code, 1860
(IPC). He was also convicted under Section 307 IPC. For the offence
under Section 301/302 IPC, appellant was sentenced to undergo
imprisonment for life and for the offence under Section 307 IPC,
appellant was sentenced to undergo rigorous imprisonment for five
years, both the sentences to run concurrently.
2.1. As noticed above, the appeal filed by the appellant before the
High Court of Judicature at Allahabad (‘High Court’ for short)
was dismissed. Consequently, the conviction and sentence of
the appellant imposed by the Sessions Court was confirmed
by the High Court.
[2024] 2 S.C.R.  671

Ram Singh v. The State of U.P.

Prosecution case
3. PW-1 Shri Radhey Lal lodged a first information before the Bhognipur
Police Station in the District of Kanpur (U.P.) on 19.08.1982 at
midnight stating that he and his brother Desh Raj were sitting in
the open space in front of the entrance door of his house during
the evening hours. His mother Dulli was sitting close by on a cot.
On another cot, neighbours Lala Ram i.e. PW-3 and Man Singh
i.e. PW-2 were sitting. They were chatting under a glowing lantern
hanging on the roof-side of his residence. According to the informant,
at about 08:00 PM, appellant Ram Singh accompanied by one
Lala Ram came to his residence. He stated that both of them were
residents of his village. Ram Singh was holding a country made
pistol in his right hand. As per version in the first information, Lala
Ram had instigated Ram Singh by loudly saying that these people
were creating disturbances; so kill them. Ram Singh fired on the
informant but he slipped below the cot. The bullet hit the left breast
of his mother Dulli who cried aloud saying that she was dead.
According to the informant, they also cried. Ram Singh and Lala
Ram ran away towards the north. Mother died immediately due to
the gunshot wound. Informant stated that the incident was seen
by his brother Desh Raj and by his neighbours Lala Ram and Man
Singh in the light of the lantern. On hearing the firing, many people
living nearby came. They had seen the accused running. The mother
was lying dead on bed. The informant further stated that about one
and a half months back, there was a scuffle betfween his son Baan
Singh and the appellant Ram Singh which matter was duly reported
to the local police station. Lala Ram and Ram Singh belongs to the
same party. Because of this, they came to the door of his residence
when on the instigation of Lala Ram, Ram Singh fired a shot due
to which his mother Dulli died.
3.1. The first information as dictated by the informant, was reduced
to writing by the scribe Sunder Lal, another brother of PW-1.
The said first information was registered as FIR bearing No.
252/1982.
4. Police investigated the crime and on completion of the investigation
submitted chargesheet charging appellant Ram Singh of having
committed offence under Sections 301 and 302 of the IPC as well
as under Section 307/34 IPC. On the other hand, the co-accused
672 [2024] 2 S.C.R.

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Lala Ram was charged of having committed offence under Section

307/34 IPC.
4.1. To prove its case, prosecution examined six witnesses. After
considering the evidence and materials on record, the Sessions
Court convicted the appellant under Section 301 read with
Section 302 IPC and also under Section 307 IPC. However,
the other accused Lala Ram was given the benefit of doubt
and accordingly was acquitted.
4.2. At this stage, we may mention that there are two Lala Ram in
this case. One is Lala Ram, son of Prahalad Singh who is PW-3
and the other is Lala Ram, son of Dhanna Ram Yadav who was
named as accused number 2 and acquitted by the trial court.
5. As noticed above, the trial court convicted the appellant under the
aforesaid provisions of IPC and sentenced him accordingly. The co-
accused Lala Ram, son of Dhanna Ram Yadav, was acquitted. The
appeal filed by the appellant before the High Court was dismissed.
Consequently, his conviction and sentence were confirmed.
Submissions
6. Learned counsel for the appellant submits that there are gross
contradictions in the testimony of the prosecution witnesses. The
so called eyewitnesses were no eyewitnesses at all. Rather, they
were interested witnesses having previous political enmity with the
appellant. It is because of such political rivalry that appellant was
falsely implicated in the case.
6.1. He further submits that not only there are glaring inconsistencies
in the version of the prosecution witnesses; crucial and material
witnesses have not been examined. Even the country made
pistol allegedly used by the appellant was not recovered. The
pellets found at the site and also extricated from the body of the
deceased were not sent for ballistic examination. In the absence
of any ballistic report linking the pellets to the pistol allegedly
used by the appellant, he could not have been convicted.
Both the trial court and the High Court therefore fell in error in
convicting the appellant.
6.2. Learned counsel submits that it is true that on 16.07.2018, this
Court had issued notice only on the question of converting the
[2024] 2 S.C.R.  673

Ram Singh v. The State of U.P.

conviction from under Section 302 IPC to Section 304 IPC

and also on the prayer for grant of bail, nonetheless, he had
submitted before this Court on 31.10.2023 that he would argue
for acquittal as well.
6.3. He further submits that the trial court had committed a
fundamental error in convicting the appellant on the one hand
and acquitting the co-accused Lala Ram on the other hand.
Evidence against both were the same. When on the same
set of evidence the co-accused was acquitted, the trial court
ought to have acquitted the appellant as well. This aspect was
overlooked by the High Court. In support of his submission,
learned counsel has placed reliance on a decision of this Court
in Javed Shaukat Ali Qureshi Vs. State of Gujarat, (2023) 9
SCC 164.
6.4. Contention of learned counsel for the appellant is that there
are no materials on record to conclusively prove the guilt of
the appellant. Rather, it is a case of no evidence. Therefore,
appellant is entitled to be acquitted. Orders of the trial court as
well as of the High Court should be set aside.
7. Per contra, learned counsel for the respondent-State argues that in
view of the incriminating evidence against the appellant, both the
Sessions Court as well as the High Court had rightly convicted the
appellant. The ocular evidence clearly points to the positive act of the
appellant firing the gunshot which killed the mother of PW-1, Dulli.
Considering the gruesome nature of the murder and the testimony
of the prosecution witnesses, conviction of the appellant is fully
justified. High Court had rightly dismissed the criminal appeal of the
appellant. No case for interference is made out.
8. Submissions made by learned counsel for the parties have received
the due consideration of the Court.
Evidence: appreciation and analysis
9. PW-1, who is the first informant and son of the deceased, stated
in his evidence that they are the three brothers: Desh Raj, Sunder
Lal and himself, he being the youngest. He lived with his mother at
his village where his mother had property. In the same village, his
maternal uncle used to reside. Both the accused were residents of
his village and belonged to the same community. He deposed that he
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had a rivalry with accused Ram Singh in connection with the election
of village Pradhan. In that election, wife of the accused Ram Singh
was one of the candidate. Ram Singh was also related to accused
Lala Ram. PW-1 stated that he had voted for the candidate who
stood against the wife of Ram Singh. In that election, Ram Singh’s
wife lost and in this connection, a fight had broken out between the
son of PW-1 i.e. Baan Singh and accused Ram Singh in respect of
which FIR and cross FIR were lodged. The cases were going on.
Accused Lala Ram was deposing as a witness in Ram Singh’s case.
This incident had happened about a month and a half prior to the
present incident. According to him, it was around 08:00PM in the
evening when he was sitting at his door. His mother Dulli was sitting
on the cot. The place was lit up by the hanging lantern which was
hung on the roof. The two accused came from the north. Accused
Lala Ram challenged PW-1 by saying that the latter was creating a
lot of mischief and, therefore, he should be killed. Ram Singh fired
from his country made pistol which he was carrying. Instead of hitting
PW-1, the bullet hit his mother leading to her death. Thereafter, the
two accused fled away. After this incident, PW-1 alongwith PW-2 Man
Singh went to Bhognipur Police Station and on the way informed his
brother Sunder Lal, the scribe, who wrote the first information which
PW-1 carried to the police station.
9.1. In his cross-examination, he stated that accused Lala Ram
was a witness in the case against his son. He explained that
there was a pile of bricks about 3-4 steps north of the courtyard
where the deceased was sitting. The deceased was sitting on
the northern side of the cot whereas PW-1 and his brother
Desh Raj were sitting at the other end of the cot. He added
that when Ram Singh fired at him, he bent below the cot, so
also his brother. He could not see as to whether PW-2 and
PW-3 had bent or not. As per the version of PW-1, the first
gunshot did not hit him. Second shot was not fired at him or
his brother because his mother had died in the first gunshot
itself. Accused Ram Singh was at a distance of three steps from
his mother’s cot. On hearing their screaming, several villagers
came to the place of occurrence. At this, the two accused ran
away. However, he stated that he could not say as to whether
any villager had seen the accused running away or not as no
villager had told him.
[2024] 2 S.C.R.  675

Ram Singh v. The State of U.P.

9.2. In the cross-examination, it further revealed that deceased Dulli

used to live with the brother of PW-1 i.e. Desh Raj whose house
was behind the house of PW-1. The other brother’s house
was also nearby. On that fateful evening, though dinner had
been taken, the deceased had not eaten food. As they were
conversing in the courtyard, his mother was sitting quiet on the
cot and did not participate. This time, he stated that he and his
brother were sitting on the floor at the time of gunshot. Though
he had bent down when the shot was fired, nobody got under
the cot. On receiving the gunshot, the mother had collapsed
on the cot. He had cried while sitting but had not hugged his
mother. He had gone to his brother Sunder Lal’s hotel where
the first information was written but his brother Sunder Lal did
not accompany him to the police station.
9.3. He denied the suggestion that it was a false case because of
personal enmity; that Desh Raj and others who were sitting on
the cot with the deceased in Desh Raj’s house and that while
examining a country made pistol, a bullet was fired accidentally.
10. PW-2 Man Singh stated that the deceased was sitting on a cot in
the courtyard. Desh Raj and PW-1 were sitting on the floor near
the cot. Accused Lala Ram had instigated accused Ram Singh by
saying that PW-1 was being mischievous and that he should be
killed. At this, accused Ram Singh walked 2-3 steps and fired from
his country made pistol but instead of hitting PW-1, his mother was
hit and she died.
10.1. In his cross-examination, PW-2 stated that the deceased was
sitting on a cot while PW-1 and his brother Desh Raj were
sitting on the floor on the west side of the cot. He saw the
accused in the lantern light. Though Lala Ram had instigated
Ram Singh, he did not get up from the cot and kept sitting.
When shot was fired, Desh Raj and Radhey Lal (PW-1) stood
up. He did not run to see the deceased after being shot. She
was shot from a distance of 2-3 steps.
11. PW-3 Lala Ram, son of Prahalad Singh, stated that at the relevant
time on the date of incident, he and Man Singh PW-2 were sitting
on the same cot. Dulli was sitting on bed. Desh Raj and Radhey
Lal were sitting on the floor at a distance of one and a half hems
away. The two accused came from the northern side. Accused Lala
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Ram instigated accused Ram Singh to kill PW-1 saying that he was
doing a lot of mischief. Ram Singh instantly fired from his country
made pistol. The bullet did not hit Radhey Lal PW-1 but hit the left
breast of his mother who was killed.
11.1. In his cross-examination, he stated that he had seen accused
Ram Singh before accused Lala Ram started challenging PW-
1. He did not see what Ram Singh was carrying and did not
see any country made pistol in his hand. It would be wrong
to say that he had seen country made pistol in the hands of
Ram Singh. Sub-Inspector of Police had not questioned him.
While he was examined in court, he admitted that there were
party politics between the Pradhan of the village who got
elected and the accused. He also denied the suggestion that
he had not seen any such incident and that no such incident
had happened.
12. PW-4 is the Sub-Inspector of Police, B.D. Verma. He stated that
while preparing the inquest report, one tikli and 12 pellets were
seized from the wound of the deceased. He also seized cans of
normal and blood-stained soil and also blood-stained clothes of the
deceased. The blood-stained clothes and the cans of soil were sent
to the chemical examiner for chemical examination but the report
was not received back. He further stated that during preparation of
inquest report, one tikli and 12 pellets were seized from the wound
of Dulli on the cot. However, in re-examination, he stated that the
pellets taken out by the doctor in the hospital were produced in the
court. The tikli which was taken out from the body of the deceased
in the hospital was with the pellets.
13. PW-5 is Raghu Raj Singh who was the Pradhan of the village. The
inquest report was prepared in his presence and had his signature.
He stated that blood-stained cot strips, empty cartridge, tikli and
pellets were collected from the spot.
13.1. In his cross-examination, he stated that he used to reside at
a distance of 150 steps from the house of Dulli. He came to
know about Dulli’s death on hearing the sound of firing but
he did not come out of his house due to fear. However, he
contradicted himself when he stated that he could not tell
by the sound of firing that Dulli was killed; rather he came to
know about this 10-15 minutes later when one of the villagers
[2024] 2 S.C.R.  677

Ram Singh v. The State of U.P.

Raja Ram, son of Prahalad Yadav told him while running by.
He further compounded the inconsistency by saying that he
did not tell the Sub-Inspector about hearing the sound of firing
because this did not happen.
14. The doctor who had conducted post-mortem examination, Dr. P.S.
Mishra, was examined as PW-6. He stated that the entry wound of
the bullet pellet 4cm × 3cm was on the left side of the left breast.
The edges were inside with blackening. The wound was bone-deep.
Third and fourth ribs on the left side chest were broken. There was
laceration on the left lung. Both the lungs had blood. The heart
was also lacerated. Semi-digested rice and pulse were found in
the stomach of the deceased. He opined that cause of death of
the deceased was due to shock and haemorrhage because of the
above injuries. 55 small pellets were taken out of the body of the
deceased during post-mortem.
15. During his examination under Section 313 of the Code of Criminal
Procedure, 1973 (Cr.P.C.), accused Ram Singh denied the accusation
that he had killed the deceased by shooting her from a country
made pistol. He stated that there was indeed a scuffle between the
son of PW-1 and himself relating to the Pradhan election for which
criminal cases were pending. The witnesses were testifying against
him due to enmity.
16. Before we proceed further, we may mention that in the seizure
memo dated 20.08.1982, which has been placed on record, it was
stated that during preparation of inquest report of the deceased, the
police had seized the tikli of the cartridge stuck on the wound of the
deceased and 12 bore cartridge lying on the cot of strips.
17. From a careful scrutiny of the prosecution evidence, what is seen is
that PW-1 alongwith his brother Desh Raj were chatting with PW-2
and PW-3 in the courtyard in front of the house of PW-1. PW-2 and
PW-3 were sitting on one cot. The deceased was sitting on another
cot. Thereafter the discrepancies in the version of the witnesses
arise. At one point of time, PW-1 said that he was at his door; at
another point he stated that he and his brother Desh Raj were sitting
on the same cot in which his mother was sitting but on the other end
of the cot. Then again he said that the two brothers were sitting on
the floor. It has also come on record that according to the version
of some of the prosecution witnesses, PW-1 and his brother Desh
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Raj were sitting on the floor. Pausing here for a moment, we can
visually analyse that the mother was sitting on the cot at a distance
from her two sons. She was sitting laterally and not behind her two
sons. According to the witnesses, the two accused came from the
northern side and when they reached the pile of bricks, accused
Lala Ram instigated accused Ram Singh that PW-1 was creating
lot of mischief and, therefore, he should be killed. Ram Singh then
moved 2-3 steps ahead and fired at PW-1. Now PW-1 says that he
had hid himself below the cot; while the other version is that he had
simply bent as he was sitting on the floor. On the other hand, PW-2
had stated in his cross-examination that when the shot was fired,
PW-1 and his brother Desh Raj stood up. It is the prosecution case
that Ram Singh had shot PW-1 but because of the evasive reaction
of PW-1, the bullet fired by Ram Singh from his country made pistol
hit the left breast of the deceased who thereafter died.
18. If this version is to be believed, then Ram Singh had fired at PW-1
from a close range and from a standing position. Therefore, trajectory
of the shot would be from a height downwards. PW-1 was either sitting
on the cot or on the floor and had taken evasive action (though PW-2
says that PW-1 stood up when the shot was fired); the mother was
sitting diagonally on the other end of the cot. It is highly improbable
that the shot fired at from such a close range and from a height
downwards could have hit the left breast of the deceased who was
sitting at a lateral distance and not behind PW-1.
19. Interestingly, neither Desh Raj, brother of PW-1 and son of the
deceased, who was very much present at the place and time of
occurrence was examined by the police nor the other brother Sunder
Lal, the scribe, who had written the first information, was examined
by the police. Omission to examine Desh Raj by the prosecution is
most crucial as according to the prosecution version he was very
much present when the incident occurred. We may also mention
that the behaviour of Sunder Lal is also very unusual. He did not
accompany PW-1 to the police station. There is also no evidence
that he had rushed to the place of occurrence where his mother
was killed. An adverse inference will have to be drawn against the
prosecution for not examining material witnesses. Be that as it
may, it was only PW-1 and PW-2 who had stated that Ram Singh
had fired from a country made pistol at PW-1 but the bullet had hit
mother of PW-1, who died of the bullet wound. On the other hand,
[2024] 2 S.C.R.  679

Ram Singh v. The State of U.P.

PW-3 categorically stated that he did not see accused Ram Singh
carrying any country made pistol. Further, it has come on record
that there was previous enmity between PW-1 and the accused
relating to election of village Pradhan because of which there were
cross cases between them.
20. The village Pradhan who testified as PW-5 stated that he was inside
his house when he heard gunshot. He came to know that Dulli was
killed about 10 to 15 minutes later when one Raja Ram, son of
Prahalad Yadav, told him so while he was running by. Incidentally,
the said Raja Ram was not examined by the police.
21. At this stage, what is noticeable is that the weapon of offence i.e.
the country made pistol used by the accused in the offence, could
not be recovered by the police and therefore not exhibited. Thus,
the main material evidence i.e., the weapon of offence was not
exhibited. In the seizure memo, it was mentioned that a 12 bore
cartridge was lying on the cot and alongwith the tikli of the cartridge
which was stuck on the wound of the deceased, were seized by the
police. On the other hand, in the evidence of the doctor, PW-6 as
well as from the post-mortem report, it has come on record that 55
small pellets were taken out from the body of the deceased during
post-mortem. The bullet wound was bone-deep which clearly reveals
that the deceased was shot at from close range. In his evidence,
PW-4 Sub-Inspector B.D. Verma deposed that during preparation
of the inquest report, one tikli and 12 pellets were seized from the
wound of the deceased. The pellets as well as the tikli of the cartridge
were not sent to any ballistic expert, as a result of which there is no
ballistic report on the basis of which it could be said for sure that the
pellets found outside the body and from within the body could be
traceable to the tikli of the 12 bore cartridge which in turn could be
traced to the country made pistol from which the shot was allegedly
fired by the appellant. There is no explanation of the prosecution
regarding the 55 pellets retrieved from the body of the deceased
during post-mortem; whether those could be linked to the 12 bore
cartridge and the tikli. Importantly, the country made pistol was never
recovered. Prosecution has not said anything in this regard. That
apart, as per the version of PW-4, the blood stained clothes of the
deceased which were seized were sent to the chemical examiner
but the report from the chemical examiner was not received till the
date and time of his deposition.
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22. From the above, it is evident that there are glaring inconsistencies in
the prosecution version which have been magnified by the absence
of the testimony of the material witnesses and the ballistic report
coupled with the non-recovery of the weapon of crime.
Case law
23. In Munna Lal Vs. State of U.P., (2023) SCC Online SC 80, this Court
opined that since no weapon of offence was seized in that case, no
ballistic report was called for and obtained. This Court took the view
that failure to seize the weapon of offence on the facts and in the
circumstances of the case, had the effect of denting the prosecution
story so much so that the same together with non-examination of
material witnesses constituted a vital circumstance amongst others
for granting the appellants the benefit of doubt.
24. On the aspect of non-examination of ballistic expert and its impact
on the prosecution case, one of the earliest decisions of this Court
was rendered in Gurucharan Singh Vs. State of Punjab, AIR 1963
SC 340. This Court observed that there is no inflexible rule that in
every case where an accused person is charged with murder caused
by a lethal weapon, the prosecution case can succeed in proving the
charge only if an expert is examined. It is possible to imagine cases
where the direct evidence is of such an unimpeachable character
and the nature of the injuries disclosed by post-mortem notes is so
clearly consistent with the direct evidence that the examination of a
ballistic expert may not be regarded as essential. Where the direct
evidence is not satisfactory or disinterested or where the injuries
are alleged to have been caused by a gun and those prima facie
appeared to have been inflicted by a rifle, undoubtedly the apparent
inconsistency can be cured or the oral evidence can be corroborated
by leading the evidence of a ballistic expert. However, in what cases
the examination of a ballistic expert is essential for the proof of the
prosecution case must naturally depend upon the circumstances of
each case. This Court held as under:
41.... These observations do not purport to lay down an
inflexible Rule that in every case where an accused person
is charged with murder caused by a lethal weapon, the
prosecution case can succeed in proving the charge only
if an expert is examined. It is possible to imagine cases
where the direct evidence is of such an unimpeachable
[2024] 2 S.C.R.  681

Ram Singh v. The State of U.P.

character and the nature of the injuries disclosed by

post-mortem notes is so clearly consistent with the direct
evidence that the examination of a ballistic expert may not
be regarded as essential. Where the direct evidence is
not satisfactory or disinterested or where the injuries are
alleged to have been caused with a gun and they prima
facie appear to have been inflicted by a rifle, undoubtedly
the apparent inconsistency can be cured or the oral
evidence can be corroborated by leading the evidence
of a ballistic expert. In what cases the examination of a
ballistic expert is essential for the proof of the prosecution
case, must naturally depend upon the circumstances of
each case….
25. This issue was again examined by this Court in Sukhwant Singh
Vs. State of Punjab, (1995) 3 SCC 367. In that case, this Court
observed that though the police had recovered an empty cartridge
from the spot and a pistol along with some cartridges were seized
from the possession of the appellant at the time of his arrest, yet
the prosecution did not send the recovered empty cartridges and
the seized pistol to the ballistic expert for examination and expert
opinion. This Court was of the view that if such opinion would
have been called for, comparison could have been made which in
turn could have provided link evidence between the crime and the
accused. It was noted that this again was an omission on the part
of the prosecution for which no explanation was furnished. It was
thereafter that this Court declared as follows:
21.... It hardly needs to be emphasised that in cases
where injuries are caused by firearms, the opinion of the
ballistic expert is of a considerable importance where
both the firearm and the crime cartridge are recovered
during the investigation to connect an accused with the
crime. Failure to produce the expert opinion before the
trial court in such cases affects the creditworthiness of
the prosecution case to a great extent.
25.1. Thus, in the aforesaid case, this Court emphasized that in
cases where injuries are caused by firearms, the opinion of the
ballistic expert becomes very important to connect the crime
cartridge recovered during the investigation to the firearm used
by the accused with the crime. Failure to produce expert opinion
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in such cases affects the creditworthiness of the prosecution

case to a great extent.
26. However, in State of Punjab Vs. Jugraj Singh, (2002) 3 SCC 234,
this Court opined that when there are convincing evidence of
eyewitnesses, non-examination of the expert would not affect the
creditworthiness of the version put forth by the eyewitnesses.
27. This Court considered the issue as to failure of the prosecution to
recover the crime weapon and also non-examination of ballistic expert
in Gulab Vs. State of U.P., (2022) 12 SCC 677. In that case, the
deceased had sustained a gunshot injury with a point of entry and exit.
In that case, prosecution had relied on the eyewitnesses’ accounts
of three eyewitnesses which were found to be credible. Therefore,
non-recovery of the weapon of the offence would not dis-credit the
case of the prosecution. After referring to the previous decisions,
this Court opined that in the facts and evidence of the case, the
failure to produce the report by a ballistic expert who could testify to
the fatal injuries being caused by a particular weapon would not be
sufficient to impeach the credible evidence of the direct witnesses.
28. In Pritinder Singh Vs. State of Punjab, (2023) 7 SCC 727, this Court
in the facts and evidence of that case held that conviction could not
be sustained. That apart, from not collecting any evidence as to
whether the gun used in the crime belonged to the appellant or not,
even the ballistic expert had not been examined to show that the wad
and pellets were fired from the empty cartridges of the appellant. In
that case which was based on circumstantial evidence, it was held
that when there was serious doubt as to credibility of the witnesses,
the failure to examine ballistic expert would be a glaring defect in
the prosecution case.
29. Thus, what can be deduced from the above is that by itself non-
recovery of the weapon of crime would not be fatal to the prosecution
case. When there is such non-recovery, there would be no question
of linking the empty cartridges and pellets seized during investigation
with the weapon allegedly used in the crime. Obtaining of ballistic
report and examination of the ballistic expert is again not an inflexible
rule. It is not that in each and every case where the death of the victim
is due to gunshot injury that opinion of the ballistic expert should
be obtained and the expert be examined. When there is direct eye
witness account which is found to be credible, omission to obtain
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Ram Singh v. The State of U.P.

ballistic report and non-examination of ballistic expert may not be

fatal to the prosecution case but if the evidence tendered including
that of eyewitnesses do not inspire confidence or suffer from glaring
inconsistencies coupled with omission to examine material witnesses,
the omission to seek ballistic opinion and examination of the ballistic
expert may be fatal to the prosecution case.
30. Applying the above proposition to the facts of the present case, we
find that the evidence tendered by the eyewitnesses suffer from
serious lacunae. Thus, their evidence cannot be said to be credible.
That apart, material witnesses have not been examined. On the
whole, the evidence tendered on behalf of the prosecution cannot
be said to be full proof so much so that non-recovery of the weapon
of offence, non-obtaining of ballistic opinion and non-examination of
ballistic expert would be immaterial.
31. In such circumstances, it cannot be said that the prosecution could
prove the accusation against the appellant beyond all reasonable
doubt. As a matter of fact, on the same set of evidence, the trial court
gave the benefit of doubt to the other accused Lala Ram primarily on
the ground that there was a grudge between the accused and PW-1.
32. This Court in the case of Javed Shaukat Ali Qureshi, has held that
when there is similar or identical evidence of eyewitnesses against
two accused by ascribing them the same or similar role, the court
cannot convict one accused and acquit the other. This Court clarified
as under:
15. When there is similar or identical evidence of
eyewitnesses against two accused by ascribing them the
same or similar role, the court cannot convict one accused
and acquit the other. In such a case, the cases of both the
accused will be governed by the principle of parity. This
principle means that the criminal court should decide like
cases alike, and in such cases, the court cannot make a
distinction between the two accused, which will amount
to discrimination.
Conclusion
33. Thus, on a careful analysis of the evidence on record, we are of
the view that the appellant should be given the benefit of doubt as
according to us, the prosecution could not prove his guilt beyond all
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reasonable doubt. Any lingering doubt about the involvement of an

accused in the crime he is accused of committing, must weigh on
the mind of the court and in such a situation, the benefit of doubt
must be given to the accused. This is more so when the co-accused
is acquitted by the trial court on the same set of evidence.
34. That being the position, we set aside the conviction and sentence
of the accused. The judgment and order of the Additional Sessions
Court dated 28.05.1983 as well as the judgment and order of the
High Court dated 05.02.2018 are hereby set aside and quashed.
Consequently, the appellant is directed to be released from jail
forthwith, if not required in any other case.
35. Appeal is allowed in the above terms.

Headnotes prepared by: Divya Pandey Result of the case:

Appeal allowed.
 [2024] 2 S.C.R. 685 : 2024 INSC 130

N. Manogar & Anr.

v.
The Inspector of Police & Ors.
Criminal Appeal No. 1333 of 2024
16 February 2024
[Vikram Nath and Satish Chandra Sharma, JJ.]

Issue for Consideration

Whether the High Court was justified in setting aside the order
passed by the trial court whereunder, the trial court rejected the
application filed by the complainant u/s. 216/319 CrPC seeking
the summoning of, and the impleadment of the appellants as
accused persons in connection with the case u/ss. 452, 294(b),
323 and 506(1) IPC.

Headnotes
Code of Criminal Procedure, 1973 – ss. 216/319 – Discretionary
powers under – Exercise of, by the High Court – Application
by the complainant u/s. 216/319 seeking the summoning of,
and the impleadment of the appellants as accused persons
in connection with the case u/ss. 452, 294(b), 323 and 506(1)
IPC – Rejected by the trial court, however, allowed by the High
Court – Correctness:
Held: Trial court’s order was well reasoned and did not suffer
from any perversity – High Court impleaded the appellants’ as
accused persons in the underlying proceedings on the satisfaction
of a prima-facie finding that the materials on record sufficient to
proceed against the appellants – High Court failed to appreciate
that the discretionary powers u/s. 319 CrPC ought to have been
used sparingly where circumstances of the case so warrant –
Moreover, the materials on record could not be said to have
satisfied the threshold envisaged, that more than a prima facie
case, as exercised at the time of framing of charge but short of
evidence that if left unrebutted would lead to conviction – Thus,
the impugned order set aside. [Paras 9, 10, 11]

Case Law Cited

Hardeep Singh v State of Punjab & Ors., [2014] 2 SCR
1 : (2014) 3 SCC 92 - relied on.
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Digital Supreme Court Reports

Jogendra Yadav v. State of Bihar, [2015] 9 SCR 69 :

(2015) 9 SCC 244; Jitendra Nath Mishra v. State of
Uttar Pradesh, [2023] 7 SCR 642 : (2023) 7 SCC 344;
Sagar v. State of Uttar Pradesh & Anr., (2022) 6 SCC
389 – referred to.

List of Acts
Code of Criminal Procedure, 1973; Penal Code,1860.

List of Keywords
Discretionary powers; Approach adopted by the High Court;
Summoning; Impleadment; Reasoned order; Perversity; Prima-
facie finding.

Case Arising From

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1333
of 2024
Arising out of Special Leave Petition (Crl.) No(s). 8696 of 2021
From the Judgment and Order dated 13.09.2021 of the High Court
of Judicature at Madras in CRLRC No. 133 of 2020
Appearances for Parties
S. Nagamuthu, Sr. Adv., M.P. Parthiban, Ms. Priyaranjani Nagamuthu,
R. Sudhakaran, T. Hari Hara Sudhan, Ms. Shalini Mishra, Bilal
Mansoor, Shreyas Kaushal, P.V.K. Deivendran, Advs. for the
Appellants.
V. Krishnamurthy, Sr. AAG., D. Kumanan, Ms. Deepa S., Veshal
Tyagi, Chandan Kumar, Madhu Prakash, P. Soma Sundaram, Advs.
for the Respondents.
Judgment / Order of the Supreme Court

Order
1. Leave granted.
2. The present appeal has been filed by the Appellant(s) assailing
the correctness of a decision of the Madras High Court (the “High
Court”) dated 13.09.2021, setting aside an order dated 24.10.2019
passed by the Ld. XIV Metropolitan Magistrate, Egmore, Chennai (the
[2024] 2 S.C.R.  687

N. Manogar & Anr. v. The Inspector of Police & Ors.

“Trial Court”) whereunder, the Trial Court rejected the application

instituted by the Complainant under Section 216 read with Section
319 of the Code of Criminal Procedure, 1973 (the “CrPC”) seeking
(i) the summoning of; and (ii) the impleadment of the Appellant(s)
as accused person(s) in connection with Case Crime No. 7243 of
2018 under Section(s) 452, 294(b), 323 and 506(1) of the Indian
Penal Code, 1860 (the “IPC”) (the “Impugned Order”).
3. The brief fact(s) culled out of the record are as follows:
3.1. Pursuant to an order of the High Court dated 24.01.2018,
Respondent No. 1 registered a First Information Report (“FIR”)
dated 20.04.2018 under Section(s) 448, 294(b), 323 and 506(1)
of the IPC pursuant to a complaint lodged by Respondent No. 2
i.e., the Complainant whereunder it was alleged that, Respondent
No. 3 came to the Complainant’s home asking about one Vidhul
i.e., the Complainant’s son. Upon being told that Viduhl was the
Complainant’ son Respondent No. 3 slapped the Complainant,
pushed her on the sofa, made vulgar comments and thereafter
dragged Vidhul out of the bathroom and physically assaulted
him up until he fell unconscious. Subsequently, Respondent No.
3 extended threat(s) to the Complainant. Pertinently, it was also
stated in the FIR that Respondent No. 3 was accompanied by
her husband and another ‘boy’, however no role was ascribed
to aforesaid person(s).
3.2. A chargesheet came to be filed before the Trial Court by
Respondent No. 1 against Respondent No. 3 under Section(s)
294(b), 323, 506(1) and 448 IPC. Subsequently the charge
under Section 448 IPC came to be altered to Section 452 IPC.
Pertinently, the Complainant, other eyewitnesses and the doctor
who examined the injured victim(s) only named; and ascribed
a role to Respondent No. 3 in their statement(s) under Section
161 CrPC before the investigating authorities.
3.3. An application dated 27.01.2019 under Section 482 CrPC
came to be preferred by the Complainant before the High Court
seeking re-investigation qua the FIR. At this stage, for first time,
the Complainant individually (a) named (i) Appellant No. 1 i.e.,
Respondent No. 3’s husband; and (ii) Appellant No. 2 i.e., a
688 [2024] 2 S.C.R.

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relative of Respondent No. 3; and (b) ascribed a particular

role qua the alleged incident to them i.e., that the Appellant(s)
trespassed into the Complainant’s home, hurled vulgar abuses
and also threatened to kill the Complainant’s son. It was also
stated that although the Complainant allegedly named the
aforesaid person(s), the same was not recorded in the FIR
(“Re-Investigation Application”). The High Court vide an order
dated 05.02.2019 in the Re-Investigation Application, observed
that the investigation had concluded; and a chargesheet had be
filed by the investigating authorities. Accordingly, the High Court
granted the Complainant liberty to prefer an application under
Section(s) 319 read with 216 of the CrPC before the Trial Court
seeking impleadment of the Appellants qua the proceedings
emanating from the FIR. Further, the Trial Court was directed
to consider the application of the Complainant under Section(s)
319 read with 216 of the CrPC and implead the Appellant(s)
as accused person(s) during the examination of witnesses (if
necessary) (the “Re-Investigation Order”).
3.4. Pursuant to the Re-Investigation Order, an application dated
19.03.2019 under Section(s) 319 read with 216 of the CrPC
came to be preferred by the Complainant before the Trial Court
whereunder it was stated that (i) despite naming the Appellants,
the FIR only came to be lodged against Respondent No. 3
i.e., allegedly the names of the Appellants were omitted by
the investigating authorities; (ii) the statement(s) recorded by
investigating authority under Section 161 of the CrPC were
mechanically recorded and purposely did not disclose to names
of the Appellants; (iii) that the prosecution witnesses (“PWs”)
Nos. 1-5 have named the Appellants’ during their examination-
in-chief before the Trial Court; and have also ascribed a specific
role to the Appellants’ (the “Underlying Application”).
3.5. Vide an order dated 06.05.2019, the Trial Court partly allowed
the aforesaid application i.e., impleaded Appellant No. 1 as an
accused person in the proceedings emanating from the FIR
observing inter alia that Appellant No. 1 i.e., a policeman ought
to have prevented an offence from taking place and accordingly,
his omission would necessarily amount to abetment, however,
[2024] 2 S.C.R.  689

N. Manogar & Anr. v. The Inspector of Police & Ors.

the Trial Court rejected the prayer qua the impleadment of

Appellant No. 2 as an accused on the ground that no reason(s)
have been attributed as to how the Complainant; and other PWs’
have been able to identify the unknown ‘boy’ as Appellant No. 2.
3.6. Aggrieved by the aforesaid order, revision petition(s) were
filed by Appellant No. 1 and Respondent No.2 before the High
Court. Vide an order dated 10.06.2019, the revision petition(s)
came to be allowed by the High Court on the ground that the
Appellants’ were not issued notice in the Underlying Application
and accordingly, the Underlying Application could not be decided
without affording the Appellants’ an opportunity of hearing
as mandated by this Court in Jogendra Yadav vs. State of
Bihar, (2015) 9 SCC 244. Thus, the High Court remanded the
Underlying Application back to be considered afresh by the
Trial Court in line with our decision in Hardeep Singh v State
of Punjab & Ors., (2014) 3 SCC 92 (the “Remand Order”).
3.7. Pursuant to the Remand Order, the Trial Court vide an order
dated 24.10.2019 dismissed the Underlying Application
observing inter alia that there is no evidence qua the involvement
of the Appellants to justify impleading the Appellants as accused
person(s) in light of the fact that no specific allegation(s) had
been levelled by the Complainant in either the underlying
complaint; or before PW-6 i.e., the doctor treating the victim(s)
immediately after the alleged offence (the “Underlying Order”).
3.8. Aggrieved by the Underlying Order, the Complainant filed
a criminal revision petition before the High Court. Vide the
Impugned Order, the High Court held inter alia that the
allegation(s) in the underlying complaint; and statement(s)
recorded under Section 161 CrPC disclose that the Appellants
were present with Respondent No. 3 at the time of the
commission of the alleged offence; and accordingly trespassed
into the home of the Complainant. Additionally, the High Court
observed that the standard to be adopted by the Trial Court
at the stage of invoking its’ powers under Section 319 CrPC
would be a prima facie satisfaction that that the accused person
has committed the alleged offence. Accordingly, in view of the
aforesaid, the High Court (i) allowed the criminal revision petition;
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(ii) set aside the Underlying Order; and (ii) directed the Trial
Court to implead the Appellants as Accused No. 2 and Accused
No. 3 respectively, in the CC No. 7243 of 2018 before the Trial
Court (the “Underlying Proceedings”).
4. Mr. S. Nagamuthu, learned senior counsel appearing on behalf of the
Appellants has submitted before us that the High Court has exercised
jurisdiction under Section 319 of the CrPC and erroneously reversed
the Trial Court Order without appreciating (i) that the allegation qua
the Appellants are vague and omnibus; (ii) that there is no evidence
on record to suggest the involvement of the Appellants in the alleged
offence; and (iii) the dicta laid down by this Court in Hardeep Singh
(Supra).
5. On the other hand, the learned counsel(s) appearing on behalf of the
Respondent(s) have vehemently opposed the aforesaid contention;
and submitted that the High Court has rightly appreciated the
allegations disclosed in the underlying complaint, the statement(s)
recorded under Section 161 CrPC and the examination-in-chief of
the PWs to conclude that the evidence on record underscored the
involvement of the Petitioners in the commission of a crime and
accordingly, the Impugned Order could not be faulted on account
of any perversity in view of our decision in Jitendra Nath Mishra
v. State of Uttar Pradesh, (2023) 7 SCC 344.
6. We have heard the learned counsel(s) appearing on behalf of the
parties and perused the materials on record.
7. The principles of law governing the exercise of jurisdiction under
Section 319 of the CrPC are well established. Notably, a constitution
bench of this Court in Hardeep Singh (Supra) observed as under:
“105. Power Under Section 319 Code of Criminal Procedure
is a discretionary and an extraordinary power. It is to
be exercised sparingly and only in those cases where
the circumstances of the case so warrant. It is not to be
exercised because the magistrate or the sessions judge is
of the opinion that some other person may also be guilty
of committing that offence. Only where strong and cogent
evidence occurs against a person from the evidence laid
before the court that such power should be exercised and
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N. Manogar & Anr. v. The Inspector of Police & Ors.

not in a casual and cavalier manner.

106. Thus we hold that though only a prima facie case is
to be established from the evidence laid before the court,
not necessarily tested on the anvil of cross-examination,
it requires much strong evidence that near probability
of his complicity. The test that has to be applied is one
which is more than prima facie case as exercised at the
time of framing of charge, but short of satisfaction to an
extent that the evidence, if goes unrebutted, would lead to
conviction. In the absence of such satisfaction, the court
should refrain from exercising power Under Section 319
Code of Criminal Procedure.”
8. The aforesaid position was reiterated by this Court in Sagar v.
State of Uttar Pradesh & Anr., (2022) 6 SCC 389 wherein it was
opined that:
“9. The Constitution Bench has given a caution that power
Under Section 319 of the Code is a discretionary and
extraordinary power which should be exercised sparingly
and only in those cases where the circumstances of the
case so warrant and the crucial test as notice above has
to be applied is one which is more that prima facie case
as exercised at the time of framing of charge, but short
of satisfaction to an extent that the evidence, if goes
unrebutted, would lead to conviction….”
9. In the present case, the High Court overturned the Trial Court Order;
and accordingly impleaded the Appellants’ as accused person(s) in
the Underlying Proceedings on the satisfaction of a prima-facie finding
that the materials on record i.e., (i) vague allegations emanating from
the underlying complaint; (ii) the Complainant’s statement under
Section 161 of the CrPC; and (iii) the Complainant’s examination-
in-chief, are sufficient to proceed against the Appellant(s).
10. In our considered view, the approach adopted by the High Court
was not in consonance with this Court’s opinion in Hardeep Singh
(Supra). The High Court failed to appreciate that the discretionary
powers under Section 319 of the CrPC ought to have been used
sparingly where circumstances of the case so warrant. In the present
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case, the Trial Court Order was well reasoned and did not suffer
from any perversity. Moreover, the materials on record could not be
said to have satisfied the threshold envisaged under Hardeep Singh
(Supra) i.e., more than a prima facie case, as exercised at the time
of framing of charge but short of evidence that if left unrebutted
would lead to conviction.
11. Consequently, this appeal stands allowed and the Impugned Order
is set aside. Pending application(s), if any, stand disposed of.

Headnotes prepared by: Nidhi Jain Result of the case:

Appeal allowed.
 [2024] 2 S.C.R. 693 : 2024 INSC 129

Kuldeep Kumar
v.
U.T. Chandigarh and Others
(Civil Appeal No. 2874 of 2024)
20 February 2024
[Dr Dhananjaya Y Chandrachud, CJI,*
J B Pardiwala and Manoj Misra, JJ.]

Issue for Consideration

Result of the election to the post of Mayor at the Chandigarh
Municipal Corporation declared by the Presiding Officer in
favour of the eighth respondent, if was contrary to law in view
of the alleged electoral malpractices by him during the counting
of votes.

Headnotes
Punjab Municipal Corporation Act, 1976 – Punjab Municipal
Corporation Law (Extension to Chandigarh) Act, 1994 –
Chandigarh Municipal Corporation (Procedure and Conduct
of Business) Regulations, 1996 – Regulation 6, Clauses (9)
to (13) – Election to the post of Mayor at the Chandigarh
Municipal Corporation – Alleged electoral malpractices by
the Presiding Officer (Respondent no.7) during the counting
of votes – 36 votes were polled, of which 8 ballot papers
were treated to be invalid by the Presiding Officer – Of the
remaining 28 valid votes, the appellant (candidate of an
alliance between the Aam Aadmi Party and the Indian National
Congress) secured twelve votes, while the eighth respondent
(a candidate of the Bharatiya Janta Party) secured sixteen
votes – Result of the election was declared in favour of the
eighth respondent – Correctness:
Held: It is evident from the physical inspection of the eight ballots
that in each of those cases, the vote was duly cast in favour of
the appellant – The Presiding Officer placed a line in ink by way
of a mark at the bottom half of each of the ballots which were
treated to be invalid – He had evidently put his own aforesaid mark
to create a ground for treating the ballot to have been invalidly
cast – In doing so, the Presiding Officer clearly acted beyond
* Author
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the terms of his remit under the statutory regulations – These

regulations have been framed by the Municipal Corporation in
exercise of powers conferred by s.65 of the 1976 Act as extended
to the Union Territory of Chandigarh – Clause (10) of Regulation
6 provides for three eventualities in which a ballot can be treated
as invalid – None of the said eventualities were fulfilled in the
present case – The vote was cast by placing a rubber stamp on
the upper half of the ballot and hence the ink mark which was
placed on the bottom half by the Presiding Officer would be of
no consequence – Presiding Officer made a deliberate effort to
deface the eight ballots cast in favour of the appellant so as to
secure a result at the election by which the eighth respondent
would be declared as the elected candidate – Result which was
declared by the Presiding Officer being contrary to law is quashed
and set aside – Appellant is declared to be the validly elected
candidate for election as Mayor of the Chandigarh Municipal
Corporation. [Paras 26-31, 39]
Constitution of India – Article 142 – Exercise of powers under
– Free and fair elections – Election to the post of Mayor at
the Chandigarh Municipal Corporation – Writ petition filed
by the appellant before the High Court alleging electoral
malpractices by the Presiding Officer during the counting
of votes, sought the setting aside of the election process
and for the holding of a fresh election process – High Court
declined to stay the result of the election declared in favour
of the eighth respondent – During the course of proceedings
before this Court, the eighth respondent who was elected
as Mayor tendered his resignation:
Held: It would be inappropriate to set aside the election process
in its entirety when the only infirmity which has been found is
at the stage when the counting of votes was recorded by the
Presiding Officer – Allowing the entire election process to be set
aside would further compound the destruction of fundamental
democratic principles which has taken place as a consequence
of the conduct of the Presiding Officer – Free and fair elections
are a part of the basic structure of the Constitution – Elections
at the local participatory level act as a microcosm of the larger
democratic structure in the country – Local governments,
such as municipal corporations, engage with issues that affect
citizens’ daily lives and act as a primary point of contact with
[2024] 2 S.C.R.  695

Kuldeep Kumar v. U.T. Chandigarh and Others

representative democracy – Ensuring a free and fair electoral

process throughout this process, therefore, is imperative to
maintain the legitimacy of and trust in representative democracy
– In such a case, this Court is duty-bound, particularly in the
context of its jurisdiction u/Article 142, to do complete justice to
ensure that the process of electoral democracy is not allowed
to be thwarted by such subterfuges – This Court must step
in in such an exceptional situation to ensure that the basic
mandate of electoral democracy at the local participatory
level is preserved – Pertinently, this is not an ordinary case of
alleged malpractice by candidates in an election, but electoral
misconduct by the presiding officer himself – The brazen nature
of the malpractice, visible on camera, makes the situation all
the more extraordinary, justifying the invocation of the power
of this Court u/Article 142. [Paras 36, 37]
Code of Criminal Procedure, 1973 – s.340 – Exercise of
jurisdiction under – Election to the post of Mayor at the
Chandigarh Municipal Corporation – Alleged electoral
malpractices by the Presiding Officer during the counting
of votes – Presiding Officer signed each of the ballot papers
however, the video footage indicated that he had also placed
certain marks on some of the ballot papers – During the
course of the hearing, the Presiding Officer made a solemn
statement before this Court that he did so because he found
that the ballots had been defaced:
Held: The ballots had not been defaced when the Presiding
Officer put his mark at the bottom – The ballots left no manner
of doubt about the candidate for whom the ballot was cast –
Presiding Officer is guilty of a serious misdemeanour in doing
what he did in his role and capacity as Presiding Officer – A fit
and proper case is made out for invoking the jurisdiction of this
Court u/s.340 in respect of the conduct of the Presiding Officer
– In the order dated 19.02.2024, the statement made by the
Presiding Officer was recorded when he appeared personally
before this Court – As Presiding Officer, he could not have been
unmindful of the consequences of making a statement which,
prima facie, appears to be false to his knowledge in the course
of judicial proceedings – Notice to be issued to show cause to
the Presiding Officer, as to why steps should not be initiated
against him u/s.340. [Paras 30, 40]
696 [2024] 2 S.C.R.

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Case Law Cited

Kihoto Hollohon v. Zachilhu and Ors., [1992] 1 SCR 686 :
AIR 1993 SC 412; Indira Nehru Gandhi v. Raj Narain,
[1976] 2 SCR 347 : (1975) Supp SCC 1; Mohinder
Singh Gill v. Chief Election Commissioner, [1978] 2
SCR 272 : (1978) 1 SCC 405 – followed.

List of Acts
Punjab Municipal Corporation Act, 1976; Punjab Municipal Corporation
Law (Extension to Chandigarh) Act, 1994; Chandigarh Municipal
Corporation (Procedure and Conduct of Business) Regulations, 1996;
Code of Criminal Procedure, 1973; Constitution of India.

List of Keywords
Election; Mayor; Chandigarh Municipal Corporation; Electoral
malpractices by Presiding Officer; Counting of votes; Defacing
ballots; Free and fair elections; Fundamental democratic principles;
Basic structure of the Constitution; Elections at local participatory
level; Local governments, Municipal corporations; Representative
democracy; Statement false to the knowledge; Complete justice.

Case Arising From

CIVIL APPELLATE JURISDICTION : Civil Appeal No.2874 of 2024
From the Judgment and Order dated 31.01.2024 of the High Court of
Punjab & Haryana at Chandigarh in CWP No.2169 of 2024
Appearances for Parties
Dr. Abhishek Manu Singhvi, Gurminder Singh, Sr. Advs., Shadan
Farasat, Talha Abdul Rahman, Amit Bhandari, Siddharth Seem,
Abhishek Babbar, Harshit Anand, M. Shaz Khan, Adnan Yousuf,
Ramanpreet Bara, Ferry Sofat, R.P.S. Bara, Karamanbir Singh,
Advs. for the Appellant.
Tushar Mehta, SG., Maninder Singh, Mukul Rohatgi, Adundhamauli
Prasad, Sr. Advs., Ms. Bansuri Swaraj, Siddhesh Shirish Kotwal,
Prateek Gupta, Varun Chugh, Ms. Ana Upadhyay, Ms. Manya
Hasija, Tejasvi Gupta, Pawan Upadhyay, T. Illayarasu, Ms. Ashita
Chawla, Ajay Sabharwal, Rangasaran Mohan, Amarpal Singh Dua,
Raghunatha Sethupathy B., Mutu Thangadurai, Ms. Misha Rohatgi,
Advs. for the Respondents.
[2024] 2 S.C.R.  697

Kuldeep Kumar v. U.T. Chandigarh and Others

Judgment / Order of the Supreme Court

Judgment
Dr Dhananjaya Y Chandrachud, CJI
1. Leave granted.
2. The present appeal arises from an interim order of a Division Bench
of the High Court of Punjab & Haryana1 dated 31 January 2024.
The order impugned originates in a writ petition alleging electoral
malpractices by the presiding officer who conducted the election to
the post of Mayor at the Chandigarh Municipal Corporation. The High
Court issued notice and listed the petition after three weeks, but it
declined to stay the result of the election or grant any other interim
relief. The appellant approached this Court assailing the Order and
raised serious allegations about the sanctity of the election. With
the course the proceedings have taken, this judgment will result in
a final order on the writ petition before the High Court.
3. Section 38 of the Punjab Municipal Corporation Act 19762, extended
to the Union Territory of Chandigarh by the Punjab Municipal
Corporation Law (Extension to Chandigarh) Act 19943, provides
that the Chandigarh Municipal Corporation shall, at its first meeting
in each year, elect one of its elected members to be the Mayor of
the Corporation. Section 60(a) of the Act provides that the meeting
for the election of the Mayor shall be convened by the ‘Divisional
Commissioner’, who shall nominate a councillor who is not a candidate
for the election, to preside over the meeting. Similarly, Regulation 6(1)
of the Chandigarh Municipal Corporation (Procedure and Conduct
of Business) Regulations 19964 provides that a meeting for the
election of a Mayor shall be convened by the ‘prescribed authority’
who shall nominate a Councillor who is not a candidate to preside
over the meeting. The Deputy Commissioner of the Union Territory
of Chandigarh has been designated as Presiding Authority for this
purpose by a Notification dated 4 October 1994.

1 “High Court”
2 “Act”
3 Act No 45 of 1994
4 “Regulations”
698 [2024] 2 S.C.R.

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4. On 10 January 2024, Shri Vinay Pratap Singh, IAS, Deputy

Commissioner, Union Territory of Chandigarh acting in his capacity as
the Prescribed Authority directed the convening of a meeting of the
Councillors in terms of Section 38 of the Act at 11 am on 18 January
2024. The seventh respondent, Shri Anil Masih, one of the councillors
who was not standing for the mayor election was nominated as the
presiding authority. The agenda of the meeting was to conduct the
election of Mayor, Senior Deputy Mayor, and Deputy Mayor of the
Corporation and the elected Councillors desirous of contesting the
election were called upon to file their nominations for the posts.
5. A writ petition under Article 226 of the Constitution was instituted by
the appellant in the High Court seeking a direction to the Deputy
Commissioner to ensure that free and fair elections take place for
the posts of Mayor, Senior Deputy Mayor and Deputy Mayor of the
Municipal Corporation which were scheduled to be held on 18 January
2024 and for the appointment of a commissioner under the auspices
of the High Court to supervise the election process.
6. During the course of hearing the appeal, the appellant submitted that
he would be content if the petition was disposed of with directions
to the official respondents to (a) acknowledge the acceptance of
the withdrawal of the candidature of certain individuals for the three
electoral posts; (b) permit persons nominated by the contested
candidates to observe the proceedings of the elections; and (c) video
record the entire election process.
7. In response to the above submission, it was stated on behalf of
the respondents representing the various authorities, inter alia, that
the entire voting and election process would be video recorded.
Likewise, it was stated that the Chandigarh police would ensure that
free and fair elections take place. In view of the position adopted by
the authorities, by an Order dated 17 January 2024 (a day before
the proposed election), the petition was disposed of by a Division
Bench of the High Court.
8. Elections were not conducted on 18 January 2024, resulting in a
fresh round of litigation before the High Court. The order dated 18
January 2024 postponing the elections and rescheduling them to 6
February 2024 was challenged before the High Court. The election
allegedly could not take place as Shri Anil Masih, the presiding officer,
had taken leave of absence on the ground of ill health and due to
the purported ‘law and order’ situation in Chandigarh.
[2024] 2 S.C.R.  699

Kuldeep Kumar v. U.T. Chandigarh and Others

9. On 23 January 2024, the High Court observed that the postponement

of the elections for a period of eighteen days was unreasonable.
By its judgment dated 24 January 2024, the High Court held that
there was no valid ground for the postponement of the elections.
Consequently, while setting aside the postponement order dated 18
January 2024, the High Court directed that the elections to the posts
of Mayor, Senior Deputy Mayor and Deputy Mayor be conducted
at 10 am on 30 January 2024. The High Court also issued other
directions to ensure free and fair elections, as set out below:
"i) The respondents-authorities shall conduct the
elections to the posts of Mayor; Senior Deputy Mayor
and Deputy Mayor of the Municipal Corporation,
Chandigarh, on 30.01.2024 at 10 a.m. at the
scheduled place as indicated in the order dated
10.01.2024 (Annexure P.1 in CWP-1350-2024).
ii) The Prescribed Authority, shall ensure that the
scheduled elections, are held under the Presiding
Officer, as may be nominated by the said Authority.
The official respondents shall remain bound by their
statements made before the Coordinate Bench of this
Court on 17.01.2024 in CWP-1201-2024, to ensure
conduct of free and fair elections.
iii) The Councillors, who would come for voting in the
aforesaid elections, shall not be accompanied by any
supporters or by the security personnel belonging to
any other State.
iv) The Chandigarh Police, shall ensure to provide
adequate security to the Councillors, who would
come for voting, in view of the fact that they will not
be accompanied by any security personnel belonging
to any other State.
v) The Chandigarh Police shall also ensure that neither
any rukus nor any untoward incident takes place in
or around the premises of the Chandigarh Municipal
Corporation Office, prior to, during or after the election
process.”
10. Pursuant to the above litigation before the High Court, the programme
for the elections was notified on 26 January 2024. The election for
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the post of Mayor was conducted on 30 January 2024 with Shri Anil
Masih, the seventh respondent, acting as the Presiding Officer. Two
candidates were in the fray for the post of Mayor. The appellant ,
Kuldeep Kumar, was a candidate fielded by an alliance between
the Aam Aadmi Party and the Indian National Congress. From the
submissions before the Court, it appears that the alliance came into
being after nominations were filed on 16 January 2024, after which
certain candidates had withdrawn their nominations, as recorded by
the High Court in one of its earlier orders. The second candidate,
Manoj Kumar Sonkar, the eighth respondent was a candidate set up
by the Bharatiya Janta Party. Thirty-five councillors were eligible to
vote at the election of the Mayor apart from which, the Member of
Parliament from the Union Territory of Chandigarh was also eligible
to cast a vote at the election. There were therefore thirty-six eligible
voters for the election.
11. The results were announced by the Presiding Officer on 30 January
2024. The result sheet which tabulated the outcome is reproduced
below:

“MUNICIPAL CORPORATION CHANDIGARH

ELECTION OF MAYOR
RESULT SHEET
Sr. No. Name of the Councillors Vote Polled
1. Sh. Kuldeep Kumar 12
2. Sh. Manoj Kumar 16
NUMBER OF VALID VOTES POLLED: 28
NUMBER OF INVALID VOTES POLLED: 08
TOTAL VOTES POLLED: 36

SIGNATURE OF PRESIDING OFFICER

I, Anil Masih, Presiding Officer, declare Sh. Manoj Kumar having
been elected as Mayor, Municipal Corporation Chandigarh for the
year 2024.

Dated: 30.01.2024 PRESIDING OFFICER”

[2024] 2 S.C.R.  701

Kuldeep Kumar v. U.T. Chandigarh and Others

12. The result sheet indicates that thirty-six votes were polled, of which
eight were treated to be invalid. Of the twenty-eight valid votes
which remained, the appellant polled twelve votes, while the eighth
respondent polled sixteen votes. The Presiding Officer declared the
result of the election in favour of the eighth respondent. As directed
by the High Court, the election process, including the counting of
votes was video recorded.
13. Alleging electoral malpractices by the presiding officer/seventh
respondent during the counting of votes, the appellant instituted a
writ petition before the High Court of Punjab & Haryana. A Division
Bench of the High Court declined to stay the result of the election
and directed that the petition be posted after three weeks. The
proceedings before this Court were instituted at this stage assailing
the interim order of the High Court.
14. On 5 February 2024, the video recording of the counting process
was played in open court. This Court passed the following order:
"1. Issue notice.
2. Pursuant to the interim order of the High Court in an
earlier writ petition, the proceedings for conducting
the election to the Post of Mayor of the Chandigarh
Municipal Corporation were videographed. During
the course of the hearing, the video has been played
in Court.
3. The Returning Officer shall remain present before
this Court on the next date of listing to explain his
conduct as it appears in the video.
4. Prima facie, at this stage, we are of the considered
view that an appropriate interim order was warranted,
which the High Court has failed to pass, in order
to protect the purity and sanctity of the electoral
process.
5. We direct that the entire record pertaining to the
election of the Mayor of the Chandigarh Municipal
Corporation shall be sequestered under the custody
of the Registrar General of the High Court of Punjab
and Haryana. This shall include:
702 [2024] 2 S.C.R.

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(i) The ballot papers;

(ii) Videography of the entire electoral process; and
(iii) All other material in the custody of the Returning
Officer.
6. This exercise shall be carried out forthwith by 5 pm
this evening.
7. Mr Tushar Mehta, Solicitor General appearing
on behalf of the Returning Officer, states that the
Returning Officer has handed over the entire record
in a sealed format to the Deputy Commissioner, UT
Chandigarh on 30 January 2024.
8. The Deputy Commissioner, UT Chandigarh, shall
comply with the above direction by handing over the
entirety of the record to the Registrar General of the
High Court of Punjab and Haryana for safe keeping
and custody.
9. The ensuing meeting of the Chandigarh Municipal
Corporation, which is to take place on 7 February
2024, shall stand deferred, pending further orders
of this Court.
10. List the Special Leave Petition on 19 February 2024.”
15. On 19 February 2024, when the proceedings were listed before this
Court again, the following order was passed:
"1. Mr Gurminder Singh, senior counsel apprised the
Court that in pursuance of the interim order dated
05 February 2024, the ballot papers have been
sequestered under the custody of the Registrar
General of the High Court of Punjab and Haryana
on 05 February 2024.
2. During the course of the hearing, the Returning
Officer Mr Anil Masih is present before this Court.
Responding to a query of the Court, Mr Masih stated
that he had, besides signing the ballot papers, put
his mark at eight ballot papers during the course of
the counting of the votes. He states that he did so
as he found that the ballot papers were defaced.
[2024] 2 S.C.R.  703

Kuldeep Kumar v. U.T. Chandigarh and Others

3. We direct that the ballot papers which have been

placed in the custody of the Registrar General be
produced before this Court at 2.00 pm on 20 February
2024 by a judicial officer to be nominated by the
Registrar General for the purpose of transporting the
ballot papers to this Court.
4. Proper security arrangements shall be made to ensure
the safe transit of the judicial officer nominated by
the Registrar General in pursuance of this Order.
Arrangements shall also be made to secure proper
preservation and custody of the ballot papers with
the judicial officer.
5. The judicial officer shall also produce the entire video
of the counting of the votes before the Returning
Officer which took place on 30 January 2024.
6. List the Special Leave Petition at 2.00 pm on 20
February 2024.”
16. In pursuance of the above directions, the entire record pertaining to
the election of the Mayor was sequestered under the custody of the
Registrar General of the High Court, including (i) the ballot papers;
(ii) the video footage of the electoral process; and (iii) all material in
the custody of the Returning Officer/Presiding Officer. Pursuant to the
order dated 19 February 2024, the entire record has been produced
before this Court in sealed and secure custody by Shri Varun Nagpal,
OSD (Litigation) of the High Court of Punjab & Haryana.
17. On 5 February 2024, during the course of the hearing, parts of the
video footage recorded in pursuance of the order of the High Court
were played before this Court. The entire video footage has been
produced before the Court pursuant to order dated 19 February 2024
and played on the open screens during the hearing.
18. Elections to the post of Mayor are governed by the provisions of
the Chandigarh Municipal Corporation (Procedure and Conduct
of Business) Regulations 1996. Regulation 6 provides for election
of the Mayor, including the process of nomination, withdrawal of
candidatures and the conduct of the election by a secret ballot.
Clauses (9) to (13) of Regulation 6 have a material bearing on the
subject matter of the present dispute and serve as a yardstick to
704 [2024] 2 S.C.R.

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test the actions of the Presiding Officer/seventh respondent. The

relevant provisions are reproduced below:
"(9) No member shall vote for more than one candidate.
At the time of voting, each member shall place a
cross (X) on the right hand side of the ballot paper
opposite the name of the candidate for whom the
(sic) wishes to vote, and will then fold the ballot
paper and without showing the front of the paper to
any person, insert the same in the ballot box in the
presence of the presiding authority.
(10) lf a member votes for more candidates than one or
places any mark on the paper by which he may be
identified, his ballot paper shall be considered invalid
and will not be counted. A vote recorded on a ballot
paper used at the meeting shall be rejected if the
marks indicating the vote is placed on the ballot
paper in such a manner as to make it doubtful to
which candidate the vote has been given.
(11) As soon as the period fixed for casting of votes is
over, the presiding authority shall open the ballot box
and initial each ballot paper.
(12) The votes for all the candidates shall then be counted
by the presiding authority with the assistance of the
Municipal officials or employees as may be designated
by the presiding authority and the candidates shall
be arranged in the order of the number of votes
obtained by each of them.
(13) If there are only two candidates, then the one who
gets the larger number of votes shall be declared
elected.”
19. In terms of Regulation 6(9), a councillor can vote for only one
candidate. While voting, each member has to place a cross (X) on
the right-hand side of the ballot paper opposite the name of the
candidate for whom he wishes to vote, after which the ballot paper
has to be folded and inserted in the ballot box in the presence of the
Presiding Officer. Regulation 6(10) stipulates when the ballot paper
would be treated as invalid and provides for three eventualities.
[2024] 2 S.C.R.  705

Kuldeep Kumar v. U.T. Chandigarh and Others

The first is where a member votes for more candidates than one.
The second eventuality is where the member places any mark on
the paper by which he may be identified. The third eventuality is if
the mark indicating the vote is placed on the ballot paper in such
a manner as to make it doubtful for which candidate the vote has
been cast. Finally, Regulation 6(11) provides that as soon as the
period fixed for casting of the votes is over, the presiding authority
shall open the ballot box and initial each ballot paper.
20. From the record, it emerges that Shri Anil Masih, the Presiding Officer
had signed each of the ballot papers. However, the video footage
appears to indicate that he had also placed certain marks on some
of the ballot papers. This was corroborated on 19 February 2024,
when Shri Anil Masih, the Presiding authority/seventh respondent,
who was present before this Court, stated that besides signing the
ballot papers, he had placed his mark on eight ballot papers during
the counting of the votes. He stated that he did so as he found that
the ballot papers were defaced and sought to highlight them.
21. The grievance of the appellant, urged before this Court by Dr Abhishek
Manu Singhvi and Mr Gurminder Singh, senior counsel is that the
video footage leaves no manner of doubt that the Presiding Officer
while initialing the ballot papers placed an ink mark on the lower
half of eight ballot papers, all of which were cast in favour of the
appellant. It has been urged that the votes were treated as invalid
only as a result of the marks which were put by the Presiding Officer.
Consequently, it has been submitted that a deliberate effort was
made by the Presiding Officer to treat eight of the votes which were
cast in favour of the appellant as invalid and to declare the eighth
respondent as the elected candidate on the basis that he had secured
sixteen votes. Hence, it has been submitted that the electoral process
has been vitiated by the misconduct of the presiding authority, as
a consequence of which the democratic process leading up to the
election of the Mayor of the Chandigarh Municipal Corporation has
been seriously impaired.
22. Mr Mukul Rohatgi, senior counsel appeared on behalf of the Presiding
Officer/seventh respondent and urged that the entire process of
the election was not only video recorded but both the contesting
candidates and their representatives were present in the assembly
hall where the counting took place. Mr Rohatgi further submitted that
706 [2024] 2 S.C.R.

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apart from initialing the ballot papers, the Presiding Officer placed
certain marks in the bottom half of the eight ballots which were
treated as invalid based on his assessment that these ballots had
already been defaced.
23. Mr Maninder Singh, senior counsel appearing on behalf of the eighth
respondent submitted that the relief sought by the appellant in the
underlying writ petition before the High Court is for setting aside
the result of the election and for the conduct of a fresh election.
During the pendency of these proceedings, the eighth respondent
has tendered his resignation and hence, it has been submitted that
a fresh election would have to be held in terms of the provisions of
Section 38(3) of the Act.
24. Mr Tushar Mehta, Solicitor General appeared for the Union Territory
of Chandigarh and clarified that he is not representing the Presiding
Officer/seventh respondent in these proceedings.
25. As stated above, Regulation 6(9) indicates that at the time of voting,
each member shall place a cross (X) on the right-hand side of the
ballot paper opposite the name of the candidate for whom the member
wishes to vote. The ballot paper is then folded and placed in the
ballot box. The entire record (including the ballots in question) has
been produced before this Court in secure custody.
26. The entirety of the dispute turns on the eight ballot papers which were
treated to be invalid by the Presiding Officer. We have perused the
ballot papers in question. All the ballot papers contain the name of the
appellant in the upper half and the name of the eighth respondent in
the lower half. Below the names of the candidates is the signature of
the Presiding Officer. After the ballots are cast, the Presiding Officer
is required to initial each ballot in terms of Regulation 6(11). Each of
the ballot papers bears two signatures of the Presiding Officer. It is
evident from the physical inspection of the eight ballots which were
treated to be invalid that in each of those cases, the vote was cast
by the member in favour of the appellant. The Presiding Officer has
placed a line in ink by way of a mark at the bottom half of each of
the ballots which have been treated to be invalid. During the course
of the hearing yesterday, the Presiding Officer informed this Court
that he did so because he found that the ballots had been defaced.
Before recording the statement of the Presiding Officer in the above
terms, we had placed him on notice of the serious consequences
[2024] 2 S.C.R.  707

Kuldeep Kumar v. U.T. Chandigarh and Others

which are liable to ensue if he was found to have made a statement

before this Court which was incorrect.
27. The eight ballots which have been perused before the Court have also
been perused by the counsel appearing on behalf of the appellant
and for the successful candidate among others. It is evident that in
each of the eight ballots, the vote had been duly cast in favour of
the appellant. Further, the Presiding Officer has evidently put his
own mark on the bottom half of the ballots to create a ground for
treating the ballot to have been invalidly cast.
28. In doing so, the Presiding Officer has clearly acted beyond the terms
of his remit under the statutory regulations. These regulations have
been framed by the Municipal Corporation in exercise of powers
conferred by Section 65 of the Act as extended to the Union Territory
of Chandigarh. Clause (10) of Regulation 6 provides for three
eventualities, as already noticed earlier, in which a ballot can be
treated as invalid, namely:
(i) Where a member has voted for more than one candidate;
(ii) Where a member places any mark on the paper by which he
may be identified; and
(iii) If the mark indicating the vote is placed on the ballot paper in
such a manner as to make it doubtful over which candidate
the vote has been cast.
29. None of the above eventualities are fulfilled in the present case.
30. There is absolutely no dispute about the factual position that in each
of the eight ballots the vote was cast for one person which is evident
from the rubber stamp appearing on the upper half of the ballot in
each of those cases. Likewise, there is no mark on the ballot which
would indicate that the person who cast the vote would be identified.
The third ground which evinces a situation where the mark is placed
in such a manner so as to make it doubtful for which candidate the
vote has been cast would not arise on a plain perusal of the ballots.
Even if the mark which was placed by the Presiding Officer is taken
into consideration, that mark does not create any doubt about the
candidate in favour of whom the vote was cast. The vote was cast
by placing a rubber stamp on the upper half of the ballot and hence
the ink mark which was placed on the bottom half by the Presiding
Officer would be of no consequence. The ballots had not been
708 [2024] 2 S.C.R.

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defaced when the Presiding Officer put his mark at the bottom. The
ballots left no manner of doubt about the candidate for whom the
ballot was cast. But that apart, it is evident that the Presiding Officer
is guilty of a serious misdemeanour in doing what he did in his role
and capacity as Presiding Officer.
31. As stated above, Regulation 6(1) requires the nomination of a
councillor who is not a candidate at the election to preside over the
meeting. This provision has been made to ensure that the person
who acts as Presiding Officer would do so with objectivity. It is evident
that the Presiding Officer in the present case has made a deliberate
effort to deface the eight ballots which were cast in favour of the
appellant so as to secure a result at the election by which the eighth
respondent would be declared as the elected candidate.
32. Before this Court yesterday, the Presiding Officer made a solemn
statement that he had done so because he found that each of the
eight ballots was defaced. It is evident that none of the ballots had
been defaced. As a matter of fact, it is also material to note that after
the votes are cast, the ballot is folded in a vertical manner to ensure
that if the ink on the rubber stamp appears on the corresponding half
of the ballot it will appear alongside the name of the candidate for
whom the vote has been cast. The conduct of the Presiding Officer
must be deprecated at two levels. Firstly, by his conduct, he has
unlawfully altered the course of the Mayor’s election. Secondly, in
making a solemn statement before this Court on 19 February 2024,
the Presiding Officer has expressed a patent falsehood, despite a
prior warning, for which he must be held accountable.
33. For the above reasons, we have come to the conclusion that the
result, which was declared by Shri Anil Masih, the Presiding Officer
is plainly contrary to law and would have to be set aside. We order
accordingly.
34. During the course of these proceedings, the eighth respondent who
was elected as Mayor has tendered his resignation. Senior counsel
appearing on behalf of the eighth respondent has adverted to the
provisions of Section 38(3) in terms of which on the occurrence of any
casual vacancy, inter alia, in the office of the Mayor, the Corporation
is required within a month of the occurrence of the vacancy to elect
one of its members as Mayor to hold office for the remainder of the
term of office of the predecessor.
[2024] 2 S.C.R.  709

Kuldeep Kumar v. U.T. Chandigarh and Others

35. In the underlying writ petition before the Punjab & Haryana High
Court, the appellant had, inter alia, sought the setting aside of the
election process and for the holding of a fresh election process and
consequential reliefs. However, we are of the considered view that it
would be inappropriate to set aside the election process in its entirety
when the only infirmity which has been found is at the stage when
the counting of votes was recorded by the Presiding Officer. Allowing
the entire election process to be set aside would further compound
the destruction of fundamental democratic principles which has taken
place as a consequence of the conduct of the Presiding Officer.
36. This Court has consistently held that free and fair elections are a
part of the basic structure of the Constitution.5 Elections at the local
participatory level act as a microcosm of the larger democratic
structure in the country. Local governments, such as municipal
corporations, engage with issues that affect citizens’ daily lives and
act as a primary point of contact with representative democracy. The
process of citizens electing councillors, who in turn, elect the Mayor,
serves as a channel for ordinary citizens to ventilate their grievances
through their representatives – both directly and indirectly elected.
Ensuring a free and fair electoral process throughout this process,
therefore, is imperative to maintain the legitimacy of and trust in
representative democracy.
37. We are of the considered view that in such a case, this Court is
duty-bound, particularly in the context of its jurisdiction under Article
142 of the Constitution, to do complete justice to ensure that the
process of electoral democracy is not allowed to be thwarted by such
subterfuges. Allowing such a state of affairs to take place would be
destructive of the most valued principles on which the entire edifice
of democracy in our country depends. We are, therefore, of the
view that this Court must step in in such an exceptional situation to
ensure that the basic mandate of electoral democracy at the local
participatory level is preserved. Pertinently, this is not an ordinary
case of alleged malpractice by candidates in an election, but electoral
misconduct by the presiding officer himself. The brazen nature of
the malpractice, visible on camera, makes the situation all the more

5 Kihoto Hollohon v. Zachilhu and Ors., [1992] 1 SCR 686 : AIR 1993 SC 412; Indira Nehru Gandhi v. Raj
Narain, [1976] 2 SCR 347 : 1975 Supp SCC 1.
710 [2024] 2 S.C.R.

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extraordinary, justifying the invocation of the power of this Court

under Article 142.
38. From the result sheet, which has been reproduced in para 11, it has
emerged that while the appellant is reflected to have polled twelve
votes, eight votes cast in favour of the appellant were treated as
invalid. As detailed above, each of those eight invalid votes was in
fact validly cast in favour of the appellant. Adding the eight invalid
votes to the twelve votes which the Presiding Officer recorded to
have been polled by the appellant would make his tally twenty votes.
The eighth respondent, on the other hand, has polled sixteen votes.
39. We accordingly order and direct that the result of the election as
declared by the Presiding Officer shall stand quashed and set
aside. The appellant, Kuldeep Kumar, is declared to be the validly
elected candidate for election as Mayor of the Chandigarh Municipal
Corporation.
40. Further, we are of the considered view that a fit and proper case is
made out for invoking the jurisdiction of this Court under Section 340
of the Code of Criminal Procedure 1973 in respect of the conduct
of Shri Anil Masih, the Presiding Officer. In paragraph 2 of the order
dated 19 February 2024, we have recorded the statement which was
made by the Presiding Officer when he appeared personally before
this Court. As Presiding Officer, Shri Anil Masih could not have been
unmindful of the consequences of making a statement which, prima
facie, appears to be false to his knowledge in the course of judicial
proceedings.
41. The Registrar (Judicial) is accordingly directed to issue a notice
to show cause to Shri Anil Masih of the Chandigarh Municipal
Corporation who was the Presiding Officer at the election which took
place on 30 January 2024, as to why steps should not be initiated
against him under Section 340 of the Code of Criminal Procedure
1973. The notice shall be made returnable on 15 March 2024.
42. Shri Anil Masih shall have an opportunity to file his response to
the notice to be issued in pursuance of the above directions in the
meantime.
43. The ballots and the video footage which were unsealed for the
perusal of the Court shall be sealed again and returned to the OSD
(Litigation) of the High Court of Punjab and Haryana for safekeeping
[2024] 2 S.C.R.  711

Kuldeep Kumar v. U.T. Chandigarh and Others

before the Registrar General of the High Court. This shall be subject
to further orders of the competent court.
44. The other elections which are required to be held in terms of the
regulations shall now take place in accordance with law, save and
except for the election of the Mayor which has been resolved by the
final directions which have been issued herein-above.
45. Before concluding, we echo the observations by Justice VR Krishna
Iyer, (speaking for himself, Beg, CJ and Bhagwati, J) in Mohinder
Singh Gill v. Chief Election Commissioner.,6 albeit in a different
context of the powers of the Election Commission of India and
the parameters of Article 329(b) of the Constitution, pertaining to
elections to the Houses of Parliament and the State Legislatures.
Justice Krishna Iyer observed:
"2. Every significant case has an unwritten legend and
indelible lesson. This appeal is no exception, whatever
its formal result. The message, as we will see at
the end of the decision, relates to the pervasive
philosophy of democratic elections which Sir Winston
Churchill vivified in matchless, words:
“At the bottom of all tributes paid to democracy is
the little man, walking into a little booth, with a
little pencil, making a little cross on a little bit
of paper — no amount of rhetoric or voluminous
discussion can possibly diminish the overwhelming
importance of the point.”
If we may add, the little, large Indian shall not be
hijacked from the course of free and fair elections
by mob muscle methods, or subtle perversion of
discretion by men “dressed in little, brief authority”.
For “be you ever so high, the law is above you”.
(emphasis supplied)
In order to maintain the purity of the electoral process, the “little cross”
on the “little bit of paper” must be made only by the metaphorical
“little man” walking into the “little booth” and no one else.

6 [1978] 2 SCR 272 : (1978) 1 SCC 405

712 [2024] 2 S.C.R.

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46. The writ petition before the High Court shall stand disposed of in
terms of the above directions.
47. List the Civil Appeal on 15 March 2024 for considering the response
of the seventh respondent to the notice which has been directed to
be issued to him.

Headnotes prepared by: Divya Pandey Result of the case:

Directions issued.
 [2024] 2 S.C.R. 713 : 2024 INSC 137

Smt. Vidya K. & Ors.

v.
State of Karnataka & Ors.
(Civil Appeal No. 2899-2907 of 2024)
22 February 2024
[Pamidighantam Sri Narasimha,* and Aravind Kumar, JJ.]

Issue for Consideration

Whether a notification for filling up 18 posts of lecturers of Home
Science in First Grade College run by State of Karnataka is liable
to be quashed for not providing the breakup of the ‘subjects’ within
Home Science.

Headnotes
Karnataka Education Department Service (Department of
Collegiate Education) (Recruitment) Rules, 1964, and the
Karnataka Education Department Service (Department of
Collegiate Education) (Special Recruitment) Rules, 1993 –
Recruitment – Notification inviting application for the posts of
lecturers of Home Science – Respondent no. 8 approached the
Tribunal seeking quashing of the notification on the ground that
the breakup of the specialised subjects within Home Science
are not specified in the notification – The Tribunal quashed
the notification on the ground that specifying the subject
categories is necessary for advertising the vacant posts –
High Court confirmed the order of the Tribunal – Propriety:
Held: The advertisement dated 24.12.2007 refers to the relevant
Rules, and in fact, specifies all the requirements such as eligibility
criteria, selection methods, educational qualifications, age limit
etc. – There is no dispute about the fact that the recruitment inter
alia is to the post of a lecturer in an undergraduate program in
Government First Grade Colleges – In fact, Rule 3 of the 1993
Rules provides qualifications which concerns appointment to the
post of lecturers in undergraduate programs – The reason for
emphasising the Rule position is to indicate that these lecturers,
upon appointment, would be teaching undergraduate students in
the Home Science department – The qualification is therefore,
confined to, a postgraduation degree in Home Science – As long
as a candidate holds a master’s degree in Home Science, he/she
* Author
714 [2024] 2 S.C.R.

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will be qualified for applying to the post – It does not matter in which
speciality within Home Science the master’s degree is obtained –
Appointments to these posts are in the nature of ‘status’, which
means that the service and its conditions can be unilaterally changed
by the amendment of the Rules – The first duty of the Tribunal is
to verify and examine the claims made by a party in the context
of the Rule that governs the field – If the Rule does not prescribe
a subject-wise speciality, there is no justification for the Tribunal
or the High Court to examine the propriety, or for that matter, the
beneficial effect of the rule – Thus, the High Court committed an
error in not focussing on what the Rule provides for and whether the
advertisement is in consonance with the Rule – If the High Court
had confined itself to the basic features of judicial review, it would
have avoided committing the error that it did. [Paras 8, 9, 10, 12, 17]
Jurisprudence – Service Jurisprudence – Importance of Rules:
Held: Service jurisprudence must begin and end with rules
that govern the process of qualification, recruitment, selection,
appointment and conditions of service. [Para 12]

List of Acts
Karnataka Education Department Service (Department of Collegiate
Education) (Recruitment) Rules, 1964; Karnataka Education
Department Service (Department of Collegiate Education) (Special
Recruitment) Rules, 1993.

List of Keywords
Service Law; Recruitment; Appointment to the post of lecturers;
Subject categories; Beneficial effect of the rule; Consonance of
advertisement with Rules.

Case Arising From

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 2899-2907
of 2024
From the Judgment and Order dated 28.03.2013 of the High Court of
Karnataka at Bengaluru in CMWP Nos. 19495, 19496,19497, 19498,
19499, 19500, 19501, 19502 and 19503 of 2009
With
Civil Appeal Nos. 2936-2954, 2908-2916, 2917-2935 and 2955-2963
of 2024
[2024] 2 S.C.R.  715

Smt. Vidya K. & Ors. v. State of Karnataka & Ors.

Appearances for Parties

Aman Panwar, A.A.G., V. Lakshminarayana, Sr. Adv., Dinesh Kumar
Garg, Pratham Narendrakumar, Dhananjay Garg, Abhishek Garg,
Sparsha Shetty, Ishaan Tiwari, R.P. Bansal, Shekhar G Devasa,
Manish Tiwari, Ms. Thashmitha Muthanna, Shashi Bhushan Nagar,
Vishwanath Chaturvedi, M/S. Devasa & Co., G.V.Chandrashekar, Ms.
Anjana Chandrashekar, Anup Jain, Ms. K. V. Bharathi Upadhyaya,
Arjun Harkauli, Bimlesh Kumar Singh, Rajeev Kumar Gupta, Kanwal
Chaudhary, Ms. Niharika, Santosh Kumar Yadav, Neeraj Agarwal,
V. N. Raghupathy, Manendra Pal Gupta, Shivam Singh Baghel,
Anil Jaryal Thakur, K. K. Mani, Phatick Chandra Das, Advs. for the
appearing Parties.
Judgment / Order of the Supreme Court

Judgment
Pamidighantam Sri Narasimha, J.
1. Leave Granted.
2. The short question arising for our consideration is whether a
notification for filling up 18 posts of lecturers of Home Science in
First Grade College run by State of Karnataka is liable to be quashed
for not providing the breakup of the ‘subjects’ within Home Science.
The Karnataka Administrative Tribunal quashed the notification on
the ground that specifying the subject categories is necessary for
advertising the vacant posts1. Writ Petitions2 filed by the Karnataka
Public Service Commission as well as the successful candidates were
dismissed by the High Court confirming the order of the Tribunal.
Thus, the present appeal.
3. Having examined the rules and regulations which govern the process
of recruitment, we found no difficulty in arriving at the conclusion
that the requirement, as assumed by the Tribunal and the High
Court, is not a mandate of the recruitment Rules. Even otherwise,
the Tribunal and the High Court have erroneously based their

1 Order dated 12.06.2009 passed in Application No. 1002/2008 and Application No. 2794/2008 by the
Karnataka Administrative Tribunal, Bangalore.
2 Judgment dated 28.03.2013 passed in W.P. Nos. 19495-503/2009 and W.P. Nos. 20289-20297/2009
connected with W.P. No. 21474/2009 (S-KAT).
716 [2024] 2 S.C.R.

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conclusions on policy considerations relating to how such a breakup

would be beneficial to the candidates. For the reasons to follow, we
have allowed the appeals, set-aside the judgments and upheld the
recruitment process. Consequently, appointments made on the basis
of the advertisement are affirmed.
4. The short facts leading to the present appeal are as follows. The
Karnataka Public Service Commission (hereinafter ‘KPSC’) issued a
notification on 24.12.2007 for filling up approximately 2500 posts of
lecturers in the Government First Grade Colleges. Of the said posts,
we are concerned with the recruitment to 18 posts in the department
of Home Science. Following the advertisement, the appellants in the
lead matter and two other connected matters, having the required
qualification, were selected to the post of Home Science lecturer
on 23.09.2008. In the meanwhile, respondent no. 8 approached the
Tribunal seeking quashing of the notification by filing an Application
on the ground that the breakup of the specialised subjects within
Home Science are not specified in the notification. There was no
interim order passed by the Tribunal, but the recruitment was made
subject to the outcome of the Application.
5. The Application was finally taken up for hearing and the Tribunal
by its order dated 12.06.2009 allowed the same and quashed the
advertisement dated 24.12.2007. The Tribunal held that – (i) Home
Science is not a subject, but a course which comprises of different
subjects; (ii) in the past, KPSC had released notifications specifying
vacancies against each specialisation, and appointments were also
made after notifying vacancies against each specialisation; and (iii) if
posts are not filled up subject-wise, and a lecturer possessing degree
in Home Science in a particular subject is made to teach students in
another subject, the education of the students would suffer.
6. Questioning the legality and validity of the Tribunal’s decision, the
appellants, who were successfully appointed candidates and KPSC
filed Writ Petitions before the High Court. By the order impugned
herein, the High Court dismissed the said Petitions. The reasoning of
the High Court is that – (i) though the notification dated 24.12.2007
specifies subjects within the field of Arts and Science, for Home
Science, no subjects or specialisations were mentioned; (ii) the
Karnataka Education Department Service (Department of Collegiate
[2024] 2 S.C.R.  717

Smt. Vidya K. & Ors. v. State of Karnataka & Ors.

Education) (Special Recruitment) Rules, 1993, require that the

vacancy must be specified subject wise which was not done for
Home Science; and (iii) if any student wants to take up specialised
subjects in his masters’ degree, he is required to have studied that
subject, and therefore providing the breakup of subjects within Home
Science is necessary.
7. The appeals before us are by the appointed candidates, the State
of Karnataka and the KPSC. We have heard all the counsels for the
appellants and the respondents.
8. The issue as to whether the notification calling for applications
for recruitment to the 18 posts of lecturers in the department of
Home Science is illegal for not providing the subject wise specified
categories, would depend upon the Rules governing the recruitment
process, which are the Karnataka Education Department Service
(Department of Collegiate Education) (Recruitment) Rules, 1964,
and the Karnataka Education Department Service (Department of
Collegiate Education) (Special Recruitment) Rules, 1993. Rules 3
and 4 of the 1993 Rules provide as follows: -
“3. Qualification and Age - No person shall be eligible for
recruitment under these rules unless he, has –
(a) (i) Obtained a Master’s Degree in the relevant subject with
at least 55 per cent marks or its equivalent grade;
(ii) been, declared successful in the National Education
Test”, provided further that candidates possessing Ph.D/M.
Phil. are exempted from appearing for NET.
(b) ...
4. Notification of vacancies - Appointing Authority shall
notify the vacancies under each subject to the Karnataka
Public Service Commission which shall make the selection
in accordance with these rules.”
9. The advertisement dated 24.12.2007 refers to the relevant Rules,
and in fact, specifies all the requirements such as eligibility criteria,
selection methods, educational qualifications, age limit etc. Under
the educational qualification, the notification, which is in consonance
with Rule 3 stated above, specifies as under: -
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“1. Must be a holder of a Master’s Degree in the concerned

subject with minimum of fifty five percent of marks. Provided
that in the respect of Scheduled Caste and Scheduled
Tribes candidates the minimum marks shall be fifty percent.
2. Must have passed National Eligibility test conducted
by the U.G.C. or C.S.I.R of SLET conducted by the State
Government or any authority accredited by the U.G.C.”
10. There is no dispute about the fact that the recruitment inter alia is to
the post of a lecturer in an undergraduate program in Government
First Grade Colleges. That, it is a lecturer post, is also evident from
the pay scale of Rs. 8000-13500 that it carries. In fact, Rule 3 of
the 1993 Rules provides qualifications which concerns appointment
to the post of lecturers in undergraduate programs. The reason for
emphasising the Rule position is to indicate that these lecturers,
upon appointment, would be teaching undergraduate students in the
Home Science department. The qualification is therefore, confined to,
a post-graduation degree in Home Science. As long as a candidate
holds a master’s degree in Home Science, he/she will be qualified
for applying to the post. It does not matter in which speciality within
Home Science the master’s degree is obtained.
11. We may conclude this issue by referring to a statement made by
the University Grants Commission (hereinafter ‘UGC’) in the affidavit
which is to the following effect: -
“12. That the present Special Leave Petition pertains to the
issue as to “whether the post of lecturer in Home Science
is required to be classified subject-wise or not”.
13. In this regard, it is already submitted on behalf of
UGC that there is no separate subject wise provision for
the post of lecturers Home Science.”
12. Service jurisprudence must begin and end with rules that govern
the process of qualification, recruitment, selection, appointment and
conditions of service. Appointments to these posts are in the nature
of ‘status’, which means that the service and its conditions can be
unilaterally changed by the amendment of the Rules. The first duty
of the Tribunal is to verify and examine the claims made by a party
in the context of the Rule that governs the field. If the Rule does
[2024] 2 S.C.R.  719

Smt. Vidya K. & Ors. v. State of Karnataka & Ors.

not prescribe a subject-wise speciality, there is no justification for

the Tribunal or the High Court to examine the propriety, or for that
matter, the beneficial effect of the rule.
13. The reasoning adopted by the High Court is as follows:
“14. The material on record discloses that all persons
who have basic degree in Science is not eligible for being
admitted to M.Sc. in Home Science. If any student wants
to take up specialized subject, he also should have studied
that subject as a subject in the basic degree. Under these
circumstances, though the Government had asked the
KPSC to recruit 18 Lecturers in Home Science, the KPSC
being specialized Agency should have known that while
inviting applications, mentioning of mere Home Science
would not be sufficient. In fact, the Rules on which reliance
is placed categorically states that the candidate should
have obtained a Master Degree in the ‘relevant subject’
with at least 55% marks or its equivalent grade and the
Amended Rule (4) makes it very clear that the Appointing
Authority shall notify the vacancies under ‘each subject’
to the KPSC which shall make selection in accordance
with these Rules. Home Science is not a subject. Home
Science is a stream or genesis. In that view of the matter,
the notification calling for applications in Home Science is
vague. Only the specialized subject has to be mentioned
as they have mentioned in the case of Arts, Science and
Commerce. The candidate possessing M.Sc. in Home
Science with specialized subject is in disadvantageous
position to apply as against the said vacancies. In their
anxiety, if the applicant had applied for the post of Lecturer
in Home Science, that cannot be held against her. The
State and the KPSC should act in accordance with law.”
14. It does not require detailed reasoning to find the error in the judgment
of the High Court. The fact that an undergraduate student would
be required to choose a specialisation when he takes up a PG
program has no bearing on the qualification of the lecturer teaching
the undergraduate students. Further, the assumption of the High
Court that Home Science is not a subject, instead it is a stream, or
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a genesis has no application to the recruitment of lecturers for an

undergraduate program. For under-graduation, Home Science in
itself is the subject. In fact, UGC also considers Home Science as a
subject, with subject code no. 12, as per the latest information bulletin
issued by it towards National Eligibility Test conducted in December,
2023. To teach undergraduates, the qualification prescribed is simply
a post-graduation degree in the subject of Home Science. We repeat,
it does not matter in which subject of Home Science that the post-
graduation is obtained.
15. The other reasoning given by the High Court is that on an earlier
occasion, the KPSC, while recruiting for the post of probationary
officers in the Dept. of Woman & Child Welfare, had mentioned
the qualification as Master’s Degree in Social Works or Home
Science with a specialization in Child Development or Nutrition.
Even this reasoning is misplaced because this advertisement was
for recruitment to an executive post. While recruiting a person as
a probationary officer in the Dept. of Woman & Child Welfare, the
employer is certainly entitled to indicate the specialisation that is
expected. This has nothing to do with advertisement for recruitment
for the post of a lecturer.
16. Till date, the lecturers of Home Science in undergraduate program
run by the Government First Grade Colleges have been treated as
one cadre and recruitment to the posts were advertised as such. If
one has to follow the logic adopted by the High Court, then the entire
notification will collapse as the subjects of History, Economics, Political
Science, Sociology etc. are also mentioned without the so-called
specialisations and they must be set aside by the same logic. For
example, History has its specialised subjects in post-graduation such
as Ancient History, Archaeology, Epigraphy, Modern Indian History,
World History, European History, South-east Asian History, West
Asian History etc. The simple answer is that for under graduation,
History is a subject in itself.
17. We conclude by holding that the High Court committed an error
in not focussing on what the Rule provides for and whether the
advertisement is in consonance with the Rule. If the High Court had
confined itself to the basic features of judicial review, it would have
avoided committing the error that it did.
[2024] 2 S.C.R.  721

Smt. Vidya K. & Ors. v. State of Karnataka & Ors.

18. For the reasons stated above, we allow the appeals and set aside the
judgement of the High Court of Karnataka at Bangalore in W.P. Nos.
19495-19503/2009, W.P. Nos. 20289-20297/2009 connected with
W.P. No. 21474/2009 (S-KAT) dated 28.03.2013 and the order dated
12.06.2009 passed in Application No. 1002/2008 and Application
No. 2794/2008 by the Karnataka Administrative Tribunal, Bangalore.
Pending applications, if any, stand disposed of.
19. No order as to costs.

Headnotes prepared by: Ankit Gyan Result of the case:

Appeals allowed.
 [2024] 2 S.C.R. 722 : 2024 INSC 131

Ravindra Kumar
v.
State of U.P. & ORS.
(Civil Appeal No. 5902 of 2012)
22 February 2024
[J.K. Maheshwari and K.V. Viswanathan,* JJ.]

Issue for Consideration

There was a non-disclosure of a criminal case (in which the
candidate was acquitted) in the verification form of the employment.
The State cancelled the selection of the appellant. Was the State
justified in cancelling the selection of the appellant.

Headnotes
Service Law – Recruitment – Selection – Non-disclosure of a
criminal case in verification – Appellant applied for the post
of constable – After submitting application, he was embroiled
in a criminal case – He cleared exam – In the criminal case,
appellant was acquitted – After being selected, the appellant
submitted affidavit that no criminal case was ever registered
against him – His selection was cancelled vide letter dated
12.04.2005 as appellant had concealed the offence and filed
false affidavit:
Held: On the date of the application, there was no criminal case
pending and there was no suppression in the application form –
The verification documents after noticing the criminal case and
the subsequent acquittal stated that his character was good,
that no complaints were found against him and that his general
reputation was good – The SHO, who forwarded the report to the
Superintendent of Police after reiterating the contents of the report
observed that appellant was acquitted and no appeal was filed –
The SHO certified the character of the candidate as excellent and
that he was eligible to do Government Service under the State
Government – The Superintendent of Police, in his letter to the
Commandant, endorsed the report and reiterated that the character
of the candidate was excellent – In the instant case, the Appointing
Authority has mechanically held selection as irregular and illegal
because the appellant had furnished an affidavit with incorrect facts
– On applying the broad principles set out in para 93.7 of Satish

* Author
[2024] 2 S.C.R.  723

Ravindra Kumar v. State of U.P. & ORS.

Chandra Yadav, the order of cancellation dated 12.04.2005 is neither

fair nor reasonable – Clause 9 (i.e. if any fact is concealed in the
affidavit by the candidate, his candidature is liable for cancellation)
of the recruitment notification has to be read in the context of the
law laid down in the cases of the Supreme Court – Broad-brushing
every non-disclosure as a disqualification, will be unjust and the
same will tantamount to being completely oblivious to the ground
realities – Each case will depend on the facts and circumstances
that prevail thereon, and the court will have to take a holistic view,
based on objective criteria, with the available precedents serving
as a guide – Thus, the order dated 12.04.2005 is quashed and
set aside – The respondents are directed to appoint the appellant
in service on the post of Constable. [Paras 29 and 30]

Case Law Cited

Commissioner of Police and Others Vs. Sandeep Kumar,
[2011] 3 SCR 964 : (2011) 4 SCC 644; Pawan Kumar
vs. Union of India and Another, [2022] 7 SCR 928 :
(2022) SCC OnLine SC 532; Mohammed Imran vs.
State of Maharashtra and Others, (2019) 17 SCC 696;
Satish Chandra Yadav vs. Union of India and Others,
[2022] 10 SCR 537 : (2023) 7 SCC 530 – relied on.
Director General of Police, Tamilnadu, Mylapore
vs. J. Raghunees, (2023) SCC OnLine SC 1379 –
distinguished.
Avtar Singh Vs. Union of India and Others, [2016] 7
SCR 445 : (2016) 8 SCC 471 – referred to.
Ram Kumar vs. State of U.P. and Others, [2011] 10
SCR 506 : (2011) 14 SCC 709; Morris v. Crown Office,
(1970) 2 QB 114 – referred to.

List of Keywords
Service Law; Recruitment; Selection; Employment; Non-disclosure
of a crimal case; Verification in employment; Holistic view based
on objective criteria.

Case Arising From

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5902 of 2012
From the Judgment and Order dated 29.10.2010 of the High Court
of Judicature at Allahabad in SA No. 896 of 2005
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Appearances for Parties

P. Choudhury, Saurabh Ajay Gupta, Nishant Bishnoi, Ms. Srishti
Prabhakar, Ankit Choudhury, R. K. Singh, Nivedit Singh, Advs. for
the Appellant.
Ms. Garima Prashad, A.A.G., Ms. Ruchira Goel, Advs. for the
Respondents.
Judgment / Order of the Supreme Court

Judgment
K.V. Viswanathan, J.
1. The vexed question is back again. Is it a hard and fast and a cut
and dried rule that, in all circumstances, non-disclosure of a criminal
case (in which the candidate is acquitted) in the verification form is
fatal for the candidate’s employment? We think not and it ought not
to be so too. Fortunately, we have a judicial chorus supporting our
view. Each case will turn on the special facts and circumstances.
We have endeavoured to analyse the applicable precedents and
have followed those line of cases, which have a striking similarity
to the facts at hand.
Facts of the case:
2. Ravindra Kumar (the appellant), on 12.02.2004, applied for the post
of Constable. His record was unblemished. Five days after submitting
the application, i.e. on 17.02.2004, he was embroiled in a criminal
case for offences punishable under Sections 324, 352 and 504 Indian
Penal Code, 1860 (“IPC”), which he claims was a false case. He
cleared the written exam and the interview. Earlier he had cleared
the physical efficiency test too.
3. In the meantime, the criminal case took an interesting turn as by
the judgment dated 13.09.2004, the appellant was acquitted. At
that criminal trial, the informant PW-1 Srikant, who according to the
prosecution, was allegedly injured in the incident on account of injuries
allegedly inflicted by the appellant and by Vijendra, Ishwar Dayal
and Radhey Shyam, turned hostile. The son of the informant, PW-2
Ram Gulam with whom according to the prosecution, the accused
party was quarreling, till PW-1 Srikant intervened and allegedly
[2024] 2 S.C.R.  725

Ravindra Kumar v. State of U.P. & ORS.

became subject to physical attack, also turned hostile. Ram Gulam

clearly deposed that he could not identify any of the accused. The
witnesses even stated that the Daroga Ji (Station House Officer)
did not record their statement. In the cross-examination, they also
stated that there was a big crowd at the occurrence and as such
they could not identify the assailants. Insofar as Section 504 IPC
was concerned which deals with intentional insult with the intent to
provoke breach of peace, both the parties have filed a compromise
memo, which was accepted by the Court. In view of the above, they
were acquitted of all the charges.
4. The Appellant, after being selected, was required to submit an
Affidavit disclosing criminal antecedents, if any. The Appellant
submitted the affidavit on 30.10.2004, wherein, he inter alia, stated
that no criminal case, cognizable or non-cognizable, has ever been
registered against him.
5. Thereafter, he was asked to report for training and when he reported,
he was not sent for training on the ground that there was a character
verification pending. Subsequently, on 12.04.2005, he was given the
following letter cancelling his selection:
“It is to inform that you have been selected on the post
of Recruit Constable PAC by the Selection Committee,
8th Battalion PAC, Bareilly after the examination. After
selection, you submitted affidavit dated 30.10.2004, in
which, you have mentioned that no criminal case/case,
cognizable or non cognizable, has never been registered
against you and no challan and police investigations are
pending against you. On getting made your character
verification from the Superintendent of Police of your
Home District Deoria, this fact has come in light that a
Crime No.95/04 under Section 324/504 and 352 I.P.C.
was registered against you at the Police Station - Gauri
Bazar, District Deoria discharged you from the charge in
question on 13.09.2004.
It is clear from the above that you have concealed the
above offence and filed false affidavit. Therefore, due to
producing false affidavit, your selection on the post of
Recruit Constable in PAC is hereby cancelled.”
726 [2024] 2 S.C.R.

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6. The case of the Department was that, under Clause 9 of the

recruitment notification dated 20.01.2004, if any fact is concealed in
the affidavit by the candidate, his candidature is liable for cancellation.
Clause 9, being relevant, is extracted herein below:
“9. Character Verification:
Character verification of all the candidates found eligible
as above will be done as per the government rules
prevailing at that time. In character verification, eligible
candidates will have to furnish an affidavit in the prescribed
format on a non-judicial stamp paper duly attested by a
public notary. The format of the affidavit will be made
available by the Selection Committee to the candidates
finally selected in the interview. If it is found through the
character verification or any other means that facts have
been concealed in the affidavit by the candidate, not only
will the selection of the candidate be cancelled but legal
action can also be taken against him. No candidate/person/
organization will have the right to protest in any court in
case the selection is cancelled due to false facts being
mentioned in the affidavit or not providing the prescribed
required information.”
7. The multiple Clauses of the Affidavit, verified on 30.10.2004, namely,
Clause 4, 5, 6, 7 and 11 read as under:
“4. That to the best of my knowledge, no criminal case/
matter (cognizable or non-cognizable) has ever been
registered against me, nor has the police challaned me
in any such criminal case, nor is any police investigation
pending against me. NO
5. That I have never been arrested in any criminal case
(cognizable or non-cognizable) nor have I ever surrendered
in any such criminal case. NO
6. That the details of the criminal cases which have been
registered against me or in which I have been challaned or
which were/are pending against me in the court or under
investigation by the police are as follows (if the information
is nil then write ‘zero’)
[2024] 2 S.C.R.  727

Ravindra Kumar v. State of U.P. & ORS.

7. That the details of the criminal cases pending against

me in any court and in which I was punished or acquitted
or discharged are as follows (if the information is nil then
write ‘zero’) ZERO
11. That if anything mentioned in the application is found
to be false or the facts are found to be concealed and
if I am immediately unconditionally terminated from the
Uttar Pradesh Police Service and also given statutory
punishment, then it will be acceptable to me.”
8. In the meantime, the police verification proceeded. On 09.12.2004,
the report of Police Station, Gauri Bazar, District Deoria stated that
while a case in crime no. 95 of 2004 under Sections 324, 352 and
504 IPC was registered against the candidate, the candidate was
acquitted and there was no appeal filed against the acquittal order.
Further, there was no other case pending in any court nor was any
case registered against the candidate at the police station. The SHO
further mentioned as follows:
“The character of the candidate is excellent. As per my
consent the candidate is eligible to do government service
under the State Government”
Moreover, the Gram Pradhan also seconded the “excellent” character
of Appellant in the Character Certificate issued by him. The Character
Certificate issued by the Gram Pradhan reads as under:-
“CHARACTER CERTIFICATE
It is certified that Ravindra Kumar s/o Late Pardesi Prasad,
is a permanent resident of Village Bagapar, Post Katora,
Police Station Gauri Bazar, District Deoria (Uttar Pradesh).
I know and recognize him very well. His character is
excellent. I wish him a bright future.
Signature and seal
Gram Pradhan”
9. Thereafter, on 10.12.2004, the Superintendent of Police, Deoria,
whilst taking note of the report of Police Station, Gauri Bazar, District
Deoria, informed the Commandant, 8th Battalion, PAC., Bareilly that,
in his opinion, the candidate was eligible to do government service
728 [2024] 2 S.C.R.

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under the State Government. The relevant portion of the letter dated
10.12.2004 is reproduced as follows-
“….The character of the candidate is excellent. Therefore,
the candidate Shri Ravindra Kumar s/o Shri Pardesi Ram
r/o Bagapar, Post Kathaura, Police Station Gauri Bazar,
District Deoria is eligible to do government service under
the State government.”
10. The State of U.P., in support of the cancellation letter dated
12.04.2005, relies on a letter dated 31.12.2004 written on behalf
of the Inspector General of Police, PAC to the Commandant, 8th
Battalion, PAC wherein it was stated, that with regard to the cases
of the appellant and two others, who were found to be acquitted
in criminal cases during character verification and who had not
mentioned the factum of those cases in the affidavit, it was to be
ensured that action as per the rules regarding submission of false
affidavit be taken against those candidates. The State has also
placed on record a letter of 07.01.2005 by the Inspector General of
Police to all the Commandants of PAC Battalion, U.P. stating that
with regard to submission of false affidavit, action should be taken
as per the instructions issued. In the cases of candidates who had
mentioned the facts related to the charges registered against them
in the affidavit, action should be taken as per their discretion and
the Government orders.
11. The State has also placed on record the “Form of verification of
character” setting out that it was necessary to verify the character
and antecedents before appointment of any candidate. The Verifying
Authority was to report directly if found eligible. If the candidate is
ineligible according to report then the report was to be sent to the
District Magistrate. The District Magistrate was to call the candidate
and record his statement and write down his opinion as to what he
considers about the candidate and also send the statement of the
candidate. In the note appended, it was even set out that, even a
conviction need not by itself involve the refusal of a certificate of good
character. The circumstances of the conviction should be taken into
account and if they involve no moral turpitude or association with
crimes of violence or with a movement which has as its object, the
overthrow by violent means of Government as by law established
in Union of India then mere conviction need not be regarded as
[2024] 2 S.C.R.  729

Ravindra Kumar v. State of U.P. & ORS.

a disqualification. It is also mentioned in Clause 4 of the Form of

Verification of Character as follows:-
“4. It is further requested that the following general rules
regarding conduct of candidates for government jobs
should also be kept in mind.
The character of a candidate for direct appointment must
be such as to render him suitable in all respects for
employment in the service or post to which he is to be
appointed. It would be the duty of the appointing authority
to satisfy itself on this point.”
Proceedings in the High Court:-
12. Aggrieved by the letter dated 12.04.2005 of the cancellation of
selection, the appellant filed a Civil Misc. Writ Petition No. 39418 of
2005 before the High Court of Judicature at Allahabad. The appellant
argued that there was no deliberate or willful concealment on his
part as he has been acquitted in the criminal case. The Ld. Single
Judge, vide judgement dt. 16.05.2005, dismissed the Writ Petition
holding that the petitioner has suppressed material information with
regard to his involvement in a criminal case at the time of filling up
the form. It was held that the subsequent acquittal of his involvement
in the criminal case will not absolve him from the fact that he had
suppressed material information.
13. The Appellant, being aggrieved by the Judgement of Ld. Single Judge,
filed an appeal bearing Special Appeal No. 896/2005. The Division
Bench, vide impugned judgment dated 29.10.2020, dismissed the
Special Appeal holding that if a person swears a false affidavit at
the time of enrollment, he is not fit to be enrolled in the disciplined
service. It was further held that the act of swearing false affidavit on
its own, is an act, which touches upon the conduct and character
of the person. The suppression of the material information from the
employer does not get vindicated by the subsequent acquittal in the
case. Moreover, the appointing authority was not required to go into
the details of the allegations in the criminal case, the evidence led in
the trial and the reasons for which the criminal court had convicted
or acquitted the candidate.
14. The Appellant, being aggrieved of the Judgment dated 29.10.2010,
is before us in the instant appeal.
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Contentions:-
15. Before us Mr. Premashis Choudhary, learned advocate for the
appellant, contended that there was no willful concealment; that
at the time of submitting of the application form on 12.02.2004,
there was no criminal case pending against the appellant; and
at that stage there was no requirement to furnish any affidavit.
The appellant was acquitted in the criminal case on 13.09.2004
i.e. much prior to the filing of his affidavit on 30.10.2004. Since
no criminal case was pending at the time of filing of affidavit,
the appellant was under a bona fide belief that there was no
requirement to disclose. It is further contended that as such there
was no intention to deceive.
16. On the other hand, Ms. Garima Prashad, learned Additional Advocate
General and Ms. Ruchira Goel, learned Standing Counsel for the
State have contended that the appellant made a false representation
in Clauses 4, 5, 6 and 7 of his Affidavit. Further, along with the
appellant, two other persons, who were found to have been given
false statements, have also been visited with the cancellation.
Moreover, the present case is covered in favour of the State, by the
judgment of this Court in case of Avtar Singh Vs. Union of India
and Others, (2016) 8 SCC 471, particularly, para 38.1, 38.2, 38.3
and 38.11 thereof.
Questions for consideration:-
17. In the above background, the questions that arise for consideration
are:-
i. Was the State justified in cancelling the selection of the appellant,
vide its order of 12.04.2005?
ii. To what relief, if any, is the appellant entitled to?
Discussion and findings:
18. As the facts reveal, admittedly on 12.02.2004, when the appellant
applied for the post of Constable, there was no criminal case
registered or pending. Five days after submitting the application, no
doubt, he was embroiled in a criminal case which has since resulted
in an acquittal by the trial court, vide order dated 13.09.2004, and no
appeal was filed against the same. There is no dispute that under
Clause 9 of the recruitment notification dated 20.01.2004, he was
[2024] 2 S.C.R.  731

Ravindra Kumar v. State of U.P. & ORS.

required to furnish an Affidavit in the format given by the Selection

Committee. It is also specifically mentioned in Clause 9 that if it is
found that facts have been concealed in the Affidavit the selection
of the candidate is liable for cancellation. As will be seen from
paras 4, 5, 6 and 7 of the affidavit, information (though somewhat
repetitive) was sought. It did obligate the candidate to disclose any
criminal case which was registered against him; any arrest made
in the past, the details of the cases which were pending and, most
importantly, the details of acquittals were also called for. It is also
an undisputed fact that the appellant said ‘No’ to each of these
queries. The appellant’s explanation is that since he was acquitted,
he bona fide believed that he was only obliged to give details of
any pending proceedings.
19. The State had taken the position that Clause 9 of the recruitment
notification and the queries in the affidavit were quite clear and that
there being suppression, the cancellation was perfectly justified.
20. The law on this issue is settled by a three-Judge Bench of this Court
in Avtar Singh (Supra). Paras 34, 35, 36 & 38, which sets out the
conclusions, are extracted herein below:-
“34. No doubt about it that verification of character and
antecedents is one of the important criteria to assess
suitability and it is open to employer to adjudge antecedents
of the incumbent, but ultimate action should be based
upon objective criteria on due consideration of all relevant
aspects.
35. Suppression of “material” information presupposes that
what is suppressed that “matters” not every technical or
trivial matter. The employer has to act on due consideration
of rules/instructions, if any, in exercise of powers in order
to cancel candidature or for terminating the services of
employee. Though a person who has suppressed the
material information cannot claim unfettered right for
appointment or continuity in service but he has a right
not to be dealt with arbitrarily and exercise of power has
to be in reasonable manner with objectivity having due
regard to facts of cases.
36. What yardstick is to be applied has to depend upon
the nature of post, higher post would involve more
732 [2024] 2 S.C.R.

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rigorous criteria for all services, not only to uniformed

service. For lower posts which are not sensitive, nature
of duties, impact of suppression on suitability has to be
considered by authorities concerned considering post/
nature of duties/services and power has to be exercised
on due consideration of various aspects.
38. We have noticed various decisions and tried to
explain and reconcile them as far as possible. In view of
the aforesaid discussion, we summarise our conclusion
thus:
38.1. Information given to the employer by a candidate as
to conviction, acquittal or arrest, or pendency of a criminal
case, whether before or after entering into service must be
true and there should be no suppression or false mention
of required information.
38.2. While passing order of termination of services or
cancellation of candidature for giving false information,
the employer may take notice of special circumstances
of the case, if any, while giving such information.
38.3. The employer shall take into consideration the
government orders/instructions/rules, applicable to the
employee, at the time of taking the decision.
38.4. In case there is suppression or false information of
involvement in a criminal case where conviction or acquittal
had already been recorded before filling of the application/
verification form and such fact later comes to knowledge
of employer, any of the following recourses appropriate
to the case may be adopted:
38.4.1. In a case trivial in nature in which conviction had
been recorded, such as shouting slogans at young age
or for a petty offence which if disclosed would not have
rendered an incumbent unfit for post in question, the
employer may, in its discretion, ignore such suppression
of fact or false information by condoning the lapse.
38.4.2. Where conviction has been recorded in case which
is not trivial in nature, employer may cancel candidature
or terminate services of the employee.
[2024] 2 S.C.R.  733

Ravindra Kumar v. State of U.P. & ORS.

38.4.3. If acquittal had already been recorded in a case

involving moral turpitude or offence of heinous/serious
nature, on technical ground and it is not a case of clean
acquittal, or benefit of reasonable doubt has been given,
the employer may consider all relevant facts available as
to antecedents, and may take appropriate decision as to
the continuance of the employee.
38.5. In a case where the employee has made declaration
truthfully of a concluded criminal case, the employer still
has the right to consider antecedents, and cannot be
compelled to appoint the candidate.
38.6. In case when fact has been truthfully declared in
character verification form regarding pendency of a criminal
case of trivial nature, employer, in facts and circumstances
of the case, in its discretion, may appoint the candidate
subject to decision of such case.
38.7. In a case of deliberate suppression of fact with
respect to multiple pending cases such false information by
itself will assume significance and an employer may pass
appropriate order cancelling candidature or terminating
services as appointment of a person against whom multiple
criminal cases were pending may not be proper.
38.8. If criminal case was pending but not known to the
candidate at the time of filling the form, still it may have
adverse impact and the appointing authority would take
decision after considering the seriousness of the crime.
38.9. In case the employee is confirmed in service,
holding departmental enquiry would be necessary before
passing order of termination/removal or dismissal on the
ground of suppression or submitting false information in
verification form.
38.10. For determining suppression or false information
attestation/verification form has to be specific, not vague.
Only such information which was required to be specifically
mentioned has to be disclosed. If information not asked
for but is relevant comes to knowledge of the employer
the same can be considered in an objective manner while
734 [2024] 2 S.C.R.

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addressing the question of fitness. However, in such

cases action cannot be taken on basis of suppression or
submitting false information as to a fact which was not
even asked for.
38.11. Before a person is held guilty of suppressio veri or
suggestio falsi, knowledge of the fact must be attributable
to him.”
(Emphasis supplied)
21. As would be clear from Avtar Singh (Supra), it has been clearly
laid down that though a person who has suppressed the material
information cannot claim unfettered right for appointment, he or
she has a right not to be dealt with arbitrarily. The exercise of
power has to be in a reasonable manner with objectivity and
having due regard to the facts. In short, the ultimate action should
be based upon objective criteria after due consideration of all
relevant aspects.
22. Avtar Singh (Supra) also noticed the judgment in Commissioner
of Police and Others Vs. Sandeep Kumar, (2011) 4 SCC 644.
In Sandeep Kumar (supra), this Court set out the story of the
character “Jean Valjean” in Victor Hugo’s novel Les Miserables,
where the character was branded as a thief for stealing a loaf of
bread for his hungry family. It also discussed the classic judgment
of Lord Denning in Morris v. Crown Office, (1970) 2 QB 114 and
concluded as follows:-
“10… …
In our opinion, we should display the same wisdom as
displayed by Lord Denning.
11. As already observed above, youth often commits
indiscretions, which are often condoned.
12. It is true that in the application form the respondent
did not mention that he was involved in a criminal case
under Sections 325/34 IPC. Probably he did not mention
this out of fear that if he did so he would automatically
be disqualified. At any event, it was not such a serious
offence like murder, dacoity or rape, and hence a more
lenient view should be taken in the matter.”
[2024] 2 S.C.R.  735

Ravindra Kumar v. State of U.P. & ORS.

Thereafter, in Avtar Singh (supra) dealing with Sandeep Kumar

(supra), this Court observed as under:
“24… …
This Court has observed that suppression related to a
case when the age of Sandeep Kumar was about 20
years. He was young and at such age people often commit
indiscretions and such indiscretions may often be condoned.
The modern approach should be to reform a person instead
of branding him a criminal all his life. In [Morris v. Crown
Office, (1970) 2 QB 114 : (1970) 2 WLR 792 (CA)] , the
observations made were that young people are no ordinary
criminals. There is no violence, dishonesty or vice in them.
They were trying to preserve the Welsh language. Though
they have done wrong but we must show mercy on them
and they were permitted to go back to their studies, to their
parents and continue the good course.”
23. In Ram Kumar vs. State of U.P. and Others, (2011) 14 SCC 709,
another case noticed and discussed in Avtar Singh (Supra) arising
out of near identical facts and construing a similar clause in the
verification form, this Court, while granting relief, held as follows:-
“9. We have carefully read the Government Order dated
28-4-1958 on the subject “Verification of the character
and antecedents of government servants before their first
appointment” and it is stated in the government order that
the Governor has been pleased to lay down the following
instructions in supersession of all the previous orders:
“The rule regarding character of candidate for appointment
under the State Government shall continue to be as follows:
The character of a candidate for direct appointment must
be such as to render him suitable in all respects for
employment in the service or post to which he is to be
appointed. It would be the duty of the appointing authority
to satisfy itself on this point.
xxx xxx
12. On a reading of the order dated 18-7-2002 of the
Additional Chief Judicial Magistrate it would show that the
736 [2024] 2 S.C.R.

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sole witness examined before the court, PW 1, Mr Akhilesh

Kumar, had deposed before the court that on 2-12-2000
at 4.00 p.m. children were quarrelling and at that time
the appellant, Shailendra and Ajay Kumar amongst other
neighbours had reached there and someone from the crowd
hurled abuses and in the scuffle Akhilesh Kumar got injured
when he fell and his head hit a brick platform and that
he was not beaten by the accused persons by any sharp
weapon. In the absence of any other witness against the
appellant, the Additional Chief Judicial Magistrate acquitted
the appellant of the charges under Sections 323/34/504 IPC.
On these facts, it was not at all possible for the appointing
authority to take a view that the appellant was not suitable
for appointment to the post of a police constable.
13. The order dated 18-7-2002 of the Additional Chief
Judicial Magistrate had been sent along with the report
dated 15-1-2007 of Jaswant Nagar Police Station to the
Senior Superintendent of Police, Ghaziabad, but it appears
from the order dated 8-8-2007 of the Senior Superintendent
of Police, Ghaziabad, that he has not gone into the question
as to whether the appellant was suitable for appointment
to service or to the post of constable in which he was
appointed and he has only held that the selection of the
appellant was illegal and irregular because he did not
furnish in his affidavit in the pro forma of verification roll
that a criminal case has been registered against him.
14. As has been stated in the instructions in the Government
Order dated 28-4-1958, it was the duty of the Senior
Superintendent of Police, Ghaziabad, as the appointing
authority, to satisfy himself on the point as to whether the
appellant was suitable for appointment to the post of a
constable, with reference to the nature of suppression and
nature of the criminal case. Instead of considering whether
the appellant was suitable for appointment to the post of
male constable, the appointing authority has mechanically
held that his selection was irregular and illegal because
the appellant had furnished an affidavit stating the facts
incorrectly at the time of recruitment.
xxx xxx
[2024] 2 S.C.R.  737

Ravindra Kumar v. State of U.P. & ORS.

17. For the aforesaid reasons, we allow the appeal, set

aside the order of the learned Single Judge and the
impugned order of the Division Bench and allow the writ
petition of the appellant and quash the order dated 8-8-
2007 of the Senior Superintendent of Police, Ghaziabad.
The appellant will be taken back in service within a period
of two months from today but he will not be entitled to any
back wages for the period he has remained out of service.
There shall be no order as to costs.”
Ram Kumar (supra) was also a case of cancellation of
selection to the post of Constable.
24. More recently in Pawan Kumar vs. Union of India and Another,
(2022) SCC OnLine SC 532, involving appointment to the post of
Constable in Railway Protection Force and setting aside the order
of discharge due to alleged suppression in the verification form, this
Court, after noticing Avtar Singh (Supra) held as under:-
“11. This cannot be disputed that the candidate who intends
to participate in the selection process is always required
to furnish correct information relating to his character and
antecedents in the verification/attestation form before and
after induction into service. It is also equally true that the
person who has suppressed the material information or
has made false declaration indeed has no unfettered right
of seeking appointment or continuity in service, but at least
has a right not to be dealt with arbitrarily and power has
to be judiciously exercised by the competent authority in
a reasonable manner with objectivity having due regard
to the facts of the case on hand. It goes without saying
that the yardstick/standard which has to be applied with
regard to adjudging suitability of the incumbent always
depends upon the nature of post, nature of duties, effect
of suppression over suitability to be considered by the
authority on due diligence of various aspects but no hard
and fast rule of thumb can be laid down in this regard.
13. What emerges from the exposition as laid down by
this Court is that by mere suppression of material/false
information regardless of the fact whether there is a
conviction or acquittal has been recorded, the employee/
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recruit is not to be discharged/terminated axiomatically from

service just by a stroke of pen. At the same time, the effect
of suppression of material/false information involving in a
criminal case, if any, is left for the employer to consider
all the relevant facts and circumstances available as to
antecedents and keeping in view the objective criteria and
the relevant service rules into consideration, while taking
appropriate decision regarding continuance/suitability of the
employee into service. What being noticed by this Court
is that mere suppression of material/false information in a
given case does not mean that the employer can arbitrarily
discharge/terminate the employee from service.
19. Consequently, the appeal succeeds and is allowed. The
judgment of the Division Bench of the High Court dated
17th November, 2015 and the order of discharge dated 24th
April, 2015 and dated 23rd December, 2021 are hereby
quashed and set aside. The Respondents are directed to
reinstate the appellant in service on the post of Constable
on which he was selected pursuant to his participation
in reference to employment notice no. 1/2011 dated 27th
February, 2011. We make it clear that the appellant will not
be entitled for the arrears of salary for the period during
which he has not served the force and at the same time
he will be entitled for all notional benefits, including pay,
seniority and other consequential benefits, etc. Necessary
orders shall be passed within a period of one month from
today. No costs.”
25. In Mohammed Imran vs. State of Maharashtra and Others,
(2019) 17 SCC 696, no doubt, a case where a candidate made the
disclosure of criminal case, this Court speaking through Navin Sinha,
J. made the following telling observation which resonates with the
hard realities of everyday existence :
“5. Employment opportunities are a scarce commodity in
our country. Every advertisement invites a large number
of aspirants for limited number of vacancies. But that may
not suffice to invoke sympathy for grant of relief where the
credentials of the candidate may raise serious questions
regarding suitability, irrespective of eligibility. Undoubtedly,
[2024] 2 S.C.R.  739

Ravindra Kumar v. State of U.P. & ORS.

judicial service is very different from other services and the

yardstick of suitability that may apply to other services, may
not be the same for a judicial service. But there cannot be
any mechanical or rhetorical incantation of moral turpitude,
to deny appointment in judicial service simplicitor. Much will
depend on the facts of a case. Every individual deserves
an opportunity to improve, learn from the past and move
ahead in life by self-improvement. To make past conduct,
irrespective of all considerations, an albatross around the
neck of the candidate, may not always constitute justice.
Much will, however depend on the fact situation of a case.”
26. We have also kept in mind the recent judgment of this Court in
Satish Chandra Yadav vs. Union of India and Others, (2023) 7
SCC 530 and the broad principles set out by this Court in para 93,
especially, paras 93.1, 93.3 & 93.7. Even the broad principles set out
therein recognize that each case should be scrutinized thoroughly by
the public employer concerned and the Court is obliged to examine
whether the procedure of enquiry adopted by the authority concerned
was fair and reasonable. Avtar Singh (Supra) in para 38.2 has
held that while passing the order of cancellation of candidature for
giving false information, the employer may take notice of special
circumstances of the case, if any, while giving such information.
Further, in para 38.4.3 of Avtar Singh (Supra) the principle that, in
case of suppression or false information of involvement of criminal
case, where acquittal has already been recorded, the employer can
still consider all relevant facts available as to antecedents and may
take appropriate decision as to the continuance of the employee.
We have read and understood the broad principles laid down in
Satish Chandra Yadav (supra) with the following crucial para in
Avtar Singh (Supra):
“35. Suppression of “material” information presupposes that
what is suppressed that “matters” not every technical or
trivial matter. The employer has to act on due consideration
of rules/instructions, if any, in exercise of powers in order
to cancel candidature or for terminating the services of
employee. Though a person who has suppressed the
material information cannot claim unfettered right for
appointment or continuity in service but he has a right
740 [2024] 2 S.C.R.

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not to be dealt with arbitrarily and exercise of power has

to be in reasonable manner with objectivity having due
regard to facts of cases.”
27. We have also examined the judgment in Director General of
Police, Tamilnadu, Mylapore vs. J. Raghunees, (2023) SCC
OnLine SC 1379 and we find that the case of the appellant is
more aligned with the facts in the judgment of this Court in Pawan
Kumar (supra), Sandeep (supra) and Ram Kumar (supra).
Hence, we find that the judgment in J. Raghunees (supra) is
clearly distinguishable.
28. The nature of the office, the timing and nature of the criminal case;
the overall consideration of the judgement of acquittal; the nature
of the query in the application/verification form; the contents of
the character verification reports; the socio economic strata of the
individual applying; the other antecedents of the candidate; the nature
of consideration and the contents of the cancellation/termination
order are some of the crucial aspects which should enter the judicial
verdict in adjudging suitability and in determining the nature of relief
to be ordered.
29. Having discussed the legal position above, it is necessary to set out
certain special features that obtain in the case at hand.
i. The appellant hails from the small village Bagapar, P.O. Kataura,
Police Station Gauri Bazar, District Deoria, U.P.
ii. On the date of the application, there was no criminal case
pending and there was no suppression in the application form.
iii. The criminal case was registered when he was 21 years of age
for the offences very similar to the one referred to in Sandeep
Kumar (supra) and even in the criminal case he was acquitted.
iv. No doubt, the multiple columns in the verification affidavit,
questions were asked from him in different permutations and
combinations. He must have been in a deep dilemma as there
was an imminent prospect of losing his employment.
v. Most importantly, we find from the verification documents fairly
and candidly made available by the learned Additional Advocate
General, that the verification report after noticing the criminal
case and the subsequent acquittal stated that his character was
[2024] 2 S.C.R.  741

Ravindra Kumar v. State of U.P. & ORS.

good, that no complaints were found against him and that his
general reputation was good.
vi. Not stopping there, the person who visited the spot even wished
him a bright future in the report.
vii. The SHO, Gauri Bazar Police Station, who forwarded the report
to the Superintendent of Police after reiterating the contents of
the report observed that he was acquitted and no appeal was
filed. Further, there was no other case pending and nor was
any case registered against the candidate.
viii. The SHO certified the character of the candidate as excellent
and that he was eligible to do Government Service under
the State Government. He annexed the report of the Police
Station as well as the report of the Gram Pradhan and the
Court documents.
ix. The Superintendent of Police, in his letter to the Commandant,
endorsed the report and reiterated that the character of the
candidate was excellent.
x. While examining whether the procedure adopted for enquiry
by the authority was fair and reasonable, we find that the
order of cancellation of 12.04.2005 does not even follow the
mandate prescribed in Clause 4 of the Form of verification of
character set out in the earlier part of this judgment. Like it was
found in Ram Kumar (supra) instead of considering whether
the appellant was suitable for appointment, the Appointing
Authority has mechanically held his selection was irregular and
illegal because the appellant had furnished an affidavit with
incorrect facts. Hence, even applying the broad principles set
out in para 93.7 of Satish Chandra Yadav (supra), we find
that the order of cancellation dated 12.04.2005 is neither fair
nor reasonable. Clause 9 of the recruitment notification has
to be read in the context of the law laid down in the cases
set out hereinabove.
30. On the facts of the case and in the backdrop of the special
circumstances set out hereinabove, where does the non- disclosure
of the unfortunate criminal case, (which too ended in acquittal),
stand in the scheme of things? In our opinion on the peculiar facts
of the case, we do not think it can be deemed fatal for the appellant.
742 [2024] 2 S.C.R.

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Broad-brushing every non-disclosure as a disqualification, will be

unjust and the same will tantamount to being completely oblivious to
the ground realities obtaining in this great, vast and diverse country.
Each case will depend on the facts and circumstances that prevail
thereon, and the court will have to take a holistic view, based on
objective criteria, with the available precedents serving as a guide.
It can never be a one size fits all scenario.
Relief:
31. For the reasons set out hereinabove, the appeal is allowed and the
order of the learned Single Judge and the impugned order of the
Division Bench dated 29.10.2010 in Special Appeal No. 896/2005
are set aside. The order of 12.04.2005 of the third respondent,
Commandant 27th Battalion, PAC, Sitapur is quashed and set aside.
The respondents are directed to appoint the appellant in service
on the post of Constable for which he was selected, pursuant to
his participation in reference to the Recruitment Notification dated
20.01.2004. We make it clear that the appellant will not be entitled
for the arrears of salary for the period during which he has not
served the force. At the same time, we direct that the appellant will
be entitled for all notional benefits, including pay, seniority and other
consequential benefits. Necessary orders shall be passed within a
period of four weeks from today. There shall be no order as to costs.

Headnotes prepared by: Ankit Gyan Result of the case:

Appeal allowed.
 [2024] 2 S.C.R. 743 : 2024 INSC 138

Ram Nath
v.
The State of Uttar Pradesh & Ors.
(Criminal Appeal No. 472 of 2012)
21 February 2024
[Abhay S. Oka* and Sanjay Karol, JJ.]

Issue for Consideration

Interplay between the provisions of Chapter IX of the Food Safety
and Standards Act, 2006 (FSSA) and ss.272 and 273 of the Penal
Code, 1860; whether the view taken by the Allahabad High Court
in the case of M/s. Pepsico India Holdings (Pvt) Ltd. & Anr v. State
of Uttar Pradesh & Ors., holding that after coming into force of
the FSSA w.e.f 29th July 2010, it would have an overriding effect
on other food related laws, including the Prevention of Food
Adulteration Act, 1954 and ss. 272, 273, IPC, challenged in Criminal
Appeal No. 476-478 of 2012 is correct.

Headnotes
Food Safety and Standards Act, 2006 – ss.89, 59 – Overriding
effect of this Act over all other food related laws – Punishment
for unsafe food – Penal Code, 1860 – ss.272, 273 – Adulteration
of food or drink intended for sale – Sale of noxious food or
drink – State of Uttar Pradesh issued an order granting power
to the authorities to initiate prosecutions u/ss.272 and 273, IPC
as well as under the Prevention of Food Adulteration Act, 1954
– FIRs were filed alleging commission of offences u/ss.272,
273, IPC – Petitions seeking quashing thereof, dismissed by
High Court – Accused herein inter alia pleaded that s.89 will
have an overriding effect over the provisions of the IPC:
Held: By virtue of s.89 of the FSSA, s.59 will override the
provisions of ss.272 and 273, IPC – Therefore, there will not
be any question of simultaneous prosecution under both the
statutes – Impugned orders set aside in Criminal Appeal Nos.
472 of 2012, 479 of 2012 and Criminal Appeal arising out of
SLP (Crl.) No. 1379 of 2011 – The offences, subject matter
of these appeals are quashed and set aside – Authorities
at liberty to act in accordance with the FSSA for offences
* Author
744 [2024] 2 S.C.R.

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punishable u/s.59 of the FSSA – Criminal Appeal Nos. 476-

478 of 2012, dismissed. [Paras 21, 22]
Food Safety and Standards Act, 2006 – ss.59, 48 – Penal
Code, 1860 – ss.272, 273 – Offence u/s.59 of the FSSA
made out even in absence of intention as provided in
s.272, IPC – Knowledge an essential ingredient in sub-
sec.1 of s.48, and thus, a part of s.59, FSSA:
Held: When the offences u/ss.272 and 273, IPC are made
out, even the offence u/s.59 of the FSSA will be attracted
– In fact, offence u/s.59 of the FSSA is more stringent –
s.273 of the IPC applies when a person sells or, offers or
exposes for sale any article of food or drink which has been
rendered noxious or has become unfit for food or drink – s.273
incorporates requirements of knowledge or reasonable belief
that the food or drink sold or offered for sale is noxious –
s.59 of the FSSA does not require the presence of intention
as contemplated by s.272, IPC – Under s.59 of the FSSA,
a person commits an offence who, whether by himself or by
any person on his behalf, manufactures for sale or stores or
sells or distributes any article of food for human consumption
which is unsafe – So, the offence u/s.59 of the FSSA is made
out even if there is an absence of intention as provided in
s.272, IPC – However, knowledge is an essential ingredient
in sub-sec.1 of s.48, and therefore, it will be a part of s.59
of the FSSA. [Para 18]
Interpretation of Statutes – Food Safety and Standards
Act, 2006 – s.89 – Overriding effect of this Act over all
other food related laws – Main Section gives overriding
effect to the provisions of the FSSA over any other law
– Section unambiguous, aid of the title of the Section or
its marginal note not to be taken to interpret the same:
Held: The title of the section indeed indicates that the
intention is to give an overriding effect to the FSSA over all
‘food-related laws’ – However, in the main Section, there
is no such restriction confined to ‘food-related laws’, and
it is provided that provisions of the FSSA shall have effect
[2024] 2 S.C.R.  745

Ram Nath v. The State of Uttar Pradesh & Ors.

notwithstanding anything inconsistent therewith contained in

any other law for the time being in force – So, the Section
indicates that an overriding effect is given to the provisions
of the FSSA over any other law – The settled law is that if
the main Section is unambiguous, the aid of the title of the
Section or its marginal note cannot be taken to interpret the
same – Only if it is ambiguous, the title of the section or the
marginal note can be looked into to understand the intention
of the legislature – Therefore, the main Section clearly gives
overriding effect to the provisions of the FSSA over any other
law in so far as the law applies to the aspects of food in the
field covered by the FSSA. [Para 20]
Food Safety and Standards Act, 2006 – Chapter IX – ss.49-
58 – Offences and Penalties – Chapter X – Adjudication
and Food Safety Appellate Tribunal – Discussed – Code
of Criminal Procedure, 1973.
Food Safety and Standards Act, 2006 – s.3 clause (zz),
(a), (zx) – “unsafe food”; “adulterant”; “sub-standard”:
Held: The concept of unsafe food is more comprehensive
than the concept of adulterated food – Unsafe food means
an article of food whose nature, substance or quality is so
affected as to render it injurious to health – If any adulterant
is added to an article of food, which renders the article of
food injurious to health, the food article becomes unsafe
food – Further, substandard food cannot be unsafe food.
[Paras 9-11]
Food Safety and Standards Act, 2006 – Objects and
reasons – Discussed.
Case Law Cited
Swami Achyutanand Tirth v. Union of India & Ors, (2014)
13 SCC 314; State of Maharashtra & Anr. v. Sayyed
Hassan Sayyed Subhan & Ors., (2019) 18 SCC 145;
State of M.P. v. Kedia Leather & Liquor Ltd. and Ors.,
[2003] Suppl. 2 SCR 727 : (2003) 7 SCC 389; Jeewan
Kumar Raut & Anr. v. Central Bureau of Investigation,
[2009] 10 SCR 272 : (2009) 7 SCC 526; State of Uttar
746 [2024] 2 S.C.R.

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Pradesh v. Aman Mittal and Anr, [2019] 11 SCR 1180 :

(2019) 19 SCC 740 – referred to.
M/s. Pepsico India Holdings (Pvt) Ltd. & Anr v.
State of Uttar Pradesh & Ors, 2010 SCC OnLine
All 1708 – approved.
List of Acts
Food Safety and Standards Act, 2006; Prevention of Food
Adulteration Act, 1954; Penal Code, 1860; Code of Criminal
Procedure, 1973; General Clauses Act, 1897.
List of Keywords
Overriding effect; Food/drink adulteration; Intention;
Knowledge; Reasonable belief; Simultaneous prosecution;
Interpretation of Statutes; Section unambiguous, Aid of the
title of the Section/marginal note.
Case Arising From
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 472
of 2012
From the Judgment and Order dated 05.10.2010 of the High Court of
Judicature at Allahabad in WPCRL No. 18831 of 2010
With
Criminal Appeal Nos. 479, 476-478 Of 2012 And Criminal Appeal No.
1068 of 2024
Appearances for Parties
Vikramjit Banerjee, ASG., Ardhendumauli Kumar Prasad, A.A.G.,
Maninder Singh, Sr. Adv., Garvesh Kabra, Amit Singh, Mrs. Nikita
Jaju, Ahmer Shaikh, Yadunandan Bansal, Rauf Rahim, Ali Asghar
Rahim, Ambhoj Kumar Sinha, Dheeraj Nair, Kumar Kislay, Ms. Avni
Sharma, Ms. Ridhima Sharma, Ajay Sabharwal, Ms. Ashita Chawla,
Abhishek Singh, Nachiketa Joshi, Navanjay Mahapatra, T.S.Sabarish,
Gurmeet Singh Makker, Mrs. Niranjana Singh, Siddharth Singla,
Vishnu Shankar Jain, Ashish Madaan, Ms. Annaya Sahu, Parth
Yadav, Ms. Mani Munjal, Vishwa Pal Singh, Jamnesh Kumar, Parth
Shekhar, Ms. Ambali Vedasen, Shubham Singh, Ms. Monica Haseja,
[2024] 2 S.C.R.  747

Ram Nath v. The State of Uttar Pradesh & Ors.

Md Sontu Mia, Nikhil Kumar, Binod Kumar Singh, Himanshu Shekhar,

Advs. for the appearing Parties.
Judgment / Order of the Supreme Court

Judgment
Abhay S. Oka, J.
1. Leave granted in Special Leave Petition (Crl.) No. 1379 of 2011.
2. The issue involved in these appeals is about the interplay between
the provisions of Chapter IX of the Food Safety and Standards Act,
2006 (for short, ‘the FSSA’) and Sections 272 and 273 of the Indian
Penal Code (for short, ‘the IPC’).
FACTUAL ASPECT
3. Criminal Appeal No. 472 of 2012 takes exception to the order dated
5th October 2010 passed by a Division Bench of Allahabad High
Court. The appellant filed a petition under Section 482 of the Code of
Criminal Procedure, 1973 (for short, ‘CrPC’) seeking quashing of the
prosecution for the offences punishable under Sections 272 and 273
of the IPC. On 11th May 2010, the State of Uttar Pradesh issued an
order granting power to the authorities to initiate prosecutions under
Sections 272 and 273 of the IPC as well as under the Prevention of
Food Adulteration Act, 1954 (for short, ‘PFA’). On 28th August 2010,
a First Information Report (for short, ‘FIR’) was lodged by a food
inspector representing the Regional Food Controller, Agra, against
the petitioner alleging the commission of offences under Sections 272
and 273 of the IPC. The allegation was that, though the appellant
did not possess a licence to sell the commodity of mustard oil, he
continued to carry on the business of sale. Another allegation was
that the petitioner had adulterated the mustard oil, edible oil and
rice brine oil. The petitioner approached the High Court to quash
the FIR on various grounds. The appellant relied on Allahabad
High Court’s decision dated 8th September 2010, in the case of
M/s. Pepsico India Holdings (Pvt) Ltd. & Anr v. State of Uttar
Pradesh & Ors1. By the impugned order, the High Court dismissed
the petition filed by the appellant. Incidentally, the decision in the

1 2010 SCC OnLine All 1708

748 [2024] 2 S.C.R.

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case of Pepsico India1 is the subject matter of challenge by the

State of Uttar Pradesh in Criminal Appeal No. 476-478 of 2012. In
this case, FIR was registered against the respondent on 11th August
2010, alleging the commission of offences under Sections 272 and
273 of the IPC. The allegation was of adulteration in the cold drinks
manufactured by the respondent. The view taken in the case of
Pepsico India1 was that, from 29th July 2010, when the FSSA came
into force, the provisions thereof would have an overriding effect over
the food-related laws, including Sections 272 and 273 of the IPC.
Further, it was held that the police have no authority or jurisdiction
to investigate a case under the FSSA.
4. Criminal Appeal No. 479 of 2012 takes an exception to the order
dated 15th September 2010, wherein the High Court declined to
quash an offence punishable under Sections 272 and 273 of the IPC.
In Special Leave Petition (Crl.) No. 1379 of 2011, the challenge is
to the order dated 3rd August 2010 of the Allahabad High Court by
which a petition under Section 482 of CrPC filed by the appellant
for quashing the FIR alleging commission of offences under Section
272 and 273 of the IPC was dismissed.
5. In Short, the controversy is whether the view taken in the case of
Pepsico India1, which is the subject matter of challenge in Criminal
Appeal No. 476-478 of 2012, is correct. In the said decision, it was
held that after coming into force of the FSSA with effect from 29th July
2010, it would have an overriding effect on other food-related laws,
including the PFA. Therefore, the High Court held that invocation
of Sections 272 and 273 of the IPC concerning food adulteration
pursuant to a Government order dated 11th May 2010 was bad in law.
SUBMISSIONS
6. Detailed submissions have been made on behalf of the State of
Uttar Pradesh in Criminal Appeal No. 476-478 of 2012. On behalf
of the State, reliance was placed on the decisions of this Court in
the cases of Swami Achyutanand Tirth v. Union of India & Ors.2
and the State of Maharashtra & Anr. v. Sayyed Hassan Sayyed
Subhan & Ors.3 The submission is that there is no bar to the trial

2 (2014) 13 SCC 314

3 (2019) 18 SCC 145
[2024] 2 S.C.R.  749

Ram Nath v. The State of Uttar Pradesh & Ors.

of an offender under two different enactments, but the bar is only

to the punishment of the offender twice for the same offence. The
learned counsel submitted that where an act or omission constitutes
an offence under two enactments, the offender may be prosecuted
under either one of the two enactments or both enactments but shall
not be liable to be punished twice for the same offence. Reliance
was placed upon Section 26 of the General Clauses Act, 1897
(for short, ‘the GC Act’). Learned counsel for the State also relied
upon another decision of this Court in the case of State of M.P. v.
Kedia Leather & Liquor Ltd. and Ors.4 He submitted that the area
of operation of the IPC and a food-related law like the FSSA are
entirely different and, therefore, the same are mutually exclusive.
The learned counsel urged that Section 89 gives overriding effect
to the provisions of the FSSA over all other food-related laws, as
is evident from the title of the Section. He submitted that the IPC is
not a food-related law by any stretch of the imagination. Therefore,
wherever Sections 272 and 273 of the IPC are attracted even after
coming into force of the FSSA, the offender can be prosecuted under
the said IPC provisions.
7. The learned counsel appearing for the accused invited our attention
to the objects and reasons of the FSSA and its preamble. Their
submission is that the FSSA is very exhaustive legislation dealing
with all aspects of food, including adulteration, unsafe food, etc. Their
submission is that Section 89 will have an overriding effect over the
provisions of the IPC. Our attention is also invited to Section 5 and
Section 41 of the IPC. The submission is that in view of Section
5, any special law will remain unaffected by the provisions of the
IPC. Reliance was placed on a decision of this Court in the case of
Jeewan Kumar Raut & Anr. v. Central Bureau of Investigation.5
The counsel for the accused also placed reliance on the decision of
this Court in the case of State of Uttar Pradesh v. Aman Mittal and
Anr6, in support of the proposition that the FSSA, being a special
law, will exclude the applicability of the IPC for the fields which are
covered by the provisions of the special Act.

4 [2003] Suppl. 2 SCR 727 : (2003) 7 SCC 389

5 [2009] 10 SCR 272 : (2009) 7 SCC 526
6 [2019] 11 SCR 1180 : (2019) 19 SCC 740
750 [2024] 2 S.C.R.

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CONSIDERATION OF SUBMISSIONS
8. Different provisions of the FSSA were brought into force on different
dates by notifications issued from time to time. The last of such
notification is of 29th July 2010. All the provisions of the FSSA were
in force as on 29th July 2010 except Section 22. The offences subject
matter of these appeals were registered after 29th July 2010. We
have carefully considered the submissions made across the bar. The
statement of objects and reasons of the FSSA mentions explicitly that
the multiplicity of food laws creates confusion. The multiplicity of laws,
standard setting and various implementing/enforcement agencies are
detrimental to the growth of the nascent food processing industry. It
is further provided that the FSSA provides a single window to guide
and regulate the persons engaged in manufacturing, marketing,
processing, handling, transport, import and sale of goods. The
preamble of the FSSA records that it was an enactment to consolidate
the laws relating to food. It is a very comprehensive legislation on
all the aspects of food.
9. Clause (zz) of Section 3 of the FSSA defines unsafe food, which
reads thus:
“(zz) “unsafe food” means an article of food whose
nature, substance or quality is so affected as to render
it injurious to health:—
(i) by the article itself, or its package thereof, which is
composed, whether wholly or in part, of poisonous
or deleterious substances; or
(ii) by the article consisting, wholly or in part, of any
filthy, putrid, rotten, decomposed or diseased animal
substance or vegetable substance; or
(iii) by virtue of its unhygienic processing or the presence
in that article of any harmful substance; or
(iv) by the substitution of any inferior or cheaper substance
whether wholly or in part; or
(v) by addition of a substance directly or as an
ingredient which is not permitted; or
(vi) by the abstraction, wholly or in part, of any of its
constituents; or
[2024] 2 S.C.R.  751

Ram Nath v. The State of Uttar Pradesh & Ors.

(vii) by the article being so coloured, flavoured or coated,

powdered or polished, as to damage or conceal the
article or to make it appear better or of greater value
than it really is; or
(viii) by the presence of any colouring matter or
preservatives other than that specified in respect
thereof; or
(ix) by the article having been infected or infested with
worms, weevils, or insects; or
(x) by virtue of its being prepared, packed or kept under
insanitary conditions; or
(xi) by virtue of its being mis-branded or sub-standard
or food containing extraneous matter; or
(xii) by virtue of containing pesticides and other
contaminants in excess of quantities specified by
regulations.”
(Emphasis added)
Thus, the concept of unsafe food is more comprehensive than the
concept of adulterated food. Unsafe food means an article of food
whose nature, substance or quality is so affected as to render it
injurious to health.
10. The word sub-standard has been defined under clause (zx) of Section
3, which reads thus:
“(zx) “sub-standard”, an article of food shall be deemed to
be sub-standard if it does not meet the specified standards
but not so as to render the article of food unsafe;”
Therefore, sub-standard food cannot be unsafe food.
11. Another important definition is of adulterant under clause (a) of
Section 3, which reads thus:
“(a) “adulterant” means any material which is or could be
employed for making the food unsafe or sub-standard or
mis-branded or containing extraneous matter;”
Coming back to the definition of unsafe food, sub-clause (v) of Clause
(zz) of Section 3 provides that by adding a substance directly or as
752 [2024] 2 S.C.R.

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an ingredient which is not permitted makes an article of food unsafe

food. The presence of any harmful substance in the article of food
makes it unsafe food. Therefore, if any adulterant is added to an
article of food, which renders the article of food injurious to health,
the food article becomes unsafe food.
12. The offences and penalties are contained in Chapter IX. Sub-Section
1 of Section 48 lays down how any article of food can be rendered
injurious to health. Sub-Section 1 of Section 48 reads thus:
“(1) A person may render any article of food injurious to
health by means of one or more of the following operations,
namely: —
(a) adding any article or substance to the food;
(b) using any article or substance as an ingredient
in the preparation of the food;
(c) abstracting any constituents from the food; or
(d) subjecting the food to any other process or
treatment,
with the knowledge that it may be sold or offered for sale
or distributed for human consumption.”
Thus, if a person knows that a particular article of food is being
offered for sale or distribution for human consumption and adds
any adulterant (article or substance) to the food, he renders the
food article injurious to health. In Chapter IX, Sections 49, 50, 51,
52, 53, 54, 55, 56, 57 and 58 deal with penalties. Sections 59 to
64 and 66 specifically deal with offences. Section 74 of Chapter X
empowers the Central Government or State Government to establish
Special Courts for the trial of offences relating to grievous injury or
death of the consumer for which the punishment of imprisonment
is more than 3 years.
13. In sub-Section 3 of Section 34, it is provided that the trial of any
offence under the FSSA by the Special Court shall have precedence
over the prosecution of any other case against the accused in any
other Court. In cases where offences are not triable by the Special
Court, under Section 73 of the FSSA, there is a power vesting in
the Courts of Judicial Magistrates to try the case summarily by
[2024] 2 S.C.R.  753

Ram Nath v. The State of Uttar Pradesh & Ors.

following Sections 262 to 265 of the CrPC. Against any decision

or order of the Special Court, an appeal is provided to the High
Court under Section 76. The appeal lies before a bench consisting
of at least two Judges. Another salutary provision is Section 77,
which prohibits any Court from taking cognizance of the offence
under the FSSA after the expiry of a period of one year from the
date of the commission of the crime. However, the Commissioner
of Food Safety, for reasons recorded, can extend the period from
one year to three years. Section 79 of the FSSA overrides Section
29 of CrPC and provides that it shall be lawful for the Court of
ordinary jurisdiction to pass any sentence authorised under the
FSSA except a sentence of imprisonment for a term exceeding
six years in excess of its powers conferred by Section 29 of
CrPC. Section 78 provides that at any time during the trial of
any offence under the FSSA, when an offence has been alleged
to have been committed by any person not being the importer,
manufacturer, distributor or dealer, based on evidence adduced
before it, the Court has the power to proceed against the importer,
manufacturer, distributor or dealer. This provision explicitly gives
an overriding effect over the provision of sub-Section 3 of Section
319 of CrPC. Another salutary provision is Section 80, which lists
the defences that may or may not be allowed in the prosecution
under the FSSA. For example, it is provided that it is no defence
that the accused had a mistaken but reasonable belief as to the
facts that constituted the offence.
14. Therefore, as far as offences relating to food and food safety are
concerned, there are very exhaustive provisions made in the FSSA
dealing with all aspects of food and food security.
15. In the facts of these cases, the offence under Section 59 of the FSSA
is very relevant, which reads thus:
“59. Punishment for unsafe food.—Any person who,
whether by himself or by any other person on his behalf,
manufactures for sale or stores or sells or distributes or
imports any article of food for human consumption which
is unsafe, shall be punishable,—
(i) where such failure or contravention does not result
in injury, with [imprisonment for a term which may
754 [2024] 2 S.C.R.

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extend to three months and also with fine which

may extend to three lakh rupees];7
(ii) where such failure or contravention results in a non-
grievous injury, with imprisonment for a term which
may extend to one year and also with fine which may
extend to three lakh rupees;
(iii) where such failure or contravention results in a
grievous injury, with imprisonment for a term which
may extend to six years and also with fine which may
extend to five lakh rupees;
(iv) where such failure or contravention results in death,
with imprisonment for a term which shall not be
less than seven years but which may extend to
imprisonment for life and also with fine which shall
not be less than ten lakh rupees.”
Any person, whether by himself or by any other person on his
behalf, manufactures or, stores or, sells or imports unsafe food
for human consumption, becomes guilty of an offence of dealing
with unsafe food. As can be noted, there are different punishments
provided, starting from imprisonment for 3 months and extending
to imprisonment for life and a fine, depending upon the extent and
nature of injury caused by unsafe food. The fine is in the range of
rupees three lakh to rupees ten lakh.
16. In these appeals, we are dealing only with Sections 272 and 273 of
the IPC. The same read thus:
“272. Adulteration of food or drink intended for sale.—
Whoever adulterates any article of food or drink, so as
to make such article noxious as food or drink, intending
to sell such article as food or drink, or knowing it to be
likely that the same will be sold as food or drink, shall be
punished with imprisonment of either description for a term
which may extend to six months, or with fine which may
extend to one thousand rupees, or with both.

7 Subs. for “imprisonment for a term which may extend to six months and also with fine which may
extend to one lakh rupees” by Act 18 of 2023, S. 2 and Sch. (w.e.f. 8-11-2023).
[2024] 2 S.C.R.  755

Ram Nath v. The State of Uttar Pradesh & Ors.

273. Sale of noxious food or drink.—Whoever sells, or

offers or exposes for sale, as food or drink, any article
which has been rendered or has become noxious, or
is in a state unfit for food or drink, knowing or having
reason to believe that the same is noxious as food or
drink, shall be punished with imprisonment of either
description for a term which may extend to six months,
or with fine which may extend to one thousand rupees,
or with both.”
17. Section 272 is an offence of adulteration of any article of food or
drink. The definition of food under Clause (a) of Section 3 of the
FSSA also includes a liquid. If adulteration of an article of food is
made which makes such articles noxious as food or drink, the person
who adulterates is guilty of an offence punishable under Section 272
of the IPC. It contemplates the accused adulterating food with the
intention to sell adulterated food. Thus, intention is an ingredient of the
offence. When by adulterating an article of food or liquid, it becomes
harmful or poisonous, it can be said that it becomes noxious. If, by
adulteration, an article of food becomes noxious, it becomes unsafe
food within the meaning of Section 3 (zz) of FSSA.
18. Section 273 of the IPC applies when a person sells or, offers
or exposes for sale any article of food or drink which has been
rendered noxious or has become unfit for food or drink. Section
273 incorporates requirements of knowledge or reasonable belief
that the food or drink sold or offered for sale is noxious. Section
59 of the FSSA does not require the presence of intention as
contemplated by Section 272 of the IPC. Under Section 59 of
the FSSA, a person commits an offence who, whether by himself
or by any person on his behalf, manufactures for sale or stores
or sells or distributes any article of food for human consumption
which is unsafe. So, the offence under Section 59 of the FSSA
is made out even if there is an absence of intention as provided
in Section 272 of the IPC. However, knowledge is an essential
ingredient in sub-Section 1 of Section 48, and therefore, it will be a
part of Section 59 of the FSSA. The maximum punishment for the
offence under Section 272 of the IPC is imprisonment for a term
which may extend to six months or with a fine. The substantive
sentence for the offence punishable under Section 273 is the
same, whereas, under Section 59, the punishment is of simple
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imprisonment extending from three months to a life sentence with

a fine of rupees three lakh up to 10 lakhs.
19. Moreover, a limitation of one year is provided for the offence under
Section 59, which is extendable up to three years as provided in
Section 77 of the FSSA. By virtue of Section 468 of CrPC, the
limitation for taking cognizance of the offence punishable under
Sections 272 and 273 is one year. There is a power to extend time
under Section 473 of CrPC. The power is not limited to three years.
CONCLUSION
20. Thus, there are very exhaustive substantive and procedural provisions
in the FSSA for dealing with offences concerning unsafe food. In
this context, we must consider the effect of Section 89 of the FSSA.
Section 89 reads thus:
“89. Overriding effect of this Act over all other food
related laws.—The provisions of this Act shall have effect
notwithstanding anything inconsistent therewith contained
in any other law for the time being in force or in any
instrument having effect of virtue of any law other than
this Act.”
The title of the section indeed indicates that the intention is to
give an overriding effect to the FSSA over all ‘food-related laws’.
However, in the main Section, there is no such restriction confined
to ‘food-related laws’, and it is provided that provisions of the
FSSA shall have effect notwithstanding anything inconsistent
therewith contained in any other law for the time being in force.
So, the Section indicates that an overriding effect is given to the
provisions of the FSSA over any other law. The settled law is
that if the main Section is unambiguous, the aid of the title of the
Section or its marginal note cannot be taken to interpret the same.
Only if it is ambiguous, the title of the section or the marginal note
can be looked into to understand the intention of the legislature.
Therefore, the main Section clearly gives overriding effect to the
provisions of the FSSA over any other law in so far as the law
applies to the aspects of food in the field covered by the FSSA.
In this case, we are concerned only with Sections 272 and 273
of the IPC. When the offences under Section 272 and 273 of
the IPC are made out, even the offence under Section 59 of the
[2024] 2 S.C.R.  757

Ram Nath v. The State of Uttar Pradesh & Ors.

FSSA will be attracted. In fact, the offence under Section 59 of

the FSSA is more stringent.
21. The decision of this Court in the case of Swami Achyutanand Tirth2
does not deal with this contingency at all. In the case of the State
of Maharashtra3, the question of the effect of Section 97 of the
FSSA did not arise for consideration of this Court. The Court dealt
with simultaneous prosecutions and concluded that there could be
simultaneous prosecutions, but conviction and sentence can be only
in one. This proposition is based on what is incorporated in section
26 of the GC Act. We have no manner of doubt that by virtue of
Section 89 of the FSSA, Section 59 will override the provisions of
Sections 272 and 273 of the IPC. Therefore, there will not be any
question of simultaneous prosecution under both the statutes.
22. Accordingly, Criminal Appeal No. 472 of 2012, Criminal Appeal No.479
of 2012 and Criminal Appeal arising out of SLP (Crl.) No. 1379 of
2011 succeed, and we set aside the impugned orders. The offences,
subject matter of these appeals, are hereby quashed and set aside
with liberty to the authorities to initiate appropriate proceedings
in accordance with the law if not already initiated. Therefore, the
concerned authorities are free to act in accordance with the FSSA
for offences punishable under Section 59 of the FSSA. Criminal
Appeal Nos. 476-478 of 2012 are dismissed.
23. No orders as to costs.

Headnotes prepared by: Divya Pandey Result of the case:

Criminal Appeal Nos. 472 of 2012, 479
of 2012 and Criminal Appeal arising
out of SLP (Crl.) No. 1379 of 2011
allowed; Criminal Appeal Nos.
476-478 of 2012, dismissed.
 [2024] 2 S.C.R. 758 : 2024 INSC 145

M/S Brahmaputra Concrete Pipe Industries Etc. Etc.

v.
The Assam State Electricity Board and Others
(Miscellaneous Application (Civil) No. 2045 of 2022)
IN
(Curative Petition (Civil) Diary No. 23828 of 2020)
IN
(Review Petition (Civil) No.789 of 2019)
IN
(Civil Appeal No. 8450 of 2016)
26 February 2024
[Aniruddha Bose* and Sudhanshu Dhulia, JJ.]

Issue for Consideration

Whether registry has the power to dismiss a curative petition solely
on the ground that no averment has been made to the effect that
the review petition was dismissed by circulation.

Headnotes
Supreme Court Rules, 2013 – Ord. XLVIII r.2 (1) – Curative
petition – Registry’s power to dismiss – Dismissal of review
petition in open court after oral hearing and not by circulation
– Curative petitions filed thereagainst – Order of the registrar
declining registration of curative petitions on the ground that
no averment made to the effect that the review petition was
dismissed by circulation – Legality:
Held: Instant matter ought to be decided by a Bench of this Court
and not by the Registry – Registry cannot be vested with power
to decide whether a review petition, after being dismissed in open
Court hearing, merited relook through the curative jurisdiction –
That would be a judicial exercise – A curative petition arising from
an order dismissing a review petition upon hearing in open Court
must contain a plea or prayer seeking excuse from compliance of
making averment as contained in Ord. XLVIII r. 2(1) – Proper course
for the Registry on receiving such a petition with a prayer to be
excused from the above requirement would be to obtain instructions
from the Judge in chambers and thereafter communicate such
instructions to the parties – r. 2, second part, provides that the

* Author
[2024] 2 S.C.R.  759

M/S Brahmaputra Concrete Pipe Industries Etc. Etc.

v. The Assam State Electricity Board and Others

Registrar herself can direct the applicant to serve the other party
with a notice of motion returnable before the Court while she opines
that it is desirable that the application should be dealt with in the
open Court but would not apply where the applicant approaches
this Court after the review petition is dismissed in open court
hearing – In cases where review plea is dismissed by circulation,
the curative petition has to be circulated first to a Bench of three
senior-most Judges of this Court and the Judges who passed
the judgment complained of, if available – Thereafter, the course
prescribed in sub-clauses (2), (3) and (4) of r. 4 of Ord. XLVIII
would be followed as may be applicable – In the instant appeal,
said course not followed when the order was passed declining
registration of the curative petition – Said order being contrary
to the provisions of the Rules, thus, set aside, however, not a fit
case to remand the matter to the Registrar as substantial time has
lapsed – No case made out for invoking the curative jurisdiction
to take relook into the case – Purpose would not be served in
sending the matter back to the Chamber Judge for instructions in
the given circumstances. [Paras 18, 19, 21, 22, 23]
Supreme Court Rules, 2013 – Ord. XLVIII – Curative petition
– Limitation for filing:
Held: Curative jurisdiction being a special jurisdiction derived from
inherent power or jurisdiction of this Court, the limitation prescribed
for filing of review petition cannot be extended to apply in the cases
of curative petition – Curative jurisdiction of this Court does not
flow from its power to review, but this jurisdiction is derived from
Arts 129 and 142 of the Constitution of India – Moreover, r. 3 of
Order XLVIII specifically stipulates that curative petition has to be
filed within reasonable time from the date of judgment or order
passed in a review petition – No timeframe has been formulated
in the 2013 Rules either for filing a curative petition. [Para 11]

Case Law Cited

Rupa Ashok Hurra vs Ashok Hurra and Another, [2002]
2 SCR 1006 : (2002) 4 SCC 388 – followed.
P.N. Eswara Iyer and Others vs Registrar, Supreme
Court of India, [1980] 2 SCR 889 : (1980) 4 SCC 680;
Rama Rao Poal vs Samaj Parivartana Samudaya,
Curative Petition (Civil) D. No.35404/2015; Mohd.
Arif vs Registrar, Supreme Court of India, [2014] 11
760 [2024] 2 S.C.R.

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SCR 1009 : (2014) 9 SCC 737; Union of India & Ors.

vs M/s. Union Carbide Corporation & Ors., Curative
Petition (Civil) Nos. 345-347 of 2010 – referred to.

List of Acts
Supreme Court Rules, 2013; Constitution of India; Interest
on Delayed Payments to Small Scale and Ancillary Industrial
Undertakings Act, 1993.

List of Keywords
Curative petition; Registry’s power to dismiss curative petition; Oral
hearing and not by circulation; Registration of curative petition;
Review petition; Dismissed in open Court hearing; Curative
jurisdiction; Judicial exercise; Instructions from the Judge in
chambers; Review plea; Remand; Limitation; Special jurisdiction;
Inherent power or jurisdiction; Time frame.

Case Arising From

INHERENT JURISDICTION : Miscellaneous Application (Civil)
No.2045 of 2022
In
Curative Petition (Civil) Diary No.23828 of 2020
In
Review Petition (Civil) No.789 of 2019
In
Civil Appeal No.8450 of 2016
From the Judgment and Order dated 31.10.2022 in D No.23828 of
2020 of the Supreme Court of India
With
Miscellaneous Application (Civil) Nos.2046, 2047, 2048 and 2050
of 2022 in Curative Petition (Civil) Diary Nos.23829, 23830, 23831
of 2020 and 14718 Of 2021 in Review Petition (Civil) Nos.786-787
of 2019 in Civil Appeal Nos.8442-8443 of 2016 with Miscellaneous
Application (Civil) No.2049 of 2022 in Curative Petition (Civil)
No.23833 of 2020 in Review Petition (Civil) No.788 of 2019 in Civil
Appeal No.8445 of 2016
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v. The Assam State Electricity Board and Others

Appearances for Parties

Anand Sanjay M. Nuli, Dharm Singh, Ms. Nandiny Pandey, Suraj
Kaushik, Akhila Wali, M/s. Nuli & Nuli, Advs. for the Appellants.
Vijay Hansaria, Sr. Adv., Ms. Kavya Jhawar, Ms. Sneha Kavita, Advs.
for the Respondents.
Judgment / Order of the Supreme Court

Judgment
Aniruddha Bose, J.
The appellants before us are firms who are aggrieved by an order
of a Registrar (J-IV) of this Court passed on 31.10.2022 declining
registration of a set of petitions labelled as “curative petitions.” This
was a common order passed in six similar petitions (including the
one instituted by the appellant in the Miscellaneous Application No.
2045 of 2022, instituted by Brahmaputra Concrete Pipe Industries)
founded on similar factual and legal grounds. These appeals have
been filed under Rule 5 of Order XV of the Supreme Court Rules,
2013 (hereinafter the “2013 Rules”). In this judgment, we shall refer
to the pleadings and orders made in Misc. Application No.2045 of
2022 treating it as the lead matter. The said Rule reads:-
“Order XV
PETITIONS GENERALLY
.
.
.
5. The Registrar may refuse to receive a petition on the
ground that it discloses no reasonable cause or is frivolous
or contains scandalous matter but the petitioner may within
fifteen days of the making of such order, appeal by way
of motion, from such refusal to the Court.
.
.
.”
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2. The order of the Registrar, which is under appeal before us, reads:-
“The above mentioned Curative Petitions filed by M/s. Nuli
& Nuli, Advocates against the judgment dated 18.12.2019
passed in the Review Petitions were heard and disposed
of in the Open Court.
In this regard the relevant Rule 2(1), Order XLVIII, S.C.R.,
2O13 reads as under:
“The petitioner, in the curative petition, shall aver
specifically that grounds mentioned therein had been
taken in the Review Petition and that it was dismissed
by circulation.”
Since the aforesaid Review Petitions were disposed of
in open court and not by circulation, the aforementioned
Curative Petitions are declined for registration and are
lodged under Order XV Rule 5 of Supreme Court Rules,
2013.
Inform the Advocate accordingly.”
3. The origin of the dispute ultimately leading to passing of the
aforesaid order relates to maintainability of a suit instituted by
the appellant under “The Interest on Delayed Payments to Small
Scale and Ancillary Industrial Undertakings Act, 1993” (the 1993
Act). The suit of the appellant was decreed by the Civil Judge,
Senior Division, Tinsukia, Assam (Trial Court) but was dismissed
by the High Court in appeal mainly on the ground of the suit not
being maintainable. The High Court, inter-alia, held that the suit
under the 1993 Act would not lie in respect of the transactions
which had taken place prior to 23.09.1992, the date on which
the Act became operational. The appeal against the High Court
judgment was dismissed by a three Judge Bench of this Court on
23.01.2019. The plea of review of the said judgment also failed
and the review petition was dismissed on 18.12.2019 after open
court hearing. In this judgment, we shall deal with the legality of
the Registrar’s order refusing to receive the curative petitions of
the appellants.
4. The 1993 Act was preceded by an ordinance permitting certain small
scale industrial undertakings to claim interest on delayed payment.
That ordinance was promulgated on 23.09.1992. The ordinance later
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transformed into the aforesaid statute. A question arose as to whether

the right to sue for interest under the said Act could relate back to
delayed payments made under agreements entered into before the
date of promulgation of the ordinance or not. A Full Bench of the
Gauhati High Court opined that the right to claim interest under the
said statute would not extend to agreements or contracts entered
prior to 23.09.1992.
5. In this judgment, we shall discuss the factual position involved in
the petition filed by the appellant in the lead matter. Its case had
ultimately reached this Court and in the judgment delivered on
23.01.2019, it was held by the three Judge Bench that the material
date for instituting the suit for interest would depend on whether
delivery was made by the supplier after coming into operation of the
said statute or not. If that was the case, then a suit for recovery of
interest on delayed payment would be maintainable in the opinion
of the three Judge Bench. In the case of the appellant before us,
the three Judge Bench found no evidence of any delivery being
made subsequent to the statute becoming operational. What the
appellant had sought to rely on was the dates of raising of bills
subsequent to 23.09.1992. The three-Judge Bench of this Court
was not satisfied that the goods were supplied subsequent to that
date, in respect of which interest was being claimed on account
of delayed payment.
6. As we have already indicated, the three Judge Bench of this Court
dismissed the review petition in open court after oral hearing, finding
no error apparent on the face of record of the judgment under review.
It was thereafter the curative petition was instituted with which we
are concerned in this judgment.
7. Under the Constitution of India or any other statutory provision,
there is no specific jurisdiction conferred on this Court to entertain
curative petitions excepting the Rules of this Court made in 2013.
The Supreme Court Rules 2013 deals with the procedure for filing
of curative petitions and we shall revert to these Rules later in this
judgment. Article 137 of the Constitution of India lays down the
jurisdiction of the Court to review its own judgment or order. Article
145 of the Constitution of India empowers this Court to make rules
for regulating the general practice and procedure of the Court. The
said two Articles read:-
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“137: Review of judgements or orders by the Supreme

Court
Subject to the provisions of any law made by Parliament
or any rules made under Article 145, the Supreme Court
shall have the power to review any judgment pronounced
or order made by it.
145: Rules of Court, etc.
(1) Subject to the provisions of any law made by
Parliament, the Supreme Court may from time to
time, with the approval of the President, make rules
for regulating generally the practice and procedure
of the Court including –
(a) rules as to the persons practicing before the
Court;
(b) rules as to the procedure for hearing appeals
and other matters pertaining to appeals including
the time within which appeals to the Court are
to be entered;
(c) rules as to the proceedings in the Court for the
enforcement of any of the rights conferred by
Part III;
(cc) rules as to the proceedings in the Court under
Article 139A;
(d) rules as to the entertainment of appeals under
sub-clause (c) of clause (1) of article 134;
(e) rules as to the conditions subject to which any
judgment pronounced or order made by the
Court may be reviewed and the procedure for
such review including the time within which
applications to the Court or such review are to
be entered;
(f) rules as to the costs of and incidental to any
proceedings in the Court and as to the fees to
be charged in respect of proceedings therein;
(g) rules as to the granting of bail;
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(h) rules as to stay of proceedings;

(i) rules providing for the summary determination
of any appeal which appears to the Court to be
frivolous or vexations or brought for the purpose
of delay;
(j) rules as to the procedure for inquiries referred
to in clause (1) of article 317.
(2) Subject to the provisions of clause (3), rules made
under this article may fix the minimum number of
Judges who are to sit for any purpose, and may
provide for the powers of single Judges and Division
Courts.
(3) The minimum number of Judges who are to sit
for the purpose of deciding any case involving a
substantial question of law as to the interpretation
of this Constitution or for the purpose of hearing
any reference under Article 143 shall be five:
Provided that, where the Court hearing an appeal
under any of the provisions of this Chapter other
than article 132 consists of less than five Judges
and in the course of the hearing of the appeal of
the Court is satisfied that the appeal involves a
substantial question of law as to the interpretation
of this Constitution the determination of which is
necessary for the disposal of the appeal, such
Court shall refer the question for opinion to a Court
constituted as required by this clause for the purpose
of deciding any case involving such a question and
shall on receipt of the opinion dispose of the appeal
in conformity with such opinion.
(4) No judgment shall be delivered by the Supreme
Court save in open Court, and no report shall be
made under article 143 save in accordance with an
opinion also delivered in open Court.
(5) No judgment and so such opinion shall be delivered
by the Supreme Court save with the concurrence of
a majority of the Judges present at the hearing of the
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case, but nothing in this clause shall be deemed to

prevent a Judge who does not concur from delivering
a dissenting judgment or opinion.”
8. The expression “curative petition” was used by Constitution Bench
of this Court comprising of five Hon’ble Judges in the case of Rupa
Ashok Hurra -vs- Ashok Hurra and Another [(2002) 4 SCC 388].
This Court, in the said judgment, opined that to prevent abuse of
the Court’s process and to cure a gross miscarriage of justice, the
Supreme Court may reconsider its judgments in exercise of its
inherent powers. This inherent power or jurisdiction was traced to
Articles 129 and 142 of the Constitution of India. It was inter-alia,
held in this judgment:-
“50. The next step is to specify the requirements to
entertain such a curative petition under the inherent
power of this Court so that floodgates are not opened for
filing a second review petition as a matter of course in
the guise of a curative petition under inherent power. It
is common ground that except when very strong reasons
exist, the Court should not entertain an application seeking
reconsideration of an order of this Court which has become
final on dismissal of a review petition. It is neither advisable
nor possible to enumerate all the grounds on which such
a petition may be entertained.
51. Nevertheless, we think that a petitioner is entitled
to relief ex debito justitiae if he establishes (1) violation
of the principles of natural justice in that he was not a
party to the lis but the judgment adversely affected his
interests or, if he was a party to the lis, he was not served
with notice of the proceedings and the matter proceeded
as if he had notice, and (2) where in the proceedings
a learned Judge failed to disclose his connection with
the subject-matter or the parties giving scope for an
apprehension of bias and the judgment adversely affects
the petitioner.
52. The petitioner, in the curative petition, shall aver
specifically that the grounds mentioned therein had been
taken in the review petition and that it was dismissed by
circulation. The curative petition shall contain a certification
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by a Senior Advocate with regard to the fulfilment of the

above requirements.
53. We are of the view that since the matter relates to
re-examination of a final judgment of this Court, though
on limited ground, the curative petition has to be first
circulated to a Bench of the three seniormost Judges and
the Judges who passed the judgment complained of, if
available. It is only when a majority of the learned Judges
on this Bench conclude that the matter needs hearing
that it should be listed before the same Bench (as far as
possible) which may pass appropriate orders. It shall be
open to the Bench at any stage of consideration of the
curative petition to ask a Senior Counsel to assist it as
amicus curiae. In the event of the Bench holding at any
stage that the petition is without any merit and vexatious,
it may impose exemplary costs on the petitioner.
54. Insofar as the present writ petitions are concerned,
the Registry shall process them, notwithstanding that they
do not contain the averment that the grounds urged were
specifically taken in the review petitions and the petitions
were dismissed in circulation.”
9. As would be evident from the aforesaid passages of the said
judgment, one of the pre-conditions for filing a curative petition is
that the petitioner must specifically aver that the grounds mentioned
in such petition had been taken in the review petition and that it was
dismissed by circulation. This is contained in paragraph 52 of the said
report. The grounds on which a curative petition could be founded
have been specified in paragraph 51 of the report in the case Rupa
Ashok Hurra (supra). The provision pertaining to filing of curative
petitions have been incorporated in Order XLVIII of the 2013 Rules.
The said Rules, along with its sub-clauses is reproduced below:-
“ORDER XLVIII
CURATIVE PETITION
1. Curative Petitions shall be governed by Judgment of the
Court dated 10’” April, 2002 delivered in the case of ‘Rupa
Ashok Hurrah v. Ashok Hurrah and Ors.’ in Writ Petition
(C) No. 509 of 1997.
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2. (1) The petitioner, in the curative petition, shall aver

specifically that the grounds mentioned therein had been
taken in the Review Petition and that it was dismissed by
circulation.
(2) A Curative Petition shall be accompanied by a
certificate of the Senior Advocate that the petition meets
the requirements delineated in the above case.
(3) A curative petition shall be accompanied by a certificate
of the Advocate on Record to the effect that it is the first
curative petition in the impugned matter.
3. The Curative Petition shall be filed within reasonable
time from the date of Judgment or Order passed in the
Review Petition.
4. (1) The curative petition shall be first circulated to a Bench
of the three senior-most judges and the judges who passed
the judgment complained of, if available.
(2) Unless otherwise ordered by the Court, a curative
petition shall be disposed of by circulation without any oral
arguments but the petitioner may supplement his petition
by additional written arguments.
(3) If the Bench before which a curative petition was
circulated concludes by a majority that the matter needs
hearing then it shall be listed before the same Bench, as
far as possible.
(4) If the Court, at any stage, comes to the conclusion
that the petition is without any merit and vexatious, it may
impose exemplary costs on the petitioner.”
10. The main point urged on behalf of the appellant is that the Registrar
has no power or jurisdiction to decline registration of a curative petition
and it should be decided by a Bench of this Court. There appears to
be no decision directly on this point and we had requested Mr. Raju
Ramachandran, learned Senior Advocate to assist us as an Amicus
Curiae in this matter, a request he graciously accepted. Mr. Anand
Sanjay M. Nuli has appeared on behalf of the appellants and we
have already recorded his main submissions. Mr. Vijay Hansaria,
learned Senior Counsel appearing on behalf of the respondent has
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v. The Assam State Electricity Board and Others

drawn our attention to the Order XLVIII of the 2013 Rules to point
out that since this was a case where review petition was dismissed
in open Court hearing after oral submissions were advanced, it does
not satisfy the mandate of the five Judge Bench laid down in the
case of Rupa Ashok Hurra (supra). Mr. Hansaria has also taken
the point of delay in filing the curative petition. The review petition
was dismissed on 18.12.2019 and the curative petition was filed on
31.10.2020, after a lapse of ten months. He has taken us through
the provisions of Rule 3 of Order XLVIII of the 2013 Rules which
requires a curative petition to be filed within a reasonable time from
the date of judgment or order passed in the review petition. But the
Rules do not provide any specific time period within which a curative
petition has to be filed from the date of dismissal of the review
petition. Thus, it ought to be left to the discretion of the Court while
entertaining such petition to decide the question of delay.
11. Mr. Hansaria also referred to the thirty days’ limitation period for
filing a review petition in terms of Order XLVII, Rule 2 of the 2013
Rules. Our opinion on this point is that the curative jurisdiction being
a special jurisdiction derived from inherent power or jurisdiction of
this Court, the limitation prescribed for filing of review petition cannot
be extended to apply in the cases of curative petition. We hold so
because curative jurisdiction of this Court does not flow from its
power to review, but this jurisdiction is derived from Articles 129 and
142 of the Constitution of India. Moreover, Rule 3 of Order XLVIII
of the 2013 Rules specifically stipulates that curative petition has to
be filed within reasonable time from the date of judgment or order
passed in a review petition. No timeframe has been formulated in
the 2013 Rules either for filing a curative petition.
12. Mr. Hansaria’s further argument has been that the judgment in the
case of Rupa Ashok Hurra (supra) requires to be reconsidered.
But the aforesaid decision having been delivered by a high
authority, of five Hon’ble Judges of this Court, we cannot test its
legality or comment on the question as to whether it requires to be
reconsidered or not. For this reason, we are unable to accept his
submission on this point. He cited a decision of this Court in the
case of P.N. Eswara Iyer and Others -vs- Registrar, Supreme
Court of India [(1980) 4 SCC 680] in which distinction has been
drawn between an original or first hearing of a matter and a relook
thereto at the stage of review. In this judgment, it was held that
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the parameters for hearing these two proceedings are different.

This judgment was delivered in connection with amendment of the
Supreme Court Rules, 1966 dispensing with oral hearing of review
petitions. But this authority does not aid the respondent, having
been delivered in a different context under different set of Rules.
In any case, oral hearing has not altogether been dispensed with
in curative jurisdiction also and it has been left at the discretion of
the Bench to decide as to whether the curative petitions ought to
be dismissed by circulation without oral arguments or there shall be
oral submission after notice to the opposite party. This procedure
is contained in Rule 4 of Order XLVIII of the 2013 Rules which has
been reproduced earlier in this judgment.
13. While in the case Rupa Ashok Hurra (supra), it was specified by the
five Judge Bench that a curative petition must contain an averment
that review petition was dismissed by circulation, the consequence
of dismissal on oral hearing in open Court has not been specified in
that judgment. Rules have been framed lifting the directions of this
Court in the case of Rupa Ashok Hurra (supra) to statutory level.
While testing the appellant’s submissions, we shall refer to these
Rules as well.
14. Mr. Ramachandran, learned Amicus Curiae has argued that the
making of averment to the effect that the review petition was
dismissed by circulation should not by itself guide the question of
maintainability of a curative petition. His submission is that in terms
of Order LV Rule 2 of the 2013 Rules, this Court has been vested
with power to excuse from compliance with the requirements with
any of the rules and if an application to that effect is made, the
Registry should take instructions from the Judge in chamber in
that regard and communicate the same to the parties. The said
Rule further provides that if in the opinion of the Registrar, it is
desirable that the application should be dealt with in open Court,
she may direct the applicant to serve the other parties with a
notice of motion returnable before the Court. Mr. Ramachandran
has also cited an order passed on 08.02.2016 in the case of
Rama Rao Poal -vs- Samaj Parivartana Samudaya [Curative
Petition (Civil) D. No.35404/2015], in which this Court had initially
directed that the question of maintainability ought to be decided
by the concerned Bench. In the said order, a Coordinate Bench
of this Court observed:-
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“Two issues arise in the appeal. The first is whether a

curative petition would be maintainable against an order
passed in a review petition which has been heard in open
Court. The second is whether the pre-conditions laid down
in “Rupa Ashok Hurra vs. Ashok Hurra & Anr. “, (2002) 4
SCC 389, are satisfied. The Registrar has decided both
the issues against the applicant/petitioner holding the
curative petition to be not maintainable.
Upon hearing the learned counsel for the applicant/
petitioner and after perusing the relevant provisions of
the Supreme Court Rules, 2013, we are of the view that
the aforesaid questions are to be decided by the Bench.
The Registry is therefore directed to circulate the curative
petition in accordance with the relevant provisions of the
Supreme Court Rules.
Appeal against the Registrar order is disposed of in the
above terms.”
15. That proceeding had also reached the Coordinate Bench in appeal
from an order of a Registrar. Subsequently, however, a Bench of
this Court comprising of four Hon’ble Judges dismissed the curative
petition on 29.03.2016.
16. Moreover, in the judgment of this Court in the case of Mohd. Arif
-vs- Registrar, Supreme Court of India [(2014) 9 SCC 737] it
has been observed that where death sentence is awarded, a right
of limited oral hearing shall be given to the convict at the stage of
review petition. Subsequently, in the case of Union of India & Ors.
-vs- M/s. Union Carbide Corporation & Ors. [Curative Petition (Civil)
Nos.345-347 of 2010], a five Judge Bench of this Court by an order
passed on 14.03.2023, upon hearing the parities in exercise of its
curative jurisdiction chose to dismiss the same. In this proceeding
the Court was examining a curative petition brought by Union of India
seeking to re-open the settlement arrived at in the case arising out
of Bhopal gas tragedy that occurred in 1984. Earlier review petitions
questioning the settlement order stood dismissed and Union of India
had not asked for review thereof. Mr. Ramachandran has submitted
that the earlier review petitions were dismissed after hearing in open
Court and in spite of that, the Constitution Bench chose to hear the
parties invoking curative jurisdiction of this Court.
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17. In the decision of this Court in the case of Union Carbide (supra),
the Constitution Bench of this Court in substance reaffirmed the
direction contained in the case of Rupa Ashok Hurra (supra) limiting
the scope of curative petitions by holding :-
“28. We have great hesitation in allowing such a prayer
and granting such sui generis relief through the means
of curative petitions. Although this Court in Rupa Ashok
Hurra chose not to enumerate all the grounds on which a
curative petition could be entertained; the Court was clear in
observing that its inherent power ought not to be exercised
as a matter of course, and that it should be circumspect
in reconsidering an order of this Court that had become
final on dismissal of the review petition. Nevertheless,
looking at the nature of the matter before us, it would be
advisable to also examine the curative petition(s), apart
from the aforesaid preliminary objection.”
18. What is apparent from the tenor of the aforesaid judgments is
that the question of maintainability of a curative petition has to be
ultimately examined by a Bench of this Court. The composition of
such bench has also been laid down in the case of Rupa Ashok
Hurra (supra). This has further been incorporated in Rule 4 of Order
XLVIII of the 2013 Rules. But the question of composition of the
Bench can arise only after the curative petition is entertained. The
point with which we are dealing with in this judgment is not whether
the curative petition ought to be dismissed by circulation or not. The
issue we have to address is as to whether Registry has the power
to dismiss a curative petition solely on the ground that no averment
has been made to the effect that the review petition was dismissed
by circulation. We accept the submission of Mr. Ramachandran that
this is a matter which ought to be decided by a Bench of this Court
and not by the Registry. This is a judicial exercise. That is what
in effect flows from the Bench of coordinate strength in its order
of 08.02.2016 in the case of Rama Rao Poal (supra). Moreover,
while in the case of Rupa Ashok Hurra (supra) certain conditions
have been prescribed on satisfaction of which a curative petition
would lie, there is no discussion or stipulation in the judgment that
in absence of averment to that effect, the curative petition ought to
be dismissed at the registration stage itself. Further, the grounds
on which the Registrar may refuse to receive a petition have been
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enumerated in Rule 5 of Order XV of the 2013 Rules. In the order

under appeal, the aforesaid Rule has been referred to. But this Rule
does not empower the Registrar to decline registration of a curative
petition on the ground as disclosed in declining registration of the
present curative petition. Hearing of a review petition in open Court
cannot be brought within the ambit of the expression “that it discloses
no reasonable cause” as employed in Rule 5 of Order XV of the
2013 Rules. That factor would be, at best, a technical shortcoming.
Considering the importance of the question raised before it, in the
case of Union Carbide (supra) the Constitution Bench of this Court
chose to examine the curative petition in spite of there being dismissal
of the review petition in open Court hearing though ultimately the
curative petition stood dismissed.
19. Now we shall turn to the question as regards the course open to
the Registry after it finds a curative petition lacking the averment
to the effect that the grounds mentioned therein had been taken
in the review petition and that it was dismissed by circulation. We
have referred to two precedents where this Court chose to invoke
its curative jurisdiction after the respective review petitions were
dismissed in open Court. Registry cannot be vested with power
to decide whether a review petition, after being dismissed in open
Court hearing, merited relook through the curative jurisdiction. As
we have already observed, that would be a judicial exercise. The
Registry in a situation of this nature, cannot keep the matter pending
as “defective” either, as is done in the cases of delayed filing of
petition unaccompanied by applications for condonation of delay. We
are referring to this context by way of an illustration only. In such a
situation, filing of an application for condonation of delay would cure
the initial defect and it would be for the Court to decide as to whether
the delay has to be condoned or not. In cases like the present one,
curing the defect would not be within the Registry’s jurisdiction. We
also do not think an appeal under Order XV Rule 5 of the 2013
Rules would be the proper course, as under that Rule situations in
which Registry can refuse to entertain a petition have been clearly
expressed. Failure to make averment in terms of Rule 2(1) of Order
XLVIII of the 2013 Rules is not one of the conditions which vests the
Registry to refuse to receive a curative petition in itself.
20. In our opinion, the course to be followed by the Registry in a
proceeding of this nature is contained in Order LV Rule 2 of the
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2013 Rules. This was the submission of the learned Amicus Curiae
and we quote below the said Rule:-
“ORDER LV
POWER TO DISPENSE AND INHERENT POWERS
.
.
.
2. An application to be excused from compliance with the
requirements of any of the rules shall be addressed, in the
first instance, to the Registrar, who shall take instructions
ofthe Judge in Chambers thereon and communicate the
same to the parties, but, if, in the opinion of the Registrar,
it is desirable that the application should be dealt with in
open Court, he may direct the applicant to serve the other
party with a notice ofmotion returnable before the Court.
.
.
.”
21. We are of the view that a curative petition arising from an order
dismissing a review petition upon hearing in open Court must
contain a plea or prayer seeking excuse from compliance of making
averment as contained in Order XLVIII Rule 2(1) of the 2013 Rules.
The proper course for the Registry on receiving such a petition with a
prayer to be excused from the above requirement would be to obtain
instructions from the Judge in chambers and thereafter communicate
such instructions to the parties. In the second part of Rule 2 it is
provided that the Registrar herself can direct the applicant to serve
the other party with a notice of motion returnable before the Court
while she opines that it is desirable that the application should be
dealt with in the open Court. The said part of the Rule would not apply
in a case where the applicant seeking to invoke curative jurisdiction
approaches this Court after the review petition is dismissed in open
court hearing. The applicant for invoking curative jurisdiction, in such
a situation, as we have already observed, must file an application
praying to be excused from compliance with Rule 2(1) of Order XLVIII
of the 2013 Rules and such application shall also contain a request
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for the matter to be placed before the chamber judge for proper
instructions. In other cases pertaining to curative petitions, in which
the review plea is dismissed by circulation, the curative petition has
to be circulated first to a Bench of three senior-most Judges of this
Court and the Judges who passed the judgment complained of, if
available. Thereafter, the course prescribed in sub-clauses (2), (3)
and (4) of Rule 4 of Order XLVIII of the 2013 Rules shall be followed
as may be applicable.
22. So far the present appeal is concerned, this course was not followed
when the order was passed declining registration of the curative
petition. This order, in our opinion, is contrary to the provisions of
the Rules and thus, we set aside the impugned order.
23. We, however, do not consider it fit to remand the matter to the
Registrar as the curative petitions were filed in the year 2020 and
substantial time has lapsed since then. We have ourselves gone
through the initial order passed in the Special Leave Petition as
also the order of the Review Court. We have perused the curative
petitions as well. We do not think any case has been made out by
the appellant for invoking the curative jurisdiction to take relook into
the appellant’s case. Hence, we refrain from entertaining the curative
petitions. We do not think any purpose would be served in sending
the matter back to the Chamber Judge for instructions in the given
circumstances.
24. We record our appreciation for the assistance given to us by Mr.
Ramachandran, learned senior counsel as Amicus Curiae.
25. The appeal shall stand disposed of in the above terms.
26. This judgment will cover five other miscellaneous applications which
are in effect appeals from the order of the Registrar and all these
appeals shall stand disposed of in the same terms.

Headnotes prepared by: Nidhi Jain Result of the case:

Appeal disposed of.
 [2024] 2 S.C.R. 776 : 2024 INSC 143

Shailesh Kumar
v.
State of U.P. (Now State of Uttarakhand)
(Criminal Appeal No. 684 of 2012)
26 February 2024
[M. M. Sundresh* and S.V.N. Bhatti, JJ.]

Issue for Consideration

What is the goal of investigation and what is the role of investigating
officer; Are s.172 CrPC and ss. 145 & 161 of the Evidence Act
to be read in consonance with each other; Can a General Diary
entry precede the registration of FIR.

Headnotes
Code of Criminal Procedure, 1973 – Goal of investigation and
the role of investigating officer:
Held: An investigation of a crime is a lawful search of men
and materials relevant in reconstructing and recreating the
circumstances of an offence said to have been committed –
With the evidence in possession, an Investigating Officer shall
travel back in time and, therefore tick off the time zone to reach
the exact time and date of the occurrence of the incident under
investigation – The goal of investigation is to determine the
truth which would help the Investigating Officer to form a correct
opinion on the culpability of the named accused or suspect – Once
such an opinion is formed on a fair assessment of the evidence
collected in the investigation, the role of the court comes into
play when the evidence i.e. oral, documentary, circumstantial,
scientific, electronic, etc. is presented for and on behalf of the
prosecution – During the entire play, the rules of evidence ought
to be honoured, sprinkled with the element of fairness through due
procedure – Adequate opportunities would have to be given to
challenge every assumption – Administration of criminal justice lies
in determining the guilt of the accused beyond reasonable doubt
– The power of the State to prosecute an accused commences
with investigation, collection of evidence and presentation before
the Court for acceptance. [Para 17]

* Author
[2024] 2 S.C.R.  777

Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)

Code of Criminal Procedure, 1973 – Evidence Act, 1872 –

Maintenance of case diary u/s. 172 CrPC and application of
s. 145 and s. 161 of the Evidence Act – S.172 CrPC and ss.
145 & 161 of the Evidence Act are to be read in consonance
with each other subject to the limited right conferred under
sub-section (3) of s.172 of CrPC:
Held: A case diary is maintained by an Investigating Officer
during his investigation for the purpose of entering the day-to-day
proceedings of the investigation – While doing so, the Investigating
Officer should mandatorily record the necessary particulars
gathered in the course of investigation with the relevant date,
time and place – Under sub-section (1-A) and (1-B) of s.172 of
CrPC, the Investigating Officer has to mention, in his case diary,
the statement of witnesses recorded during investigation with
due pagination – The object of these sub-sections is to facilitate
a fair investigation since a statement made u/s. 161 of CrPC
is not expected to be signed as mandated by s.162 of CrPC –
When a police officer uses case diary for refreshing his memory,
an accused automatically gets a right to peruse that part of the
prior statement as recorded in the police officer’s diary by taking
recourse to s.145 or s.161, as the case may be, of the Evidence
Act – S.172(3) of CrPC makes a specific reference to s.145 and
s.161 of the Evidence Act – Therefore, whenever a case is made
out either u/s.145 or u/s. 161 of the Evidence Act, the benefit
conferred thereunder along with the benefit of s.172(3) of CrPC
has to be extended to an accused – Thus, the accused has a
right to cross-examine a police officer as to the recording made
in the case diary whenever the police officer uses it to refresh
his memory – Though s.161 of the Evidence Act does not restrict
itself to a case of refreshing memory by perusing a case diary
alone, there is no exclusion for doing so – Similarly, in a case
where the court uses a case diary for the purpose of contradicting
a police officer, then an accused is entitled to peruse the said
statement so recorded which is relevant, and cross-examine the
police officer on that count – What is relevant in such a case is
the process of using it for the purpose of contradiction and not the
conclusion – To make the position clear, though s.145 r/w. s.161
of the Evidence Act deals with the right of a party including an
accused, such a right is limited and restrictive when it is applied
to s.172 of CrPC – Suffice it is to state,that the said right cannot
be declined when the author of a case diary uses it to refresh
778 [2024] 2 S.C.R.

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his memory or the court uses it for the purpose of contradiction –

Therefore, there is no hesitation in holding that s.145 and s.161
of the Evidence Act on the one hand and s.172(3) of CrPC on
the other are to be read in consonance with each other, subject
to the limited right conferred under sub-section (3) of s.172 of
CrPC. [Paras 20, 26, 27]
Code of Criminal Procedure, 1973 – First Information Report
vis-a-vis Case Diary:
Held: In Lalita Kumari v. Government of Uttar Pradesh & Others,
the Supreme Court held that an Information disclosing commission
of a cognizable offence shall first be entered in a book kept by the
officer in charge of police station and not in the General Diary – A
General Diary entry cannot precede the registration of FIR, except
in cases where preliminary inquiry is needed – While an FIR is
to be registered on an information disclosing the commission of
a cognizable offence, so also a recording is thereafter required to
be made in the case diary. [Para 28]
Evidence Act, 1872 – s. 165 – Judge’s power to put questions
or order production:
Held: S.165 of the Evidence Act speaks of the power of the court
to put questions and order production of documents in the course
of trial – This is a general and omnibus power given to the court
when in search of the truth – Such a power is to be exercised
against any witness before it, both in a civil as well as a criminal
case – The object is to discover adequate proof of a relevant
fact and, therefore, for that purpose, the Judge is authorised and
empowered to ask any question of his choice – When such a
power is exercised by the court, there is no corresponding right
that can be extended to a party to cross-examine any witness on
an answer given in reply to a question put forth by it, except with
its leave. [Para 29]
Penal Code, 1860 – s. 302 – Prosecution case that victim-
deceased went to picnic along with PW-2 and PW-3 – On their
return, they were intercepted by appellant with a knife, who
inflicted two fatal blows on the chest and stomach of the
victim – Prosecution sought to bring home the guilt of the
appellant primarily in the form of: (a) dying declaration, (b) eye
witnesses, (c) recovery and (d) alleged arrest of the appellant
nearer to the scene of the offence – Trial Court convicted
[2024] 2 S.C.R.  779

Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)

appellant u/s. 302 IPC and sentenced him to imprisonment

for life – High Court confirmed the conviction – Propriety:
Held: The victim-deceased was first examined by the PW-5 (who
was working in the hospital) – The presence of PW-1 (father of
deceased) before PW-5 is extremely doubtful – His presence
was not spoken to at all by PW-5 – The evidence of PW-1 is
quite unnatural as he has neither spoken about the motive in his
statement recorded u/s. 161 of CrPC, nor about the so-called dying
declaration which was not even witnessed by PW-5 – PW-5 has
clearly stated that the deceased was in a very serious condition,
blood was oozing out and, therefore, he could not give adequate
treatment – The deceased was immediately referred to the second
hospital – The testimony of PW-1 is also contradictory to PW-3
and PW-8 (doctor who examined deceased in the second hospital)
– Similarly, evidences of PW-2 and PW-3 cannot be relied upon,
PW-2 admittedly was not examined by PW-11 (investigating officer)
for over 2 weeks, for which no explanation was given – This
witness also stated that he was not the friend of the deceased,
therefore, his presence at the place of occurrence creates a serious
doubt as to how he happened to accompany the deceased to
the picnic spot – PW-3, though accompanied the deceased, was
not present thereafter, as deposed by PW-5 and did not admit
the deceased to the second hospital as deposed by PW-8 – The
prosecution has not chosen to examine the driver of the vehicle
i.e the tempo in which the deceased was taken to the hospital
– There is no explanation as to how PW-9-another police officer
from different jurisdiction authored the inquest report – Also, it is
totally unbelievable for PW-6 to reach the place of occurrence out
of inquisitiveness – The arrest of the accused at the instance of
PW-7 is yet another instance of the prosecution trying to make
out a case – It is incomprehensible that the appellant would be
present at the place of the occurrence when he is attempting to
flee – Similar logic goes to the recovery of the knife, it was found
in an open place – On perusal of the case diary, it was found
various corrections had been made, while some pages were even
missing – A clear attempt is made to correct the dates – When the
trial court perused the case diary for the purpose of contradicting
the statement of a police officer, it ought not to have fixed the onus
on the appellant – It has failed to discharge its duty enshrined
u/s. 172(3) of CrPC r/w. s. 145 or s.161, as the case may be, of
the Evidence Act – These aspects as discussed were not looked
780 [2024] 2 S.C.R.

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into in a proper perspective – Thus, the appellant has made out

a case for acquittal. [Paras 32-39]

Case Law Cited

Lalita Kumari v. Government of Uttar Pradesh & Others,
[2013] 14 SCR 713 : (2014) 2 SCC 1 – followed.
Arvind Kumar @ Nemichand & Ors. v. State of
Rajasthan, [2021] 11 SCR 237; Common Cause and
Others v. Union of India, [2015] 6 SCR 731 : (2015) 6
SCC 332; Bhagwant Singh v. Commissioner of Police,
[1983] 3 SCR 109 : (1983) 3 SCC 344; Baleshwar
Mandal v. State of Bihar, (1997) 7 SCC 219; Balakram
v. State of Uttarakhand and Others, [2017] 5 SCR 367 :
(2017) 7 SCC 668; Ram Chander v. State of Haryana,
[1981] 3 SCR 12 : (1981) 3 SCC 191 – relied on.
Manoj and Others v. State of Madhya Pradesh, [2022]
9 SCR 452 : (2023) 2 SCC 353 – referred to.

Books and Periodicals Cited

Law Commission of India’s One Hundred and Fifty
Fourth Report (154th).

List of Acts
Penal Code, 1860, Code of Criminal Procedure, 1973.

List of Keywords
Investigation; Goal of investigation; Role of investigating officer;
Case Diary; Maintenance of case diary; Cross-examination as
to previous statements in writing; Right of the accused to cross-
examine as to case diary used to refresh memory; Refreshing
of memory perusing case diary; Contradiction of police officer
using case diary; FIR vis-à-vis case diary; Power of Judge to put
questions.

Case Arising From

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.684
of 2012.
From the Judgment and Order dated 15.11.2010 of the High Court of
Uttarakhand at Nainital in CRLA No.888 of 2001
[2024] 2 S.C.R.  781

Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)

Appearances for Parties

D. P. Singh, Vikram Singh, Amit Gupta, Archit Singh, Manu Mishra,
Ms. Shreya Dutt for M/s. Mitter & Mitter Co., Advs. for the Appellant.
Saurabh Trivedi, Ashutosh Kumar Sharma, Advs. for the Respondent.
Judgment / Order of the Supreme Court

Judgment
M. M. Sundresh, J.
1. The appellant convicted by the Additional Sessions Judge/Special
Judge, Anti-Corruption U.P (East) Dehradun in ST 166/1992 under
Section 302 of the Indian Penal Code, 1860 (hereinafter referred to
as “IPC”) for life imprisonment, as confirmed by the Division Bench
of the High Court of Uttarakhand at Nainital in Criminal Appeal No.
888 of 2001 seeks acquittal.
2. Heard learned counsel Mr. D.P Singh appearing for the appellant
and the learned counsel Mr. Saurabh Trivedi appearing for the
respondent. We have perused the entire records placed before us,
and taken due note of the synopsis notes submitted.
BRIEF FACTS
3. The deceased, Gajendra Singh went to a picnic along with two
friends, Suresh (PW-2) and Sunil Mandal (PW-3) at about 11 a.m. on
the fateful day – 21.06.1992. On their return, they were intercepted
by the appellant riding on a motorcycle. The appellant by uttering
the words “Today I shall pay all your dues”, attacked the deceased
Gajendra Singh with a knife inflicting two fatal blows on the chest
and stomach respectively. The motive of the attack appears to be
the failure of the appellant in completing the work for which the
deceased gave a sum of Rs.500/-.
4. PW-2 and PW-3 took the deceased, who was bleeding profusely
on a tempo whose driver has not been examined, to the hospital
in which PW-5 was working. After admitting the deceased in the
hospital, PW-2 went to the house of the deceased by travelling,
which took him 15 minutes, and passed on the information of
attack on deceased, to his father, PW-1. On examination, PW-5
found that the deceased was in a serious condition and, therefore,
merely gave first aid and referred the deceased to a hospital in
782 [2024] 2 S.C.R.

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Dehradun. After reaching the hospital, PW-1 made an enquiry

with the deceased who gave a dying declaration narrating the
incident. PW-5 did not speak about the presence of any of the
witnesses except the fact that the deceased was admitted by PW-3
and, therefore, did not refer to the said dying declaration given to
PW-1. PW-1 dictated the complaint to one Mr. Inder Singh (not
examined) and went to the police station situated just opposite
to the hospital. Prior to the aforesaid action on the part of PW-1,
PW-5 has made an entry in the emergency medical register which
was subsequently filled up by another person named Dr. B.V.
Sharma (not examined). Dr. B.V. Sharma sent report immediately
to the police station.
5. Before PW-1 could reach the police station, the report from the
hospital had reached and, therefore, investigation was triggered.
However, neither First Information Report (FIR) had been registered
nor noting had been made in the general diary. In fact, the available
noting on the general diary did not disclose any offence committed
on 21.06.1992, as per the statement of PW-13, who produced the
same before the court.
6. PW-2 and PW-3 took the deceased to the nearby hospital at
Dehradun as per the version of PW-1 and PW-2, while PW-3 said
it was himself and PW-1 who undertook the said exercise. As per
the version of PW-8, the doctor who attended the deceased at the
Dehradun hospital, the deceased was brought to the hospital by his
brother Mr. Bhupender Singh (not examined).
7. PW-11 took up the investigation. He went to the place of occurrence,
drew the sketch and prepared the site plan. While returning, he was
informed by PW-7, another brother of the deceased that he received
information that the appellant was trying to escape to Dehradun. PW-
6, who heard about the occurrence, went to the place of occurrence
out of curiosity. The appellant was found and arrested at about 50-
60 yards from the place of occurrence by PW-11 in the presence of
PW-6, PW-7 and one Mr. Sanjeev Saini (not examined). The knife
that was said to have been used for committing the offence was
recovered from an open place at about 50 steps near the place of
occurrence. No arrest memo has been prepared though an entry
was made in the general diary. Recovery memo was signed by PW-6
and PW-7 alone.
[2024] 2 S.C.R.  783

Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)

8. The post-mortem was conducted by PW-4, Dr. Jaideep Dutta, which

indicated two major injuries, in tune with the case of the prosecution.
PW-9, being the police officer of a different jurisdiction, prepared the
inquest report, presumably on the ground that the ultimate death
happened there, as the second hospital was situated within his
jurisdiction.
9. After the initial investigation by PW-11, PW-12 took over the further
investigation, but did not take adequate care to check and verify the
earlier statements given by the witnesses. Some of the witnesses
have been examined at the earliest while the others like PW-2, PW-6
and PW-7 were examined 2 weeks thereafter. The FIR was curiously
sent by post and, therefore, reached the jurisdictional magistrate
days thereafter.
10. During the course of trial, the prosecution examined 13 witnesses.
In the questioning made under Section 313 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as “CrPC”), the appellant
clearly denied all the charges levelled against him. On a request
made on behalf of the appellant, the general diary was summoned
and perused by the trial court. This was done as a question was
raised on the story propounded by the prosecution which goes to
the date and time of the occurrence. On perusal, the trial court found
out that there were certain interpolations with specific reference to
the dates and certain pages were missing and jumbled. While giving
a finding that the noting of the date as 22.06.1992 and thereafter
striking it off to 21.06.1992 as a clerical mistake, the trial court went
on to put the blame on the appellant that he maneuvered to do so
in connivance with somebody, though the said correction could only
help the case of the prosecution.
11. While convicting the appellant, the trial court placed heavy reliance
upon the evidence of PW-1 to PW-3. The discrepancies qua the
emergency medical register and amongst the statements of PW-1,
PW-2 and PW-3 were brushed aside as minor and natural or ignorable
discrepancies due to the passage of time. Much reliance has been
placed on the recovery of the two-wheeler, though not mentioned in
the site plan. The delay in recording the statement of the witnesses
were also taken lightly. The so-called dying declaration given before
PW-1 was accepted, despite a clear statement made by PW-5 that
none was present during the stay of the deceased with him till he
was sent to the other hospital.
784 [2024] 2 S.C.R.

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12. The High Court concurred with the decision of the trial court by
placing reliance upon the post-mortem report and the testimony of
PW-1 to PW-3.
SUBMISSION OF THE APPELLANT
13. Learned counsel for the appellant submitted that the evidence of PW-1
ought not to have been accepted by both the courts. The report from
the hospital had reached the police station much before. The person
to whom PW-1 dictated the complaint has not been examined. There
is no material for motive and the testimony of PW-1 is contrary to
the one given by PW-3, PW-5 and PW-8. Similarly, the presence
of PW-2 is extremely doubtful as his evidence was recorded weeks
thereafter. He was also not found to be present by PW-3 in the second
hospital, though PW-3 deposed otherwise. Therefore, evidence of
PW-2 also ought to have been eschewed. His statement that it is
PW-1 and himself who took the deceased to the second hospital is
found to be incorrect in view of the testimony of PW-8. The courts
below ought to have placed adequate reliance upon the evidence
of PW-5 and PW-8, the doctors, who were admittedly working in the
hospital at the relevant point of time. The fact that the FIR was not
registered immediately after the information was received clearly
indicates that it was ante-dated. This contention is also strengthened
by the inquest report prepared by the police officer of a different
police station i.e. by PW-9.
14. Learned counsel vehemently contended that the trial court has
committed grave error in not noting the fact that no time, date and
adequate particulars were mentioned in the case diary. The object
and rationale behind Section 172 of CrPC coupled with Sections
145, 161 and 165 of the Indian Evidence Act, 1872 (hereinafter
referred to as “Evidence Act”) have been clearly overlooked by both
the courts. The motive has not been proved as witnesses have not
spoken about it in their statements under Section 161 of CrPC. It
is a case of completely botched up investigation and, therefore, the
appellant deserves acquittal.
SUBMISSION OF THE RESPONDENT
15. Learned counsel for the State placed substantial reliance upon
the recovery of the vehicle. It is stated that admittedly the vehicle
belonged to the father of the appellant. That is the reason why
[2024] 2 S.C.R.  785

Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)

an application was filed seeking its custody, which came to be

allowed. Both the courts have rightly held that the discrepancies
are bound to happen in view of the passage of time from the date
of incident till the deposition is recorded in the Court. PW-2 and
PW-3 did not have any ulterior motive or reason to implicate the
appellant. PW-3’s statement has been recorded at the earliest.
There is nothing wrong in the inquest report submitted by PW-9.
As there is no perversity, appreciation by both the courts of the
evidence available on record for coming to their conclusion does
not warrant any interference.
DISCUSSION
16. Before considering the factual submissions of both sides, we shall
first deal with the position of law which is relevant for deciding the
appeal.
Investigation and the Role of Investigating Officer
17. An investigation of a crime is a lawful search of men and materials
relevant in reconstructing and recreating the circumstances of
an offence said to have been committed. With the evidence in
possession, an Investigating Officer shall travel back in time and,
therefore tick off the time zone to reach the exact time and date
of the occurrence of the incident under investigation. The goal
of investigation is to determine the truth which would help the
Investigating Officer to form a correct opinion on the culpability of
the named accused or suspect. Once such an opinion is formed
on a fair assessment of the evidence collected in the investigation,
the role of the court comes into play when the evidence i.e. oral,
documentary, circumstantial, scientific, electronic, etc. is presented for
and on behalf of the prosecution. In its journey towards determining
the truth, a court shall play an active role while acknowledging
the respective roles meant to be played by the prosecution and
the defence. During the entire play, the rules of evidence ought
to be honoured, sprinkled with the element of fairness through
due procedure. Adequate opportunities would have to be given to
challenge every assumption. Administration of criminal justice lies
in determining the guilt of the accused beyond reasonable doubt.
The power of the State to prosecute an accused commences with
investigation, collection of evidence and presentation before the
Court for acceptance.
786 [2024] 2 S.C.R.

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18. The investigating agency, the prosecutor and the defence are
expected to lend ample assistance to the court in order to decipher
the truth. As the investigating agency is supposed to investigate a
crime, its primary duty is to find out the plausible offender through
the materials collected. It may or may not be possible for the said
agency to collect every material, but it has to form its opinion with
the available material. There is no need for such an agency to fix
someone as an accused at any cost. It is ultimately for the court to
decide who the culprit is. Arvind Kumar @ Nemichand & Ors. v.
State of Rajasthan, [2021] 11 SCR 237,
“Fair, Defective, Colourable Investigation
40. An Investigating Officer being a public servant
is expected to conduct the investigation fairly. While
doing so, he is expected to look for materials available
for coming to a correct conclusion. He is concerned
with the offense as against an offender. It is the offense
that he investigates. Whenever a homicide happens, an
investigating officer is expected to cover all the aspects and,
in the process, shall always keep in mind as to whether
the offence would come under Section 299 IPC sans
Section 300 IPC. In other words, it is his primary duty to
satisfy that a case would fall under culpable homicide not
amounting to murder and then a murder. When there are
adequate materials available, he shall not be overzealous
in preparing a case for an offense punishable under Section
302 IPC. We believe that a pliable change is required
in the mind of the Investigating Officer. After all, such
an officer is an officer of the court also and his duty
is to find out the truth and help the court in coming
to the correct conclusion. He does not know sides,
either of the victim or the accused but shall only be
guided by law and be an epitome of fairness in his
investigation.
41. There is a subtle difference between a defective
investigation, and one brought forth by a calculated and
deliberate action or inaction. A defective investigation
per se would not enure to the benefit of the accused,
unless it goes into the root of the very case of the
[2024] 2 S.C.R.  787

Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)

prosecution being fundamental in nature. While

dealing with a defective investigation, a court of law
is expected to sift the evidence available and find out
the truth on the principle that every case involves a
journey towards truth. There shall not be any pedantic
approach either by the prosecution or by the court as
a case involves an element of law rather than morality.
xxx xxx xxx
44. We would only reiterate the aforesaid principle qua a
fair investigation through the following judgment of Kumar
v. State, (2018) 7 SCC 536:
“27. The action of investigating authority in
pursuing the case in the manner in which they
have done must be rebuked. The High Court
on this aspect, correctly notices that the police
authorities have botched up the arrest for
reasons best known to them. Although we are
aware of the ratio laid down in Parbhu v. King
Emperor [Parbhu v. King Emperor, AIR 1944 PC
73], wherein the Court had ruled that irregularity
and illegality of arrest would not affect the
culpability of the offence if the same is proved
by cogent evidence, yet in this case at hand,
such irregularity should be shown deference as
the investigating authorities are responsible for
suppression of facts.
28. The criminal justice must be above
reproach. It is irrelevant whether the falsity lie
in the statement of witnesses or the guilt of
the accused. The investigative authority has
a responsibility to investigate in a fair manner
and elicit truth. At the cost of repetition, I
must remind the authorities concerned to
take up the investigation in a neutral manner,
without having regard to the ultimate result.
In this case at hand, we cannot close our eyes
to what has happened; regardless of guilt or the
asserted persuasiveness of the evidence, the
788 [2024] 2 S.C.R.

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aspect wherein the police has actively connived

to suppress the facts, cannot be ignored or
overlooked.”
45. A fair investigation would become a colourable
one when there involves a suppression. Suppressing
the motive, injuries and other existing factors which
will have the effect of modifying or altering the charge
would amount to a perfunctory investigation and,
therefore, become a false narrative. If the courts find
that the foundation of the prosecution case is false
and would not conform to the doctrine of fairness as
against a conscious suppression, then the very case
of the prosecution falls to the ground unless there are
unimpeachable evidence to come to a conclusion for
awarding a punishment on a different charge.”
(emphasis supplied)
19. Common Cause and Others v. Union of India, (2015) 6 SCC 332,
“31. There is a very high degree of responsibility placed on
an investigating agency to ensure that an innocent person
is not subjected to a criminal trial. This responsibility is
coupled with an equally high degree of ethical rectitude
required of an investigating officer or an investigating
agency to ensure that the investigations are carried out
without any bias and are conducted in all fairness not only
to the accused person but also to the victim of any crime,
whether the victim is an individual or the State.”
Case Diary
Section 172 of CrPC
“172. Diary of proceedings in investigation.—(1) Every
police officer making an investigation under this Chapter
shall day by day enter his proceedings in the investigation
in a dairy, 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.
[2024] 2 S.C.R.  789

Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)

(1-A) The statements of witnesses recorded during the

course of investigation under section 161 shall be inserted
in the case diary.
(1-B) The diary referred to in sub-section (1) shall be a
volume and duly paginated.
(2) Any Criminal Court may send for the police diaries of
a case under inquiry or trial in such Court, and may use
such diaries, not as evidence in the case, but to aid it in
such inquiry or trial.
(3) 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 or section 145, as the case may be, of the
Indian Evidence Act, 1872 (1 of 1872), shall apply.”
Section 145 of the Evidence Act
“145. Cross-examination as to previous statements in
writing.—A witness may be cross-examined as to previous
statements made by him in writing or reduced into writing,
and relevant to matters in question, without such writing
being shown to him, or being proved; but, if it is intended
to contradict him by the writing, his attention must, before
the writing can be proved, be called to those parts of it
which are to be used for the purpose of contradicting him.”
Section 161 of the Evidence Act
“161. Right of adverse party as to writing used to
refresh memory.—Any writing referred to under the
provisions of the two last preceding sections must be
produced and shown to the adverse party if he requires it;
such party may, if he pleases, cross-examine the witness
thereupon.”
20. A case diary is maintained by an Investigating Officer during his
investigation for the purpose of entering the day-to-day proceedings
of the investigation. While doing so, the Investigating Officer should
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mandatorily record the necessary particulars gathered in the course

of investigation with the relevant date, time and place. Under sub-
section (1-A) and (1-B) of Section 172 of CrPC, the Investigating
Officer has to mention, in his case diary, the statement of witnesses
recorded during investigation with due pagination. Sub-section (1-A)
and (1-B) were inserted by Act 5 of 2009 with effect from 31/12/2009.
The object of these sub-sections is to facilitate a fair investigation
since a statement made under Section 161 of CrPC is not expected
to be signed as mandated by Section 162 of CrPC. To highlight the
importance of adhering to the requirements of these sub-sections,
we rely upon the Law Commission of India’s One Hundred and
Fifty Fourth Report (154th) on Code of Criminal Procedure, 1973,
Chapter IX,
“7. After giving our earnest consideration and in view of
the fact that there is unanimity in respect of the need for
making substantial changes in the law, we propose that
there should be changes on the following lines :
…The signature of the witness on the statement thus
recorded need not be obtained. But, if the witness so
examined desires a copy of such statement so recorded
shall be handed over to him under acknowledgement.
To reflect the shift in emphasis, a corresponding
amendment to Section 172 should also be made to
the effect that the Investigating Officer maintaining
the case diary should mention about the statement of
the circumstances thus ascertained, and also attach
to the diary for each day, copies of the statement
of facts thus recorded under Section 161 CrPC.
Neither the accused nor his agent shall be entitled
to call for such diaries which can be put to a limited
use as provided under Section 172 CrPC. Under the
existing provisions of the Code, the preparation of
the earliest record of the statement of witness is
left in the hands of Investigating Officer and as the
mode of recording as provided in section 162 does
not ensure the accuracy of the record (It is well
known that many good cases are spoiled by insidious
incorrect entries at the instance of the accused and
it is also well known that many innocent persons
[2024] 2 S.C.R.  791

Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)

are sent up along with the guilty at the instance of

informant’s party),…”
(emphasis supplied)
21. In furtherance of the above suggestion, the Law Commission of India
accordingly provided a draft amendment to Section 172 of CrPC for
the consideration of the Parliament,
“… On the above mentioned lines, the relevant Sections
can be amended as follows:
xxxx
172(1) Every police officer making an investigation under
this chapter shall day by day enter his proceedings in
the investigation 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 if the circumstances ascertained
through his investigation; and also attach to the diary for
each day copies of statement of facts, if any, recorded
under Section 161 in respect of the person or persons
whose examination was completed that day.
(2) Any criminal Court may send for the police diaries of
a case under inquiry or trial in such court, and may use
such diaries, not as evidence in the case, but to aid it in
such inquiry or trial.
(3) 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 this Court.”
(emphasis supplied)
22. While it is the responsibility and duty of the Investigating Officer to
make a due recording in his case diary, there is no corresponding
right under sub-section (3) of Section 172 of CrPC for accused to
seek production of such diaries, or to peruse them, except in a case
where they are used by a police officer maintaining them to refresh
his memory, or in a case where the court uses them for the purpose
of contradicting the police officer. In such a case, the provision of
Section 145 or Section 161, as the case may be, of the Evidence
Act, shall apply.
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23. Law is quite settled that an improper maintenance of a case diary by

the Investigating Officer will not enure to the benefit of the accused.
Prejudice has to be shown and proved by the accused despite
non-compliance of Section 172 of CrPC in a given case. However,
this does not take away the mandatory duty of the police officer to
maintain it properly. As the court is the guardian of truth, it is the
duty of the Investigating Officer to satisfy the court when it seeks to
contradict him. The right of the accused is, therefore, very restrictive
and limited. Bhagwant Singh v. Commissioner of Police, (1983)
3 SCC 344,
“17. The other inference which disturbs us is that the
entries in the police case diary (set forth in the annexure
to the counter-affidavit on the record) do not appear to
have been entered with the scrupulous completeness and
efficiency which the law requires of such a document.
The haphazard maintenance of a document of that
status not only does no credit to those responsible for
maintaining it but defeats the very purpose for which
it is required to be maintained. We think it to be of the
utmost importance that the entries in a police case
diary should be made with promptness, in sufficient
detail, mentioning all significant facts, in careful
chronological order and with complete objectivity.”
(emphasis supplied)
24. Baleshwar Mandal v. State of Bihar, (1997) 7 SCC 219,
“5. Under Section 172 CrPC read with Rule 164 of
Bihar Police Manual dealing with the investigation,
an Investigating Officer investigating a crime is under
obligation to record all the day-to-day proceedings and
information in his case diary, and also record the time
at which the information was received and the place
visited by him, besides the preparation of site plan
and other documents. The Investigating Officer is also
required to send bloodstained clothes and earth seized
from the place of occurrence for chemical examination.
Failure on the part of the Investigating Officer to comply
with the provisions of Section 172 CrPC is a serious
lapse on his part resulting in diminishing the value
[2024] 2 S.C.R.  793

Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)

and credibility of his investigation. In this case the

Investigating Officer neither entered the time of recording
of the statements of the witnesses in the diary nor did he
send the bloodstained clothes and earth seized from the
place of occurrence for examination by a serologist. The
High Court also adversely commented upon the lapses on
the part of the Investigating Officer in not complying with
the provisions of the Code of Criminal Procedure. We,
therefore, take it that, in fact, there was serious lapse
on the part of the Investigation Officer in not observing
the mandate of Section 172 CrPC while investigating
the case which has given rise to this appeal. But the
question that arises for consideration is, has any
prejudice been caused to the accused in the trial by
non-observance of rules by the Investigating Officer?
The evidence on record before the Sessions Court and
the appellate court does not show that due to the lapses
on the part of the Investigating Officer in not sending the
bloodstained clothes and earth seized from the place of
occurrence for chemical examination and further not noting
down the time of recording the statement of the witnesses
in the diary has resulted in any prejudice to the defence of
the accused. In the present case, the place of occurrence
and the identity of the deceased are not disputed. Further,
the testimony of the eyewitnesses which is consistent and
does not suffer from infirmity, was believed by both the
courts below. Once the eyewitnesses are believed and
the courts come to the conclusion that the testimony
of the eyewitnesses is trustworthy, the lapse on the
part of the Investigating Officer in not observing the
provisions of Section 172 CrPC unless some prejudice
is shown to have been caused to the accused, will
not affect the finding of guilt recorded by the Court.
Neither before the High Court nor before this Court, it was
pointed out in what manner the accused were prejudiced
by non-observance of the provisions of Section 172 CrPC
and the rules framed in this regard. We are, therefore, of
opinion that judgments of the courts below do not suffer
on account of omission on the part of the Investigating
Officer in not sending the earth seized from the place of
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occurrence for chemical examination or in not entering

the time of recording of the statements of witnesses in
the diary.”
(emphasis supplied)
25. Manoj and Others v. State of Madhya Pradesh, (2023) 2 SCC 353,
“203. The scheme of the CrPC under Chapter XII
(Information to Police and Powers to Investigate) is clear
— the police have the power to investigate freely and
fairly; in the course of which, it is mandatory to maintain a
diary where the day-to-day proceedings are to be recorded
with specific mention of time of events, places visited,
departure and reporting back, statements recorded, etc.
While the criminal court is empowered to summon these
diaries under Section 172(2) for the purpose of inquiry
or trial (and not as evidence), Section 173(3) makes it
clear that the accused cannot claim any right to peruse
them, unless the police themselves, rely on it (to refresh
their memory) or if the court uses it for contradicting the
testimony of the police officers. [Mukund Lal v. Union of
India, 1989 Supp (1) SCC 622 : 1989 SCC (Cri) 606;
Malkiat Singh v. State of Punjab, (1991) 4 SCC 341 :
1991 SCC (Cri) 976]
204. In Manu Sharma [Manu Sharma v. State (NCT of
Delhi), (2010) 6 SCC 1 : (2010) 2 SCC (Cri) 1385] , in the
context of police diaries, this Court noted that “[t]he purpose
and the object seems to be quite clear that there should be
fairness in investigation, transparency and a record should
be maintained to ensure a proper investigation”. This
object is rendered entirely meaningless if the police
fail to maintain the police diary accurately. Failure
to meticulously note down the steps taken during
investigation, and the resulting lack of transparency,
undermines the accused’s right to fair investigation; it
is up to the trial court that must take an active role in
scrutinising the record extensively, rather than accept
the prosecution side willingly, so as to bare such
hidden or concealed actions taken during the course
of investigation. [ Role of the courts in a criminal trial has
[2024] 2 S.C.R.  795

Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)

been discussed in Zahira Habibulla H. Sheikh v. State of

Gujarat, (2004) 4 SCC 158 : 2004 SCC (Cri) 999.]”
(emphasis supplied)
26. When a police officer uses case diary for refreshing his memory,
an accused automatically gets a right to peruse that part of the
prior statement as recorded in the police officer’s diary by taking
recourse to Section 145 or Section 161, as the case may be, of the
Evidence Act.
27. Section 172(3) of CrPC makes a specific reference to Section 145
and Section 161 of the Evidence Act. Therefore, whenever a case
is made out either under Section 145 or under Section 161 of the
Evidence Act, the benefit conferred thereunder along with the benefit
of Section 172(3) of CrPC has to be extended to an accused. Thus,
the accused has a right to cross-examine a police officer as to the
recording made in the case diary whenever the police officer uses it
to refresh his memory. Though Section 161 of the Evidence Act does
not restrict itself to a case of refreshing memory by perusing a case
diary alone, there is no exclusion for doing so. Similarly, in a case
where the court uses a case diary for the purpose of contradicting a
police officer, then an accused is entitled to peruse the said statement
so recorded which is relevant, and cross-examine the police officer
on that count. What is relevant in such a case is the process of using
it for the purpose of contradiction and not the conclusion. To make
the position clear, though Section 145 read with Section 161 of the
Evidence Act deals with the right of a party including an accused,
such a right is limited and restrictive when it is applied to Section 172
of CrPC. Suffice it is to state, that the said right cannot be declined
when the author of a case diary uses it to refresh his memory or the
court uses it for the purpose of contradiction. Therefore, we have
no hesitation in holding that Section 145 and Section 161 of the
Evidence Act on the one hand and Section 172(3) of CrPC on the
other are to be read in consonance with each other, subject to the
limited right conferred under sub-section (3) of Section 172 of CrPC.
Balakram v. State of Uttarakhand and Others, (2017) 7 SCC 668,
“9. The aforementioned provisions are to be read
conjointly and homogenously. It is evident from sub-
section (2) of Section 172 CrPC, that the trial court has
unfettered power to call for and examine the entries
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in the police diaries maintained by the investigating

officer. This is a very important safeguard. The
legislature has reposed complete trust in the Court
which is conducting the inquiry or the trial. If there
is any inconsistency or contradiction arising in the
evidence, the Court can use the entries made in the
diaries for the purposes of contradicting the police
officer as provided in sub-section (3) of Section 172
CrPC. It cannot be denied that the Court trying the
case is the best guardian of interest of justice. Under
sub-section (2) the criminal court may send for diaries and
may use them not as evidence, but to aid it in an inquiry
or trial. The information which the Court may get from
the entries in such diaries usually will be utilised as
foundation for questions to be put to the police witness
and the court may, if necessary in its discretion use
the entries to contradict the police officer, who made
them. But the entries in the police diary are neither
substantive nor corroborative evidence, and that
they cannot be used against any other witness than
against the police officer that too for the limited extent
indicated above.
10. Coming to the use of police diary by the accused, sub-
section (3) of Section 172 clearly lays down that neither
the accused nor his agents shall be entitled to call for
such diaries nor he or they may be entitled to see them
merely because they are referred to by the Court. But, in
case the police officer uses the entries in the diaries
to refresh his memory or if the Court uses them for
the purpose of contradicting such police officer, then
the provisions of Sections 145 and 161, as the case
may be, of the Evidence Act would apply. Section 145
of the Evidence Act provides for cross-examination
of a witness as to the previous statements made by
him in writing or reduced into writing and if it was
intended to contradict him in writing, his attention
must be called to those portions which are to be used
for the purpose of contradiction. Section 161 deals
with the adverse party’s right as to the writing used
[2024] 2 S.C.R.  797

Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)

to refresh memory. It can, therefore, be seen that,

the right of the accused to cross-examine the police
officer with reference to the entries in the police diary
is very much limited in extent and even that limited
scope arises only when the Court uses the entries to
contradict the police officer or when the police officer
uses it for refreshing his memory.
11. In other words, in case if the Court does not use
such entries for the purpose of contradicting the police
officer or if the police officer does not use the same
for refreshing his memory, then the question of the
accused getting any right to use entries even to that
limited extent does not arise. The accused persons
cannot force the police officer to refresh his memory
during his examination in the Court by referring to the
entries in the police diary.
12. Section 145 of the Evidence Act consists of two limbs.
It is provided in the first limb of Section 145 that a witness
may be cross-examined as to the previous statements
made by him without such writing being shown to him.
But the second limb provides that, if it is intended to
contradict him by the writing, his attention must before
writing can be proved, be called to those parts of it
which are to be used for the purpose of contradicting
him. Sections 155(3) and 145 of the Evidence Act deal
with the different aspects of the same matter and should,
therefore, be read together.
13. Be that as it may, as mentioned supra, right of the
accused to cross-examine the police officer with
reference to the entries in the police diary is very much
limited in extent and even that limited scope arises
only when the Court uses such entries to contradict
the police officer or when the police officer uses it for
refreshing his memory and that again is subject to the
provisions of Sections 145 and 161 of the Evidence
Act. Thus, a witness may be cross-examined as to his
previous statements made by him as contemplated
under Section 145 of the Evidence Act if such previous
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statements are brought on record, in accordance

with law, before the Court and if the contingencies as
contemplated under Section 172(3) CrPC are fulfilled.
Section 145 of the Evidence Act does not either extend
or control the provisions of Section 172 CrPC. We
may hasten to add here itself that there is no scope in
Section 172 CrPC to enable the Court, the prosecution
or the accused to use the police diary for the purpose
of contradicting any witness other than the police
officer who made it.”
(emphasis supplied)
First Information Report vis-a-vis Case Diary
Section 154 of CrPC
“154. Information in cognizable cases.—(1) Every
information relating to the commission of a cognizable
offence, if given orally to an officer in charge of a police
station, shall be reduced to writing by him or under his
direction, and be read over to the informant; and every
such information, whether given in writing or reduced to
writing as aforesaid, shall be signed by the person giving it,
and the substance thereof shall be entered in a book to be
kept by such officer in such form as the State Government
may prescribe in this behalf…”
28. The mandate of Section 154 of CrPC implies that every information
disclosing commission of a cognizable offence shall be entered in
a book to be kept by the officer in charge of the police station in
such form as the State Government may prescribe. In Lalita Kumari
v. Government of Uttar Pradesh & Others, (2014) 2 SCC 1, the
Constitution Bench of this Court while answering the question as
to whether the information disclosing commission of a cognizable
offence shall first be entered into the General Diary or in a book kept
by the Officer in charge of Police Station which in common parlance
is referred as First Information Report has critically analyzed the
interplay between Section 154 of CrPC and Section 44 of the Police
Act, 1861. This Court also had occasion to analyze the legislative
history of CrPC 1861, CrPC 1973 and the Police Act 1861 to answer
the aforesaid question, whereby it was held that an Information
[2024] 2 S.C.R.  799

Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)

disclosing commission of a cognizable offence shall first be entered

in a book kept by the officer in charge of police station and not in
the General Diary. Therefore, it is amply clear that a General Diary
entry cannot precede the registration of FIR, except in cases where
preliminary inquiry is needed. While an FIR is to be registered on
an information disclosing the commission of a cognizable offence,
so also a recording is thereafter required to be made in the case
diary. Lalita Kumari (Supra),
“57. It is contented by the learned ASG appearing
for the State of Chhattisgarh that the recording of
first information under Section 154 in the “book”
is subsequent to the entry in the General Diary/
Station Diary/Daily Diary, which is maintained in the
police station. Therefore, according to the learned
ASG, first information is a document at the earliest
in the General Diary, then if any preliminary inquiry
is needed the police officer may conduct the same
and thereafter the information will be registered as
FIR. This interpretation is wholly unfounded. The
first information report is in fact the “information”
that is received first in point of time, which is either
given in writing or is reduced to writing. It is not the
“substance” of it, which is to be entered in the diary
prescribed by the State Government. The term “General
Diary” (also called as “Station Diary” or “Daily Diary”
in some States) is maintained not under Section 154
of the Code but under the provisions of Section 44 of
the Police Act, 1861 in the States to which it applies,
or under the respective provisions of the Police Act(s)
applicable to a State or under the Police Manual of a
State, as the case may be.
58. Section 44 of the Police Act, 1861 is reproduced below:
“44.Police officers to keep diary.—It shall be
the duty of every officer in charge of a police
station to keep a General Diary in such form
as shall, from time to time, be prescribed by
the State Government and to record therein all
complaints and charges preferred, the names
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of all persons arrested, the names of the

complainants, the offences charged against
them, the weapons or property that shall have
been taken from their possession or otherwise,
and the names of the witnesses who shall have
been examined.
The Magistrate of the district shall be at liberty
to call for and inspect such diary.”
59. It is pertinent to note that during the year 1861, when
the aforesaid Police Act, 1861 was passed, the Code of
Criminal Procedure, 1861 was also passed. Section 139
of that Code dealt with registration of FIR and this section
has also referred to the word “diary”, as can be seen from
the language of this section, as reproduced below:
“139.Complaint, etc., to be in writing.—Every
complaint or information preferred to an officer
in charge of a police station, shall be reduced
into writing, and the substance thereof shall be
entered in a diary to be kept by such officer, in
such form as shall be prescribed by the local
Government.”
(emphasis supplied)
Thus, the Police Act, 1861 and the Code of Criminal
Procedure, 1861, both of which were passed in the
same year, used the same word “diary”.
60. However, in the year 1872, a new Code came to be
passed which was called the Code of Criminal Procedure,
1872. Section 112 of the Code dealt with the issue of
registration of FIR and is reproduced below:
“112.Complaint to police to be in writing.—
Every complaint preferred to an officer in charge
of a police station shall be reduced into writing,
and shall be signed, sealed, or marked by the
person making it, and the substance thereof shall
be entered in a book to be kept by such officer
in the form prescribed by the local Government.”
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Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)

It is, thus, clear that in the Code of Criminal Procedure,

1872, a departure was made and the word “book” was
used in place of “diary”. The word “book” clearly
referred to the FIR book to be maintained under the
Code for the registration of FIRs.
61. The question that whether the FIR is to be recorded
in the FIR book or in the General Diary, is no more res
integra. This issue has already been decided authoritatively
by this Court.
62. In Madhu Bala v. Suresh Kumar [Madhu Bala v.
Suresh Kumar, (1997) 8 SCC 476 : 1998 SCC (Cri) 111],
this Court has held that FIR must be registered in the
FIR register which shall be a book consisting of 200
pages. It is true that the substance of the information is
also to be mentioned in the Daily Diary (or the General
Diary). But, the basic requirement is to register the
FIR in the FIR book or register. Even in Bhajan Lal
[State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC
335 : 1992 SCC (Cri) 426] , this Court held that FIR has
to be entered in a book in a form which is commonly
called the first information report.
63. It is thus clear that registration of FIR is to be done
in a book called FIR book or FIR register. Of course,
in addition, the gist of the FIR or the substance of
the FIR may also be mentioned simultaneously in the
General Diary as mandated in the respective Police
Act or Rules, as the case may be, under the relevant
State provisions.
64. The General Diary is a record of all important
transactions/events taking place in a police station,
including departure and arrival of police staff, handing
over or taking over of charge, arrest of a person, details
of law and order duties, visit of senior officers, etc. It is
in this context that gist or substance of each FIR being
registered in the police station is also mentioned in the
General Diary since registration of FIR also happens to be
a very important event in the police station. Since General
Diary is a record that is maintained chronologically on
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day-to-day basis (on each day, starting with new number

1), the General Diary entry reference is also mentioned
simultaneously in the FIR book, while FIR number is
mentioned in the General Diary entry since both of these
are prepared simultaneously.
65. It is relevant to point out that FIR book is maintained
with its number given on an annual basis. This means that
each FIR has a unique annual number given to it. This is
on similar lines as the case numbers given in courts. Due
to this reason, it is possible to keep a strict control and
track over the registration of FIRs by the supervisory
police officers and by the courts, wherever necessary.
Copy of each FIR is sent to the superior officers and
to the Judicial Magistrate concerned.
66. On the other hand, General Diary contains a huge
number of other details of the proceedings of each day.
Copy of General Diary is not sent to the Judicial Magistrate
having jurisdiction over the police station, though its copy
is sent to a superior police officer. Thus, it is not possible
to keep strict control of each and every FIR recorded
in the General Diary by the superior police officers
and/or the court in view of enormous amount of other
details mentioned therein and the numbers changing
every day.
67. The signature of the complainant is obtained in
the FIR book as and when the complaint is given to
the police station. On the other hand, there is no such
requirement of obtaining signature of the complainant
in the General Diary. Moreover, at times, the complaint
given may consist of large number of pages, in which
case it is only the gist of the complaint which is to
be recorded in the General Diary and not the full
complaint. This does not fit in with the suggestion
that what is recorded in the General Diary should
be considered to be the fulfilment/compliance with
the requirement of Section 154 of registration of FIR.
In fact, the usual practice is to record the complete
complaint in the FIR book (or annex it with the FIR
[2024] 2 S.C.R.  803

Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)

form) but record only about one or two paragraphs

(gist of the information) in the General Diary.
xxx xxx xxx
70. If at all, there is any inconsistency in the provisions
of Section 154 of the Code and Section 44 of the
Police Act, 1861, with regard to the fact as to whether
the FIR is to be registered in the FIR book or in the
General Diary, the provisions of Section 154 of the
Code will prevail and the provisions of Section 44
of the Police Act, 1861 (or similar provisions of the
respective corresponding Police Act or Rules in other
respective States) shall be void to the extent of the
repugnancy. Thus, FIR is to be recorded in the FIR
book, as mandated under Section 154 of the Code,
and it is not correct to state that information will be
first recorded in the General Diary and only after
preliminary inquiry, if required, the information will
be registered as FIR.
xxx xxx xxx
72. It is thus unequivocally clear that registration of
FIR is mandatory and also that it is to be recorded in
the FIR book by giving a unique annual number to
each FIR to enable strict tracking of each and every
registered FIR by the superior police officers as well
as by the competent court to which copies of each
FIR are required to be sent.
xxx xxx xxx
97. The Code contemplates two kinds of FIRs : the duly
signed FIR under Section 154(1) is by the informant to the
officer concerned at the police station. The second kind
of FIR could be which is registered by the police itself
on any information received or other than by way of an
informant [Section 157(1)] and even this information has
to be duly recorded and the copy should be sent to the
Magistrate forthwith. The registration of FIR either on
the basis of the information furnished by the informant
under Section 154(1) of the Code or otherwise under
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Section 157(1) of the Code is obligatory. The obligation

to register FIR has inherent advantages:
97.1. (a) It is the first step to “access to justice” for a victim.
97.2. (b) It upholds the “rule of law” inasmuch as the
ordinary person brings forth the commission of a cognizable
crime in the knowledge of the State.
97.3. (c) It also facilitates swift investigation and sometimes
even prevention of the crime. In both cases, it only
effectuates the regime of law.
97.4. (d) It leads to less manipulation in criminal
cases and lessens incidents of “antedated” FIR or
deliberately delayed FIR.”
(emphasis supplied)
Ram Chander v. State of Haryana, (1981) 3 SCC 191,
“3…. The court, the prosecution and the defence must
work as a team whose goal is justice, a team whose
captain is the judge. The Judge, ‘like the conductor of
a choir, must, by force of personality, induce his team
to work in harmony; subdue the raucous, encourage
the timid, conspire with the young, flatter and (sic
the) old’.”
Justice O. Chinnappa Reddy
Section 165 of the Evidence Act
“165. Judge’s power to put questions or order
production.—The Judge may, in order to discover or to
obtain proper proof of relevant facts, ask any question he
pleases, in any form, at any time, of any witness, or of
the parties, about any fact relevant or irrelevant; and may
order the production of any document or thing; and neither
the parties nor their agents shall be entitled to make any
objection to any such question or order, nor, without the
leave of the Court, to cross-examine any witness upon
any answer given in reply to any such question:
Provided that the judgment must be based upon facts
declared by this Act to be relevant, and duly proved:
[2024] 2 S.C.R.  805

Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)

Provided also that this section shall not authorize any

Judge to compel any witness to answer any question, or
to produce any document which such witness would be
entitled to refuse to answer or produce under sections 121
to 131, both inclusive, if the question were asked or the
document were called for by the adverse party; nor shall
the Judge ask any question which it would be improper
for any other person to ask under section 148 or 149; nor
shall he dispense with primary evidence of any document,
except in the cases hereinbefore excepted.”
29. Section 165 of the Evidence Act speaks of the power of the court to
put questions and order production of documents in the course of
trial. This is a general and omnibus power given to the court when
in search of the truth. Such a power is to be exercised against any
witness before it, both in a civil as well as a criminal case. The object
is to discover adequate proof of a relevant fact and, therefore, for
that purpose, the Judge is authorised and empowered to ask any
question of his choice. When such a power is exercised by the
court, there is no corresponding right that can be extended to a
party to cross-examine any witness on an answer given in reply to a
question put forth by it, except with its leave. Emphasizing upon the
importance of Section 165 of the Evidence Act, Sir James Stephen
while presenting the report of the Select Committee, at the time of
passing of the Evidence Act observed,
“It is absolutely necessary that the judge should not only hear what
is put before him by others, but that he should ascertain by his
own inquiries how the facts actually stand. In order to do this, it will
frequently be necessary for him to go into matters which are not
themselves relevant to the matters in issue, but may lead to something
that is, and it is in order to arm judges with express authority to do
this that section 165, which has been so much objected to, has
been framed”.
“A judge or Magistrate in India frequently has to
perform duties which in England would be performed
by Police Officer or attorneys. He has to sift out the
truth for himself as well as he can, and with little
assistance of a professional kind. Section 165 is
intended to arm the judge with the most extensive
806 [2024] 2 S.C.R.

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power possible for the purpose of getting at the truth.

The effect of this section is that, in order to get to the
bottom of the matter before the count, he will be able
to look at and enquire into every fact whatever.”
(emphasis supplied)
30. Ram Chander v. State of Haryana, (1981) 3 SCC 191,
“O. Chinnappa Reddy, J.— What is the true role of a
judge trying a criminal case? Is he to assume the
role of a referee in a football match or an umpire in a
cricket match, occasionally answering, as Pollock and
Maitland [ Pollock and Maitland : The History of English
Law] point out, the question ‘How is that’, or, is he to,
in the words of Lord Denning ‘drop the mantle of a
judge and assume the robe of an advocate’? [Jones
v. National Coal Board, (1957) 2 All ER 155 : (1957) 2
WLR 760] Is he to be a spectator or a participant at the
trial? Is passivity or activity to mark his attitude? If he
desires to question any of the witnesses, how far can
he go? Can he put on the gloves and ‘have a go’ at the
witness who he suspects is lying or is he to be soft
and suave? These are some of the questions which
we are compelled to ask ourselves in this appeal on
account of the manner in which the Judge who tried
the case put questions to some of the witnesses.
2. The adversary system of trial being what it is, there
is an unfortunate tendency for a judge presiding over
a trial to assume the role of a referee or an umpire and
to allow the trial to develop into a contest between
the prosecution and the defence with the inevitable
distortions flowing from combative and competitive
elements entering the trial procedure. If a criminal court
is to be an effective instrument in dispensing justice,
the presiding judge must cease to be a spectator
and a mere recording machine. He must become a
participant in the trial by evincing intelligent active
interest by putting questions to witnesses in order
to ascertain the truth. As one of us had occasion to
say in the past:
[2024] 2 S.C.R.  807

Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)

Every criminal trial is a voyage of discovery

in which truth is the quest. It is the duty of a
presiding Judge to explore every avenue open
to him in order to discover the truth and to
advance the cause of justice. For that purpose
he is expressly invested by Section 165 of the
Evidence Act with the right to put questions to
witnesses. Indeed the right given to a Judge is so
wide that he may, ask any question he pleases,
in any form, at any time, of any witness, or of
the parties about any fact, relevant or irrelevant.
Section 172(2) of the Code of Criminal Procedure
enables the court to send for the police-diaries
in a case and use them to aid it in the trial. The
record of the proceedings of the Committing
Magistrate may also be perused by the Sessions
Judge to further aid him in the trial. [Sessions
Judge, Nellore v. Intha Ramana Reddy ILR 1972 AP
683 : 1972 Cri LJ 1485]
3. With such wide powers, the court must actively
participate in the trial to elicit the truth and to protect
the weak and the innocent. It must, of course, not
assume the role of a prosecutor in putting questions.
The functions of the counsel, particularly those of the
Public Prosecutor, are not to be usurped by the judge,
by descending into the arena, as it were. Any questions
put by the judge must be so as not to frighten, coerce,
confuse or intimidate the witnesses. The danger inherent
in a judge adopting a much too stern an attitude towards
witnesses has been explained by Lord Justice Birkett:
People accustomed to the procedure of the court are likely
to be overawed or frightened, or confused, or distressed
when under the ordeal of prolonged questioning from the
presiding judge. Moreover, when the questioning takes on
a sarcastic or ironic tone as it is apt to do, or when it takes
on a hostile note as is sometimes almost inevitable, the
danger is not only that witnesses will be unable to present
the evidence as they may wish, but the parties may begin
to think, quite wrongly it may be, that the judge is not
808 [2024] 2 S.C.R.

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holding the scales of justice quite eventually. [ Extracted

by Lord Denning in supra f.n. 2]
In Jones v. National Coal Board [Jones v. National Coal Board, (1957)
2 All ER 155 : (1957) 2 WLR 760] Lord Justice Denning observed:
The Judge’s part in all this is to hearken to the evidence,
only himself asking questions of witnesses when it is
necessary to clear up any point that has been overlooked or
left obscure; to see that the advocates behave themselves
seemly and keep to the rules laid down by law; to exclude
irrelevancies and discourage repetition; to make sure
by wise intervention that he follows the points that the
advocates are making and can assess their worth; and
at the end to make up his mind where the truth lies. If he
goes beyond this, he drops the mantle of the Judge and
assumes the role of an advocate; and the change does
not become him well.
We may go further than Lord Denning and say that
it is the duty of a judge to discover the truth and for
that purpose he may “ask any question, in any form,
at any time, of any witness, or of the parties, about
any fact, relevant or irrelevant” (Section 165 Evidence
Act). But this he must do, without unduly trespassing
upon the functions of the Public Prosecutor and the
defence Counsel, without any hint of partisanship and
without appearing to frighten or bully witnesses. He
must take the prosecution and the defence with him.
The court, the prosecution and the defence must work
as a team whose goal is justice, a team whose captain
is the judge. The Judge, ‘like the conductor of a choir,
must, by force of personality, induce his team to work
in harmony; subdue the raucous, encourage the timid,
conspire with the young, flatter and (sic the) old’.”
(emphasis supplied)
ON FACTS
31. We have given our consideration to the circumstances, motive, role
of the accused and the volition of the prosecution to bring home the
guilt of the appellant primarily in the form of: (a) Dying Declaration, (b)
[2024] 2 S.C.R.  809

Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)

Eye witnesses, (c) Recovery and (d) Alleged arrest of the appellant
nearer to the scene of the offence.
32. The presence of PW-1 before PW-5 is extremely doubtful. His
presence was not spoken to at all by PW-5. The evidence of PW-1
is quite unnatural as he has neither spoken about the motive in his
statement recorded under Section 161 of CrPC, nor about the so-
called dying declaration which was not even witnessed by PW-5. PW-5
has clearly stated that the deceased was in a very serious condition,
blood was oozing out and, therefore, he could not give adequate
treatment. The deceased was immediately referred to the second
hospital. There was no necessity for PW-1 to dictate the complaint
to one Mr. Inder Singh who curiously has not been examined by the
prosecution. In any case, there was no need for PW-11 to wait for
PW-1 to come to him for registration of FIR, which he was mandated
to do so, as soon as he received the report from the hospital. The
testimony of PW-1 is also contradictory to PW-3 and PW-8.
33. On the similar line, we do not wish to rely upon the evidence of
PW-2 and PW-3. PW-2 admittedly was not examined by PW-11 for
over 2 weeks, for which no explanation is forthcoming. This witness
also states that he was not a friend of the deceased and, therefore,
his presence at the place of occurrence creates a serious doubt
as to how he happened to accompany the deceased to the picnic
spot. PW-3, though accompanied the deceased, was not present
thereafter, as deposed by PW-5 and did not admit the deceased to the
second hospital as deposed by PW-8. On the contrary, the evidence
of PW-3 is that it is PW-1 and himself who admitted the deceased.
Furthermore, even his presence thereafter was not noticed by PW-5.
34. Though we rely upon the evidence of PW-5 to a certain extent, the
emergency medical register was not completely filled up by him.
Nobody knows the reason as to why he partially filled up the register
and the remaining part was filled by Dr. B.V. Sharma, who was not
examined by the prosecution. By placing reliance upon his testimony
partly, we would only come to the conclusion that his evidence goes
against the prosecution version on two counts, namely, the presence
of any other witness and the condition of the deceased.
35. The prosecution has not chosen to examine the driver of the vehicle
i.e the tempo in which the deceased was taken to the hospital. Even
PW-5 has stated that the blood was oozing out from the body of the
810 [2024] 2 S.C.R.

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deceased. This is another contradiction in the statement of PW-2

and PW-3 in this regard. PW-8 in his evidence has stated that the
deceased was brought by another brother of the deceased. Even
this witness has not been examined for the reason known to the
prosecution.
36. PW-9 is an important witness being a police officer hailing from
a different jurisdiction. It is very curious to know that he was the
author of the inquest report after the investigation was taken up by
PW-11. Despite this being very strange, no plausible explanation
was forthcoming from him. Though PW-11 was trying to say that
at times due to the instructions from the higher officers, it is done
so, when an offence is committed an Investigating Officer is duty
bound to take up the investigation and complete it. After taking up
the investigation he thereafter cannot delegate it, except for justifiable
reasons. This lends credence to the case projected by the defence
that the interpolations and missing pages in the case diary clearly
indicate that the FIR was ante-dated. Perhaps that is the reason why
the FIR reached the jurisdictional magistrate belatedly and also the
examination of the witnesses including PW-2 under section 161 of
CrPC was done days after the occurrence.
37. PW-6 and PW-7 are not natural witnesses. It is totally unbelievable
for PW-6 to reach the place of occurrence out of inquisitiveness.
There is no need for him to be in that very place. The arrest of
the accused at the instance of PW-7 is yet another instance of the
prosecution trying to make out a case. It is incomprehensible that
the appellant would be present at the place of the occurrence when
he is attempting to flee. Similar logic goes to the recovery of the
knife. If PW-11 is stated to have made an inspection and drawn the
sketch, he would have very well found the knife at a nearby place.
It is nobody’s case that it was hidden, on the contrary, it was found
in an open place.
38. From the aforesaid discussion, we have no doubt that the date, time
and place of occurrence could have been different. The trial court
strangely placed the onus on the appellant even with respect to the
corrections made in the case diary along with the missing pages.
On perusal of the case diary, we find that at several places such
corrections have been made, while some pages were even missing.
A clear attempt is made to correct the dates. Such corrections
[2024] 2 S.C.R.  811

Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)

actually were put against the appellant while they indeed helped the
case of the prosecution. The finding of the trial court in this regard
is neither logical nor reasonable. Even on the question of motive,
there is absolutely no material as witnesses did not speak about
the same in their statements recorded under Section 161 of CrPC.
Mere recovery of a motorcycle per se will not prove the case of the
prosecution especially when it has not been proved as to how it was
recovered. The evidence of PW-13 clearly shows that no date, time
and proper recording have been made in the case diary. When the
trial court perused the case diary for the purpose of contradicting
the statement of a police officer, it ought not to have fixed the onus
on the appellant. It has failed to discharge its duty enshrined under
Section 172(3) of CrPC read with Section 145 or Section 161, as
the case may be, of the Evidence Act. To be noted, it was brought
on a request made by the appellant and the court was using it for
the purpose of contradiction.
39. On a perusal of the impugned judgment and that of the trial court in
convicting the appellant, we find that the aspects discussed by us
have not been looked into in a proper perspective. The appellant has
certainly made out a case for acquittal. Accordingly, the conviction
rendered by the High Court, confirming that of the trial court stands
set aside. The appellant is acquitted of all the charges.
40. The appeal is allowed. The appellant was granted bail vide Order of
this Court dated 06.04.2015. Hence, bail bonds stand discharged.

Headnotes prepared by: Ankit Gyan Result of the case:

Appeal allowed.
 [2024] 2 S.C.R. 812 : 2024 INSC 136

Anun Dhawan & Ors.

v.
Union of India & Ors.
(Writ petition (Civil) No. 1103 of 2019)
22 February 2024
[Bela M. Trivedi* and Pankaj Mithal, JJ.]

Issue for Consideration

In the instant writ petition, Petitioners claiming to be social activists
sought directions against the States and Union Territories to
formulate a scheme to implement the concept of Community
Kitchens to combat hunger, malnutrition and starvation and the
deaths resulting therefrom. The Petitioners also sought direction
against National Legal Services Authority to formulate a scheme
in order to further the provisions of Art.50(1)A of the Constitution,
as also against the Central Government to create a National Food
Grid beyond the scope of the Public Distribution Scheme.

Headnotes
Public health – Food and nutritional security – Alternate welfare
schemes – Scope of judicial review in examining policy matters
– Prayer of Petitioner to direct the States/UTs to implement
the concept of Community Kitchens – Tenability – National
Food Security Act, 2013 – Constitution of India – Art. 32.
Held: There being a systematic legal framework provided under the
National Food Security Act, 2013 (NFSA) for the implementation
of the schemes and programmes like Targeted Public Distribution
System, Mid-day Meal Scheme, Integrated Child Development
Services and Maternity Cash Entitlement along with a Monitoring
Mechanism and a Grievance Redressal Mechanism, and the
States/UTs having also implemented various other schemes and
programmes under the said Act, this Court does not propose to
direct the States/UTs to implement the concept of Community
Kitchens as prayed for by the petitioners in the instant petition
– It is well settled that the scope of judicial review in examining
the policy matters is very limited – The Courts do not and cannot
examine the correctness, suitability or appropriateness of a policy,
nor are the courts advisors to the executive on the matters of policy

* Author
[2024] 2 S.C.R.  813

Anun Dhawan & Ors. v. Union of India & Ors.

which the executive is entitled to formulate – The Courts cannot

direct the States to implement a particular policy or scheme on
the ground that a better, fairer or wiser alternative is available
– Legality of the policy, and not the wisdom or soundness of the
policy, would be the subject of judicial review – When the NFSA
with a ‘right based approach’ for providing food and nutritional
security, is in force and when other welfare schemes under the
said Act have also been framed and implemented by the Union
of India and the States, to ensure access to adequate quantity of
quality food at affordable prices to people to live a life with dignity,
this Court does not propose to give any further direction in that
regard. [Paras 7, 8 and 9]
Constitution of India – Arts. 21 and 47 – Right to Food –
Discussed.
Held: Though the Constitution of India does not explicitly provide
for Right to food, the fundamental Right to life enshrined in Art.21
of the Constitution does include Right to live with human dignity
and right to food and other basic necessities – Art.47 of the
Constitution also provides that the State shall regard the raising
of level of nutrition and the standard of living of its people and the
improvement of public health as among its primary duties. [Para 5]
National Food Security Act, 2013 – Object and purpose of the
Act – Discussed.
Held: Keeping in view the goal of eradicating extreme poverty
and hunger as one of the goals of United Nations, and keeping
in view the constitutional guarantees for ensuring food security
of the people as also for improving the nutritional status of the
population, especially of women and children, the Parliament has
enacted the National Food Security Act, 2013 – The object of the
Act is to provide for food and nutritional security in human life
cycle approach, by ensuring access to adequate quantity of quality
food at affordable prices to people to live a life with dignity and
for matters connected therewith or incidental thereto – With the
enactment of the NFSA there was a paradigm shift in the approach
to food security from “welfare to rights based approach.” [Para 6]

Case Law Cited

Directorate of Film Festivals and Others vs. Gaurav
Ashwin Jain and Others, [2007] 5 SCR 7 : (2007) 4
SCC 737 – referred to.
814 [2024] 2 S.C.R.

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List of Acts
National Food Security Act, 2013 ; Constitution of India

List of Keywords
Constitution of India; Food and nutritional security; Hunger;
Starvation; Malnutrition; Community Kitchen; Right to Food; Right
to life; Human dignity; Welfare scheme; Judicial review; Policy
matter; Public health; Rights based approach; Social activist.

Case Arising From

CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.1103 of
2019
(Under Article 32 of The Constitution of India)
Appearances for Parties
Ms. Ashima Mandla, Surya Pratap Singh, Fuzail Ahmad Ayyubi,
Advs. for the Petitioners.
K.M. Nataraj, Vikramjit Banerjee, A.S.Gs., Ms. Garima Prasad, Sr.
A.A.G., B.K. Satija, Ms. Ankita Choudhary, Tapesh Kumar Singh,
A.A.Gs., Gurminder Singh, Sr. Adv./A.G., R Bala, Dr. Manish Singhvi,
V.K. Mudigl, Sr. Advs., Chinmayee Chandra, Amit Sharma B, Mrs.
Sonali Jain, Raman Yadav, Chitvan Sinhal, Abhishek Kumar Pandey,
Kartikay Agrawal, Arvind Kumar Sharma, Amrish Kumar, Raj Bahadur
Yadav, Gaurav Agrawal, Chandra Prakash, Siddhesh Shirish Kotwal,
Ms. Ana Upadhyay, Ms. Manya Hasija, Tejasvi Gupta, T. Illayarasu,
Nirnimesh Dube, Ms. Purnima Krishna, Shuvodeep Roy, Dr. Joseph
Aristotle S., Rajiv Kumar Choudhry, Ms. Deepanwita Priyanka,
Shreekant Neelappa Terdal, Mukesh Kumar Maroria, Ms. Indira
Bhakar, Vinayak Sharma, Krishan Kant Dubey, Piyush Beriwal,
Rajesh Singh Chauhan, Apoorv Kurup, Harish Pandey, Shashwat
Parihar, Debojit Borkakati, Chirag M. Shroff, Dhananjay Kataria,
Sumeer Sodhi, Ms. Shreya Singh, Manish Kumar, Shrirang B.
Varma, Siddharth Dharmadhikari, Aaditya Aniruddha Pande, Bharat
Bagla, Sourav Singh, Aditya Krishna, Ms. Raavi Sharma, Sandeep
Kumar Jha, Tanmaya Agarwal, Wrick Chatterjee, Mrs. Aditi Agarwal,
Vinayak Mohan, Samar Vijay Singh, Sukhdev Sharma, Keshav Mittal,
Ms. Sabarni Som, Fateh Singh, V. N. Raghupathy, Manendra Pal
Gupta, Sunny Choudhary, Rajesh K. Singh, Mayur Chaturvedi, Karan
[2024] 2 S.C.R.  815

Anun Dhawan & Ors. v. Union of India & Ors.

Bishnoi, Shailesh Madiyal, Santosh Kumar-I, Aravindh S., Abbas,

Ms. Kavya Geetha, Ms. Archana Pathak Dave, Ms. Swati Ghildiyal,
Ms. Devyani Bhatt, Ms. Uttara Babbar, Satish Pandey, Akshai Malik,
Khawar Saleem, Nikhil Jain, Ms. Divya Jain, Ms. Monica Dhingra,
Ms. K. Enatoli Sema, Ms. Limayinla Jamir, Amit Kumar Singh, Ms.
Chubalemla Changa, Prang Newmai, Ms. Mukti Chowdhary, Ajay
Pal, Tapesh Kumar Singh, Prashant Bhardwaj, Aditya Pratap Singh,
Priyanshu Malik, Pukhrambam Ramesh Kumar, Karun Sharma,
Ms. Rajkumari Divyasana, R. Rajaselvan, Shreyas Awasthi, Bhanu
Mishra, Ms. Astha Sharma, Ranjan Mukherjee, Shibashish Misra,
Gurmeet Singh Makker, Mrs. Vaishali Verma, Ms. Sonali Jain, Chitvan
Singhal, Kartikay Aggarwal, Abhimanyu Tewari, Ms. Eliza Bar, Avijit
Mani Tripathi, Upendra Mishra, P.S. Negi, T.K. Nayak, Ms. Marbiang
Khongwir, Ms. Taruna Ardhendumauli Prasad, Pranav Sachdeva,
Sanjay Kumar Visen, Ankur S. Kulkarni, Pashupathi Nath Razdan,
M. Shoeb Alam, Abhinav Mukerji, Nishe Rajen Shonker, Mrs. Anu K
Joy, Alim Anvar, Abraham Mathew, Santosh Krishnan, Sahil Bhalaik,
Hitesh kumar Sharma, S.K. Rajora, Akhileshwar Jha, Amit Kumar
Chawla, Ms. Ritika Raj, Ms. Komal, Ms. Niharika Dwivedi, M. Yogesh
Kanna, Ms. Vanshaja Shukla, Ms. Ankeeta Appanna, Ms. Rachna
Gandhi, Raghvendra Kumar, Anand Kumar Dubey, Ms. Inderdeep
Kaur Raina, Kartikeya Rastogi, Karan Sharma, Ms. Princy Sharma,
Ms. Mrinal Elker Mazumdar, Ms. Indira Bhaskar, Vineet Singh, Kumar
Vaibhav, Ms. Devina Sehgal, Advs. for the Respondents.
Judgment / Order of the Supreme Court

Judgment
Bela M. Trivedi, J.
1. The petitioners claiming to be the social activists have filed the present
petition under Article 32 of the Constitution of India seeking various
directions against the States and Union Territories to formulate a
scheme to implement the concept of Community Kitchens to combat
hunger, malnutrition and starvation and the deaths resulting thereof.
The petitioners have also sought direction against the National
Legal Services Authority to formulate a scheme in order to further
the provisions of Article 50(1)A of the Constitution, as also against
the Central Government to create a National Food Grid beyond the
scope of the Public Distribution Scheme.
816 [2024] 2 S.C.R.

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2. This Court vide the order dated 27.10.2021 had directed the Union
of India to interact with the concerned stakeholders for consideration
of the Community Kitchens Scheme or any other similar schemes
relating to Community Kitchens which are already in operation in
different states. Subsequently also various orders were passed by
the Court directing the States to attend the meetings managed by
the Union of India for exploring the possibility of framing up of the
Community Kitchens Scheme.
3. The States/Union Territories have filed their counter affidavits/
responses stating in detail about the schemes adopted and enforced
in their respective states like Poshan Abhiyan, Take Home Ration,
Pradhan Mantri Garib Kalyan Anna Yojana, Mid-Day Meal, Open
Market Sales Scheme, One Nation One Ration Card Scheme,
Annapurna Scheme, Antyodaya Anna Yojana etc. also stating
that some of the schemes are monitored by the Integrated Child
Development Services and Integrated Tribal Development Program.
The States in their respective affidavits had also stated that there
were no deaths reported due to starvation or malnutrition. The
Union of India has also submitted that the Government is committed
to focus on combating hunger and malnutrition by implementing
various schemes through the State Governments to enhance the
food security. As per the submission, the Pradhan Mantri Garib
Kalyan Anna Yojana was launched to address economic disruptions
and is extended to free grain provision to Antyodaya Anna Yojana
and Priority Households to alleviate poverty burdens; Atma Nirbhar
Bharat Package allocated additional food grain for migrants during
the Covid-19 crisis; Pradhan Mantri Poshan Shakti Nirman Scheme
aims to improve nutrition among school students and accordingly
allocates food grains; Scheme for Adolescent Girls focuses to improve
the health and nutrition of adolescent girls aged 11 to 18 years;
Annapurna Scheme provides indigent senior citizens with free food
grains. The Advisories are being issued from time to time to include
millets and to widen nutritional standards to enhance nutrition levels
amongst the beneficiaries.
4. The learned counsels for the petitioners submitted that undoubtedly
the Union of India and the States have taken the steps to combat
hunger, malnutrition and starvation by implementing various Central
and State Government Schemes, however according to them even
if the hunger, malnutrition or starvation may not necessarily result in
[2024] 2 S.C.R.  817

Anun Dhawan & Ors. v. Union of India & Ors.

death, the Centre and States have the constitutional duty to ensure
basic sustainability of human life. The learned ASG Mr. R. Bala
submitted that this being not an adversarial litigation, the details of
schemes, programmes, policies and other measures taken by the
Central Government and the State Governments have been submitted
to satisfy the conscience of the court that they have successfully
implemented the schemes for protecting the fundamental rights
of the citizens. He also submitted that there is no further need for
continued monitoring by this Court.
5. It is significant to note that though the Constitution of India does
not explicitly provide for Right to food, the fundamental Right to life
enshrined in Article 21 of the Constitution does include Right to live
with human dignity and right to food and other basic necessities. The
Article 47 of the Constitution also provides that the State shall regard
the raising of level of nutrition and the standard of living of its people
and the improvement of public health as among its primary duties.
6. Keeping in view the goal of eradicating extreme poverty and hunger
as one of the goals of United Nations, and keeping in view the
constitutional guarantees for ensuring food security of the people as
also for improving the nutritional status of the population, especially of
women and children, the Parliament has enacted the National Food
Security Act, 2013 (for short NFSA). The object of the said Act is to
provide for food and nutritional security in human life cycle approach,
by ensuring access to adequate quantity of quality food at affordable
prices to people to live a life with dignity and for matters connected
therewith or incidental thereto. With the enactment of the NFSA there
was a paradigm shift in the approach to food security from “welfare
to rights based approach.” The said Act has been implemented in all
States/ UTs. One of the guiding principles of the Act is its “life cycle
approach, wherein special provisions have been made for pregnant
women and lactating mothers and children in the age group of 6
months to 14 years, by entitling them to receive nutritious meals free of
cost, through a widespread network of Integrated Child Development
Services (ICDS) centers, called Anganwadi centers under the ICDS
schemes, and also through the schools under Mid-day Meal (MDM)
scheme”. Higher nutritional norms have also been prescribed for
malnourished children. Pregnant women and lactating mothers are
entitled to receive cash maternity benefit to partly compensate them
for the wage loss during the period of pregnancy and to supplement
818 [2024] 2 S.C.R.

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nutrition. The Central Government after consultation with the State

Governments, has also framed the Rules called Cash Transfer of
Food Subsidy Rules 2015, in exercise of the powers conferred by
clause (d) of sub section 2 of Section 39 read with clause (h) of
sub section 2 of Section 12 of the NFSA. Under the said Rules, the
State Governments have been enabled to implement the scheme
with the approval of the Central Government to provide food subsidy
in cash directly into the bank accounts of entitled households to
purchase the entitled quantity of food grains from the open market.
Significantly, Chapter VI under the Head “Women Empowerment”
has been incorporated which provides that the eldest woman who
is not less than 18 years of age in every eligible household, shall
be head of the household for the purpose of issue of ration cards.
The Grievance Redressal Mechanism at the District and the State
level has also been provided for expeditious and effective redressal
of grievances of the aggrieved persons in the matters relating to
distribution of entitled food grains or meals under Chapter II and to
enforce entitlements under the Act.
7. Thus, there being a systematic legal framework provided under the
NFSA for the implementation of the schemes and programmes like
Targeted Public Distribution System, Mid-day Meal Scheme, Integrated
Child Development Services and Maternity Cash Entitlement along
with a Monitoring Mechanism and a Grievance Redressal Mechanism,
and the States/UTs having also implemented various other schemes
and programmes under the said Act, we do not propose to direct
the States/UTs to implement the concept of Community Kitchens as
prayed for by the petitioners in the instant petition.
8. It is well settled that the scope of judicial review in examining the
policy matters is very limited. The Courts do not and cannot examine
the correctness, suitability or appropriateness of a policy, nor are
the courts advisors to the executive on the matters of policy which
the executive is entitled to formulate. The Courts cannot direct the
States to implement a particular policy or scheme on the ground
that a better, fairer or wiser alternative is available. Legality of the
policy, and not the wisdom or soundness of the policy, would be the
subject of judicial review.1

1 Directorate of Film Festivals and Others vs. Gaurav Ashwin Jain and Others, (2007) 4 SCC 737
[2024] 2 S.C.R.  819

Anun Dhawan & Ors. v. Union of India & Ors.

9. As elaborated earlier, when the NFSA with a ‘right based approach’

for providing food and nutritional security, is in force and when
other welfare schemes under the said Act have also been framed
and implemented by the Union of India and the States, to ensure
access to adequate quantity of quality food at affordable prices to
people to live a life with dignity, we do not propose to give any further
direction in that regard. We have not examined whether the concept
of Community Kitchens is a better or wiser alternative available to
the States to achieve the object of NFSA, rather we would prefer to
leave it open to the States/UTs to explore such alternative welfare
schemes as may be permissible under the NFSA.
10. Subject to the afore stated observations, the Writ Petition is disposed
of.

Headnotes prepared by: Bibhuti Bhushan Bose Result of the case:

with assistance of Sanyam Mishra, LCRA Writ Petition disposed of
 [2024] 2 S.C.R. 820 : 2024 INSC 147

CDR Seema Chaudhary

v.
Union of India and Others
(Review Petition (Civil) No. 1036 of 2023)
In
Civil Appeal No 2216 of 2022
26 February 2024
[Dr Dhananjaya Y Chandrachud,* CJI and Hima Kohli, J.]

Issue for Consideration

Issues pertains to the grant of Permanent Commission to Women
Short Service Commission Officers in the Indian Navy.

Headnotes

Armed Forces – Indian Navy – Women Short Service

Commissioned Officers – Grant of permanent
commission – Petitioner commissioned in the Indian
Navy as a Short Service Commissioned Officer in
the Judge Advocate Generals’ Branch of the Indian
Navy – Petitioner was considered for permanent
commission but denied on the ground that there were
no vacancies – Petitioner moved this Court u/Art. 32
of the Constitution, but was relegated to the Armed
Forces Tribunal – Directions of the tribunal formed the
subject matter of challenge before this Court in Civil
Appeal which was disposed of – Hence, the instant
review petition:
Held: Serious element of prejudice caused to the petitioner
must be rectified so as to enforce the final directions of
this Court in *Lieutenant Commander Annie Nagaraja’s
case – Issuance of directions to consider the case of the
petitioner for the grant of Permanent Commission afresh by
reconvening a Selection Board – Selection Board to consider
the petitioner’s case on a stand alone basis uninfluenced
by any previous consideration of her case for PC and by
* Author
[2024] 2 S.C.R.  821

CDR Seema Chaudhary v. Union of India and Others

any observations contained in the order of the AFT – It is

clarified that in the event that pursuant to the directions
of the AFT, if a proportional increase in the vacancies is
required to be created to accommodate the petitioner, this
would be carried out without creating any precedent for the
future – Exercise of considering the petitioner afresh for PC
to be carried out on or before the stipulated date. [Paras
16-18,19,20]
Case Law Cited
*Union of India vs Lieutenant Commander Annie
Nagaraja [2020] 10 SCR 433 : (2020) 13 SCC 1 -
relied on.

List of Acts
Constitution of India.
List of Keywords
Permanent Commission; Short Service Commission Officers;
Indian Navy; Judge Advocate Generals’ Branch; Vacancies;
Armed Forces Tribunal; Review petition; Binding judgment;
Selection Board; Proportional increase in the vacancies.
Case Arising From
INHERENT JURISDICTION : Review Petition (Civil) No.1036 of 2023
In
Civil Appeal No.2216 Of 2022
From the Judgment and Order dated 20.10.2022 in C. A. No.2216 of
2022 of the Supreme Court of India
Appearances for Parties
Devadatt Kamat, Sr. Adv., Shivendra Singh, Javedur Rahman,
Mudassir, Advs. for the Petitioner.
R. Balasubramanian, Sr. Adv., Dr. Arun Kr Yadav, Dy. Gov./Adv.,
Anmol Chandan, Vatsal Joshi, Aniirudh Sharma Ii, Ishaan Sharma,
Sarthak Karol, Kiran Bala Sahay, Dr. N. Visakamurthy, Advs. for the
Respondents.
822 [2024] 2 S.C.R.

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Judgment / Order of the Supreme Court

Judgment
Dr Dhananjaya Y Chandrachud, CJI
1. A batch of petitions pertaining to the grant of Permanent
Commission1 to Short Service Commission2 Officers in the Indian
Navy was disposed of by this Court by its judgment in Union of
India vs Lieutenant Commander Annie Nagaraja3. The review
petitioner was one of the officers before this Court. The submissions
which were urged on her behalf were set out in paragraph 52 of
the judgment.
2. In order to appreciate the grievance in the review petition, a reference
to some of the salient facts would be in order. The petitioner was
commissioned in the Indian Navy as a Short Service Commissioned
Officer4 in the Judge Advocate Generals’5 Branch of the Indian
Navy on 6 August 2007. She was promoted on 6 August 2009 as
a Lieutenant and, thereafter, on 6 August 2012 as a Lieutenant
Commander. During the course of her service, she was granted an
extension in November 2016 for a period of two years and, thereafter,
for an equivalent duration in August 2018. On 5 August 2020, the
petitioner was informed that she would stand released from service
on 5 August 2021.
3. The judgment of this Court in Lieutenant Commander Annie
Nagaraja case (supra) was rendered by this Court on 17 March
2020. The directions which were issued by this Court would be of
relevance to the present case and are hence set out below:
“109.1. The statutory bar on the engagement or enrolment
of women in the Indian Navy has been lifted to the
extent envisaged in the Notifications issued by the Union
Government on 9-10-1991 and 6-11-1998 under Section
9(2) of the 1957 Act.

1 “PC”
2 “SSC”
3 [2020] 10 SCR 433 : (2020) 13 SCC 1
4 “SSCO”
5 “JAG”
[2024] 2 S.C.R.  823

CDR Seema Chaudhary v. Union of India and Others

109.2. By and as a result of the policy decision of the

Union Government in the Ministry of Defence dated
25-2-1999, the terms and conditions of service of SSC
officers, including women in regard to the grant of PCs
are governed by Regulation 203, Chapter IX, Part III of
the 1963 Regulations.
109.3. The stipulation in the Policy Letter dated 26-9-
2008 making it prospective and restricting its application
to specified cadres/branches of the Indian Navy shall not
be enforced.
109.4. The provisions of the implementation guidelines
dated 3-12-2008, to the extent that they are made
prospective and restricted to specified cadres are quashed
and set aside.
109.5. All SSC officers in the Education, Law and Logistics
cadres who are presently in service shall be considered
for the grant of PCs. The right to be considered for the
grant of PCs arises from the Policy Letter dated 25-2-
1999 read with Regulation 203 of Chapter IX Part III of
the 1963 Regulations. SSC women officers in the batch of
cases before the High Court and AFT, who are presently
in service shall be considered for the grant of PCs on the
basis of the vacancy position as on the date of judgments
of the Delhi High Court and AFT or as it presently stands,
whichever is higher.
109.6. The period of service after which women SSC
officers shall be entitled to submit applications for the
grant of PCs shall be the same as their male counterparts.
109.7. The applications of the serving officers for the grant
of PCs shall be considered on the basis of the norms
contained in Regulation 203 namely : (I) availability of
vacancies in the stabilised cadre at the material time;
(ii) determination of suitability; and (iii) recommendation
of the Chief of the Naval Staff. Their empanelment shall
be based on inter se merit evaluated on the ACRs of the
officers under consideration, subject to the availability of
vacancies.
824 [2024] 2 S.C.R.

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109.8. SSC officers who are found suitable for the grant of
PC shall be entitled to all consequential benefits including
arrears of pay, promotions and retiral benefits as and
when due.
109.9. Women SSC officers of the ATC cadre in Annie
Nagaraja case [Annie Nagaraja v. Union of India, 2015 SCC
OnLine Del 11804] are not entitled to consideration for the
grant of PCs since neither men nor women SSC officers
are considered for the grant of PCs and there is no direct
induction of men officers to PCs. In exercise of the power
conferred by Article 142 of the Constitution, we direct that as
a one-time measure, SSC officers in the ATC cadre in Annie
Nagaraja case [Annie Nagaraja v. Union of India, 2015 SCC
OnLine Del 11804] shall be entitled to pensionary benefits.
SSC officers in the ATC cadre in Priya Khurana case [Priya
Khurana v. Union of India, 2016 SCC OnLine AFT 798],
being inducted in pursuance of the specific representation
contained in the advertisements pursuant to which they
were inducted, shall be considered for the grant of PCs in
accordance with Directions 109.5 and 109.6 above.
109.10. All SSC women officers who were denied
consideration for the grant of PCs on the ground that they
were inducted prior to the issuance of the Letter dated 26-9-
2008 and who are not presently in service shall be deemed,
as a one-time measure, to have completed substantive
pensionable service. Their pensionary benefits shall be
computed and released on this basis. No arrears of salary
shall be payable for the period after release from service.
109.11. As a one-time measure, all SSC women officers
who were before the High Court and AFT who are
not granted PCs shall be deemed to have completed
substantive qualifying service for the grant of pension and
shall be entitled to all consequential benefits.”
4. The petitioner was an officer who was recruited before the Policy
Letter6 of 26 September 2008 was issued. The PL stipulated that while

6 “PL”
[2024] 2 S.C.R.  825

CDR Seema Chaudhary v. Union of India and Others

women SSCOs would be considered for grant of PC in stipulated

branches (JAG, Education and Naval Architecture), the letter would
have prospective effect. It was as a result of the application of the
PL dated 26 September 2008 that the petitioner was initially not
considered to be eligible for the grant of PC. In the directions contained
in paragraph 109.1 and 109.2, extracted above, this Court noted that
the statutory bar on the enrolment of women in the Indian Navy was
lifted in terms of the notifications issued by the Union Government
on 9 October 1991 and 6 November 1998 under Section 9(2) of
the Navy Act. Moreover, this Court held that the policy decision of
the Union Government dated 25 February 1999 would govern the
conditions of service of SSCOs including women officers in regard
to the grant of PCs in terms of Regulation 203 Chapter IX Part III
of the 1963 Regulations.
5. Having come to the above conclusion, this Court specifically directed
that the PL dated 26 September 2008, making it prospective and
restricting it to specified cadres, would stand quashed and set
aside. This Court directed that all SSCOs in the Education, Law and
Logistic Cadres who were “presently in service”, shall be considered
for the grant of PC. This entitlement arose from the PL dated 25
February 1999 read with Regulation 203 of Chapter IX of the Naval
Regulations 1963.
6. It is not in dispute that the case of the petitioner for being considered
for the grant of PC squarely arose in terms of the directions contained
in paragraph 109.5 of the judgment. The petitioner was considered
for the grant of PC after the judgment of this Court, but has been
denied PC on the ground that there were no vacancies.
7. The petitioner had earlier moved this Court under Article 32 of the
Constitution, but was relegated to the Armed Forces Tribunal7 by an
order dated 24 August 2021. When the petitioner moved the AFT,
the Tribunal issued certain directions in its judgment dated 3 January
2022. The AFT, inter alia, issued the following directions:
“122(a) Respondents to identify and generate a proportional
number of vacancies as a onetime measure to give a fair
and viable consideration to the overborne cadres including

7 “AFT”
826 [2024] 2 S.C.R.

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Exec/Law, Exec/GS, Exec/NAI which required vacancies

for fair consideration in Dec 2020. The following applicants
in this batch of cases be then considered afresh in their
own batches, along with those who were in service on
17.03.2020:
(i) Cdr Seema Chaudhary, Exec/Law, in OA 1972/2021.
(ii) Cdr Raja Kanwar, Exec/GS, in OA 1965/2021.
(iii) Cdr Bhupesh Kumar, Exec/GS, in OA 1966/2021.
122(d) Considering the peculiarities of Law cadre, eligible
SSC Law cadre officers of 2011 and 2014 batches who
also ought to have been considered in Selection Board Dec
2020, be now considered along with Cdr Seema Chaudhary
(applicant in OA 1972/2021) in the fresh consideration
directed to be undertaken.”
8. The above directions formed the subject matter of challenge before
this Court in Civil Appeal No 2216 of 2022.
9. The batch of civil appeals including the above civil appeal by the
petitioner came to be disposed of by this Court by its order dated
20 October 2022. From the judgment of this Court, it has emerged
that the principal submission before this Court was that the AFT
had relied on certain information which had been placed in a sealed
cover to which the officers before it were not privy. Based on the
submission, this Court restored the proceedings back to the AFT.
10. Mr Devadatt Kamat, senior counsel appearing on behalf of the
petitioner submits that inadvertently the specific facts of the case of
the petitioner were not drawn to the attention of the Court. It has been
submitted that the issue pertaining to the breach of the principles of
natural justice did not arise in the case of the review petitioner since
her case stood on a distinct foundation.
11. During the course of the hearing, Mr R Balasubramanian, senior
counsel appearing on behalf of the Naval authorities and the Union
of India does not dispute the factual position that the issue which
was dealt with in the judgment of this Court dated 20 October 2022
did not arise in the appeal which was filed by the petitioner against
the judgment of the AFT.
[2024] 2 S.C.R.  827

CDR Seema Chaudhary v. Union of India and Others

12. That being the position, we are of the view that the ends of justice
would require that the order which was passed by this Court on
20 October 2022 in Civil Appeal No 2216 of 2022 pertaining to
the petitioner, should be recalled. We order accordingly. We have
accordingly heard the civil appeal on merits in order to ensure that
a final resolution is brought to the matter.
13. The facts as they have been set out in the earlier part of this
judgment indicate that the petitioner is a JAG Branch officer recruited
on Short Service Commission in 2007. Clearly, therefore, she was
recruited at a time when the PL dated 25 February 1999 held the
field. The subsequent PL dated 26 September 2008 which was
prospective in nature was specifically dealt with in the judgment of
this Court in Lieutenant Commander Annie Nagaraja case. The
Court directed that the PL which made it prospective and confined
to certain specific branches would not be enforced. In other words,
the case of the petitioner for being considered for the grant of PC
was squarely required to be dealt with in terms of the position as it
stood independent of the PL dated 26 September 2008.
14. The submission which has been urged on behalf of the petitioner
is that the directions which have been issued by the AFT in its
impugned order dated 3 January 2022 are contrary to the binding
directions of this Court in its judgment in Lieutenant Commander
Annie Nagaraja. This submission has been advanced on the
ground that the petitioner who was an in-service officer on the
date of the judgment in Lieutenant Commander Annie Nagaraja
was required to be considered in terms of the directions issued
by this Court. However, the AFT in its impugned judgment dated
3 January 2022, directed that the petitioner should be considered
together with officers drawn from the 2011 and 2014 batches on
the ground that they ought to have been also considered in the
Selection Board in December 2020. It has been submitted that
this direction for the petitioner to be considered together with the
officers of later batches, namely, 2011 and 2014 has caused serious
prejudice to her.
15. Mr R Balasubramanian, senior counsel appearing on behalf of the
Union of India, on the other hand, submits that such a consideration
with subsequent batches was made in order to ensure that a fair
828 [2024] 2 S.C.R.

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opportunity was granted to all concerned officers and to widen the

field of consideration.
16. There is merit in the challenge to the direction which has been
issued by the AFT requiring that the candidature of the petitioner
for the grant of PC should be dealt with the batches of 2011 and
2014. To do so would amount to introducing a condition which was
not a part of the judgment of this Court in Lieutenant Commander
Annie Nagaraja. The binding judgment, which has to be enforced
is the decision of this Court in Lieutenant Commander Annie
Nagaraja. Any directions de-hors the judgment of the Court could
not obviously be issued. Though the case of the petitioner has been
considered after the decision in Lieutenant Commander Annie
Nagaraja, there is a serious element of prejudice which has been
caused to the petitioner which must be rectified so as to enforce the
final directions of this Court.
17. We accordingly order and direct that in the peculiar facts and
circumstances of this case, the case of the petitioner for the grant
of PC shall be considered afresh by reconvening a Selection Board.
The Selection Board shall consider the case of the petitioner on a
stand alone basis since it is common ground that she was the only
serving JAG Branch officer of the 2007 batch whose case for the
grant of PC was required to be considered. The consideration by
the Selection Board shall take place uninfluenced by any previous
consideration of her case for PC and uninfluenced by any observations
contained in the order of the AFT.
18. We however clarify that in the event that pursuant to the directions
of the AFT, if a proportional increase in the vacancies is required to
be created to accommodate the petitioner, this shall be carried out
without creating any precedent for the future. We have issued this
direction under Article 142 of the Constitution so as to ensure that
while no other officer is displaced, a long standing injustice to the
petitioner is duly rectified.
19. Any Annual Confidential Report which has not been communicated
to the petitioner shall not be considered for the purpose of the grant
of PC.
20. The exercise of considering the petitioner afresh for PC shall be
carried out on or before 15 April 2024.
[2024] 2 S.C.R.  829

CDR Seema Chaudhary v. Union of India and Others

21. Should the petitioner be aggrieved by any further decision that is

taken, she shall be at liberty to pursue her remedies in accordance
with law. It is understood by both the petitioner, who is personally
present before the Court, as well as the counsel for the Naval
authorities that all pending proceedings before the AFT relating to the
petitioner shall stand disposed of in view of the present directions.
22. The Review Petition is accordingly disposed of.
23. Pending applications, if any, stand disposed of.

Headnotes prepared by: Nidhi Jain Result of the case:

Review Petition disposed of.
 [2024] 2 S.C.R. 830 : 2024 INSC 149

Naresh Kumar
v.
State of Haryana
Criminal Appeal (No.) 1722 of 2010
22 February 2024
[J. B . Pardiwala and Manoj Misra, JJ.]

Issue for Consideration

Conviction of the appellant for the offence punishable u/s.306,
Penal Code, 1860, if justified.

Headnotes
Penal Code, 1860 – s.306 – Abetment of suicide – Evidence
Act, 1872 – s.113A – Presumption as to abetment of suicide
by a married woman – When cannot be raised – Conviction
of the appellant u/s.306, IPC – Correctness:
Held: In order to convict a person u/s.306, IPC there has to be a
clear mens rea to commit the offence – Mere harassment is not
sufficient to hold an accused guilty of abetting the commission of
suicide – It also requires an active act or direct act which led the
deceased to commit suicide – The ingredient of mens rea cannot
be assumed to be ostensibly present but has to be visible and
conspicuous – Presumption u/s.113A is discretionary – Before the
said presumption is raised, the prosecution must show evidence
of cruelty or incessant harassment in that regard – The mere fact
that the deceased committed suicide within a period of seven
years of her marriage, the presumption u/s.113A, Evidence Act
would not automatically apply – PW-4 and PW-5 (brother and
father of the deceased) only stated that after the marriage, there
was a demand of some money by the appellant, as he wanted to
start a ration shop and on account of such demand, the deceased
used to remain tense – However, what ultimately led the deceased
to take such a drastic step of committing suicide is not clear –
Their evidence does not disclose any form of incessant cruelty
or harassment on his part which would in ordinary circumstances
drag the wife to commit suicide as if she was left with no other
alternative – Mere demand of money from the wife or her parents

* Author
[2024] 2 S.C.R.  831

Naresh Kumar v. State of Haryana

for running a business without anything more would not constitute

cruelty or harassment – Prosecution did not establish the guilt
of the accused beyond reasonable doubt – Order of conviction
passed by Trial Court as affirmed by the High Court, set aside –
Appellant acquitted. [Paras 22, 29, 28, 10, 11 and 35-37]
Evidence Act, 1872 – s.113A – Requirements under –
Discussed.
Evidence Act, 1872 – s.113A – Assessment of evidence –
Duty of Courts:
Held: Court should be extremely careful in assessing evidence
u/s.113A for finding out if cruelty was meted out – If it transpires
that a victim committing suicide was hyper sensitive to ordinary
petulance, discord and differences in domestic life quite common
to the society to which the victim belonged and such petulance,
discord and differences were not expected to induce a similarly
circumstanced individual in a given society to commit suicide,
the conscience of the Court would not be satisfied for holding
that the accused charged of abetting the offence of suicide was
guilty. [Para 30]
Evidence Act, 1872 – ss.113A, 113-B– Presumptions under
both the sections – Fine distinction between:
Held: In s.113A the legislature has used the word ‘may’, whereas
in s.113B the word used is ‘shall’ – The term ‘the Court may
presume having regard to all other circumstances of the case that
such suicide had been abetted by her husband’ would indicate
that the presumption is discretionary, unlike the presumption
u/s.113B, which is mandatory – From the mere fact of suicide
within seven years of marriage, one should not jump to the
conclusion of abetment unless cruelty was proved – Court has
the discretion to raise or not to raise the presumption, because
of the words ‘may presume’ – It must take into account all the
circumstances of the case which is an additional safeguard.
[Paras 27, 29 and 32]
Administration of Justice – Administration of Criminal
Justice – Penal Code, 1860 – s.306 – Abetment of suicide
– Appreciation of evidence – Guilt of the accused to be
determined in accordance with law – Correct application
832 [2024] 2 S.C.R.

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of principles of law – Duty of Courts – In 1993, appellant’s

wife committed suicide by consuming poison allegedly on
account of incessant harassment by him – Appellant held
guilty u/s.306 IPC, his parents were acquitted by Trial Court
– Appellant’s conviction upheld by High Court – Acquitted
by Supreme Court in 2024:
Held: Ordeal of the appellant which started in 1993 has come to
an end in 2024, i.e. almost after a period of 30 years of suffering
– Although, a young woman died leaving behind her 6 months
old infant and no crime should go unpunished – But at the same
time, the guilt of the accused has to be determined in accordance
with law and on the basis of evidence on record – Courts below
faltered as they failed to apply the correct principles of law to
the evidence on record on the subject of abetment of suicide
and got enamoured by just three aspects, that the deceased
committed suicide within seven years of marriage, the accused
was demanding money from the parents of the deceased for
starting some business, and the deceased used to remain tense
– Though, these are not irrelevant considerations and are in fact
relevant but, in the case of accusation for abetment of suicide,
the court should look for cogent and convincing proof of the act
of incitement to the commission of suicide and such an offending
action should be proximate to the time of occurrence – In the
present case, on the basis of evidence on record, conviction of
the appellant for the offence punishable u/s. 306 of the IPC was
not sustainable – Appreciation of evidence in criminal matters is
a tough task and when it comes to appreciating the evidence in
cases of abetment of suicide punishable u/s.306 of the IPC, it
is more arduous – Court must remain very careful and vigilant
in applying the correct principles of law governing the subject of
abetment of suicide while appreciating the evidence on record
– Otherwise it may give an impression that the conviction is not
legal but rather moral. [Para 34]
Words and expressions – ‘may presume’ in s.113A, Evidence
Act, 1872 – Discussed.

Case Law Cited

Geo Varghese v. State of Rajasthan and another,
[2021] 10 SCR 393 : (2021) 19 SCC 144; M.
[2024] 2 S.C.R.  833

Naresh Kumar v. State of Haryana

Arjunan v. State, represented by its Inspector of

Police, (2019) 3 SCC 315; Ude Singh & Others v.
State of Haryana, [2019] 9 SCR 703 : (2019) 17
SCC 301; Mariano Anto Bruno & another v. The
Inspector of Police, [2022] 14 SCR 889 : (2022)
SCC Online SC 1387; Gurcharan Singh v. State
of Punjab, [2020] 8 SCR 741 : (2020) 10 SCC
200; Kashibai & Others v. The State of Karnataka,
[2023] 3 SCR 175 : (2023) SCC Online SC 575
– relied on.
Lakhjit Singh v. State of Punjab, (1994) Suppl. 1 SCC
173; Pawan Kumar v. State of Haryana, [1998] 1 SCR
746 : (1998) (3) SCC 309; Smt. Shanti v. State of
Haryana, [1990] Suppl. 2 SCR 675 : (1991) 1 SCC
371 – referred to.

List of Acts
Penal Code, 1860; Evidence Act, 1872; Code of Criminal Procedure,
1973; Criminal Law (Second Amendment) Act 46 of 1983; Criminal
Justice Act, 1967.

List of Keywords
Abetment of suicide; Abetment of suicide by married woman;
Within seven years of marriage; Presumption not automatic;
Presumption discretionary/mandatory; Mere harassment not
sufficient; Mens rea; Intention; Abetting the commission of
suicide; Active act or direct act; Cruelty or incessant harassment;
Demand of money; Cruelty meted out or not; Incitement to
commit suicide; Victim committing suicide hyper sensitive;
Appreciation of evidence; Correct application of principles of
law; Criminal Justice System; Guilt not established beyond
reasonable doubt.

Case Arising From

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.1722
of 2010
From the Judgment and Order dated 03.09.2008 of the High Court of
Punjab & Haryana at Chandigarh in CRLA No.726 of 1998
834 [2024] 2 S.C.R.

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Appearances for Parties

S.D. Singh, Mrs. Shweta Sinha, Ram Kripal Singh, Siddharth Singh,
Mrs. Aparna Jha, Advs. for the Appellant.
Raj Singh Rana, A.A.G., Samar Vijay Singh, Keshav Mittal, Ms.
Sabarni Som, Fateh Singh, Advs. for the Respondent.
Judgment / Order of the Supreme Court

Order
1. This appeal is at the instance of a convict accused and is directed
against the judgment and order dated 03.09.2008 passed by the
High Court of Punjab and Haryana at Chandigarh, in Criminal
Appeal No. 762-SB of 1998, by which the High Court dismissed
the appeal filed by the appellant herein and thereby affirmed
the judgment and order of conviction passed by the Additional
Sessions Judge, Karnal dated 08.09.1998/10.09.1998 in Sessions
Trial No. 06 of 1996 holding the appellant guilty of the offence
punishable under Section 306 of the Indian Penal Code (for
short ‘IPC’).
2. The short facts necessary to be narrated for disposal of this appeal,
are as under:-
The deceased, Rani, was married to the appellant herein. The
marriage was solemnized on 10.05.1992. The marriage of Rani
with the convict was her second marriage. In the wedlock with the
convict, Rani gave birth to a girl child.
The case of the prosecution is that soon after marriage, the appellant-
convict and her parents started demanding money as the appellant
convict wanted to start a ration shop. It may not be out of place to
state at this stage that the parents of the appellant-convict herein
were also put to trial for the alleged offence. However, they came
to be acquitted by the Trial Court.
The record reveals that on 19th November, 1993, Rani committed
suicide by consuming poison. According to the case of the
prosecution, Rani committed suicide on account of incessant
harassment at the end of her husband i.e., the appellant herein
and in such circumstances, the appellant-convict was charged
[2024] 2 S.C.R.  835

Naresh Kumar v. State of Haryana

with the offence of abetting the commission of suicide by his wife

punishable under Section 306 of the IPC.
In the course of the trial many witnesses were examined, however,
we have looked into the oral evidence of PW-4, namely, Madan Lal,
who happens to be the brother of the deceased and PW-5, Narata
Ram, who happens to be the father of the deceased.
ORAL EVIDENCE ON RECORD:
3. PW-4 Madan Lal (brother of the deceased) son of Narata Ram in
his examination in chief has deposed as under:-
“We are four brothers and 9 sisters. My younger sister
Rani was married to Naresh accused on 10-5-92 at
Kurukshetra as per Hindu rites and custom. At the time
of her marriage she was aged about 18/19 years. A
female child was born to my sister Rani after marriage.
The daughter of Rani at the time of death of Rani was
aged about 4 or 5 months. After about 2/2½ months of
marriage, Fakir Chand, Anguri and Naresh demanded
a sum of Rs. 50,000/- for starting business of Kiryana
shop for accused Naresh. We being poor person could
not arrange for the said money. We had performed the
marriage of our sister by selling family property (later
portion is volunteered). About one or quarter before death
of Rani we got opened a shop at our village Raison for
accused Naresh Kumar which he had run for about 8 or
9 months. Accused Naresh had run the shop for about 11
months. Since accused Naresh suffered loss, he wound
up the shop and left for Delhi. About 1½ month before
death of Rani, accused Naresh had taken her to Delhi. On
17-11-93 my sister Rani along with accused Naresh came
to our house. My sister Rani stated that accused Naresh,
Fakir Chand and Anguri Devi are raising demand of Rs.
20,000/- for opening a shop for Naresh. I, my father and
my mother told accused Naresh that we would arrange
the amount and pay the same after about 8 or 10 days.
On 19-11-93 accused Naresh and my sister left for Delhi
at about 7 a.m. saying that they are going and amount be
sent later. My sister Rani used to remain tense because
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of repeated demands by the accused. Getting fed up my

sister consumed some poisonous thing on 19-11-93. On
learning that my sister had consumed some poisonous
thing, we came to Karnal. Police met me at G.H. Karnal
where my statement Ex. PJ was recorded by the police
which was read over to me and after admitting the
contents, I signed the same. After post mortem, the dead
body of my sister was handed over to us on 20-11-93.”
4. PW-5 Narata Ram (father of the deceased) in his examination in
chief has deposed as under:-
“I have four sons and 9 daughters. My daughter Rani was
married to Naresh accused on 10-5-92 at Kurukshetra.
After about 2½ months of marriage all the accused
started harassing my daughter. They raised demand of
Rs. 50,000/- for opening a shop for Naresh. Being poor
people we could not arrange the amount. By arranging
some amount we opened a shop for accused Naresh at
Raison. Accused Naresh continued the shop for about 7
or 8 months. The accused Naresh Dulian Kha Pee Kay
left the shop and went to Delhi. After about 5 or 7 months
accused Naresh came to take my daughter Rani to Delhi.
On 17-11-93 accused Naresh alongwith my daughter Rani
came to our house. My daughter Rani told that all the
accused are demanding a sum of Rs. 20,000/- for starting
business at Delhi. I expressed my inability to pay same
day. At this Naresh told that either pay the amount or he
shall finish himself by consuming some poison. Accused
Naresh then left with my daughter. My daughter used to
remain tense due to repeated demands of the accused.
On learning that Rani had consumed some poisonous
thing we came to G.H. Karnal.”
5. The learned counsel appearing for the appellant convict submitted
that the Courts below committed an error in holding the appellant
guilty of having abetted the commission of suicide by the deceased.
He would submit that there is not an iota of evidence to even
remotely suggest that there was any kind of harassment, physical
or mental, to the deceased by her husband.
[2024] 2 S.C.R.  837

Naresh Kumar v. State of Haryana

6. In such circumstances, he would submit that the conviction be set

aside and the appellant convict be acquitted.
7. On the other hand, Ms. Sabarni Som, the learned counsel appearing
for the State of Haryana, submitted that no error not to speak of any
error of law could be said to have been committed by the Courts
below in holding the appellant guilty of the alleged offence. Much
emphasis was laid on the fact that the deceased committed suicide
within seven years from the date of her marriage.
8. The learned counsel appearing for the State tried to fortify her
above referred submission by relying on Section 113A of the Indian
Evidence Act, 1872 (for short ‘the Evidence Act’) which enables
raising of presumption as to abetment of suicide by a married
woman. She would submit that the oral evidence of PW-4 and PW-5
has been well appreciated and the Courts below have rightly held
the appellant guilty of the alleged offence.
ANALYSIS:
9. Having heard the learned counsel appearing for the parties and
having gone through the materials on record, the only question that
falls for our consideration is whether the High Court committed any
error in passing the impugned judgment?
10. We have looked into the evidence of PW-4 i.e., the brother of the
deceased and also the evidence of PW-5 i.e., the father of the
deceased. Both these witnesses have only stated that after the
marriage, there was a demand of some money by the convict, as
he wanted to start a ration shop. It appears from the evidence of
both these witnesses that on account of such demand, the deceased
used to remain tense.
11. What ultimately led the deceased to take such a drastic step of
committing suicide is not clear. To put it in other words, the plain
reading of the oral evidence of both these witnesses does not
disclose any form of incessant cruelty or harassment on the part
of the husband which would in ordinary circumstances drag the
wife to commit suicide as if she was left with no other alternative.
Mere demand of money from the wife or her parents for running
a business without anything more would not constitute cruelty or
harassment.
838 [2024] 2 S.C.R.

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12. Section 306 of the IPC reads as under :-

“306. Abetment of suicide.─If any person commits suicide,
whoever abets the commission of such suicide, shall be
punished with imprisonment of either description for a
term which may extend to ten years, and shall also be
liable to fine.”
13. Thus, the basic ingredients to constitute an offence under Section
306 of the IPC are suicidal death and abetment thereof. Abetment
of a thing is defined under Section 107 IPC as under:-
“107. Abetment of a thing.─A person abets the doing of
a thing, who─
First.─Instigates any person to do that thing; or
Secondly.─Engages with one or more other person or
persons in any conspiracy for the doing of that thing, if
an act or illegal omission takes place in pursuance of
that conspiracy, and in order to the doing of that thing; or
Thirdly.─Intentionally aids, by any act or illegal omission,
the doing of that thing.
Explanation 1.─ A person who by wilful misrepresentation,
or by wilful concealment of a material fact which he is bound
to disclose, voluntarily causes or procures, or attempts to
cause or procure, a thing to be done, is said to instigate
the doing of that thing.
Explanation 2.─ Whoever, either prior to or at the time
of the commission of an act, does anything in order to
facilitate the commission of that act, and thereby facilitate
the commission thereof, is said to aid the doing of that
act.”
14. This Court in Geo Varghese v. State of Rajasthan and another,
(2021) 19 SCC 144, has considered the provisions of Section 306
IPC along with the definition of abetment under Section 107 IPC
observed as under:-
“14. Section 306 of IPC makes abetment of suicide a
criminal offence and prescribes punishment for the same.
...
[2024] 2 S.C.R.  839

Naresh Kumar v. State of Haryana

15. The ordinary dictionary meaning of the word ‘instigate’

is to bring about or initiate, incite someone to do something.
This Court in Ramesh Kumar Vs. State of Chhattisgarh,
(2001) 9 SCC 618, has defined the word ‘instigate’ as
under:-
“20. Instigation is to goad, urge forward, provoke,
incite or encourage to do “an act”.”
16. The scope and ambit of Section 107 IPC and its
co-relation with Section 306 IPC has been discussed
repeatedly by this Court. In the case of S.S. Cheena Vs.
Vijay Kumar Mahajan and Anr (2010) 12 SCC 190, it was
observed as under:-
“25. Abetment involves a mental process of instigating
a person or intentionally aiding a person in doing of a
thing. Without a positive act on the part of the accused
to instigate or aid in committing suicide, conviction cannot
be sustained. The intention of the legislature and the ratio
of the cases decided by the Supreme Court is clear that
in order to convict a person under Section 306 IPC there
has to be a clear mens rea to commit the offence. It also
requires an active act or direct act which led the deceased
to commit suicide seeing no option and that act must have
been intended to push the deceased into such a position
that he committed suicide.”
15. This Court in M. Arjunan v. State, represented by its Inspector of
Police, (2019) 3 SCC 315, while explaining the necessary ingredients
of Section 306 IPC in detail, observed as under:-
“7. The essential ingredients of the offence under Section
306 I.P.C. are: (i) the abetment; (ii) the intention of the
accused to aid or instigate or abet the deceased to commit
suicide. The act of the accused, however, insulting the
deceased by using abusive language will not, by itself,
constitute the abetment of suicide. There should be
evidence capable of suggesting that the accused intended
by such act to instigate the deceased to commit suicide.
Unless the ingredients of instigation/abetment to commit
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suicide are satisfied, accused cannot be convicted under

Section 306 IPC.”
16. This Court in Ude Singh & Others v. State of Haryana, (2019) 17
SCC 301, held that in order to convict an accused under Section 306
IPC, the state of mind to commit a particular crime must be visible
with regard to determining the culpability. It was observed as under:-
“16. In cases of alleged abetment of suicide, there must
be a proof of direct or indirect act(s) of incitement to the
commission of suicide. It could hardly be disputed that
the question of cause of a suicide, particularly in the
context of an offence of abetment of suicide, remains a
vexed one, involving multifaceted and complex attributes
of human behavior and responses/reactions. In the case
of accusation for abetment of suicide, the Court would
be looking for cogent and convincing proof of the act(s)
of incitement to the commission of suicide. In the case of
suicide, mere allegation of harassment of the deceased
by another person would not suffice unless there be such
action on the part of the accused which compels the person
to commit suicide; and such an offending action ought to
be proximate to the time of occurrence. Whether a person
has abetted in the commission of suicide by another or not,
could only be gathered from the facts and circumstances
of each case.
16.1 For the purpose of finding out if a person has abetted
commission of suicide by another; the consideration would
be if the accused is guilty of the act of instigation of the act
of suicide. As explained and reiterated by this Court in the
decisions above referred, instigation means to goad, urge
forward, provoke, incite or encourage to do an act. If the
persons who committed suicide had been hypersensitive
and the action of accused is otherwise not ordinarily
expected to induce a similarly circumstanced person to
commit suicide, it may not be safe to hold the accused
guilty of abetment of suicide. But, on the other hand, if
the accused by his acts and by his continuous course of
conduct creates a situation which leads the deceased
perceiving no other option except to commit suicide, the
[2024] 2 S.C.R.  841

Naresh Kumar v. State of Haryana

case may fall within the four-corners of Section 306 IPC.

If the accused plays an active role in tarnishing the self-
esteem and self-respect of the victim, which eventually
draws the victim to commit suicide, the accused may be
held guilty of abetment of suicide. The question of mens
rea on the part of the accused in such cases would be
examined with reference to the actual acts and deeds of
the accused and if the acts and deeds are only of such
nature where the accused intended nothing more than
harassment or snap show of anger, a particular case may
fall short of the offence of abetment of suicide. However,
if the accused kept on irritating or annoying the deceased
by words or deeds until the deceased reacted or was
provoked, a particular case may be that of abetment of
suicide. Such being the matter of delicate analysis of
human behaviour, each case is required to be examined
on its own facts, while taking note of all the surrounding
factors having bearing on the actions and psyche of the
accused and the deceased.”
17. This Court in Mariano Anto Bruno & another v. The Inspector of
Police, 2022 SCC OnLine SC 1387, Criminal Appeal No. 1628 of
2022 decided on 12th October, 2022, after referring to the above
referred decisions rendered in context of culpability under Section
306 IPC observed as under:-
“44. . . . It is also to be borne in mind that in cases of
alleged abetment of suicide, there must be proof of direct
or indirect acts of incitement to the commission of suicide.
Merely on the allegation of harassment without their being
any positive action proximate to the time of occurrence on
the part of the accused which led or compelled the person
to commit suicide, conviction in terms of Section 306 IPC
is not sustainable.”
18. This Court in Gurcharan Singh v. State of Punjab, (2020) 10 SCC
200, observed that whenever a person instigates or intentionally aids
by any act or illegal omission, the doing of a thing, a person can
be said to have abetted in doing that thing. To prove the offence of
abetment, as specified under Section 107 IPC, the state of mind to
commit a particular crime must be visible, to determine the culpability.
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19. This Court in Kashibai & Others v. The State of Karnataka, 2023
SCC Online SC 575, Criminal Appeal No. 627 of 2023 (arising out of
SLP (Crl.) No. 8584/2022) decided on 28th February, 2023, observed
that to bring the case within the purview of ‘Abetment’ under Section
107 IPC, there has to be an evidence with regard to the instigation,
conspiracy or intentional aid on the part of the accused and for the
purpose proving the charge under Section 306 IPC, also there has
to be an evidence with regard to the positive act on the part of the
accused to instigate or aid to drive a person to commit suicide.
20. Had there been any clinching evidence of incessant harassment on
account of which the wife was left with no other option but to put an
end to her life, it could have been said that the accused intended
the consequences of his act, namely, suicide. A person intends a
consequence when he (1)foresees that it will happen if the given
series of acts or omissions continue, and (2)desires it to happen. The
most serious level of culpability, justifying the most serious levels of
punishment, is achieved when both these components are actually
present in the accused’s mind (a “subjective” test).
21. For intention in English law, Section 8 of the Criminal Justice Act,
1967 provides the frame in which the mens rea is assessed. It states:
“A court or jury, in determining whether a person has
committed an offence,
(a) shall not be bound in law to infer that he intended
or foresaw a result of his actions by reasons only
of its being a natural and probable consequence of
those actions; but
(b) shall decide whether he did intend or foresee that
result by reference to all the evidence, drawing such
inferences from the evidence as appear proper in
the circumstances.”
Under Section 8(b), therefore, the jury is allowed a wide
latitude in applying a hybrid test to impute intent or foresight
on the basis of all the evidence.
22. It is now well settled that in order to convict a person under Section
306 of the IPC there has to be a clear mens rea to commit the
offence. Mere harassment is not sufficient to hold an accused guilty
[2024] 2 S.C.R.  843

Naresh Kumar v. State of Haryana

of abetting the commission of suicide. It also requires an active act or

direct act which led the deceased to commit suicide. The ingredient
of mens rea cannot be assumed to be ostensibly present but has to
be visible and conspicuous.
23. We take notice of the fact that the High Court has laid much emphasis
on Section 113A of the Evidence Act.
24. Section 113A of the Evidence Act reads thus:-
“113A. Presumption as to abetment of suicide by a
married woman.─When the question is whether the
commission of suicide by a woman had been abetted
by her husband or any relative of her husband and it is
shown that she had committed suicide within a period of
seven years from the date of her marriage and that her
husband or such relative of her husband had subjected
her to cruelty, the court may presume, having regard to
all the other circumstances of the case, that such suicide
had been abetted by her husband or by such relative of
her husband.
Explanation.─For the purposes of this section, “cruelty”
shall have the same meaning as in section 498A of the
Indian Penal Code (45 of 1860).”
25. This Section was introduced by the Criminal Law (Second
Amendment) Act 46 of 1983. The Indian Penal Code, the Code
of Criminal Procedure, 1973 and the Evidence Act were amended
keeping in view the dowry death problems in India.
26. The Section requires proof (1) that her husband or relatives subjected
her to cruelty and (2) that the married woman committed suicide
within a period of seven years from the date of her marriage.
27. Although, it is not necessary for us to refer to Section 113B of the
Evidence Act which raises presumption as to dowry death yet with
a view to indicate the fine distinction between the two presumptions
we are referring to Section 113B. In Section 113A the legislature
has used the word ‘may’, whereas in Section 113B the word used
is ‘shall’.
28. In this appeal, we are concerned with Section 113A of the Evidence
Act. The mere fact that the deceased committed suicide within
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a period of seven years of her marriage, the presumption under

Section 113A of the Evidence Act would not automatically apply.
The legislative mandate is that where a woman commits suicide
within seven years of her marriage and it is shown that her husband
or any relative of her husband had subjected her to cruelty, the
presumption under Section 113A of the Evidence Act may be
raised, having regard to all other circumstances of the case, that
such suicide had been abetted by her husband or by such relative
of her husband.
29. What is important to note is that the term ‘the Court may presume
having regard to all other circumstances of the case that such
suicide had been abetted by her husband’ would indicate that the
presumption is discretionary, unlike the presumption under Section
113B of the Evidence Act, which is mandatory. Therefore, before
the presumption under Section 113A is raised, the prosecution
must show evidence of cruelty or incessant harassment in that
regard.
30. The court should be extremely careful in assessing evidence
under section 113A for finding out if cruelty was meted out. If it
transpires that a victim committing suicide was hyper sensitive
to ordinary petulance, discord and differences in domestic life
quite common to the society to which the victim belonged and
such petulance, discord and differences were not expected to
induce a similarly circumstanced individual in a given society to
commit suicide, the conscience of the Court would not be satisfied
for holding that the accused charged of abetting the offence of
suicide was guilty.
31. Section 113A has been interpreted by this Court in Lakhjit Singh v.
State of Punjab, 1994 Suppl (1) SCC 173, Pawan Kumar v. State
of Haryana, 1998(3) SCC 309, and Smt. Shanti v. State of Haryana,
1991(1) SCC 371.
32. This Court has held that from the mere fact of suicide within seven
years of marriage, one should not jump to the conclusion of abetment
unless cruelty was proved. The court has the discretion to raise or
not to raise the presumption, because of the words ‘may presume’.
It must take into account all the circumstances of the case which is
an additional safeguard.
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Naresh Kumar v. State of Haryana

33. In the absence of any cogent evidence of harassment or cruelty, an

accused cannot be held guilty for the offence under Section 306 of
IPC by raising presumption under Section 113A.
34. Before we part with this matter, we may only observe that the criminal
justice system of ours can itself be a punishment. It is exactly what
has happened in this case. It did not take more than 10 minutes for
this Court to reach to an inevitable conclusion that the conviction of
the appellant convict for the offence punishable under Section 306 of
the IPC is not sustainable in law. The ordeal for the appellant started
some time in 1993 and is coming to the end in 2024, i.e. almost after a
period of 30 years of suffering. At the same time, we are also mindful
of the fact that a young woman died leaving behind her 6 months old
infant. No crime should go unpunished. But at the same time, the guilt
of the accused has to be determined in accordance with law. To put
it in other words, the guilt of the accused has to be determined on
the basis of legal evidence on record. The question is : On what and
where did the two courts falter? In our opinion, the two courts faltered
as they failed to apply the correct principles of law to the evidence
on record on the subject of abetment of suicide. The two courts got
enamoured by just three things, (i) the deceased committed suicide
within seven years of marriage, (ii) the accused was demanding
money from the parents of the deceased for starting some business,
and (iii) the deceased used to remain tense. We do not say that
these are irrelevant consideration. All the three aspects are relevant.
But there are settled principles of law to be made applicable to the
matters of the present type. In the case of accusation for abetment of
suicide, the court should look for cogent and convincing proof of the
act of incitement to the commission of suicide and such an offending
action should be proximate to the time of occurrence. Appreciation
of evidence in criminal matters is a tough task and when it comes to
appreciating the evidence in cases of abetment of suicide punishable
under Section 306 of the IPC, it is more arduous. The court must
remain very careful and vigilant in applying the correct principles of
law governing the subject of abetment of suicide while appreciating
the evidence on record. Otherwise it may give an impression that
the conviction is not legal but rather moral.
35. For all the foregoing reasons, we have reached to the conclusion
that the prosecution has not been able to establish the guilt of the
accused beyond reasonable doubt.
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36. In the result, the appeal succeeds and is, hereby, allowed. The
judgment and order of conviction passed by the Trial Court as affirmed
by the High Court is, hereby, set aside.
37. The appellant stands acquitted of the charge framed against him.
38. Pending the present appeal, vide order dated 13.05.2009 a coordinate
Bench had ordered release of the convict on bail. Since the appeal
is being allowed and the convict is being acquitted, the bail bond(s)
furnished then shall also stand discharged.

Headnotes prepared by: Divya Pandey Result of the case:

Appeal allowed.
 [2024] 2 S.C.R. 847 : 2024 INSC 135

Lucknow Nagar Nigam & Others

v.
Kohli Brothers Colour Lab. Pvt. Ltd. & Others
(Civil Appeal No. 2878 of 2024)
22 February 2024
[B.V. Nagarathna* and Ujjal Bhuyan, JJ.]

Issue for Consideration

1) Whether statutory vesting of property termed as enemy
property under the provisions of the Enemy Property Act,
1968 amounts to expropriation which leads to change of its
status inasmuch as its ownership is transferred to the Union
of India;
2) If there is a transfer of ownership by its statutory vesting
in the Custodian for Enemy Property, whether the Union
within the meaning of Article 285 of the Constitution would
be entitled to exemption from payment of property or other
local taxes to Municipal Corporation under provisions of
the UP Municipal Corporation Adhiniyam, 1959 (Act of
1959); and
3) Despite becoming the property of the Union, whether, clause
(2) of Article 285 enables the appellant to impose property or
other local taxes on the respondent, which is lessee of the
subject enemy property.

Headnotes
Enemy Property Act, 1968 – Whether statutory vesting
of enemy property including the subject property in the
Custodian for Enemy Property amounts to expropriation
and transfer of ownership so as to confer ownership of such
enemy property on the Custodian – Enemy Property Rules,
2015 – r.15.
Held: The Custodian for Enemy Property in India, in whom the
enemy properties vest including the subject property, does not
acquire ownership of the said properties – The enemy properties
vest in the Custodian as a trustee only for the management and

* Author
848 [2024] 2 S.C.R.

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administration of such properties – The Central Government may,

on a reference or complaint or on its own motion initiate a process
of divestment of enemy property vested in the Custodian to the
owner thereof or to such other person vide Rule 15 of the Rules
– Hence, the vesting of the enemy property in the Custodian is
only as a temporary measure and he acts as a trustee of the said
properties – In view of the position of a Custodian, who under
the Enemy Property Act, 1968, acts as the trustee for the enemy
property under the Act and not as the owner of the property, but
as a protector of the property vested in him, the Custodian can
never be an owner or having any right, title or interest in the enemy
property as owner.[Paras 16.1, 22.4]
Taxation – Of Enemy property – Constitution of India – Art.
285 – If ownership of enemy property is conferred on the
Custodian for Enemy Property, whether such property
becomes Union property within meaning of Art. 285 of
the Constitution and therefore, it is exempt from payment
of property or other local taxes to appellant-Municipal
Corporation under provisions of the Act of 1959 – Whether
despite such enemy property becoming property of the
Union, clause (2) of Article 285 of the Constitution enables
appellant to impose property or other local taxes on the
respondent which is lessee of the subject property – Enemy
Property Act, 1968 – UP Municipal Corporation Adhiniyam,
1959.
Held: Vesting of enemy property in the Custodian does not
transfer ownership of such property in the Custodian and by
that process in the Union or Central Government, but since the
Custodian is only a trustee of the enemy property, the same is
liable to tax in accordance with law, including to the appellant
– The Custodian is only authorised to pay the taxes on the
subject enemy property – The Custodian while doing so is not
acting on behalf of the Union Government being the owner of
the enemy property, rather, the Custodian who is appointed by
the Central Government under the provisions of the Act, which
is a Central legislation only discharges his duties and functions
under the provisions of the Parliamentary legislation i.e. the Act
under consideration – Such discharge of duties and functions,
including the payment of taxes vis-à-vis enemy property vested
in him would not also by the same logic imply that the Custodian
[2024] 2 S.C.R.  849

Lucknow Nagar Nigam & Others v. Kohli Brothers Colour Lab.

Pvt. Ltd. & Others

is acting as if the property vested in him has become the Union

property – Mere vesting of enemy property in the Custodian
does not transfer ownership of the same from the enemy to the
Union or to the Central Government; the ownership remains with
the enemy but the Custodian only protects and manages the
enemy property and in discharging his duties as the Custodian
or the protector of enemy property he acts in accordance with
the provision of the Act and on the instructions or guidance of
the Central Government – The reason as to why the Central
Government is empowered to issue guidelines or instructions to
the Custodian is because the Custodian is appointed under the
Act which is a Parliamentary legislation and the reason why the
Parliament has passed the said law is in order to have a uniformity
vis-à-vis all enemy properties throughout the length and breadth
of the country in that the same are protected, managed and dealt
with uniformly in accordance with the provisions of the Act – Union
of India cannot assume ownership of the enemy properties once
the said property is vested in the Custodian – This is because,
there is no transfer of ownership from the owner of the enemy
property to the Custodian and consequently, there is no ownership
rights transferred to the Union of India – Therefore, the enemy
properties which vest in the Custodian are not Union properties
– As the enemy properties are not Union properties, clause (1)
of Article 285 does not apply to enemy properties – Clause (2)
of Article 285 is an exception to clause (1) and would apply only
if the enemy properties are Union properties and not otherwise
– High Court was not right in holding that the respondent as
occupier of the subject enemy property, is not liable to pay any
property tax or other local taxes to the appellant – Consequently,
any demand for payment of taxes under the Act of 1959 made
and thereby paid by the respondent to the appellant-authority
shall not be refunded – However, if no demand notices have
been issued till date, the same shall not be issued but from the
current fiscal year onwards (2024-2025), the appellant shall be
entitled to levy and collect the property tax as well as water tax
and sewerage charges and any other local taxes in accordance
with law. [Paras 17.9, 22.4]
Constitution of India – Art.300A – Art. 300A states that no
person shall be deprived of his property save by authority
of law – Expressions “law”, “person”, “property” and “by
authority of law” – Meaning of – Whether having regard to
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Art. 300A, taking possession of the enemy property for the

purpose of administration of the same by the Custodian, is
an instance of transfer of ownership from the true owner to
the Custodian and thereby to the Union – Enemy Property
Act, 1968.
Held: The word “law” is with reference to an Act of Parliament or
of a State Legislature, a rule or a statutory order having the force
of law – Although, to hold property is not a fundamental right, yet
it is a constitutional right – The expression person in Article 300-A
covers not only a legal or juristic person but also a person who is
not a citizen of India – The expression property is also of a wide
scope and includes not only tangible or intangible property but also
all rights, title and interest in a property – Before a person can
be deprived of his right to property, the law must expressly and
explicitly state so – Thus, the expression by authority of law means
by or under a law made by the competent Legislature – Having
regard to the salutary principles of Art. 300-A, one cannot construe
the taking of possession of the enemy property for the purpose
of administration of the same by the Custodian, as an instance of
transfer of ownership from the true owner to the Custodian and
thereby to the Union – This position is totally unlike the position
under the provisions of the Land Acquisition Act, 1894 or the
subsequent legislation of 2013 which are expropriatory legislations
under which acquisition of land would inevitably result in transfer
of the ownership of the land from the owner to the State which is
the acquiring authority, but the same would be subject to payment
of a reasonable and fair compensation to the owner. [Paras 18
and 18.2]
Words and Phrases – Expression “vest” and “vesting” –
Meaning of.
Held: The expression ‘vest’ or ‘vesting’ has no precise definition
and it would depend upon the context in which the expression is
used under a particular enactment – The word ‘vesting’ is a word
of variable input and has more than one meaning which must be
discerned and the exact connotation must be found by looking
into the scheme of law and the context in which it is used – The
setting in which it is used would lend colour to it and divulge the
legislative intent – Vesting of property in a person or authority does
not always mean transfer of absolute title in the property. [Para 16]
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Enemy Property Act, 1968 – Jurisprudential aspects of

ownership of property vis-à-vis the status of the Custodian
of Enemy Property for India under the Act – Jurisprudential
aspects of vesting or taking possession as per provisions of
the Act – Relationship between possession and ownership.
[Paras 14 to 14.16]
Constitution of India – Article 285 – Scope and ambit of the
two clauses of Art. 285 – Discussed. [Paras 21.1 to 21.10]

Case Law Cited

Union of India v. Raja Mohammad Amir Mohammad
Khan, [2005] Suppl. 4 SCR 390 : (2005) 8 SCC 696;
Delhi Administration v. Madan Lal Nangia, [2003]
Suppl. 4 SCR 360 : (2003) 10 SCC 321; Lieutenant
Governor of Delhi v. Matwal Chand (Dead) through LRs,
[2015] 10 SCR 346 : (2015) 15 SCC 576; Municipal
Commissioner of Dum Dum Municipality v. Indian
Tourism Development Corporation, [1995] Suppl. 2
SCR 433 : (1995) 5 SCC 251; Electronics Corporation
of India v. Secretary, Revenue Department, Govt. of
Andhra Pradesh, [1999] 2 SCR 1078 : (1999) 4 SCC
458; Union of India v. State of Uttar Pradesh, [2007]
11 SCR 792 : (2007) 11 SCC 324; Rajkot Municipal
Corporation v. Union of India, (2013) 14 SCC 599;
State of Uttar Pradesh v. Uttar Pradesh Rajya Khanij
Vikas Nigam Sangharsh Samiti, (2008) 12 SCC 675;
NDMC v. State of Punjab, [1996] Suppl. 10 SCR 472 :
(1997) 7 SCC 339; Fruit and Vegetable Merchants
Union, Subzi Mandi, Delhi v. Delhi Improvement Trust,
Regal Buildings, Cannaught Place, [1957] 1 SCR 1 :
AIR 1957 SC 344; Maharaj Singh v. State of Uttar
Pradesh, [1977] 1 SCR 1072 : (1977) 1 SCC 155; Dr.
M. Ismail Faruqui vs. Union of India, [1994] Suppl.
5 SCR 1 : (1994) 6 SCC 360; Indian Handicrafts
Emporium v. Union of India, [2003] Suppl. 3 SCR
43 : (2003) 7 SCC 589; Chandigarh Housing Board
v. Major-General Devinder Singh (Retd.), [2007] 3
SCR 1049 : (2007) 9 SCC 67; KT Plantation Pvt. Ltd.
v. State of Karnataka, [2011] 13 SCR 636 : (2011)
9 SCC 1; Union of India v. City Municipal Council,
Bellary, [1979] 1 SCR 573 : AIR 1978 SC 1803; Kohli
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Brothers v. Amir Mohammad Khan, (2012) 12 SCC

625 – referred to.
State of Andhra Pradesh v. V. Subba Rao, 2011
SCC OnLine AP 838; State of Gujarat v. The Board
of Trustees of Port of Kandla, (1979) 1 GLR 732;
Bibhutibhushan Datta v. Anadinath Datta, AIR 1934
Cal 87; The Governor-General of India in Council v.
The Corporation of Calcutta, AIR 1948 Cal 116; The
Corporation of Calcutta v. Governors of St. Thomas’
School, Calcutta, AIR 1949 FC 121 – referred to.

List of Acts
Enemy Property Act, 1968; Enemy Property Rules, 2015; Defence
of India Act, 1971; UP Municipal Corporation Adhiniyam, 1959;
Constitution of India.

List of Keywords
Statutory vesting; Enemy property; Expropriation; Ownership;
Possession; Transfer; Custodian; Exemption; Tax; Municipal;
Trustee; Central legislation; Union property; Parliamentary
legislation; Property tax; Law, Person, Property; Authority of law;
Fundamental right; Constitutional right; Citizen; Expropriatory
legislation; Compensation; Vest; Vesting; Connotation; Absolute
title; Jurisprudential aspect.

Case Arising From

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2878 of 2024
From the Judgment and Order dated 29.03.2017 of the High Court of
Judicature at Allahabad, Lucknow Bench in WPMB No. 2317 of 2012
Appearances for Parties
Kavin Gulati, Sr. Adv., Yash Pal Dhingra, Mukesh Verma, Pankaj
Kumar Singh, Dushyant Sharma, Advs. for the Appellants.
Balbir Singh, A.S.G., S. Gurukrishna Kumar, Rana Mukherjee, Sr.
Advs., Sunil Kumar Jain, Rajan Kumar Chourasia, Ms. Aakanksha
Kaul, Ms. Suhasini Sen, Ms. Gargi Khanna, Rupesh Kumar, Bhuvan
Kapoor, Arvind Kumar Sharma, Randhir Singh, Devesh Tuli, Dr.
Vijendra Singh, Deepak Goel, Ms. Apurva Singh, Sagar Mehlawat,
Kapil Prajapati, Advs. for the Respondents.
[2024] 2 S.C.R.  853

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Judgment / Order of the Supreme Court

Judgment
Nagarathna, J.
Leave granted.
2. The present Civil Appeal has been filed by the Lucknow Nagar
Nigam (‘Municipal Corporation’) impugning the judgment of the
High Court of Allahabad that has allowed the Writ Petition filed by
respondent herein (‘the assessee’), thereby holding that the assessee
is exempt from payment of property tax under the provisions of the
UP Municipal Corporation Adhiniyam, 1959 (hereinafter referred to
as “Act of 1959”, for brevity sake).
Bird’s Eye View of the Controversy:
3. Whether statutory vesting of property termed as enemy property
under the provisions of the Enemy Property Act, 1968 (hereinafter
referred to as “the Act” for the sake of convenience) amounts to
expropriation which leads to the change of its status inasmuch as its
ownership is transferred to the Union of India, is a question that has
arisen in the present appeal. If there is a transfer of ownership by its
statutory vesting in the Custodian for Enemy Property, whether the
Union within the meaning of Article 285 of the Constitution of India
would be entitled to exemption from payment of property or other
local taxes to Municipal Corporation under the provision of the Act
of 1959 is another question that has arisen in the present appeal.
Further, despite becoming the property of the Union, whether, clause
(2) of Article 285 enables the appellant herein to impose property
or other local taxes on the respondent, which is the lessee of the
subject property is the third question which arises in this appeal.
Relevant Facts of the Case:
4. The subject property is an Enemy Property within the meaning of
the Act bearing House No.31/28/04(31/59) located on Mahatma
Gandhi Marg, Lucknow, owned by the Raja of Mahmudabad, who
migrated to Pakistan in the year 1947. A portion of the property is
currently occupied and utilized for profit-generating purposes by the
respondent-assessee, in this case.
4.1 Historically, prior to the fiscal year 1998-1999, the appellant-
Municipal Corporation imposed and collected taxes in
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accordance with Rule No.174 ‘ka’ of the Act of 1959 from the
assessee. However, in the fiscal year 1998-1999, it came to
the Municipal Corporation’s attention that the assessee was
operating a commercial establishment within the premises.
Consequently, the appellant-Municipal Corporation conducted
an assessment based on Capital Value and issued a notice to
the assessee regarding the assessed Annual Value.
4.2 It is pertinent to note that respondent No.2, Office of the
Custodian of Enemy Property for India (for short ‘the Custodian’),
under the Ministry of Commerce, Government of India, issued
a Certificate on 03.10.2002, stating that the subject property
bearing premises No.53-54, Lawrie Building Hazaratganj,
Lucknow, is Enemy Property vested with the Custodian. The
Certificate also explicitly stated that the Custodian was obligated
to pay house tax and other local taxes on behalf of this property.
4.3 The assessee, along with other tenants, inter-alia, contested
the assessment orders issued by the Municipal Corporation and
approached the High Court of Allahabad at Lucknow by filing
Writ Petition being Misc. Bench No. 3979 of 2003. However,
this legal action was ultimately uncontested by the tenants and
was subsequently dismissed vide order dated 30.03.2017.
4.4 Due to outstanding dues of Rs.1,621,987.00/- under the
head of House Tax concerning the Enemy Property No.31/58
Hazaratganj, the Municipal Corporation, vide letter dated
28.03.2005 notified the District Magistrate, Lucknow, of its
intention to proceed with attachment and sealing of the said
premises under Sections 506-509 of the Act of 1959.
4.5 At this juncture, it is necessary to state that Raja Mohammed
Amir Mohammad Khan, the son of the Raja of Mahmudabad,
who remained in India as an Indian citizen, had been actively
seeking the release of enemy properties owned by his late
father. He contended that these properties should no longer be
vested with the Custodian after his father’s demise as they were
now vested in him, an Indian citizen. While the Government
had agreed to release 25% of these properties, it had not yet
acted upon this commitment. In response, Raja Mohammed
Amir Mohammad Khan approached the Bombay High Court
by way of filing WP No.1524 of 1997. The High Court ruled
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in his favor, directing the Custodian to surrender possession

of the properties to him. Being aggrieved with this decision,
the Union of India approached this Court by way of filing SLP
(C) No.22452 of 2001, which was converted to Civil Appeal
No.2501 of 2002. This Court by its judgment dated 21.10.2005
reported in Union of India vs. Raja Mohammad Amir
Mohammad Khan, (2005) 8 SCC 696 (‘Amir Mohammad
Khan’), dismissed the appeal preferred by the Union of India
and directed the Union of India to get the buildings (residence
or offices) vacated from such officers and handover the
possession to Raja Mohammed Amir Mohammad Khan within
eight weeks. The Court further directed that the officers who
are in occupation of buildings for their residences or for their
offices shall immediately vacate and hand over the buildings
or the properties to the Custodian to enable him to hand over
the possession.
4.6 As a result of these orders, proceedings were initiated by
various tenants, including respondent No.1. This Court, in SLP
(Civil) No.14943 of 2006 vide order dated 08.09.2006, clarified
its earlier judgment dated 21.10.2005 passed in Civil Appeal
No.2501 of 2002. It was clarified by this Court that individuals
who were allotted properties by the Custodian or who came
into possession after 1965, i.e., following the declaration of
Raja Mahmudabad’s property as an enemy property and the
appointment of the Custodian, were required to vacate these
properties. However, persons claiming possession prior to the
Custodian’s appointment, based on valid tenancy agreements
established by Raja Mahmudabad or his General Power of
Attorney, were exempted from this directive. The enquiry
conducted in pursuance to the above orders of this Court
dated 08.09.2006 resulted in a report in favour of respondent
No.1 herein as well as other similarly situated tenants. Ergo,
they continued to remain in possession vide Amir Mohammad
Khan.
4.7 Following these events, on 28.05.2011, the appellant No.3,
issued a notice to the assessee, demanding payment of Rs.
7,57,239.00/-. The notice warned of proceedings for recovery
and attachment through the District Magistrate under Section
64 if the payment was not settled within three days.
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4.8 Aggrieved by the aforesaid action, the assessee approached

the High Court of Allahabad at Lucknow by filing Writ Petition
being Misc. Bench No.2317 of 2012 seeking the following reliefs:
"(a) issue a writ of prohibition or a writ, order or direction
in the nature of prohibition prohibiting the opposite
parties no.1 & 2 not to make any assessment or
raise bill for payment of House Tax or Water Tax/
or the property in the name and style of Lawrie
Building situated at 50, Hazratganj, Lucknow being
the property of Union of India and exempted from
State taxation;
(b) issue a writ of certiorari or a writ, order or direction in
the nature of certiorari quashing the impugned bills/
recovery notice in respect of payment of House Tax
for the year 2010-11, issued by the opposite party no.I,
contained in Annexure Number 1 to the writ petition;
(c) issue a writ of certiorari or a writ, order or direction
in the nature of certiorari quashing the impugned
bills/recovery notice dated 28.5.2011, issued by the
opposite party no.2, contained in Annexure Number
2 to the writ petition; and
(d) issue a writ of mandamus or a writ, order or direction
in the nature of mandamus commanding _the
respondent numbers 1 to 3 to refund the amount
of Rs.7,29,7461- and Rs.2 lacs deposited by the
petitioner along with interest at the rate of 18%
per annum and within such time as may kindly be
stipulated by this Hon’ble Court”
4.9 During the pendency of the said proceedings, appellants’ counsel
conceded that, as per the provisions of the Constitution of India,
the appellants could not levy taxes on property belonging to
the Government of India or Union properties. However, the
appellants reserved the right to demand applicable fees for
services rendered, such as water and sewerage charges.
4.10 By virtue of the impugned judgment and order dated 29.03.2017,
the High Court allowed the writ petition and quashed the recovery
notice dated 28.05.2011 on the ground that this case pertained
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exclusively to taxes, namely House Tax and Water Tax, which

are not applicable to the respondent No.1 since the property in
question is an enemy property. The High Court further directed
respondent No.1 to make representations for the recovery of
any amounts previously paid to the appellants.
Hence, the appellants have preferred this civil appeal.
Respondent No.2 has filed his counter affidavit which we have
perused.
Submissions:
Submissions of the appellants:
5. Sri Kavin Gulati, learned senior counsel appearing on behalf of the
Municipal Corporation, at the outset, submitted that the High Court
erroneously held that the House Tax and Water Tax levied herein
are not leviable on the assessee respondent herein in respect of
property which is admittedly an enemy property and not property
of the Union or Central Government. Therefore, it was submitted:
a) that the property is merely in the custody of the Custodian as
specified under the Act. That the preamble of the Act provides
that this is “An Act to provide for the continued vesting of
Enemy Property”. That there is no declaration by the Union
Government through any legislation declaring the properties to
be the property of the Union Government. The only declaration
that is contained is to vest the property in the Custodian without
a further declaration that the property vests absolutely in the
Union Government free from all encumbrances. That whenever
the legislature desired that any property vests absolutely in the
Central Government, it would be specifically provided so as in
the case of Sections 16 and 17 of the Land Acquisition Act,
1984 as well as in the case of Section 269 of the Income Tax
Act, 1961. But the same is conspicuous by its absence under
the Act under consideration;
b) that a perusal of the scheme of the Act, more particularly, the
Preamble, Section 2(c) and its proviso, Sections 15(1), 17(1)(c),
and 18 read with Rule 5(1) and proviso 2, 5(2), 5(3) and 15(1)
cumulatively would establish that the Custodian has certain
obligations regarding Enemy Property. However, the Central
Government or the Custodian is not vested with ownership of
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the same. Section 2(c), which defines enemy property reads

that it “means any property for the time being belonging to or
held or managed on behalf of an enemy…”. That the expression
“for the time being” would show that the nature of vesting is not
permanent and that the vesting is only for the management of
the enemy property;
c) that for the Union Government to claim ownership of enemy
property, it must follow the tenets of Article 300-A of the
Constitution of India as well as other relevant provisions of the
Constitution, which allow the acquisition of private properties
only on payment of a fair compensation. This constitutional
right is available to all persons and not just to citizens of India.
Being aware of the aforesaid position that enemy properties
do not become properties of the Union of India, the legislature
has under Section 8(2)(vi) of the Act permitted the Custodian
for Enemy Property to deposit Municipal Taxes vis-à-vis enemy
property vested in him;
d) that even though the Union of India may have overarching
control over Enemy Properties, the status of the Union or
Central Government is not that of an owner. The Custodian is a
statutory authority in whom there is vesting of enemy property,
which is different from having ownership over the same. The
fact that the Custodian can sell properties to third parties is akin
to the powers available to a Receiver or a Liquidator who can
exercise similar powers of sale [vide Delhi Administration vs.
Madan Lal Nangia, (2003) 10 SCC 321 (“Madan Lal Nangia”)
Paras 14,15; Lieutenant Governor of Delhi vs. Matwal Chand
(Dead) through LRs, (2015) 15 SCC 576 (“Matwal Chand”),
Para 14; Municipal Commissioner of Dum Dum Municipality
vs. Indian Tourism Development Corporation, (1995) 5 SCC
251 (“Dum Dum Municipality”), Paras 14,18, 22 and 35 and
State of Andhra Pradesh vs. V.Subba Rao, 2011 SCC OnLine
AP 838 (“Subba Rao”), Paras 23-25];
e) that Article 285 (1) is not attracted to the present case as the bar
under Article 285 (1) is only applicable to the properties ‘of the
Union’. Even when the property is given on lease by the Union
to a private party, then under Section 179 of the Act of 1959,
tax is to be levied on the ‘occupier’. Reliance was placed on the
judgment of the Constitution Bench of this Court in Electronics
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Corporation of India vs. Secretary, Revenue Department,

Govt. of Andhra Pradesh, (1999) 4 SCC 458 (“Electronics
Corporation”) wherein it was held that Article 285 will not be
applicable in cases when the land belonging to the Government
of India was leased out to a Government Company;
f) that this Court in Union of India vs. State of Uttar Pradesh,
(2007) 11 SCC 324 held that service charges are a fee and
cannot be said to be hit by Article 285 of the Constitution;
g) that pursuant to this Court’s orders dated 19.11.2009 in Rajkot
Municipal Corporation vs. Union of India, Civil Appeal
No.9458-63 of 2003 (“Rajkot Municipal Corporation”), the
Ministry of Urban Development, Government of India issued
clarification/instructions dated 17.12.2009 to all Secretaries
(Urban Development) of all State Governments. The relevant
portion of the said clarification/instructions dated 17.12.2009
is as follows:
“(1) The UOI & its Departments will pay service
charges for the services provided by appellant
Municipal Corporations. No Property Tax. will be paid
by UOI but service charges calculated @ 75%, 50%
or 33 1/3% of Property Tax levied on property owners
will be paid, depending upon utilisation of full or partial
or Nil Services. For this, purpose agreements will
be entered into by UOI represented by concerned
Departments with respective Municipal Corporation.”
h) that due to non-payment of taxes since the year 1998-1999, Jal
Sansthan Lucknow appellant No.3 herein, served final Notice
under the provisions of the Land Revenue Act of the State of
UP to respondent No.1 to pay the pending bills of Water Tax/
Sewer Tax/Water price of Rs. 7,57,239/- by 31.03.2011;
i) that it is settled law that the exemption from state taxation of
property of the Union Government is only against property
taxes and not against all taxes including the commercial taxes
and services by local administration/authorities. However, the
High Court in its final Judgment and Order dated 29.03.2017,
erroneously equated the commercial tenancy of a private
person in Enemy Property with the property of the Central
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Government and accordingly, has quashed the recovery notice

dated: 28.05.2011;
j) that the Enemy Property occupied by private persons for private
business interests is not synonymous with the interest of the
State and is starkly in contrast to the objectives and scheme
of the Constitution. Accordingly, it was contended that the
interest or property of a private person i.e. respondent No.1
is not exempted from property taxes under Article 285 of the
Constitution of India;
k) that the Custodian under the Act is empowered to realize from
occupants all taxes, fees and charges and pay to the local
authority. In the present case, it is admitted by the Custodian-
respondent No.2 that local taxes are payable to the local authority
in respect of the enemy property in question vide Certificate
dated 03.10.2002;
l) that although the Municipal Commissioner granted a concession
before the High Court, the said concession was due to a threat
of summoning him to file a personal affidavit. In this regard,
learned senior counsel argued that there can be no concession
or estoppel against the statute. The power to levy tax is plenary.
If the State is held to be bound by a concession made in one
case, it would result in serious consequences for the State as
such a concession is against public interest. That it was held
in State of Uttar Pradesh vs. Uttar Pradesh Rajya Khanij
Vikas Nigam Sangharsh Samiti, (2008) 12 SCC 675 that
statement, assurance, or even an undertaking of any officer
or counsel is irrelevant and that there can be no estoppel
against the statute.
With the aforesaid submission, learned senior counsel prayed that
the impugned order passed by the High Court may be set aside.
Submissions of the respondent No.1–assessee:
6. Per contra, learned senior counsel Sri Guru Krishna Kumar, appearing
for the assessee, supported the impugned judgment and submitted
that the High Court has proceeded to pass the impugned order on
a sound appreciation of the facts of the matter and the applicable
law and the same would not call for any interference by this Court.
It was further contended as under:
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a) that the appellant-Municipal Corporation has approached the

court with unclean hands and has deliberately suppressed
critical facts. The Municipal Corporation’s reliance on the case
of Amir Mohammad Khan is misleading. In this regard, it was
submitted that the Municipal Corporation has conspicuously
omitted to disclose that the judgment in the aforementioned
case has been rendered nugatory due to the promulgation
of an Ordinance and the enactment of the Enemy Property
(Amendment and Validation) Act, 2017 (hereinafter referred to
as, “Amendment Act, 2017”). Further, as a result of the said
judgment and various tenants’ claims, respondent No.1 herein
approached this Court seeking a clarification. This Court by
order dated 08.09.2006, clarified that persons in possession
of properties based on duly authenticated tenancy agreements
before the appointment of the Custodian declaring the property
as enemy property would not be covered by the judgment in
Amir Mohammad Khan. Accordingly, the respondent No.1 has
continued to be in possession.
b) Reliance was placed on the Amendment Act, 2017 as per
which the enemy property vested in the Custodian will remain
vested in the Custodian regardless of change in circumstances
such as the death of the enemy; the extinction of the enemy
status; the winding up of business or a change in nationality
of the legal heir and successor. The Act further clarifies that
“enemy property vested in the Custodian” includes all rights,
titles, and interests in or benefits arising from such property.
It includes the right of expropriation of the enemy property, in
exercise of the police powers of the State. Also, the principles
of acquisition or requisition and payment of compensation will
not apply to such a legislation.
c) that the property in question unequivocally belongs to the Central
Government, specifically the Custodian; Enemy Property is thus
‘property of the Union.’ The assessee is merely a tenant of the
Custodian of the Enemy Property and therefore, no taxes can
be levied on this property.
d) that Article 285 of the Constitution provides exemption from
State taxation in respect of properties of the Union of India.
He buttressed his submission by stating that how the property
sought to be taxed is being used is irrelevant consideration
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as far as the interpretation of Article 285 of the Constitution of

India was concerned, vide NDMC vs. State of Punjab, (1997)
7 SCC 339 (“NDMC”). There is an absolute and emphatic ban
on state taxation on the property of the Union and the use of
such property is irrelevant.
e) that apart from Article 285, Section 172 of the Act of 1959
specifically provides that the Corporation may impose taxes
subject to the provisions of Article 285 of the Constitution.
Likewise, Section 177 of the said Act provides exceptions in
respect of the levy of tax amongst others to buildings and land
vesting in the Union of India.​​ However, Section 8(2)(vi) of the
Act and/or Section 173 of the Act of 1959 cannot amount to
“law” authorizing levy of property tax on Union property in terms
of Article 285(1) of the Constitution.
f) that property vested in the Union was expressly excluded from
the scope of general tax on land and building. In this regard,
it was submitted that the impugned judgment was incorrect to
the extent that it allows Union property to be taxed on the basis
of an extended definition of ‘owner’, and is in conflict with the
judgment of this Court in NDMC and therefore, not good law.
The property in question is indisputably ‘property of the Union’
as per Article 285 of the Constitution.
g) that the declaration of a property as enemy property would be by
exercise of police power of the State. In other words, Article 300-A
only limits the powers of the State inasmuch as no person shall
be deprived of his property save by authority of law, implying that
there can be no deprivation without any sanction of law. Deprivation
by any other mode is not acquisition or taking possession under
Article 300-A. It was submitted that war between two or more
countries is a reason for which no compensation is payable for
acquisition of enemy property. The Act as amended has not been
(and cannot be) challenged by the Municipal Corporation and has
to be treated as valid and be given its full effect.
h) that the joint submission of Municipal Corporation and the Union
of India that Section 8(2)(vi) of the Act is a law relatable to Article
285 of the Constitution of India was neither raised before the
High Court nor in any pleading before this Court and is a clear
afterthought raised for the first time during oral replies;
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i) in the alternative, this Court may balance the equities to make

the demand prospective considering the grave hardship that
the demand of entire past amount would cause to respondent
No.1 in case this Court holds against respondent No.1.
With the aforesaid submissions, it was prayed that the present
appeal be dismissed as being devoid of any merit and the
impugned order of the High Court be affirmed.
Submissions of the respondent No.2:
7. Learned counsel Sri Rupesh Kumar, appearing on behalf of the
Custodian of the subject Enemy Property, respondent No.2 herein,
submitted as under:
a) that the subject property belongs to a Pakistani National namely,
Raja of Mahmudabad and therefore, the property is vested in
the Custodian of Enemy Property for India under the Act as
amended by the Amendment Act, 2017 and is an undisputed
enemy property;
b) that the property belonging to the Union Government is exempted
from state taxation under article 285(1) of the Constitution of
India. However, there is no such exemption in respect of fee/
service charges or other charges and this position has been
conclusively decided by this Court in Union of India vs. State
of Uttar Pradesh, (2007) 11 SCC 324. Further, this stand has
been reiterated by this Court in Rajkot Municipal Corporation.
Consequently, the Ministry of Urban Development, Government
of India vide order No.11025/ 26/2003 UCD dated l7.l2.2009
issued a clarification/direction regarding the levy of taxes and
service charges in light of the judgments passed by this Court.
c) that the respondent No.2 Custodian vide his certificate dated
03.10.2002 has already clarified that it is under an obligation
to pay house tax and other local taxes as respondent No.1 is
running a private business for profit from the said premises
and therefore, not similar to a Central Government enterprise
and accordingly is liable for taxation by the local authorities;
d) that this Court in the case of NDMC has held that private parties
are not exempted from taxation. Therefore, the private person
in occupancy of enemy property for personal benefit is neither
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synonymous with Central Government nor can he agitate it

before the Court.
Learned ASG Sri Balbir Singh also made submissions in the matter
later on.
With the aforesaid submissions, it was prayed for this Court to pass
orders as this Court may think fit and proper.
Submissions of the respondent No.3 - State of Uttar Pradesh:
8. State of Uttar Pradesh, at the outset, adopted the contentions raised
by the appellant-Municipal Corporation and further submitted as under:
a) Admittedly, respondent No.1-assessee is a private entity and a
lessee of the Custodian of the enemy property in question and
the demand was raised by the appellant-Municipal Corporation
on the assessee and not on the Custodian or the Central
Government. A private entity, that is running its business, on a
property and continuing on lease under the Custodian as per
the provisions of the Act cannot claim the benefit of Article 285
of the Constitution of India;
b) that the Union of India has also taken a strident stand that
though the property is vested in the Custodian for the enemy
property in India, the running of the business by respondent
No.1 is not akin or synonymous with the running of the business
by the Central Government and that therefore tax is payable
by respondent No.1 to the appellant herein;
c) that vesting, as envisaged under the Act does not make such
properties as properties owned by the Central Government or
Union properties. In this connection, reference was made to the
observations of this Court in Amir Mohammad Khan, which
shall be discussed later in the judgment.
In light of the aforesaid submissions, it was urged that the view
taken by the Hon’ble High Court in the impugned judgment and
order needs to be set aside.
Points for consideration:
9. Having heard learned senior counsel and learned counsel for
the respective parties, the following points would arise for our
consideration:
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1. Whether statutory vesting of enemy property including the

subject property in the Custodian amounts to expropriation and
transfer of ownership so as to confer ownership of such enemy
property on the Custodian?
2. Consequently, if the ownership of such enemy property is
conferred on the Custodian for Enemy Property, whether such
property becomes Union property within the meaning of Article
285 of the Constitution and therefore, it is exempt from payment
of property or other local taxes to the appellant-Municipal
Corporation under the provisions of the Act of 1959?
3. Whether despite such enemy property becoming property of
the Union, clause (2) of Article 285 of the Constitution enables
appellant herein to impose property or other local taxes on the
respondent which is lessee of the subject property?
4. Whether the High Court was right in holding in favour of the
respondent?
5. What order?
Since these questions are inter-related, they shall be considered
together.
Preface:
9.1 Before we proceed further, we would like to preface the
discussion with a historical perspective.
9.2 Jean-Jacques Rousseau in his treatise the Social Contract said
that “War is constituted by a relation between things, and not
between persons… War then is a relation, not between man
and man, but between State and State…” The general aim of
the administration of enemy property is to eliminate enemy
influence from the national economy. The mischief that such state
instruments seek to cure is the provision of aid and comfort to
the enemy, for instance, through the making available of funds
for war financing. Enemy property can be disposed of by various
means including custodianship, liquidation, expropriation,
confiscation or nationalization. The means of custodianship
imply a fiduciary administration. The whole raison d’etre of
a statutory regime that seeks to administer enemy property
through a custodianship is to preserve and protect the properties
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until the war is over. After all, the law of settlement of enemy
property is governed not only by considerations of diplomatic
strategy but also by fundamental principles of fair governance.
9.3 In 1962, in the wake of the Chinese aggression, the Custodian
of Enemy Property for India was called upon to take charge
of the Chinese assets in India with the object of vesting the
movable and immovable properties of the Chinese subjects
left in India under the Defence of India Rules, 1962 specifying
the enemy nationals and the properties held by them. Similarly,
in the wake of the Indo-Pak war of 1965 and 1971, there was
migration of people from India to Pakistan. Under the Defence
of India Rules framed under the Defence of India Act, 1962, the
Government of India took over the properties and companies
of such persons who had taken Pakistani nationality.
9.4 At this juncture, we may notice the expression ‘on behalf of an
enemy’ occurring in the definition of enemy property in Rule 133-I
of Defence of India (Amendment) Rules, 1962, and Subrule 4
of Rule 138 of Defence of India Rules, 1971 implying that the
enemy property is only held and managed by the Custodian for
a specific purpose. We ought to appreciate that the Statement
of Objects and Reasons of the Enemy Property Act, 1968 intend
to continue the vesting and maintenance of the properties by
the Custodian of Enemy Property until the Government of
India arrives at a settlement with the Governments of enemy
countries. The intent of the Parliament is further illuminated by
the Tashkent Declaration by India and Pakistan dated January
10, 1966, which included a clause stating that the two countries
would discuss the return of the properties and assets taken
over by either side in connection with the conflict.
Legal framework:
Provisions of the Act:
10. The Parliament has enacted the said Act to provide for the continued
vesting of enemy property vested in the Custodian of Enemy Property
for India under the Defence of India Rules, 1962 and the Defence
of India Rules, 1971 and for matters connected therewith.
10.1 Part IV of the Defence of India Rules, 1962 deals inter alia
with restriction of movements and activities of persons. While
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Part XIV-A deals with control of trading with enemy, Part XIV-B
deals with control of enemy firms. Section 133-A defines the
expression ‘enemy’ inter alia to mean any individual resident in
enemy territory. In Part XIV-B, the definition of enemy subject
and enemy firm have been given and also the definition of
enemy property. Under the said Rules, the Controllers, Deputy
Controllers or Inspectors appointed by the Central Government
had to carry out the supervision of firms suspected to be enemy
firms and do all other ancillary and incidental acts as delineated
under the said Rules.
10.2 Similarly, under the Defence of India Act, 1971, Part IV deals
with restriction of movement and activities of person. Part XVI
deals with control of trading with enemy and the definition of
enemy is in Rule 130 of the said Rules and similarly, Controllers
or Deputy Controller were appointed for controlling the trading
with enemy. Part XVII deals with control of enemy firms to carry
out the business of enemy firms, etc. Rule 151 of the 1971
Rules clearly states with a view to preserving enemy property,
the Central Government may appoint a Custodian of Enemy
Property for India and one or more Deputy Custodians and
Assistant Custodians of Enemy Property for such local areas
as may be prescribed.
The Act under consideration is essentially to provide for the
continued vesting of enemy property vested in the Custodian
of Enemy Property for India under the Defence of India Rules,
1962, and the Defence of India Rules, 1971 and for matters
connected therewith.
10.3 At this stage, we can refer to the relevant provisions of the
Act. The expression “Custodian”, “enemy” or “enemy subject”
or “enemy firm” and “enemy property” are defined as under:
“2. Definitions.- In this Act, unless the context
otherwise requires,-
(a) “Custodian” means the Custodian of Enemy
Property for India appointed or deemed to have
been appointed under section 3 and includes a
Deputy Custodian and an Assistant Custodian of
Enemy Property appointed or deemed to have
been appointed under that section;
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(b) “enemy” or “enemy subject” or “enemy firm”

means a person or country who or which was an
enemy, an enemy subject including his legal heir
and successor whether or not a citizen of India
or the citizen of a country which is not an enemy
or the enemy, enemy subject or his legal heir
and successor who has changed his nationality
or an enemy firm, including its succeeding firm
whether or not partners or members of such
succeeding firm are citizen of India or the citizen
of a country which is not an enemy or such firm
which has changed its nationality, as the case
may be, under the Defence of India Act, 1962,
and the Defence of India Rules, 1962 or the
Defence of India Act, 1971 (42 of 1971) and the
Defence of India Rules, 1971, does not include
a citizen of India other than those citizens of
India, being the legal heir and successor of the
“enemy” or “enemy subject” or “enemy firm”;
(c) “enemy property” means any property for the
time being belonging to or held or managed
on behalf of an enemy, an enemy subject or
an enemy firm:
Provided that where an individual enemy subject dies
in the territories to which this Act extends, or dies in
the territories to which the Act extends or dies in any
territory outside India, any property which immediately
before his death, belonged to or was held by him or
was managed on his behalf, may, notwithstanding his
death, continue to be regarded as enemy property
for the purposes of this Act;”
10.4 Section 3 of the Act deals with appointment of Custodian of
Enemy Property for India and Deputy Custodian, while Section
4 deals with appointment of Inspectors of Enemy Property.
Section 5 states that property vested in the Custodian of
Enemy Property for India under the Defence of India Rules,
1962 to continue to vest in the Custodian. The said provisions
read as under:
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“3. Appointment of Custodian of Enemy Property

for India and Deputy Custodian, etc.—The Central
Government may, by notification in the Official
Gazette, appoint a Custodian of Enemy Property
for India and one or more Deputy Custodians and
Assistant Custodians of Enemy Property for such
local areas as may be specified in the notification:
Provided that the Custodian of Enemy Property
for India and any Deputy Custodian or Assistant
Custodian of Enemy Property appointed under the
Defence of India Rules, 1962 or the Defence of India
Rules, 1971, as the case may be, shall be deemed
to have been appointed under this section.
4. Appointment of Inspectors of Enemy Property.—
The Central Government may, either generally or for
any particular area, by notification in the Official
Gazette, appoint one or more Inspectors of Enemy
Property for securing compliance with the provisions
of this Act and may, by general or special order,
provide for the distribution and allocation of the
work to be performed by them for securing such
compliance:
Provided that every Inspector of Enemy Firms
appointed under the Defence of India Rules, 1962 or
the Defence of India Rules, 1971, as the case may
be, shall be deemed to be an Inspector of Enemy
Property appointed under this section.
5. Property vested in the Custodian of Enemy
Property for India under the Defence of India
Rules, 1962 to continue to vest in Custodian.—(1)
Notwithstanding the expiration of the Defence of India
Act, 1962 (51 of 1962), and the Defence of India
Rules, 1962, all enemy property vested before such
expiration in the Custodian of Enemy Property for
India appointed under the said Rules and continuing
to vest in him immediately before the commencement
of this Act, shall, as from such commencement, vest
in the Custodian.
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(2) Notwithstanding the expiration of the Defence of

India Act, 1971 (42 of 1971) and the Defence of India
Rules, 1971, all enemy property vested before such
expiration in the Custodian of Enemy Property for
India appointed under the said Rules and continuing
to vest in him immediately before the commencement
of the Enemy Property (Amendment) Act, 1977 (40
of 1977) shall, as from such commencement, vest
in the Custodian.
(3) The enemy property vested in the Custodian shall,
notwithstanding that the enemy or the enemy subject
or the enemy firm has ceased to be an enemy due to
death, extinction, winding up of business or change
of nationality or that the legal heir and successor is
a citizen of India or the citizen of a country which is
not an enemy, continue to remain, save as otherwise
provided in this Act, vested in the Custodian.
Explanation. – For the purposes of this sub-section,
“enemy property vested in the Custodian” shall include
and shall always be deemed to have been included
all rights, titles, and interest in, or any benefit arising
out of, such property vested in him under this Act.”
10.5 Section 5A and Section 5B were inserted with retrospective
effect from 07.01.2016 and 10.07.1968 by Act 3 of 2017. They
read as under:
“5A. Issue of certificate by Custodian. —The
Custodian may, after making such inquiry as he
deems necessary, by order, declare that the property
of the enemy or the enemy subject or the enemy firm
described in the order, vests in him under this Act and
issue a certificate to this effect and such certificate
shall be the evidence of the facts stated therein.
5B. Law of succession or any custom or usage
not to apply to enemy property.—Nothing contained
in any law for the time being in force relating to
succession or any custom or usage governing
succession of property shall apply in relation to
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the enemy property under this Act and no person

(including his legal heir and successor) shall have
any right and shall be deemed not to have any right
(including all rights, titles and interests or any benefit
arising out of such property) in relation to such enemy
property.
Explanation.—For the purposes of this section, the
expressions “custom” and “usage” signify any rule
which, having been continuously and uniformly
observed for a long time, has obtained the force of
law in the matters of succession of property.”
10.6 Section 6 has been substituted by Section 6 of Act 3 of 2017
with retrospective effect from 10.07.1968. Prior to its substitution,
it read as under:
“6. Prohibition to transfer any property vested in
Custodian by an enemy, enemy subject or enemy
firm.—(1) No enemy or enemy subject or enemy firm
shall have any right and shall never be deemed to
have any right to transfer any property vested in the
Custodian under this Act, whether before or after the
commencement of this Act and any transfer of such
property shall be void and shall always be deemed
to have been void.
(2) Where any property vested in the Custodian
under this Act had been transferred, before the
commencement of the Enemy Property (Amendment
and Validation) Act, 2017, by an enemy or enemy
subject or enemy firm and such transfer has
been declared, by an order, made by the Central
Government, to be void, and the property had
been vested or deemed to have been vested in the
Custodian by virtue of the said order made under
section 6, as it stood before its substitution by section
6 of the Enemy Property (Amendment and Validation)
Act, 2017 such property shall, notwithstanding
anything contained in any judgment, decree or order
of any court, tribunal or other authority, continue
to vest or be deemed to have been vested in the
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Custodian and no person (including an enemy or

enemy subject or enemy firm) shall have any right
or deemed to have any right (including all rights,
titles and interests or any benefit arising out of such
property) over the said property vested or deemed
to have been vested in the Custodian.”
10.7 Section 7 deals with payment to Custodian of money otherwise
payable to an enemy, enemy subject or enemy firm, the same
reads as under:
“7. Payment to Custodian of money otherwise
payable to an enemy, enemy subject or enemy
firm. - (1) Any sum payable by way of dividend,
interest, share profits or otherwise to or for the benefit
of an enemy or an enemy subject or an enemy
firm shall, unless otherwise ordered by the Central
Government, be paid by the person by whom such
sum would have been payable but for the prohibition
under the Defence of India Rules, 1962 or the Defence
of India Rules, 1971, as the case may be, to the
Custodian or such person as may be authorised by
him in this behalf and shall be held by the Custodian
or such person subject to the provisions of this Act.
(2) In cases in which money would, but for the
prohibition under the Defence of India Rules, 1962 or
the Defence of India Rules, 1971, as the case may be,
be payable in a foreign currency to or for the benefit
of an enemy or an enemy subject or an enemy firm
(other than cases in which money is payable under
a contract in which provision is made for a specified
rate of exchange), the payment shall be made to the
Custodian in rupee currency at the middle official rate
of exchange fixed by the Reserve Bank of India on
the date on which the payment became due to that
enemy, enemy subject or enemy firm.
(3) The Custodian shall, subject to the provisions of
section 8, deal with any money paid to him under
the Defence of India Rules, 1962 or the Defence of
India Rules, 1971 as the case may be or under this
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Act and any property vested in him under this Act in

such manner as the Central Government may direct.”
10.8 The powers of Custodian in respect of enemy property vested
in him as amended are delineated in Section 8 which reads
as under:
“8. Power of Custodian in respect of enemy
property vested in him.— (1) With respect to the
property vested in the Custodian under this Act, the
Custodian may take or authorise the taking of such
measures as he considers necessary or expedient
for preserving such property till it is disposed of in
accordance with the provisions of this Act.
(2) Without prejudice to the generality of the foregoing
provision, the Custodian or such person as may be
specifically authorised by him in this behalf, may, for
the said purpose,—
(i) carry on the business of the enemy;
(ia) fix and collect the rent, standard rent, lease rent,
licence fee or usage charges, as the case may
be, in respect of enemy property;
(ii) take action for recovering any money due to
the enemy;
(iii) make any contract and execute any document
in the name and on behalf of the enemy;
(iv) institute, defend or continue any suit or other
legal proceeding, refer any dispute to arbitration
and compromise any debts, claims or liabilities;
(iva) secure vacant possession of the enemy property
by evicting the unauthorised or illegal occupant
or trespasser and remove unauthorised or illegal
constructions, if any.
(v) raise on the security of the property such loans
as may be necessary;
(vi) incur out of the property any expenditure including
the payment of any taxes, duties, cesses and
rates to Government or to any local authority and
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of any wages, salaries, pensions, provident fund

contributions to, or in respect of, any employee of
the enemy and the repayment of any debts due
by the enemy to persons other than enemies;
(vii) transfer by way of sale, mortgage or lease or
otherwise dispose of any of the properties;
(viii) invest any moneys held by him on behalf of
enemies for the purchase of Treasury Bills or
such other Government securities as may be
approved by the Central Government for the
purpose;
(ix) make payments to the enemy and his
dependents;
(x) make payments on behalf of the enemy to
persons other than those who are enemies, of
dues outstanding on the 25th October, 1962 or
on the 3rd December, 1971; and
(xi) make such other payments out of the funds of
the enemy as may be directed by the Central
Government.”
10.9 Section 8A deals with sale of property by Custodian which has
been inserted with retrospective effect from 07.01.2016 while
Section 10A deals with power to issue certificate of sale. The
same are extracted as under:
“8A. Sale of property by Custodian.—(1)
Notwithstanding anything contained in any judgment,
decree or order of any court, tribunal or other
authority or any law for the time being in force, the
Custodian may, within such time as may be specified
by the Central Government in this behalf, dispose of
whether by sale or otherwise, as the case may be,
with prior approval of the Central Government, by
general or special order, enemy properties vested in
him immediately before the date of commencement
of the Enemy Property (Amendment and Validation)
Act, 2017 in accordance with the provisions of this
Act, as amended by the Enemy Property (Amendment
and Validation) Act, 2017.
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(2) The Custodian may, for the purpose of disposal

of enemy property under sub-section (1), make
requisition of the services of any police officer to
assist him and it shall be the duty of such officer to
comply with such requisition.
(3) The Custodian shall, on disposal of enemy
property under sub-section (1) immediately deposit
the sale proceeds into the Consolidated Fund of
India and intimate details thereof to the Central
Government.
(4) The Custodian shall send a report to the Central
Government at such intervals, as it may specify, for
the enemy properties disposed of under sub-section
(1), containing such details, (including the price for
which such property has been sold and the particulars
of the buyer to whom the properties have been sold
or disposed of and the details of the proceeds of sale
or disposal deposited into the Consolidated Fund of
India) as it may specify.
(5) The Central Government may, by general
or special order, issue such directions to the
Custodian on the matters relating to disposal of
enemy property under sub-section (1) and such
directions shall be binding upon the Custodian and
the buyer of the enemy properties referred to in
that sub-section and other persons connected to
such sale or disposal.
(6) The Central Government may, by general or
special order, make such guidelines for disposal of
enemy property under sub-section (1).
(7) Notwithstanding anything contained in this
section, the Central Government may direct that
disposal of enemy property under sub-section (1)
shall be made by any other authority or Ministry or
Department instead of Custodian and in that case
all the provisions of this section shall apply to such
authority or Ministry or Department in respect of
disposal of enemy property under sub-section (1).
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(8) Notwithstanding anything contained in sub-

sections (1) to (7), the Central Government may deal
with or utilise the enemy property in such manner as
it may deem fit.
xxx
10A. Power to issue certificate of sale.—(1) Where
the Custodian proposes to sell any enemy immovable
property vested in him, to any person, he may on
receipt of the sale proceeds of such property, issue a
certificate of sale in favour of such person and such
certificate of sale shall, notwithstanding the fact that
the original title deeds of the property have not been
handed over to the transferee, be valid and conclusive
proof of ownership of such property by such person.
(2) Notwithstanding anything contained in any law for
the time being in force, the certificate of sale, referred
to in sub-section (1), issued by the Custodian shall be
a valid instrument for the registration of the property in
favour of the transferee and the registration in respect
of enemy property for which such certificate of sale had
been issued by the Custodian, shall not be refused on
the ground of lack of original title deeds in respect of
such property or for any such other reason.”
10.10 Section 9 states that all enemy property vested in the Custodian
under this Act shall be exempt from attachment, seizure or
sale in execution of a decree of a civil court or orders of any
other authority. The same is extracted as under:
“9. Exemption from attachment, etc. - All enemy
property vested in the Custodian under this Act
shall be exempt from attachment, seizure or sale in
execution of decree of a civil court or orders of any
other authority.”
10.11 Section 12 speaks of protection for complying with orders of
Custodian and the same reads as under:
“12. Protection for complying with orders of
Custodian.- Where any order with respect to any
money or property is addressed to any person by the
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Custodian and accompanied by a certificate of the

Custodian that the money or property is money or
property vested in him under this Act, the certificate
shall be evidence of the facts stated therein and if that
person complies with the orders of the Custodian, he
shall not be liable to any suit or other legal proceeding
by reason only of such compliance.”
10.12 Section 13 deals with validity of action taken in pursuance of
orders of Custodian while Section 14 deals with proceeding
against companies whose assets vest in custodian, which
read as under:
“13. Validity of action taken in pursuance of orders
of Custodian.—Where under this Act,—
(a) any money is paid to the Custodian; or
(b) any property is vested in the Custodian or an
order is given to any person by the Custodian
in relation to any property which appears to the
Custodian to be enemy property vested in him
under this Act,
neither the payment, vesting nor order of the
Custodian nor any proceedings in consequence
thereof shall be invalidated or affected by reason
only that at a material time,—
(i) some person who was or might have been
interested in the money or property, and who
was an enemy or an enemy firm, has died or
had ceased to be an enemy or an enemy firm; or
(ii) some person who was so interested and who was
believed by the Custodian to be an enemy or an
enemy firm, was not an enemy or an enemy firm.”
14. Proceedings against companies whose assets
vest in Custodian - Where the enemy property
vested in the Custodian under this Act consists of
assets of a company, no proceeding, civil or criminal,
shall be instituted under the Companies Act, 1956
(1 of 1956), against the company, or any director,
manager or other officer thereof except with the
consent in writing of the Custodian.”
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10.13 Section 17 pertains to levy of fees and the same reads as

under:
“17. Levy of fees.— (1) There shall be levied by the
Custodian fees equal to five per centum of—
(a) the amount of moneys paid to him;
(b) the proceeds of the sale or transfer of any
property which has been vested in him under
this Act; and
(c) the value of the residual property, if any, at the
time of its transfer to the original owner or other
person specified by the Central Government
under section 18:
Provided that in the case of an enemy whose property
is allowed by the Custodian to be managed by some
person specially authorised in that behalf, there shall
be levied a fee of five per centum of the gross income
of the enemy or such less fee as may be specifically
fixed by the Central Government after taking into
consideration the cost of direct management incurred
by that Government, the cost of superior supervision
and any risks that may be incurred by that Government
in respect of the management:
Provided further that the Central Government may,
for reasons to be recorded in writing, reduce or remit
the fees leviable under this sub-section in any special
case or class of cases.
Explanation.—In this sub-section “gross income of the
enemy” means income derived out of the properties
of the enemy vested in the Custodian under this Act.
(2) The value of any property for the purpose of
assessing the fees shall be the price which, in the
opinion of the Central Government or of an authority
empowered in this behalf by the Central Government,
such property would fetch if sold in the open market.
(3) The fees in respect of property may be levied out
of any proceeds of the sale or transfer thereof or out
of any income accrued therefrom or out of any other
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property belonging to the same enemy and vested

in the Custodian under this Act.
(4) The fees levied under this section shall be credited
to the Central Government.”
10.14 Section 18 deals with transfer of property vested as enemy
property in certain cases and the said provision reads as under:
“18. Transfer of property vested as enemy property
in certain cases.—The Central Government may, on
receipt of a representation from a person, aggrieved
by an order vesting a property as enemy property
in the Custodian within a period of thirty days from
the date of receipt of such order or from the date of
its publication in the Official Gazette, whichever is
earlier and after giving a reasonable opportunity of
being heard, if it is of the opinion that any enemy
property vested in the Custodian under this Act and
remaining with him was not an enemy property, it
may by general or special order, direct the Custodian
that such property vested as enemy property in the
Custodian may be transferred to the person from
whom such property was acquired and vested in
the Custodian.”
10.15 Section 18A, Section 18B and Section 18C though related
to Section 18, however, are not relevant for the purposes of
this case. Section 22 gives overriding effect to this Act and
the same reads as under:
“22. Effect of laws inconsistent with the Act.—The
provisions of this Act shall have effect notwithstanding
anything inconsistent therewith contained in any other
law for the time being in force, (including any law
of succession or any custom or usage in relation to
succession of property).”
Section 22A is a validation clause which reads as
under:
“22A. Validation.—Notwithstanding anything
contained in any judgment, decree or order of any
court, tribunal or other authority,—
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(a) the provisions of this Act, as amended by the

Enemy Property (Amendment and Validation)
Act, 2017, shall have and shall always be
deemed to have effect for all purposes as if
the provisions of this Act, as amended by the
said Act, had been in force at all material times;
(b) any enemy property divested from the Custodian
to any person under the provisions of this Act, as
it stood immediately before the commencement
of the Enemy Property (Amendment and
Validation) Act, 2017, shall stand transferred
to and vest or continue to vest, free from all
encumbrances, in the Custodian in the same
manner as it was vested in the Custodian before
such divesting of enemy property under the
provisions of this Act, as if the provisions of this
Act, as amended by the aforesaid Act, were in
force at all material times;
(c) no suit or other proceedings shall, without
prejudice to the generality of the foregoing
provisions, be maintained or continued in any
court or tribunal or authority for the enforcement
of any decree or order or direction given by such
court or tribunal or authority directing divestment
of enemy property from the Custodian vested
in him under section 5 of this Act, as it stood
before the commencement of the Enemy
Property (Amendment and Validation) Act, 2017,
and such enemy property shall continue to vest
in the Custodian under section 5 of this Act,
as amended by the aforesaid Act, as the said
section, as amended by the aforesaid Act was
in force at all material times;
(d) any transfer of any enemy property, vested in the
Custodian, by virtue of any order of attachment,
seizure or sale in execution of decree of a civil
court or orders of any tribunal or other authority
in respect of enemy property vested in the
Custodian which is contrary to the provisions
of this Act, as amended by the Enemy Property
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(Amendment and Validation) Act, 2017, shall be

deemed to be null and void and notwithstanding
such transfer, continue to vest in the Custodian
under this Act.”
10.16 Section 24 states that certain orders made under the Defence
of India Rules, 1962, to continue in force and the same is
extracted as under:
“24. Certain orders made under the Defence of
India Rules, 1962, to continue in force. - (1) Every
order which was made under the Defence of India
Rules, 1962, by the Central Government or by the
Custodian of Enemy Property for India appointed
under those Rules, relating to enemy property and
which was in force immediately before the expiration
thereof shall, in so far as such order is not inconsistent
with the provisions of this Act, be deemed to continue
in force and to have been made under this Act.
(2) Every order which was made under the Defence
of India Rules, 1971 by the Central Government or by
the Custodian of Enemy Property for India appointed
under those rules relating to enemy property and
which was in force immediately before the expiration
thereof shall, in so far as such order is not inconsistent
with the provisions of this Act, be deemed to continue
in force and to have been made under this Act.”
The Enemy Property Rules, 2015:
10.17 The Enemy Property Rules, 2015 deal with procedure for
identification of immovable property, procedure for declaration
and vesting of the enemy property. While Rule 5 deals with
procedure for preservation, management and control of
immovable property, Rule 6 deals with procedure for taking
possession of moveable property; on the other hand, Rule 7
deals with procedure for taking possession of certain moveable
property. Rule 15 deals with procedure for divestment of enemy
property vested in Custodian which reads as under:
“15. Procedure for divestment of enemy property
vested in Custodian.- (1) The Central Government
may, on a reference or complaint or on its own motion,
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initiate process for divestment of an enemy property

vested in the Custodian, to the owner thereof or to
such other person.
(2) An officer of the rank of Joint Secretary or above
in the Government of India shall be the Chairperson
of the proceedings for divestment of the enemy
property under this rule.
(3) The Chairperson shall give thirty days’ notice
to all concerned including the Custodian, requiring
them to submit a reply, produce all documentary
evidence and appear in person or through authorised
representative:
Provided that if any party fails to appear on the date
fixed for hearing, then a second and final notice shall
be served through registered post and if he again
fails to appear after the second notice, then the
proceedings shall be heard ex parte:
Provided further that the Chairperson shall record
the reasons for such ex parte proceedings.
(4) The notices shall be served on all concerned
parties before each hearing.
(5) The presenting officer who has been engaged
for presentation of the case on behalf of the Central
Government, shall examine such witnesses and
documentary evidences in respect of the property
as he thinks fit.
(6) On completion of the proceedings, the details
including depositions shall be furnished to the parties.
(7) The Chairperson, after examining the evidence
and calling for further reports and inquiry as may
be necessary, shall pass such orders thereon as it
thinks fit, and a copy of the said orders shall be sent
to the parties.”
11. Articles 285, 289, 296 and 300-A of the Constitution of India are
relevant while interpreting the Act and read as under:
“285. Exemption of property of the Union from State
taxation.—(1) The property of the Union shall, save
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in so far as Parliament may by law otherwise provide,

be exempt from all taxes imposed by a State or by any
authority within a State.
(2) Nothing in clause (1) shall, until Parliament by
law otherwise provides, prevent any authority within
a State from levying any tax on any property of the
Union to which such property was immediately before
the commencement of this Constitution liable or treated
as liable, so long as that tax continues to be levied in
that State.
xxx
289. Exemption of property and income of a State
from Union taxation.— (1) The property and income of
a State shall be exempt from Union taxation.
(2) Nothing in clause (1) shall prevent the Union from
imposing, or authorising the imposition of any tax to such
extent, if any, as Parliament may by law provide in respect
of a trade or business of any kind carried on by, or on
behalf of, the Government of a State, or any operations
connected therewith, or any property used or occupied for
the purposes of such trade or business, or any income
accruing or arising in connection therewith.
(3) Nothing in clause (2) shall apply to any trade or
business, or to be incidental to the ordinary functions of
Government.”
xxx
296. Property accruing by escheat or lapse or as bona
vacantia. - Subject as hereinafter provided, any property
in the territory of India which, if this Constitution had not
come into operation, would have accrued to His Majesty
or, as the case may be, to the Ruler of an Indian State by
escheat or lapse, or as bona vacantia for want of a rightful
owner, shall, if it is property situate in a State, vest in such
State, and shall, in any other case, vest in the Union:
Provided that any property which at the date when it would
have so accrued to His Majesty or to the Ruler of an Indian
State was in the possession or under the control of the
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Government of India or the Government of a State shall,

according as the purposes for which it was then used or
held were purposes of the Union or of a State, vest in the
Union or in that State.
Explanation: In this article, the expressions “Ruler” and
“Indian State” have the same meanings as in Article 363.
xxx
300-A. Persons not to be deprived of property save
by authority of law.- No person shall be deprived of his
property save by authority of law.”
12. The Uttar Pradesh Municipalities Act, 1916 (hereinafter referred
to as “Act of 1916”) consolidates and amends the law relating to
Municipalities in the erstwhile United Provinces and presently State
of Uttar Pradesh. The city of Lucknow was a municipality and later
was constituted as Nagar Nigam or Corporation under the Act of
1959 and till then the Act of 1916 was applicable. Hence, the relevant
provisions of the Act of 1916 are extracted as under:
“128. Taxes which may be imposed.- (1) Subject to any
general rules or special order of the State Government in
this behalf, the taxes which a Municipality may impose in
the whole or part of a municipality are,-
(i) a tax on the annual value of building or lands or
of both;
(ii) a tax on trades and callings carried on within the
municipal limits and deriving special advantages
from, or imposing special burdens on municipal
services;
(iii) a tax on trades, callings and vocations including
all employments remunerated by salary or fees;
(iii-a) a theatre tax which means a tax on amusements
or entertainments;
(iv) a tax on vehicles and other conveyances plying
for hire or kept within the municipality or on boats
moored therein;
(v) a tax on dogs kept within the municipality;
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(vi) a tax on animals used for riding, driving, draught or

burden, when kept within the municipality;
(vii) [***]
(viii) [***]
(ix) a tax on inhabitants assessed according to their
circumstances and property;
(x) a water tax on the annual value of buildings or
lands or of both;
(x-a) a drainage tax on the annual value of buildings
leviable on such buildings as are situated within a
distance, to be fixed by rule in this behalf for each
municipality from the nearest sewer line;
(xi) a scavenging tax;
(xii) a conservancy tax for the collection, removal and
disposal of excrementious and polluted matter from
privies, urinals, cesspools;
(xiii) [***]
(xiii-A) [***]
(xiii-B) a tax on deeds of transfer of immovable property
situated within the limits of the municipality;
(xiv) [***]
(2) Provided that taxes under clauses (iii) and (ix) of sub-
section (1) shall not be levied at the same time [***] nor
shall the taxes under clauses (x-a) and (xii) of sub-section
(1) be levied at the same time;
Provided further that no tax under clause (xiii-B) of sub-
section (1) shall be levied on deeds of transfer of immovable
property situated within such area of the municipality as
forms part of the local area of any Improvement Trust
created under Section 3 of the U.P. Town Improvement
Act, 1919 (UP Act No. VIII of 1919):
Provided also that no tax under clause (iv) of sub-section
(1) shall be levied in respect of any motor vehicle.
(3) Nothing in this section shall authorize the imposition
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of any tax which the State Legislature has no power to

impose in the State under the Constitution:
Provided that a Municipality which immediately before the
commencement of the Constitution was lawfully levying
any such tax under this section as then in force, may
continue to levy that tax until provision to the contrary is
made by Parliament.
(i) A tax on the annual value of buildings or lands or both;
(ii) A water tax on the annual value of buildings or lands
or both;
(iii) A drainage tax on the annual value of buildings
leviable on such buildings as are situated within a
distance, to be fixed by rules in this behalf for each
municipality from the nearest sewer lines;
(iv) A conservancy tax for the collection, removal and
disposal of excrementious and polluted matter from
privies, urinals, cesspools;
(2) xxx
(3) The municipal taxes shall be assessed and levied in
accordance with the provisions of this Act and the rules
and bye-laws framed thereunder.
(4) Nothing in this section shall authorize the imposition
of any tax which the State Legislature has no power to
impose in the State under the Constitution:
Provided that a Municipality which immediately before the
commencement of the Constitution was lawfully levying
any such tax under this section as then in force, may
continue to levy that tax until provisions to the contrary is
made by the Parliament.
xxx
129-A. Levy of tax on annual value of buildings or
lands or both.- The Tax on annual value of buildings or
lands or both shall be levied in respect of all buildings and
lands situated in the municipal limit except,-
xxx
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(e) building and land vested in the Union of India, except

where provisions of clause (2) of Article 285 of the
Constitution of India, apply;”
12.1 Section 140 of the said Act defines annual value.
13. The relevant provisions of the Act of 1959 are extracted as under as
they are applicable to Lucknow Nagar Nigam (Municipal Corporation)
– the appellant herein:
“172. Taxes to be imposed under this Act. – (1) For
the purposes of this Act and subject to the provisions
thereof and of Article 285 of the Constitution of India the
Corporation shall impose the following taxes, namely-
(a) property taxes;
xxx
(3) The Corporation taxes shall be assessed and levied
in accordance with the provisions of this Act and the rules
and bye-laws framed thereunder.
(4) Nothing in this section shall authorize the imposition
of any tax which the State Legislature has no power to
impose in the State under the Constitution of India:
Provided that where any tax was being lawfully levied
in the area included in the City immediately before the
commencement of the Constitution of India such tax
may continue to be levied and applied for the purposes
of this Act until provision to the contrary is made by
Parliament.
173. Property taxes leviable. – (1) For the purposes of
sub-section (1) of Section172 property taxes shall comprise
the following taxes which shall, subject to the exceptions,
limitations and conditions hereinafter provided, be levied
on buildings and lands in the City -
(a) a general tax which may be levied, if the Corporation
so determines, on a graduated scale;
(b) a water tax;
(c) drainage tax leviable in areas provided with sewer
system by the Corporation;
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(d) a conservancy tax in areas in which the Corporation

undertakes, the collection; removal and disposal of
excrementitious and polluted matter from privies,
urinals and cesspools.
(2) Save as otherwise expressly provided in this Act or
rules made thereunder, these taxes shall be levied on
the annual value of buildings or land as the case may be:
Provided that the aggregate of the property taxes shall in
no case be less than 15 per cent nor more than 25 per
cent of the annual value of the building of land or both
assessed to such taxes.
174. Definition of “Annual Value” – “Annual value”
means –
(a) in the case of railway stations, colleges, schools,
hostels, factories, commercial buildings, and other
non-residential buildings, a proportion not below 5
per cent, to be fixed by rule made in this behalf of
the sum obtained by adding the estimated present
cost of erecting the building, less depreciation at a
rate to be fixed by rules, to the estimated value of
the land appurtenant thereto; and
(b) in the case of a building or land not falling within the
provisions of clause (a), the gross annual rent for which
such building exclusive of furniture or machinery therein,
or such land is actually let, or where the building or land
is not let or in the opinion of the assessing authority
is let for a sum less than its fair letting value, might
reasonably be expected to be let from year to year.
Provided that where the annual value of any building would,
by reason of exceptional circumstances, in the opinion of
the Corporation, be excessive if calculated in the aforesaid
manner, the Corporation may fix the annual value at any
less amount which appears to it equitable.
Provided further that where the Corporation so resolves,
the annual value in the case of owner occupied buildings
and land shall for the purposes of assessment of property
taxes be deemed to be 25 per cent less than the annual
value otherwise determined under this Section.
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175. Restrictions on imposition of water tax.-The

imposition of a tax under clause (b) of sub-section (1) of
Section 173 shall be subject to the restriction that the tax
shall not be imposed –
(i) on any land exclusively for agricultural purposes,
unless the water is supplied by the Corporation for
such purposes; or
(ii) on a plot of land or building the annual value whereof
does not exceed rupees three hundred and sixty and
to which no water is supplied by the Corporation; or
(iii) on any plot or building, no part of which is within
the radius prescribed for the City, from the nearest
stand-pipe or other waterworks whereat water is made
available to the public by the Corporation.
Explanation. - For the purposes of this section –
(a) ‘building’ shall include the compound, if any, thereof,
and, where there are several buildings in a common
compound, all such buildings, and the common
compound;
(b) ‘a plot of land’ means any piece of land held by a single
occupier, or held in common by several co-occupiers,
whereof no one portion is entirely separated from
any other portion by the land of another occupier or
of other occupiers or by public property.
xxx
177. General tax on what premises to be levied. – The
general tax shall be levied in respect of all buildings and
lands in the City except -
xxx
(f) buildings and lands vesting in the Union of India
except where provisions of clause (2) of Article 285 of the
Constitution of India apply;
xxx
179. Primary responsibility for certain property taxes
on annual value. – (1) Except where otherwise prescribed,
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every tax (other than a drainage tax or a conservancy

tax) on the annual value of buildings or lands shall be
leviable primarily from the actual occupier of the property
upon which the tax is assessed, if he is the owner of the
buildings or lands or holds them on a building or other
lease from the Central or the State Government or from
the Corporation, or on a building lease from any person.
(2) In any other case the tax shall be primarily leviable
as follows, namely, -
(a) if the property is let from the lessor;
(b) if the property is sublet from the superior lessor;
(c) if the property is unlet from the person in whom
the right to let the same vests.
(d) if the property is let in pursuance of an order
under the Uttar Pradesh Urban Buildings
(Regulations of Letting, Rent and Eviction) Act,
1972, from the tenant.
(3) On failure to recover any sum due on account of such
tax from the person primarily liable, the Mukhya Nagar
Adhikari may recover from the occupier of any part of the
buildings or lands in respect of which it is due that portion
thereof which bears to the whole amount due the same
ratio as the rent annually payable by such occupier bears
to the aggregate amount of rent payable in respect of the
whole of the said building or lands, or to the aggregate
amount of the letting value thereof in the authenticated
assessment list.
(4) An occupier who makes any payment for which he is
not primarily liable under the foregoing provisions shall,
in the absence of any contract to the contrary, be entitled
to be reimbursed by the person primarily liable.
180. Liability for payment of other such taxes. – (1) A
drainage tax, or a conservancy tax on the annual value of
buildings or lands shall be levied from the actual occupier
of the property upon which the taxes are assessed:
Provided that, where such property is let to more occupiers
than one, the Mukhya Nagar Adhikari may at his option
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levy the tax from the lessor instead of from the actual
occupiers.
(2) A lessor from whom a tax is levied under the proviso
to sub-section (1) may, in the absence of a contract to
the contrary, recover the tax from any or all of the actual
occupiers.
181. Property taxes to be a first charge on premises on
which they are assessed. – (1) Property taxes due under
this Act in respect of any building or land shall, subject to
the prior payment of the land revenue, if any, due to the
State Government thereupon, be a first charge, in the case
of any building or land held immediately from the State,
upon the interest in such building or land of the person
liable for such taxes and upon the movable property, if any,
found within or upon such building or land and belonging
to such person; and, in the case of any other building or
land, upon the said building or land and belonging to the
person liable for such taxes.
Explanation. - The term «property taxes» in this section
shall be deemed to include any charges payable for water
supplied to any premises and the costs of recovery of
property taxes as specified in the rules.
(2) In any decree in a suit for the enforcement of the
charge created by subsection (1), the Court may order the
payment to the Corporation of interest on the sum found to
be due at such rate as the Court deems reasonable from
the date of the institution of the suit until realization, and
such interest and the cost of enforcing the said charge,
including the costs of the suit and the cost of bringing the
premises or movable property in question to sale under
the decree, shall, subject as aforesaid, be a first charge on
such premises and movable property along with the amount
found to be due, and the Court may direct payment thereof
to be made to the Corporation out of the sale proceeds.”
Legal status of the Custodian under the Act:
14. At this stage, it would be useful to dilate on the jurisprudential aspect
of ownership of property and examine the nuances thereof vis-à-vis
the status of the Custodian of Enemy Property for India under the Act.
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14.1 According to Salmond on Jurisprudence, the expression

‘ownership’ in a generic sense, extends to all classes of
rights, whether proprietary or personal, in rem or in personam,
in re propria or in re aliena. Every man is the owner of the
rights which he owns. Ownership in its generic sense as a
relation in which a person stands to any right vested in him,
is opposed to two other possible relations between a person
and a right. In the first place, it is opposed to possession. A
man has possessory right without owning it or secondly, he
may own a right without possessing it. Thirdly, the ownership
and possession may be united as they usually are, in the
context of de jure and the de facto relation being co-existent
or coincident.
14.2 In the first of the above, possession is a de facto relationship
while the second is de jure ownership or relationship. In the
second sense, the ownership of a right is opposed to the
encumbrance of it. The owner of the right is he, in whom
the right itself is vested, while the encumbrancer of it is he,
in whom, is vested, not the right itself, but some adverse,
dominant and limiting right in respect of it. In law, there are
no separate names for every distinct kind of encumbrancer.
However, an encumbrance is opposite to ownership; every
encumbrancer is nevertheless himself the owner of the
encumbrance, that is to say, he, in whom, an encumbrance
stands in a definite relation, not merely to it, but also to the
right encumbered by it.
How is ownership acquired? :
14.3 Ownership is an important right vis-à-vis any property
and more so immovable property. What are the modes of
acquisition of ownership? Under the provisions of the Transfer
of Property Act, 1882, acquisition of ownership in relation
to immovable property is by a transfer or conveyance. The
expression “transfer” is defined with reference to the word
convey which is an assurance inter vivos under the provisions
of the said Act. Thus, the transferor must have an interest
in the property before he can convey it. A person who has
no interest in the property, cannot convey any interest in the
property, in other words, he cannot sever himself from it and
yet convey it. Further, there are various modes of transfer of
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immovable property known to law. Section 54 of the Transfer

of Property Act defines a sale to be a transfer of ownership
in exchange for a price paid or promised or part-paid and
part-promised. The definition of sale itself indicates that in
order to constitute a sale, there must be transfer of ownership
from one person to another, i.e., all rights and interests in
the property which is possessed by a person are transferred
by him with his free consent to another person for a price
called consideration. The conveyance has to be regarded
in accordance with law. Then only the transaction of sale is
complete and title in the property passes from the seller to
the buyer. The transferor cannot retain any part of his interest
or right in that property or else it would not be a sale. On
the other hand, any transfer by operation of law, or by or in
execution of a decree or order of a court within the meaning
of Section 2(d) of the Transfer of Property Act are outside the
scope of Section 54, and need not be registered. Thus, where
the property is sold at a court auction, a certificate of sale
issued by the court is enough as the purchaser’s document of
title. But in order to constitute a sale, the parties must intend
to transfer the ownership of the property for a price to be
paid in present time or in future. Sub-section (2) of Section
55 states that the seller shall be deemed to contract with the
buyer that interest which the seller professes to transfer to
the buyer which subsists and he has power to transfer the
same. Proviso thereto further states that, where the sale
is made by a person in a fiduciary character, he shall be
deemed to contract with the buyer that the seller has done
no act whereby the property is encumbered or whereby he
is hindered from transferring it.
14.4 Similarly, gift is the transfer of certain existing movable or
immovable property made voluntarily and without consideration,
by one person, called the donor, to another, called the donee,
and accepted by or on behalf of the donee. Such acceptance
must be made during the lifetime of the donor and while he
is still capable of giving. If the donee dies before acceptance,
the gift is void. The donor is the person who gives. Any person
who is sui juris can make a gift of his property. Therefore, it
is only a person who is the owner of the property, can gift
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his property and according to the provisions of the Transfer

of Property Act.
14.5 In the same vein, an exchange is when an exchange of
immovable property takes place when two persons mutually
transfer the ownership of one thing for the ownership of another,
neither thing or both things being money only. A transfer of
property in completion of an exchange can be made only in
a manner provided for the transfer of such property by sale.
In the case of an exchange also, the person must have the
ownership in the property before the same can be exchanged
for any immovable property.
14.6 Similarly, transfer of ownership of movable property is by sale,
gift or exchange and in the case of a sale, the provisions of
the Sale of Goods Act, 1930 would apply.
14.7 Transfer of ownership other than transfer inter vivos is by
succession or inheritance under a testament or a will/codicil
in which case, the provisions of the Indian Succession Act,
1925 would have to be adhered to.
14.8 In the context of acquisition of land under the power of eminent
domain such as under the provisions of Land Acquisition Act,
1894 or the Right to Fair Compensation and Transparency
in Land Acquisition, Rehabilitation and Resettlement Act,
2013, there is divesting of ownership of the owner of the
property only when land “vests absolutely in the Government
free from all encumbrances” such as under Section 16 of
the Land Acquisition Act, 1894. This Court in Fruit and
Vegetable Merchants Union, Subzi Mandi, Delhi vs. Delhi
Improvement Trust, Regal Buildings, Cannaught Place, AIR
1957 SC 344 has held that the property acquired becomes
the property of the Government without any conditions or
limitations either as to title or possession when it vests
free from all encumbrances in the Government. The word
encumbrances means a burden or charge upon property or a
claim or lien upon an estate or on the land. Encumber means
burden of legal liability on property, and therefore, when there
is encumbrance on a land, it constitutes a burden on the title
which diminishes the value of the land. But where the land
acquired by the State is free from all encumbrances, it vests
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absolutely and free from all encumbrances. In such a case, it

would be an incidence of transfer of ownership from the owner
of the land to the Government as there would be divesting of
land from its true owner.
14.9 Amongst the distinct kinds of ownerships, a trust ownership
and beneficial ownership is relevant to the case. A trust is a
very important and curious instance of duplicate ownership.
According to Salmond, the trust property is that which is
owned by two persons at the same time, the relation between
the two owners being such that one of them is under an
obligation to use his ownership for the benefit of the other.
The former is called the ‘trustee’ and his ownership is the
‘trust ownership’; the latter is called the ‘beneficiary’ and his
is beneficial ownership.
14.10 The trustee’s ownership of any property is a matter of form
rather than a substance and nominal rather than real. A trustee
is not effectively an owner at all but in essence a mere agent,
upon whom the law has conferred the power and imposed
the duty of administering the property of another person. The
trustee is a person to whom the property, substantially that
of someone else is technically attributed by the law on the
footing that the rights and powers that it vests under him are
to be used by him on behalf of the real owner. As between the
trustee and beneficiary, the law recognises that the property
belongs to the latter and not to the former. But as between the
trustee and the third persons, the fiction prevails, inasmuch
as the trustee is clothed with the rights of his beneficiary and
personate or represent him in dealings with the world at large.
This principle is actuated under various provisions of the Act
including Section 8 thereof vis-à-vis an enemy who is the
owner of a property and the Custodian in whom the property
vests under the provisions of the Act. This position becomes
clear on a reading of the Rules under the Defence of India
Rules, 1962 and 1971 as discussed above.
14.11 Thus, the trusteeship is to protect the rights and interests of
persons, who, for any reason are unable effectively to protect
them for themselves. The law vests those rights and interests
for safe custody in a trustee, who is capable of guarding them
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and dealing with them and who is placed under an obligation

to use it for the benefit of him to whom they in truth belong.
One of the classes of persons on whose behalf the protection
of the trusteeship is called is in respect of the property of those
persons who are absent in the country, such as a person who
has migrated to a country which is described as an enemy
country by the Government of India as defined under the
provisions of the Act under consideration.
14.12 Thus, under the Act, the Custodian acts as a trustee. A trust is
more than an obligation to use the property for the benefit of
another; it is an obligation to use it for the benefit of another in
whom it is already concurrently vested. Since the beneficiary
is himself the owner of the enemy property, in the instant case,
the Custodian who is the trustee appointed under the Act is
therefore a statutory authority constituted for the administration
of the enemy property, who is only a nominal owner of the
property so administered by him vis-à-vis third parties. As
already noted, the nominal ownership in the trustee is only
for the purpose of using the rights and powers vesting with
the trustee i.e., Custodian under the Act to be used by him
or on behalf of the real owner of the property is absent, since
he has left the country for an enemy country.
14.13 The trustee or Custodian under the Act may, in pursuance
of the powers vested in him under the Act which actually
creates a trust by operation of law, can lease or mortgage the
property without the concurrence of the beneficiary under the
provisions of the Act just as the beneficiary could have dealt in
the same way with his ownership of the property independently
of the trustee as there is no bar in law to do so other than the
provisions of the Act. Thus, a relationship of trusteeship exists
between the trustee and all persons beneficially interested in
the property, either as owners or encumbrancers.
Possession:
14.14 There is another jurisprudential angle to the matter. Under the
Act the Custodian takes possession of the enemy property,
in as much as, the enemy property vests with the Custodian
under the provisions of the Act. What does this entail?
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14.15 While discussing on the jurisprudential aspects of vesting or

taking possession in the instant case as per the provisions
of the Act, it is necessary to reiterate and bear in mind the
following aspects:
(i) That there are three possible situations: first, the
possession usually exists both in law and in fact; secondly,
the possession may exist in fact but not in law; thirdly,
the possession may exist in law but not in fact. This is
also called ‘constructive possession’. In the case of the
Custodian for Enemy Property, possession exists in law
under the provisions of the Act but may be in fact in the
hands of a third party such as a tenant or a mortgagee
of the owner of such property who is declared an enemy
under the Act.
(ii) Further, whatever may be owned may be possessed but
whatever may be possessed may not be owned. This
statement is however subject to important qualifications.
For example, there can be possession of an interested
person without ownership of any kind. Conversely, there
are many rights, which can be owned in relation to a
property but which are not capable of being possessed.
There are those which may be termed ‘transitory’. For
example, a creditor does not possess the debt that is
due to him as it is a transitory right, which in its very
nature cannot survive in exercise, but a man may possess
an easement over the land because it has exercise in
continued existence or consistent with each other.
(iii) Moving further, while discussing the concept of
possession, it is necessary to understand two elements:
first is animus possidendi. The intent necessary to
constitute possession is the intent to appropriate to
oneself the exclusive use of the thing possessed. It is
an exclusive claim to a material object for the purpose of
using the thing oneself by excluding interference of other
persons. The claim of the possessor must be exclusive,
which however need not be absolute. But animus
possidendi need not amount to a claim or intent to use
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the thing as owner. The tenant or a pledgee may have

possession no less real than that of the owner himself,
just as a Custodian under the provisions of the Act in
the instant case. Thus, the animus possidendi need not
be a claim on one’s own behalf. A trustee or Custodian
under the Act may have possession of enemy property,
though he claims an exclusive right of the thing on behalf
of another than himself. This is vis-à-vis third parties. He
definitely does not have a right of ownership over the
enemy property possessed by him as the ownership of
the said property continues in the enemy.
(iv) The second concept is that to constitute possession,
the animus domini is not in itself sufficient but must
be embodied in a corpus. There are two aspects with
regard to corpus of possession: first is the relationship
of the possessor to other persons and the second, is
the relation of the possessor to the thing possessed.
The necessary relation between the possessor and the
thing possessed is such as to admit of his making such
use of it as accords with the nature of the thing and of
his claim to it. There must be a correlation between him
and the thing possessed, which is not inconsistent with
the nature of the claim he makes to it.
(v) Thus, possession is acquired whenever the two elements
of corpus and animus come into co-existence and it is
lost as soon as either of them disappears.
(vi) The modes of acquisition of possession are two in
number, namely, taking and delivery. Taking is the
acquisition of possession without the consent of the
previous possessor such as in the case of the Custodian
vis-à-vis enemy property. Delivery, on the other hand is
the acquisition of possession with the consent and co-
operation of the previous possessor.
Relation between Possession and Ownership:
14.16 According to Rudolf von Ihering, a jurist “Possession is the
objective realisation of ownership”. It is in fact what ownership
is in right. Ownership is the guarantee of the law, while the
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possession is the guarantee of the fact. Normally, ownership

and possession co-exist but not always. This aspect of the
case is crucial for answering the contentions raised by the
respective parties.
Analysis:
Let us apply the aforesaid jurisprudential principles to the provisions
of the Act under consideration.
15. Section 2 (c) of the Act defines enemy property to mean any property
for the time being belonging to or held or managed on behalf of an
enemy, an enemy subject or an enemy firm: That even when an
enemy subject dies in the territories to which the Act extends, or
dies in any territory outside India, any property which immediately
before his death, belonged to or was held by him or was managed
on his behalf, may, notwithstanding his death, continue to be
regarded as enemy property for the purposes of the Act. The Act
when enacted extended to the whole of India except the State of
Jammu and Kashmir and it applies also to all citizens of India outside
India and to branches and agencies outside India of companies or
bodies corporate registered or incorporated in India. On a combined
reading of the above, it is clear that the Act applies to any property
belonging to or held or managed on behalf of an enemy, an enemy
subject or an enemy firm, even if, the enemy or enemy subject or
enemy firm is outside India and to branches and agencies outside
India of companies or bodies corporate registered or incorporated in
India. That as per Explanation (1), the definition of enemy property
in clause (c) of Section 2, it is clarified that “enemy property” shall,
notwithstanding that the enemy or the enemy subject or the enemy
firm has ceased to be an enemy due to death, extinction, winding
up of business or change of nationality or that the legal heir and
successor is a citizen of India or the citizen of a country which is
not an enemy, continue and always be deemed to be continued as
an enemy property. Explanation (2) states that for the purposes of
this clause, the expression enemy property shall mean and include
and shall be deemed to have always meant and included all rights,
titles and interest in, or any benefit arising out of, enemy property in
the context of such property for the time being belonging to or held
or managed on behalf of an enemy, an enemy subject or an enemy
firm. The Explanation to sub-section (3) of Section 5 of the Act also
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states that for the purposes of this sub-section, “enemy property

vested in the Custodian” shall include and shall always be deemed
to have been included all rights, titles, and interest in, or any benefit
arising out of, such property vested in him under the Act.
15.1 Therefore, the moot question is, what is the nature and extent
of rights, titles, and interest in or any benefit arising out of,
such property which is vested in the Custodian? Does it mean
vesting of the ownership of the rights, titles, and interest in,
or any benefit arising out of such enemy property owned by
the enemy which becomes vested in the Custodian in the
sense that the Custodian becomes the owner of the property;
thereby there is a divesting of the ownership or a transfer of
ownership of such property from the ownership of the enemy
to the Custodian.
15.2 We do not think that such an interpretation can be given for
the simple reason that clause (c) of Section 2 clearly states
that enemy property means any property for the time being
belonging to or held or managed on behalf of an enemy, an
enemy subject or an enemy firm being vested in the Custodian.
Therefore, the provision of the Act recognises the ownership
of the enemy vis-à-vis the enemy property and the enemy
property belonging to or held or managed on behalf of an
enemy, an enemy subject or an enemy firm being vested in
the Custodian. What exactly is vested in the Custodian? The
Explanations i.e. Explanation (2) of clause (c) of Section 2 as
well as Explanation (2) to sub-section (3) of Section 5 of the
Act, being identical state that all rights, titles, and interest in,
or any benefit arising out of such enemy property vest in the
Custodian. This means that only the rights etc. vis-à-vis enemy
property vest in the Custodian. By that, the Custodian does
not acquire ownership rights in the property. It continues to
vest with the enemy. This is because ownership of immovable
property can be transferred from one person to another i.e.
transfer inter vivos can only transferred in accordance with
the provisions of the Transfer of Property Act.
15.3 On a conspectus reading of the aforesaid provisions, what
emerges is that under Section 3 of the Act, the Custodian
of Enemy Property for India is appointed by the Central
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Government by issuance of a notification in the official gazette

so also Deputy Custodians and Assistant Custodians of Enemy
Property could be appointed for certain local areas as may be
specified in the notification. Since the Act is in continuation of
the Defence of India Rules, 1962 as well as Defence of India
Rules, 1971, as the case may be, the Custodian of Enemy
Property for India appointed under the aforesaid Rules shall be
deemed to have been appointed under Section 3 of the Act.
The expressions “enemy” or “enemy subject” or “enemy firm”
are defined in clause (b) of Section 2; The use of the words
“for the time being”, “belonging to” and “held” or “managed
on behalf of an enemy, an enemy subject or an enemy firm”
in clause (b) of Section 2 of the Act are significant. The said
provision clearly recognizes ownership of the enemy property
by the enemy or property held by an enemy or managed on
behalf of an enemy, an enemy subject or an enemy firm.
The proviso states that where an individual subject dies in
the territories to which the Act extends, any property which
immediately before his death belonged to or was held by him
or managed on his behalf, may, notwithstanding his death,
continue to be recorded as enemy property for the purposes
of this Act. This proviso clearly recognizes that the death of an
enemy would not result in the enemy property ceasing to be so.
Explanation (1) to Section 2(c) also states that enemy property
shall continue to remain as enemy property even on the death
of the enemy or extinction, winding up of business or change
of nationality to continue to remain an enemy property. This is
even if the legal heir and successor is a citizen of India or a
citizen of a country which is not an enemy country. Explanation
(2) thereof states that enemy property shall mean and include
and shall be deemed to have always meant and included all
rights, titles and interests in, or any benefit arising out of such
property. This Explanation gives meaning to the scope of the
expressions belonging to, held or managed on behalf of an
enemy, an enemy subject or enemy firm.
15.4 If a certificate is issued by the Custodian that the enemy
property has vested in him under the Act, the same shall be
evidence of the facts stated therein vide Section 5-A of the
Act. Section 5-B of the Act begins with a non obstante clause
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which states that nothing contained in any law for the time
being in force relating to succession or any custom or usage
governing succession of property shall apply in relation to the
enemy property under this Act and no person (including his
legal heir and successor) shall have any right and shall be
deemed not to have any right (including all rights, titles, and
interests or any benefit arising out of such property) in relation
to such enemy property. This provision regarding extinction of
rights, titles or interests or any benefit arising out of the enemy
property is deemed to have been lost is by operation of law
and by a legal fiction only in so far as a heir or successor
is concerned. If any property is vested in the Custodian as
enemy property, then no enemy or enemy subject or enemy
firm shall have any right to transfer any such property and
any such transfer shall always be deemed to have been void.
Therefore, by a deeming fiction and by operation of law the
right, title and interest in any property vested in the Custodian
under the Act shall be extinguished vis-à-vis any enemy or
enemy subject or enemy firm once such property is vested in
the Custodian only with regard to succession to such enemy
property or transfer of such property by an enemy, enemy
subject or enemy firm. This would imply that the enemy, enemy
subject as well as enemy firm would continue to remain the
owner of such property and would continue to vest with the
Custodian on the death of the enemy.
15.5 The pertinent question which arises is, whether, vesting of any
enemy property in the Custodian under the provisions of the
Act which belonged or was held or managed on behalf of an
enemy, an enemy subject or an enemy firm would result in
“transfer of title” in the said enemy property to the Custodian
and therefore to the Central Government or to the Union. In
order to discern an answer to this question, it is necessary to
read further the provisions of the Act from Section 7 onwards.
15.6 Section 7 states that any sum otherwise payable to an enemy,
enemy subject or an enemy firm in the form of dividend,
interests share profits or otherwise to or for the benefit of an
enemy or an enemy subject or an enemy firm, unless otherwise
ordered by the Central Government, be paid by the person by
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whom such sum would have been payable to the Custodian

or such other person as may be authorised by him in this
behalf and shall be held by the Custodian or such person
subject to the provisions of the Act. This provision indicates
that the Custodian only holds in trust the sums payable by
any person to an enemy subject or an enemy firm. This is
because the Custodian of Enemy Property acts as a trustee
of the enemy property vested in him as well as a trustee of
all monetary dues payable to an enemy, enemy subject or
enemy firm. The Custodian shall, subject to the provisions of
Section 8, deal with any money paid to him under the Act or
under the Defence of India Rules, 1962 or 1971 as the case
may be. Further, any property vested in the Custodian under
the Act shall be dealt with by him as the Central Government
may direct.
15.7 What are the powers of the Custodian in respect of property
vested in him? This is dealt with in Section 8 of the Act. The
Custodian may take or authorise the taking of such measures
as he considers necessary or expedient for preserving
such property till it is disposed of in accordance with the
provisions of the Act. Sub-section (2) of Section 8 speaks
of eleven exigencies which a Custodian or such person as
may be specifically authorised by him may take. The same
are extracted above. A reading of the above clearly indicates
that the Custodian or his authorised person can carry on the
business of the enemy; fix and collect the rent etc. in respect
of enemy property; take action for recovering any money due
to the enemy; make any contract and execute any document
in the name and on behalf of the enemy; institute or defend
any legal proceeding; secure vacant possession of the enemy
property; raise on the security of the property such loans as
may be necessary; incur out of the property any expenditure
including payment of any taxes, duties, cesses and rates to
Government, or to any local authority, pay wages, salaries,
pensions, etc. to or in respect of any employee of the enemy
and repayment of any debts due by the enemy to persons
other than enemies; transfer or otherwise dispose of any of the
enemy properties; invest any moneys held by him on behalf
of the enemies for the purpose of Government securities
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etc.; make payments to the enemy at his dependants; make

payments on behalf of the enemy to persons other that those
enemies, of dues outstanding; make such other payments out
of the funds of the enemy as may be directed by the Central
Government.
15.8 What emerges from the above is that the activities that the
Custodian or his authorised person carries out vis-à-vis the
enemy such as the business of the enemy or in respect of
managing the enemy property would also clearly indicate that
the Custodian of the Enemy Property holds the said property
in trust or as a trustee and not as an owner of the enemy
property or by exercising rights of ownership over the enemy
property. Carrying on the business of the enemy and dealing
with the property of the enemy vested in the Custodian is
in order to protect the business belonging to an enemy or
enemy subject or enemy firm, who has left the country. The
Custodian of Enemy Property for India who acts on behalf of
the Enemy holds in trust the enemy property vested in him
under the provisions of the Act. He does so as a trustee and
therefore, the principles and legal doctrines applicable to a
trustee are applicable to the Custodian accordingly.
15.9 It is trite that a trustee or Custodian in the instant case can
never be the owner of the property. The vesting of property
in a trustee or the Custodian which, in the instant case, is
enemy property as defined under the Act is for the purpose
of managing the said property and protecting it, so that
the property does not fall into the hands of trespassers,
unauthorised persons or render it as being ownerless and
therefore, a free for all, so to say owing to the absence of the
owner. The object and purpose of the Act is to ensure that
the enemy property, which vests in the Custodian, is held in
trust and is looked after, protected and managed as per the
provisions of the Act. The statement of objects and reasons
of the Act makes this position clear.
Jurisprudential aspect of vesting:
16. A discussion on the aforesaid provisions under the Act would indicate
that the Custodian takes charge of the enemy property which vests
in him by operation of law. Then the following questions would arise:
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(i) Does vesting of enemy property in the Custodian imply that the
Custodian assumes ownership rights vis-à-vis enemy property
vested in him?
(ii) Secondly, whether the vesting of enemy property in the
Custodian would imply that it becomes the property of the Union?
These are the two crucial questions which are required to be answered
in this case in order to decide the matter in all its perspectives.
16.1 The expression ‘vest’ or ‘vesting’ has no precise definition and
it would depend upon the context in which the expression is
used under a particular enactment. This Court has held that
the expression ‘vest’ is of fluid or flexible content and can, if
the context so dictates, bear the limited sense of “being in
possession and enjoyment”. (See: Maharaj Singh vs. State
of Uttar Pradesh, (1977) 1 SCC 155) (Para 18)]. In Dr. M.
Ismail Faruqui vs. Union of India, (1994) 6 SCC 360 : AIR
1995 SC 605, it was observed that the word ‘vest’ has to be
understood in the different contexts in which the word occurs.
In the context of acquisition of certain area under the Ayodhya
Act, 1993, it was observed that the vesting of the disputed area
in Central Government is limited, as a statutory receiver, with
the duty of its management and administration. According to
Section 7 of the said Act, till it is handed over in terms of the
adjudication made in the suit, the word ‘vest’ takes varying
colours from the context and the situation in which the word
is used in the statute.
Under the Land Acquisition Act, 1894, vesting in the State,
is from the date of taking possession under Sections 16 or
17(2) which is free from all encumbrances. But under the
Land Reforms Act like abolition of estates and taking over
thereof, the vesting takes effect from the date of publication
of the notification in the official gazette until the occupant of
the land is granted the occupancy rights. This is however
not the position when enemy property vests in the Custodian
under the provisions of the Act. The vesting of enemy property
in the Custodian is not free from encumbrances. Therefore,
the expression ‘vest’ has no fixed connotation. It is a word of
variable input and therefore has to be understood in different
contexts and under different circumstances. Therefore, the
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context and situation in which the word is used in the statute

is significant in order to interpret the said expression. Under
certain statutes, the word ‘vesting’ would mean placing into
possession and not conferring ownership of the person who
comes into possession of property. Therefore, the word ‘vesting’
is a word of variable input and has more than one meaning
which must be discerned and the exact connotation must be
found by looking into the scheme of law and the context in
which it is used. The setting in which it is used would lend
colour to it and divulge the legislative intent.
In State of Gujarat vs. The Board of Trustees of Port of
Kandla, (1979) 1 GLR 732, (“Trustees of Port of Kandla”),
it was observed that the vesting of property in the Board of
trustees is for the limited purpose of administration, control
and management only without the Central Government having
divested itself of ownership. Thus, vesting of property in a
person or authority does not always mean transfer of absolute
title in the property.
In Bibhutibhushan Datta vs. Anadinath Datta, AIR 1934
Cal 87, (“Bibhutibhusan Datta”), it was observed that mere
transference of management or control of a property, when
transfer of proprietary rights is not intended, the requirements of
vesting is not satisfied in terms of Section 10 of the Limitation Act.
Under the Act under consideration, the vesting of the enemy
property in the Custodian is not free from encumbrances but
vesting is in accordance with the status of the property as
held by the enemy, enemy subject or enemy firm prior to its
vesting. Therefore, only when enemy property vests in the
Custodian free from all encumbrances it will be a transfer of
ownership from the owner of such property to the Custodian.
This is because under the Act, Custodian holds or manages
the property for and on behalf of the enemy, enemy subject
or enemy firm only temporarily and there is no transfer of
ownership to the Custodian or the Union of India. Hence, there
is no necessity of payment of compensation to the owners of
such properties.
Under Section 5A of the Act under consideration, when property
vests in the Custodian under the provision of the Act, he may
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issue a certificate to that effect and such certificate shall be

evidence of the facts stated therein. Further, under Section 7
(1) of the Act, any sum payable by way of dividend, interest,
share profits or otherwise to or for the benefit of an enemy or
an enemy subject or an enemy firm shall, unless otherwise
ordered by the Central Government, be paid by the person by
whom such sum would have been payable to the Custodian
or such person as may be authorised by him in that behalf
and shall be held by the Custodian or such person subject to
the provisions of the Act. Under Section 7 (3) of the Act, the
Custodian shall, subject to Section 8 of the Act, can deal with
any money paid to him or any property vested in him under
the Act in such manner as the Central Government may direct.
Section 8-A of the Act begins with a non-obstante clause and it
states that notwithstanding anything contained in any judgment,
decree or order of any court, tribunal or other authority or
any law for the time being in force, the Custodian may, within
such time as may be specified by the Central Government in
this behalf, dispose of whether by sale or otherwise, as the
case may be, with prior approval of the Central Government,
by general or special order, enemy properties vested in
him immediately before the date of commencement of the
Amendment Act, 2017 in accordance with the provisions of
this Act, as amended by the Amendment Act, 2017. The sale
proceeds have to be deposited into the Consolidated Fund of
India and the details thereof have to be intimated to the Central
Government. The directions issued by the Central Government,
by way of general or special order, vis-à-vis disposal of enemy
property is binding upon the Custodian and the buyer of the
enemy properties and the other persons connected to such
sale or disposal. Further, instead of the Custodian disposing
of enemy property, any Ministry or Department of the Central
Government may do so as authorised and the provision of
Section 8A applies to such authority or Ministry or Department.
The Central Government can also deal with or utilise enemy
property in such manner as it may deem fit.
The scheme of Section 8A of the Act is only to regulate the
disposal of the enemy property by the Custodian bearing in
mind the guidelines and/or directions issued by the Central
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Government and to deposit the sale proceeds into the

Consolidated Fund of India. The Custodian would nevertheless
be acting as a trustee of the enemy property but under the
directions of the Central Government as the Custodian is
appointed under the Central Government and he, with the
prior approval of the Central Government may dispose of the
enemy property for valid reasons. It could be for the reasons
that there is no succession to the enemy property or the said
property is in a dilapidated condition or, if for any reason,
there is litigation or legal or other complications arising which
would make it difficult for the Custodian as the trustee of such
property to manage the same. In such circumstance, there
could be alienation of the said property. On such alienation, the
sale proceeds would have to be deposited in the Consolidated
Fund of India, as the Custodian, being an officer appointed
under the provisions of the Act by the Central Government,
would be discharging his duties under the Act. But the power
of sale of an enemy property as envisaged under Section 8A
of the Act, in our view, would also not imply that the Custodian
would be acting as the owner of the property but only as a
Custodian of such property. This view is further supported
by Section 9 of the Act, which states that all enemy property
vested in the Custodian under the Act shall be exempt from
attachment, seizure or sale in execution of a decree of a
civil court or orders of any other authority. Therefore, it is the
duty of the Custodian as the trustee of the enemy property
to ensure that the said property is saved from attachment,
seizure or sale in execution of a decree of a civil court or
orders of any other authority.
Section 10 of the Act also categorically states that where
the Custodian proposes to sell any security issued by a
company and belonging to an enemy, the company may,
with the consent of the Custodian, purchase the securities,
notwithstanding anything to the contrary in any law or in any
regulations of the company and any securities so purchased
may be re-issued by the company as and when it thinks fit
so to do. Where the Custodian executes and transfers any
securities, he has to register them (securities) in the name
of the transferee, notwithstanding that the regulations of the
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company do not permit such registration in the absence of

the certificate, script or other evidence of title relating to the
securities transferred. The expression securities includes
shares, stocks, bonds, debentures and debenture stock but
does not include bills of exchange.
On sale of any immovable property vested in him to any
person and on receipt of the sale proceeds of such property,
the Custodian has to issue a certificate of sale in favour of
the transferee and even in the absence of handing over the
original title deeds of the property, the sale shall be valid and
conclusive proof of transfer of ownership of such property to
such person, who has the certificate registered in his name.
Such transfer is obviously from the owner of the enemy property
who is represented by the Custodian who only executes the
sale and transfers the ownership of such property from the
ownership of the enemy, enemy subject or enemy firm to the
buyer of such property. The Custodian does not sell the enemy
property as the owner of such property as no ownership rights
are vested in him.
Section 15 of the Act states that the Custodian may call from
persons who, in his opinion, have any interest in, or control
over, any enemy property vested in him under this Act, such
returns as may be prescribed. In such an event, every person
from whom a return is called for shall be bound to submit
such return within the prescribed period. All such returns shall
be recorded in such registers as may be prescribed, which
shall be open to inspection subject to reasonable restrictions
as may be imposed by the Custodian, if in the opinion of the
Custodian, the person seeking inspection is interested in any
particular enemy property as a creditor or otherwise.
Such being the position of a Custodian, who under the Act,
acts as the trustee for the enemy property under the Act and
not as the owner of the property, but as a protector of the
property vested in him, the Custodian can never be an owner
or having any right, title or interest in the enemy property
as owner. While Section 5-B states that any law related to
succession or any custom or usage governing succession of
property shall not apply in relation to enemy property under
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the Act as no person including a legal heir and successor of

an enemy or enemy subject or enemy firm shall be deemed
to have any right, title or interest or any benefit arising out
of such property in relation to enemy property, this provision
does not at the same time confer any right, title and interest
or any benefit arising out of enemy property in the Custodian
for Enemy Property. A Custodian is thus only a trustee of the
enemy property. In the absence of any transfer of ownership
or any benefit arising from enemy property being conferred on
the Custodian, he acts merely as a trustee of the said property
and not as the owner of enemy property. The Explanation to
Section 5(3) states that for the purpose of that sub-section
only ‘enemy property vested in the Custodian’ shall always be
deemed to have included all rights, titles and interests in or
any benefit arising out of such property vested in him under
the Act. This is by a deeming provision and by a fiction only
for the limited purpose of extinction of rights of succession
on the death of the enemy or extinction or winding up of the
business of enemy property or change of nationality of the
legal heir or successor.
Thus, if no ownership rights are conferred on the Custodian and
he is appointed vis-à-vis any enemy property as a Custodian, in
law, he cannot be construed to be the owner of such property.
This position is also discerned from the manner in which the
Custodian acts vis-à-vis the enemy property as a protector of
such property and not as its owner. If the Custodian himself
cannot be construed to be the owner of the enemy property,
then much less the Central Government or Union can be
considered to be the owner of such property. In our view,
the Union or the Central Government cannot usurp rights of
ownership and exercise all such rights of ownership vis-à-vis
enemy property. In the absence of any provision conferring
such ownership on the Custodian, the Central Government,
which appoints the Custodian of Enemy Property in India by
issuance of a notification in the Official Gazette to carry on
his functions under the provisions of the Act, cannot assume
ownership rights over such property. The same is having regard
to the fact that the Act is a piece of parliamentary legislation
and therefore, the State Legislatures or Governments have
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no competence to take steps under the Act and therefore,

the Central Government appoints the Custodian of Enemy
Property in India.
17. However, it was contended by Sri Balbir Singh, learned ASG appearing
along with Sri Rupesh Kumar, learned counsel for the Custodian that
by the appointment of the Custodian by the Central Government, the
powers of the Custodian in respect of enemy property vested in him
and such other actions that he may take vis-à-vis enemy property,
would clearly indicate that the Custodian acts at the behest of the
Central Government and therefore, the enemy property becomes
Union property even though the same is vested in the Custodian
who, in any case, is appointed by the Central Government. In order
to buttress this submission, our attention was drawn to Section 8-A
which begins with a non-obstante clause and which states that
the Custodian may, with the approval of the Central Government,
dispose of enemy property by sale or otherwise, as the case may
be, the enemy property vested in him immediately before the date
of commencement of the Amendment Act, 2017, in accordance with
the provisions of the Act as amended by the Amendment Act, 2017.
Further, the Custodian, on disposal of enemy property, has to deposit
the sale proceeds into the Consolidated Fund of India immediately
and intimate details thereof to the Central Government. Also, the
Custodian has to submit a report of the enemy properties disposed
of enclosing details of sale etc. The Central Government may also
issue directions and guidelines to the Custodian in matters related
to disposal of enemy property which are binding on the Custodian
and the buyer. Moreover, the Central Government may deal with or
utilise the enemy property in a manner as it may deem fit. On sale of
any enemy property vested in the Custodian to any person he may,
on receipt of the sale proceeds of such property, issue a certificate
of sale notwithstanding the fact that the original title deeds of the
property have not been handed over to that transferee. That once
such certificate of sale is issued, the same shall be valid as conclusive
proof of ownership of property by such person. Further, the certificate
issued by the Custodian shall be a valid instrument for registration of
the property in favour of the transferee as the registration in respect
of enemy property for which such certificate has been issued by the
Custodian, shall not be refused on the ground of lack of original title
deeds in respect of such property or for any other matter.
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17.1 In our view, although the Custodian for the Enemy Property is
empowered to alienate enemy property under the provisions of
the Act, he does so as a trustee of the said property and not
as the owner thereof or as the Central Government being the
owner. As already stated, the ownership continues to remain
with the enemy but the management and the custody of the
property only remain with the Custodian and in the absence
of the enemy, the Custodian is empowered to sell or alienate
such property and can issue a sale certificate as is expedient
to do so. This is in the interest of or benefit of the enemy
property. Thus, the transfer of such enemy property by sale or
otherwise is for and on behalf of the enemy who is not available
in the country and in order to ensure that such property is not
dissipated owing to the owner of the property being absent in
the country. Thus in order to protect the enemy property, the
Custodian is empowered to even sell the enemy property and
deposit the sale proceeds with the Central Government. The
sale or transfer of ownership of the enemy property in favour
of the transferee is, in fact, on behalf of the enemy who is the
owner of the property through the legal and statutory authority
of the Custodian which empowers him to alienate the property
for good and sound reasons and in the interest of the enemy
property irrespective of whether there is any claim made by
the enemy or his heirs or descendants. It is for this reason
that the original title deeds may remain with the enemy or his
family vis-à-vis the enemy property and in lieu of handing over
of the title deeds of the property to the vendee or purchaser
of the enemy property, a certificate of sale is issued in favour
of such person by the Custodian and such certificate of sale
is a valid instrument for seeking registration of the property in
favour of the transferee. When the registration of the sale is
made in favour of the transferee by the Custodian, the latter
is acting as a trustee and not as the owner of the enemy
property. Therefore, it cannot be accepted that the Custodian
is acting as the owner of the property and by that logic the
enemy property would become the property of the Union.
17.2 Further, since the Custodian is the trustee of the enemy
property, if any monies are due to the enemy or if any order
has been made with regard to enemy property vested in the
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Custodian which are paid or complied with by any person,

as the case may be, and a certificate is issued in that regard
by the Custodian, such a person, to whom the certificate is
issued, shall not be liable to any suit or other legal proceeding,
by reason only of such compliance. This aspect also indicates
that payment made to the Custodian is payment to the enemy,
enemy subject or enemy firm who accepts the same for and
on behalf of the enemy and the payer is thus absolved of all
his liabilities and obligations to the enemy.
17.3 In Amir Mohammad Khan, it was observed by this Court
that vesting of enemy property in the Custodian is limited
to temporary possession, management and control of the
property till it becomes incapable of being used by the enemy
subject for carrying on business and trading therein. This does
not divest the enemy subject of his right, title and interest in
the property. The aforesaid two aspects are totally distinct.
However, in the said case this Court observed that on the
death of the enemy subject the said property would cease to
be enemy property if the same is succeeded to by his heir
who is a citizen of India. Hence the Custodian could not be
permitted to continue with the possession thereof and would
be duty bound to release the property to the true owner. In
our view, it is only in respect of succession to the enemy
property on death of the enemy which has been abrogated
by the Parliament by insertion of Explanations (1) and (2)
to clause (b) of Section 2 which defines enemy or enemy
subject or enemy firm which are with effect from 21.03.2018.
Therefore, the jurisprudential position of the Custodian for
Enemy Property vis-à-vis the enemy continues to remain as
that of a trustee although the enemy property may vest in such
Custodian for the protection, preservation and management
thereof. Thus, such vesting of property in the Custodian does
not result in the transfer of ownership from the owner of the
property who is an enemy or enemy subject or enemy firm
within the meaning of clause (b) of Section 2 of the Act to
the Custodian. When the Custodian appointed by the Central
Government in whom enemy property vests is only a trustee
and does not adorn the status of an owner of such enemy
property, consequently, the Central Government or the Union
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even within the meaning of Article 285 of the Constitution

cannot usurp the ownership of such property.
17.4 That when enemy property is not the property of the Union
within the meaning of Article 285 of the Constitution, there is
no exemption from taxes imposed on by a State or by any
authority within a State. When the aforesaid position of law
was discussed during the course of submission and specifically
put to Sri Balbir Singh, learned ASG by the Bench, the
response was that the enemy property being the property of
the Union is exempt from all taxes imposed by a State or by
any authority within a State, save insofar as Parliament may
by law otherwise provide. That in the instant case, Section
8(2)(vi) authorises the Custodian to make payments out of
the enemy property any taxes, dues, cesses or rates to the
State Government or to any local authority and therefore, the
Parliament has by the said provision authorised the payment
of taxes to the State Government or the local authority such
as the appellant herein and hence, there is no exemption
from payment of taxes in respect of enemy property which is
by that reason Union property. In other words, the contention
was premised on the fact that once the enemy property vests
in the Custodian, it automatically becomes the property of
the Union and having regard to the saving clause in Articles
285(1) of the Constitution, and bearing in mind Section 8(2)
(vi) of the Act, there is no exemption from the payment of
property tax in the instant case.
17.5 Thus, while both the appellant-Municipal Corporation or Nagar
Nigam and the Union of India are at ad idem on the legal
position that the property tax is liable to be paid to the appellant
in the instant case but it is for different reasons or basis.
17.6 In this context, Mr. Kavin Gulati, learned senior counsel for
the appellant emphasised that the subject property in question
is not Union property but it is enemy property vested with
the Custodian under the Act and continues to be so and is
therefore, subject to payment of taxes, etc. to the appellant-
Corporation and Section 8(2)(vi) is only an enabling provision.
The Custodian collects the taxes on behalf of the enemy and
pays it to the appellant and not as owner of the enemy property.
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17.7 Per contra, Shri Guru Krishna Kumar, learned senior counsel
appearing for the respondent-lessee contended that the subject
property being enemy property vested with the Custodian under
the Act is the property of the Union or Central Government
and therefore, is exempt from any taxation under clause (1)
of Article 285 of the Constitution.
17.8 Interestingly, while both learned ASG Sri Balbir Singh,
appearing for the Union of India and Sri Gurukrishna Kumar,
learned senior counsel appearing for the respondent-lessee
have contended that the subject property is Union property,
between them there is also a difference in their stand in
the matter. While learned ASG contended that there is no
exemption from payment of municipal taxes, on the other hand,
learned senior counsel Sri Gurukrishna Kumar appearing for
the respondent-lessee contended that the subject property
being Union property is totally exempt from any kind of taxes
to be paid to any Government or local authority.
17.9 But in view of our above analysis, we hold that the vesting of
enemy property in the Custodian does not transfer ownership
of such property in the Custodian and by that process in
the Union or Central Government, but since the Custodian
is only a trustee of the enemy property, the same is liable
to tax in accordance with law, including to the appellant
herein. The Custodian is only authorised to pay the taxes
on the subject enemy property by virtue of sub-section (2)
of Section 8 of the Act. The Custodian while doing so is not
acting on behalf of the Union Government being the owner of
the enemy property, rather, the Custodian who is appointed
by the Central Government under the provisions of the Act,
which is a Central legislation only discharges his duties and
functions under the provisions of the Parliamentary legislation
i.e. the Act under consideration. Such discharge of duties and
functions, including the payment of taxes vis-à-vis enemy
property vested in him would not also by the same logic imply
that the Custodian is acting as if the property vested in him
has become the Union property. We emphasise again that
mere vesting of enemy property in the Custodian does not
transfer ownership of the same from the enemy to the Union
or to the Central Government; the ownership remains with
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the enemy but the Custodian only protects and manages the
enemy property and in discharging his duties as the Custodian
or the protector of enemy property he acts in accordance with
the provision of the Act and on the instructions or guidance
of the Central Government. The reason as to why the Central
Government is empowered to issue guidelines or instructions
to the Custodian is because the Custodian is appointed under
the Act which is a Parliamentary legislation and the reason
why the Parliament has passed the said law is in order to
have a uniformity vis-à-vis all enemy properties throughout
the length and breadth of the country in that the same are
protected, managed and dealt with uniformly in accordance
with the provisions of the Act.
18. We say so because Article 300-A of the Constitution states that
no person shall be deprived of his property save by authority of
law. The word “law” is with reference to an Act of Parliament or of
a State Legislature, a rule or a statutory order having the force of
law. Although, to hold property is not a fundamental right, yet it is a
constitutional right. The expression person in Article 300-A covers
not only a legal or juristic person but also a person who is not a
citizen of India. The expression property is also of a wide scope and
includes not only tangible or intangible property but also all rights,
title and interest in a property. Deprivation of property may take
place in various ways, but where there is only control of property
short of deprivation would not entail payment of compensation vide
Indian Handicrafts Emporium vs. Union of India, (2003) 7 SCC
589, (Paras 109 and 111) and Chandigarh Housing Board vs.
Major-General Devinder Singh (Retd.), (2007) 9 SCC 67, (Para
11). However, deprivation of property is to be distinguished from
restriction of the rights following from ownership, which falls short
of dispossession of the owner from those rights. Deprivation also
takes within its nomenclature acquisition in accordance with law and
not without any sanction of law. Before a person can be deprived of
his right to property, the law must expressly and explicitly state so.
Thus, the expression by authority of law means by or under a law
made by the competent Legislature.
18.1 In KT Plantation Pvt. Ltd. vs. State of Karnataka,
(2011) 9 SCC 1, it was observed that though the right to
claim compensation or the obligation of the State to pay
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compensation to a person who is deprived of his property is

not expressly included in Article 300-A of the Constitution, it
is in-built in the Article. Within the scope of Article 300-A the
doctrine of eminent domain could also be read inasmuch as
the said doctrine states that the acquisition of property must
be in the public interest and there must be payment of just and
fair compensation therefor. When acquisition of property takes
place either under the Land Acquisition Act, 1984 or the Right
to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013, it is always for a
public purpose and on payment of compensation to the owner
of the said property. The State then possesses the power
to take control of the property of the owner thereof for the
benefit of the public and when the State so acts it is obliged
to compensate the owner upon making just compensation as
the owner of the property would lose all his rights vis-à-vis
the acquired land.
18.2 However, this position has to be distinguished vis-à-vis the
Custodian for Enemy Property under the Act, as he takes
possession of the enemy property only for the purpose of
managing the same as per the provisions of the Act and
does not become the owner of the property inasmuch as the
ownership of the property from the enemy or enemy subject
or enemy firm does not get transferred to the Custodian. On
the other hand, if it is to be recognised that ownership of the
property gets transferred from the enemy to the Custodian
who takes possession of the property and administers it or
manages it and thereby the ownership would then be that
of the Union, in that event, it would be a deprivation of the
property of the true owner who may be an enemy or an
enemy subject or enemy firm but such deprivation of property
cannot be without payment of compensation. Having regard to
the salutary principles of Article 300-A of the Act, we cannot
construe the taking possession of the enemy property for
the purpose of administration of the same by the Custodian,
as an instance of transfer of ownership from the true owner
to the Custodian and thereby to the Union. This position is
totally unlike the position under the provisions of the Land
Acquisition Act, 1894 or the subsequent legislation of 2013
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which are expropriatory legislations under which acquisition

of land would inevitably result in transfer of the ownership of
the land from the owner to the State which is the acquiring
authority, but the same would be subject to payment of a
reasonable and fair compensation to the owner.
18.3 Further even under Article 296 of the Constitution, the manner
in which ownership of certain types of property gets vested
directly with the Union is stated when such property vests
with the Union by virtue of the application of the doctrine of
escheat or doctrine of bona vacantia. But under the provisions
of the Act, the Custodian is appointed only to protect the
property and to manage it as a trustee and not as an owner
by vesting in the Custodian free from all encumbrances. By
that, the Union cannot assume rights of ownership over such
property through the Custodian.
19. Therefore, we see no substance in the arguments of learned ASG
appearing for the Union of India as well as that of Sri Guru Krishna
Kumar appearing for the respondent-lessee to the effect that enemy
property vested with the Custodian becomes property of the Union.
20. There is another angle to the case which revolves around Article
285 of the Constitution. Clause (1) of Article 285 of the Constitution
corresponds to the first paragraph of Section 154 and clause (2)
corresponds to the proviso to Section 154 of the Government of
India Act, 1935. For a more comprehensive understanding of the
subject, it would also be useful to read Articles 286, 287, 288, 289
and Article 296 also.
Article 289:
21. Clause (1) of Article 289 exempts from Union taxation any income of
a State, whether it is derived from governmental or non-governmental
activities. However, an exception is provided in clause (2) thereof in
that the income derived by a State from trade or business would be
taxable, provided a law is made by Parliament in that behalf. Clause
(3) is an exception to the exception prescribed in clause (2) which
states that the income derived from a particular trade or business
may still be immune from Union taxation if Parliament declares that
the said trade or business is incidental to the ordinary functions of
Government. This Article broadly corresponds to Section 155 of the
Government of India Act, 1935 but has certain other conditions thereto.
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Articles 285 and 289 provide for the immunity of the property of
the Union and the State from mutual taxation on the basis of the
Federal principle.
NDMC is a decision of nine-Judge Bench which dealt with a question
whether the properties owned and occupied by various States within
the National Capital Territory of Delhi are entitled to be exempted from
the levy of taxes under the provision of Delhi Municipal Corporation
Act, 1957 and New Delhi Municipal Council Act, 1994 by virtue of
the provisions of Article 289(1) of the Constitution. The pertinent
question was, whether, by virtue of Article 289(1), the States are
entitled to exemption from the levy of taxes imposed by laws made
by Parliament under Article 246(4) upon their properties situated
within Union Territories. The Delhi High Court had taken the view
that the properties of the States situated in the Union Territory of
Delhi are exempt from property taxes levied under the municipal
enactments in force in the Union Territory of Delhi. The said view
was challenged in the appeals preferred by the New Delhi Municipal
Council and the Delhi Municipal Corporation which are functioning
under the respective parliamentary enactments.
While considering Article 285 as well as the Article 289 of the
Constitution which deal with exemption of property of the Union from
State taxation and exemption of property and income of State from
Union taxation, respectively, by a 5:4 majority judgment speaking
through B.P. Jeevan Reddy, J., it was observed that in a federation
there are two coalescing units, namely, the Federal Government
or the Centre and the States or the Provinces. Articles 285 and
289 deal with the concept of doctrine of immunity from taxation.
While the immunity created in favour of the Union is absolute, the
immunity created in favour of the States is a qualified one. Article
285 provides a complete and absolute ban on all taxes that could be
imposed by a State on Union property. There is no way in which a
State Legislature can levy a tax upon the property of the Union but
Article 289 is distinct. Although, the property and income of a State
is exempt from Union taxation, the same is qualified inasmuch as
the aforesaid ban imposed by clause (1) of Article 289 would not
prevent the Union from imposition or from imposing or authorising
the imposition of, any tax to such extent, if any, as Parliament may
by law provide in respect of - (a) a trade or business of any kind
carried on by, or on behalf of, the Government of a State, or (b) any
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operations connected such trade or business or (c) or any property

used or occupied for the purposes of such trade or business, or
(d) any income accruing or arising in connection with such trade or
business.
Article 289 clause (3) empowers Parliament to declare, by law,
which trade or business or any class of trades or businesses is
incidental to the ordinary functions of the Government, whereupon
the trades/businesses so specified go out of the purview of clause
(2) of Article 289. It was held that levy of taxes on property by the
Punjab Municipal Act, 1911 (as extended to Part ‘C’ State (Law)
Act, 1950), the Delhi Municipal Corporation Act, 1957 and the New
Delhi Municipal Council Act, 1994 (both parliamentary enactments)
constitute “Union taxation” within the meaning of Article 289(1). That
by virtue of the exemption provided by clause (1), taxes are not
leviable on State properties but clauses (1) and (2) of Article 289
go together, form part of one scheme and have to be read together.
Therefore, Municipal Laws of Delhi are inapplicable to the properties
of State Government to the extent such properties are governed and
saved by clause (1) of Article 289 and that insofar as the properties
used or occupied for the purpose of a trade or business carried on
by the State Government, the ban in clause (1) does not avail to
them and the taxes thereon must be held to be valid and effective.
It was observed that the levy of the property taxes under the three
enactments, namely, the Delhi Municipal Corporation Act, 1957; the
New Delhi Municipal Council Act, 1994 and the Punjab Municipal Act,
1911 are valid to the extent the provisions related to land and building
owned by State Government and used or occupied for the purposes
of any trade or business carried on by the State Government. In other
words, the levy is invalid and inapplicable only to the extent of those
lands or buildings which are not used or occupied for the purposes
of any trade or business carried on by the State Government. That
it is for the authority under the said enactment to determine with
notice to the affected State Government, which land or building is
used or occupied for the purpose of any trade or business carried
out or on behalf of that State Government. It was further observed
that the said judgment was to operate prospectively commencing on
01.04.1996 onwards by invoking the Article 142 of the Constitution.
Another aspect which was argued in the said case was that the
exemption provided by clause (1) of Article 289 would not apply to
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compensatory taxes like water tax, drainage tax and so on. However,
it was contended that even in respect of a composite taxes, known
as property tax, insofar as the taxes on the services are concerned,
the ban under clause (1) of Article 289 would not apply. However,
the Court did not express any opinion on this aspect of the matter.
Article 285:
21.1 Article 285 speaks about the doctrine of immunity restricting
the taxing powers of the governments in a federation. The
doctrine is based on the principle that there ought to be inter-
governmental tax immunities between the Centre and the
States. In a Constitution such as ours which has a federal
character, where both the Union and State Governments have
the powers to levy taxes even on governmental property,
the immunity is intended for the smooth working of the
Governments and for saving time and efforts in cross taxation.
Clause (1) of Article 285 deals with immunity of the property of
the Union from State taxation. Article 285 embodies a narrower
aspect of the doctrine of “Immunity of Instrumentalities” as
propounded in the United States inasmuch as it exempts only
property and not the functions or instrumentalities of the Union.
21.2 Article 285(1) states that the property of the Union shall be
exempted from all taxes imposed by the State or by any
authority within a State unless so provided for by the Parliament
by law. Clause (2) of Article 285 states that nothing in clause
(1) shall prevent any authority within a State from levying any
tax on any property of the Union to which such property was
immediately before the commencement of the Constitution
liable or treated as liable, so long as that tax continues to
be levied in that State. Clause (2) of Article 285 is a clause
which is transitional in nature and is in the nature of a saving
clause intended to save all taxes levied on the property of the
Union prior to the commencement of the Constitution so long
as the taxes continues to be levied in that State. However,
this saving clause is subject to any law that the Parliament
may provide otherwise.
21.3 While applying clause (1) of Article 285, two considerations
must be taken into account: firstly, whether the tax is claimed
in respect of property, and secondly, whether such property
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is vested in the Union Government. The expression property

must be given its widest meaning to include both tangible
and intangible property as well as moveable and immovable
property. The immunity conferred under clause (1) of the Article
285 is only in respect of a tax on property. The rationale for
providing Articles 285 and 289 of the Constitution is based on
the principle that one sovereign cannot tax another sovereign.
Thus, under Article 285, all property of the Union is exempted
from State taxes, while Article 289 exempts all incomes and
property of a State from Union taxation; no distinction is made
between the Union property used for commercial purposes or
used for governmental functions. Thus, irrespective of use of
the Union property is put to, there is an exemption.
21.4 The expression ‘vest’ is not found in Article 285, though, it
occurred in Section 154 of the Government of India Act, 1935.
However, this does not really make a difference, so long as the
owner of the property is the Union. For instance, property which
is requisitioned by the Union does not affect the ownership of
the requisitioned property. But, if the Union Government erects
buildings on requisitioned lands, the buildings become property
of the Union within the meaning of Article 285 although, the
Union is not the owner of the land upon which the building
stands vide The Governor-General of India in Council vs.
The Corporation of Calcutta, AIR 1948 Cal 116 affirmed by
The Corporation of Calcutta vs. Governors of St. Thomas’
School, Calcutta, AIR 1949 FC 121.
21.5 The immunity from taxation on property of the Union therefore
depends upon the factum of the ownership of the property. If
a property accrues to the Union by escheat, lapse or bona
vacantia under Article 296 of the Constitution, such property
would be immune from State taxation. Thus, where the Union
Government is not the owner of the property but is a lessee
from a private owner, a tax on such owner is not exempted
under Article 285 of the Constitution. Similarly, where the Union
Government is using the property for governmental purposes or
has control over its use, does not give it immunity from State
taxation. Conversely, where the Government is the lessor, a tax
on the interest of the private lessee is not a tax on the property
of the Union. Since the immunity is confined to property vested
[2024] 2 S.C.R.  923

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in the Union, the same cannot be claimed by entities other than

the Union. In order to ascertain this aspect i.e., whether the
statutory corporation or other entities do not come within the
scope and the ambit of Article 285, the doctrine of “piercing the
veil” may be pressed into service. Thus, Article 285 would not
apply when the property to be taxed is not of Union of India but
of a distinct and separate legal entity. Thus, the State cannot
levy road tax on the vehicles owned by the Central Government
or the Railway, which is a Ministry of the Union Government.
21.6 In Union of India vs. City Municipal Council, Bellary, AIR
1978 SC 1803 (“City Municipal Council”), it was observed
that the property of the Union is exempt from all taxes imposed
by the State or by any authority within the State under Article
285(1), unless the claim can be supported and sustained within
the parameters of Article 285 (2). The expression “save in so
far as Parliament may by law otherwise provide” in clause
(1) of Article 285 is to enable the Parliament to control Union
property. Thus, the Parliament may by law permit a State or
any authority or instrumentality within a State to impose tax on
Union property. But if no such law is made by the Parliament
the immunity would continue. Similarly, clause (2) of Article 285
which is in the nature of an exception to clause (1) thereof,
has given an overriding power to Parliament to take away any
existing taxation of a State or a local authority of Union property
prior to the commencement of the Constitution and which has
continued to be levied in the State even after the enforcement
thereof. In City Municipal Council, question arose whether the
Railway (Local Authorities Taxation) Act, 1941 which created
a liability on the Railways to taxation by local authorities was
contrary to Article 285 (1) of the Constitution. It was held that
the aforesaid Act being enacted prior to the enforcement of
the Constitution was not a law which came within the scope
of the expression “save in so far as Parliament may by law
otherwise provide” in clause (1) of Article 285. Hence, it was
observed that the said law could not be enforced after the
enforcement of the Constitution, and the Railway property
was immune from State taxation.
21.7 As already noted, clause (2) of Article 285 is in the nature
of an exception or a proviso to clause (1) of the said Article.
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However, it empowers Parliament to restrict the exception. In

other words, any local taxes on Union property which were
saved by virtue of clause (2) of Article 285 shall cease to
be valid as soon as the Parliament by law provides to that
effect. This implies that clause (2) of Article 285 which saves
the existing power of the State and the local lawful bodies to
tax Union property would continue and the status quo would
be maintained till Parliament would legislate otherwise. In
clause (2) of Article 285, the expression “liable or treated as
liable” is of significance. The conditions necessary to bring
a property within clause (2) of Article 285 in order to make it
liable to taxation are as under:
"(a) Physical existence of the property immediately before
the commencement of the Constitution;
(b) Liability of the property to the tax on that date;
(c) Physical existence of the property now, i.e., at the time
when the tax is sought to be levied;
(d) Liability of the property to tax now;
(e) The tax in question must be the ‘same tax’ as that
which was levied or leviable at the commencement of
the Constitution;
(f) The local authority seeking to levy the tax must be in
the same State to which the pre-Constitution authority
belonged.”
[Source: Shorter Constitution of India by D.D. Basu, 16th Edition]
21.8 The aforesaid conditions would mean that the nature, type
and the property on which the tax is being levied prior to the
commencement of the Constitution must be the same, as also
the local authority of the same State to which it belongs before
the commencement of the Constitution. If the conditions of
clause (2) of Article 285 are not satisfied, the pre-Constitution
tax cannot be continued to be levied by a State by virtue of
Article 372(1) as the latter Article states that the continuance
of the existing law would be ‘subject to the other provisions
of the Constitution’. Hence, any law which is inconsistent with
Article 285 cannot be continued by virtue of Article 372(1) of
the Constitution.
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21.9 The expression “immediately before the commencement of

this Constitution” under clause (2) of Article 285 would mean
that the property is liable or treated as liable to tax until the
Union Parliament legislates to the contrary. One of the ways
of interpreting this is that the property must have been liable
to taxation even under the Government of India Act, 1935 in
as much as if any property was not liable to be taxed under
the said Act, in other words, if there was an immunity during
the enforcement of the said Act then it would not have been
taxed from the date of enforcement of the Constitution. It is
also necessary to understand the meaning of expression
“that tax” in clause (2) of Article 285 which would have a
relation to its nature and character and not its quantum or
rates. So long as the taxes remains the same, the State
or local authority can always increase or reduce its rate, in
accordance with law. The variation of the quantum or rate
would not affect its power to continue to levy the tax so long
as it remains “that tax,” in its nature and character. Thus, if
the tax remains the same, it is only the Parliament which can
prevent the continuance of levy of that tax by the State or
local authority or by any law. This Court in City Municipal
Council held that it does not matter whether the liability is
imposed by one statute or other as long as liability is of a
particular kind of tax.
21.10 Section 172 of the Act of 1959 categorically states that subject
to Article 285 of the Constitution, the corporation shall impose,
inter alia, property taxes assessed and levied in accordance
with the provisions of the Act of 1959 and the rules and bye-
laws framed thereunder. Sub-section (4) of Section 172 of
the Act of 1959 states that nothing in the said sub-section
shall authorize the imposition of any tax which the State
Legislature has no power to impose in the State under the
Constitution of India provided that where any tax was being
lawfully levied in the area included in the city immediately
before the commencement of the Constitution of India, such
tax may continue to be levied and applied for the purposes
of the Act of 1959 until provision to the contrary is made by
Parliament. Section 172, in fact, summarises Article 285 of the
Constitution in the context of levy of property taxes imposed
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under the said Act by the Corporation. Section 173 deals

with property tax leviable which is again subject to Section
172(1) of the Act of 1959. It includes a general tax, a water
tax, drainage tax and conservancy tax. The said taxes shall
be levied on the annual value of the building and land, as
the case may be. However, the aggregate of the property
taxes shall in no cases be less than 15 per cent nor more
than 25 per cent of the annual value of the building or land or
both assessed to such taxes. The definition of annual value
is given under Section 174 of the Act of 1959. Restrictions
on imposition of water tax are delineated under Section 175
while the primary responsibility for certain property taxes
on annual value is stated in Section 179. It states that the
property tax shall be leviable primarily from the actual occupier
of the property upon which the tax is assessed, if he is the
owner of the buildings or lands or holds them on a building
or other lease from the Central or the State Government
or from the Corporation, or on a building leased from any
person. In any other case, tax shall be leviable as per sub-
section (2) of Section 179 of the Act of 1959. The drainage
taxes are assessed. Therefore, the levy of property taxes
or other taxes on land and building is subject to Article 285
of the Constitution.
21.11 We have already discussed the scope and ambit of the two
clauses of Article 285 of the Constitution. Applying the same
to the present case and having regard to the reasoning given
by us in the earlier part of this judgment, we have held that
enemy property is not the property of the Union although
it may vest with the Custodian for Enemy Property in India
who is a person appointed by the Central Government. If the
enemy property is not the Union property in terms of clause
(1) of Article 285 of the Constitution then such property
cannot be exempt from the taxes imposed by the State or
by any authority within the State unless otherwise provided
by the Parliament.
21.12 For the sake of completeness of the discussion assuming
for a moment that the vesting of the enemy property with
the Custodian becomes the property of the Union, then
clause (2) of Article 285 would apply in the instant case.
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This is because an authority within the State is not prevented

from levying any tax on any property of the Union to which
such property was immediately before the commencement
of the Constitution was liable or treated as liable so long
as that tax continued to be levied in that State. Applying
the same to the facts of the present case, it is noted that
the property in question which is located in Lucknow within
the State of Uttar Pradesh and in respect of which the Act
of 1959 applies was earlier governed by the Act of 1916.
On a perusal of the relevant provisions of the Act of 1916,
it becomes clear that the property tax was leviable on the
subject property. Act of 1916 is a pre-Constitution enactment
and therefore immediately before the commencement of the
Constitution, the subject property was liable to property tax
under the Act of 1916 and therefore until the Parliament by
law provides otherwise, the appellant corporation can continue
to levy municipal taxes including the property tax on the
subject property as it was liable to pay such tax prior to the
commencement of the Constitution under the provisions of
1916 Act. For ease of reference, the relevant provisions of the
1916 Act are also extracted above. Therefore, even as per
the provisions of clause (2) of Article 285 even if the subject
property is assumed to be Union property under clause (2)
of Article 285, the appellant-Corporation is entitled to levy the
property tax and the municipal tax on the said property even
though, it vests with the Custodian under the provisions of
the Act. That is why under Section 8 of the Act, Custodian
is duty bound to pay the taxes, duties, cesses and rates to
the municipal authority.
We wish to also make another observation. Since the year
1968, there have been lakhs of Indians who have settled
overseas without giving up their Indian citizenship. They have
acquired several movable and immovable properties in India.
If, in an unforeseen eventuality, any of the countries in which
such Indians are settled, is declared to be an enemy country
then all such Indians who are settled abroad would possibly
become enemy subjects, enemy firms and enemy companies
within the definition of the Act. In such an event, the Custodian
will have to take possession of such properties. Vesting of
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such enemy properties in the Custodian is thus only for the

purpose of administration and management of such properties.
In view of our discussion made above, there would be no
transfer of ownership and such properties vest in the Custodian
for their protection and management only. By such vesting,
the Union cannot usurp ownership of such properties. In the
same vein, when many persons who are resident in India left
their properties and settled in enemy countries, the Custodian
has taken possession of such properties which is only for the
purpose of protection and maintenance and to be handed
over as and when a conducive environment between the
countries arises.
We also observe that it was never the intention under the
Defence of India Rules, 1962 and 1971 or under the provisions
of the Act that enemy subjects would lose all their right, title
and interest in the properties once the said properties vest in
the Custodian and thereby become Union properties. In this
regard, we also would like to emphasise that the expression
“vest in the Union” is clearly mentioned in Article 296 of the
Constitution. The said provision deals with properties which
for want of a rightful owner or as bona vacantia would vest
in a State if the property is in a State or vest in the Union
in any other case. The Constitution has therefore clearly
differentiated between vesting of properties in the Union or a
State which is totally distinct from vesting of enemy properties
in the Custodian for Enemy Property.
It is reiterated that the Custodian who is appointed under the
provisions of the Act by the Central Government discharges
his duties and carries out his functions under the provisions of
the Act in terms of the directions of the Central Government.
This is because the Act is a piece of Parliamentary legislation
and in order to achieve a uniform policy vis-à-vis management
and administration of enemy properties throughout the length
and breadth of the country. It, therefore, cannot be held that
the properties vest with the Union within the meaning of Article
285 of the Constitution. In our view, the said Article has no
application to enemy properties.
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22. In Amir Mohammad Khan case, the father of the respondent therein
was a Raja, who had migrated to Pakistan in 1957 and became
a citizen of that country. However, the respondent therein and his
mother (since deceased) continued to reside in India as Indian
citizen. Under the provisions of the Enemy Property (Custody and
Registration) Order, 1965, the property of the respondent’s father in
India vested in the Custodian of Enemy Property. After the enactment
of the Act under consideration, by virtue of Section 24 thereof, the
property continued to be vested in the Custodian. In 1973, the Raja
died in London. The respondent then sought the Government of India
and the Custodian to release that property as the same stood vested
in him as an Indian citizen. In 1981, the Government of India agreed
to release 25% of the property to the legal heirs and successors
of the late Raja in India and the Custodian of the Enemy Property
asked the respondent for legal evidence regarding such heirs and
successors. In 1986, at the instance of the respondent, the civil
court declared that the respondent was the sole heir and successor
of his father and thereby entitled to 25% or whatever percentage it
might be of the suit property. The said judgment became final. Since,
the properties were not handed over to the respondent, he filed a
writ petition before the Bombay High Court which was allowed by
directing that the possession of the properties should be handed
over to the respondent. The Union of India filed an appeal before
this Court by way of a Special Leave. Dismissing the appeal, this
Court held that the Act was enacted for the purpose of continued
vesting of enemy property in the Custodian of Enemy Property for
India under the Defence of India Rules, 1962 and the Defence of
India Rules, 1971.
22.1 This Court observed that the respondent therein was the sole
heir and successor of the late Raja and properties belonging to
the late Raja was succeeded to by the respondent by way of
succession and the properties in question could no longer be
enemy property within the meaning of Section 2(c) of the Act.
Therefore, the Custodian could not be permitted to continue
in possession of such properties. During the pendency of the
Writ Petition before it, the High Court directed the appellant
therein to place on record a copy of the note put up for release
of the property of the respondent’s father and the decision
taken thereon by the Cabinet.
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22.2 The Union of India was directed by this Court to get the
buildings (residence or offices) of the subject property vacated
from such officers and hand over the possession to the
respondent therein within eight weeks. While holding so, this
Court observed that on a conjoint reading of Sections 6, 8 and
18 of the Act, the enemy subject is not divested of his right,
title and interest of the property which vest in the Custodian is
limited to the extent of possession, management and control
over the property temporarily. The object of the Act was to
prevent a subject of an enemy State from carrying on business
and trading in the property situated in India. It is, therefore,
contemplated that temporary vesting of the property takes
place in the Custodian so that the property till such time, as
it is enemy property, cannot be used for such purpose. The
question considered was, whether, after the inheritance of the
property by the respondent therein who was a citizen of India,
upon the death of the original owner of the property who was
declared to be an enemy, the property continued to be enemy
property? It was answered in the negative. It was observed
that the definition of enemy provided under Section 2 (b) of
the Act excluded a citizen of India as an enemy or enemy
subject or an enemy firm. Therefore, the respondent herein
who was born in India and his Indian citizenship not being
in question could not by any stretch of imagination be held
to be enemy or enemy subject under Section 2(b). Similarly,
under Section 2(c) the property belonging to enemy could not
be termed as an enemy property.
22.3 It was further observed that after the death of the enemy, the
right, title and interest of the enemy was succeeded to by his
heirs who are Indian citizens. Therefore, the enemy property
would cease to be a property belonging of the enemy, hence
the Custodian could not be permitted to continue with the
possession of such property. In this regard, it was observed
that the reliance placed by the Union of India on Section 13
of the Act was totally misplaced. That in the said case this
Court noted that Union of India - appellant therein had agreed
to release 25% of the property in favour of the respondent
therein on production of proof of his having succeeded to the
property of his father. That the property of an enemy could
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be released in favour of an Indian citizen provided he had

succeeded to the estate of the deceased enemy subject. That
the title of the enemy property did not vest with the Custodian
but the property vested in the Custodian for the purposes of
management, control and possession of the properties only.
In the said case, Union of India had admitted that under the
provision of the Act, title of the property of an enemy does
not vest in the Custodian but the Custodian takes over the
enemy property only for the purpose of possession, control
and management. That an Indian citizen is excluded from the
definition of an “enemy” or “enemy subject” under Section
2(b) of the Act. That on the death of the enemy subject, his
successors and legal heirs being Indian citizens were entitled
to succeed to the subject property as it ceased to be an
enemy property. That even though a decision was taken to
release only 25% of the property to the respondent therein,
the same was also not implemented, for over three decades.
Therefore, the direction was issued to the appellant-Union
of India therein to get the buildings (residence or offices)
vacated from such officers and hand over the possession to
the respondent therein within eight weeks. The appeal of the
Union of India was dismissed with costs of Rs.5 lakhs. This
decision was rendered on 21.10.2005.
22.4 Thereafter, on 08.09.2006 in the case of Kohli Brothers
vs. Amir Mohammad Khan, (2012) 12 SCC 625 (“Kohli
Brothers”), this Court disposed of certain Special Leave
Petitions with the clarification that persons who were inducted/
allotted properties by the Custodian or who came in possession
after 1965 i.e. on or after declaring the property of the Raja
of Mahmudabad as enemy property and appointment of the
Custodian, had to vacate the properties in their possession.
But persons claiming possession prior to the appointment of
the Custodian declaring the property of Raja of Mahmudabad,
father of the respondent therein, as enemy property, based
on duly authenticated tenancy created by the then Raja of
Mahmudabad or his general power of attorney was not to be
covered by this Court’s judgment passed in Amir Mohammad
Khan.
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In this regard, it would be useful to reiterate the statement

and objects of the Act wherein it has been stated that
immovable property, cash balances and firms belonging to
Chinese nationals in India were vested in the Custodian of
Enemy Property for India appointed under the Defence of
India Rules, 1962. Similarly, upon the aggression by Pakistan
in 1965, enemy properties were vested in the Custodian of
Enemy Property under the power derived from the Defence
of India Rules, 1962. That the properties vested in the
Custodian of Enemy Property in India has to continue as it
has not been possible for the Government of India so far to
arrive at a settlement with the respective Governments of
those countries.
On a perusal of the impugned order, it is noted that the
learned counsel appearing for the appellant-Lucknow Nagar
Nigam had submitted before the High Court that the Nagar
Nigam may not charge in respect of property of Central
Government but may demand fee, if any, with respect to
services provided like water charge or sewerage charge. The
present case relates to house tax and water tax. The High
Court construed the said submission as an admission of the
fact that the subject property is the Central Government’s
property and therefore, quashed the recovery sought to be
made by the appellant-Nagar Nigam. In fact, the submission
of the learned counsel for the appellant-Nagar Nigam has to
be construed in the context of the provisions of the Act as
well as the relevant provisions of the Constitution which we
have now interpreted.
Therefore, whatever amount have already been deposited
by the respondent herein, the same shall not be refunded to
them. But, if no other demand has been made till date, such
demand shall not be made. However, from the current fiscal
year onwards (2024-2025), the appellant shall be entitled to
levy and collect the property tax as well as water tax and
sewerage charges and any other local taxes in accordance
with law. We have granted a relaxation to the respondent in
view of the fact that the High Court by the impugned order
dated 29.03.2017, had held in favour of the respondent herein
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and we are now reversing the said order.

In view of the aforesaid discussion, we arrive at the following
conclusions:
1) That the Custodian for Enemy Property in India, in whom
the enemy properties vest including the subject property,
does not acquire ownership of the said properties. The
enemy properties vest in the Custodian as a trustee
only for the management and administration of such
properties.
2) That the Central Government may, on a reference or
complaint or on its own motion initiate a process of
divestment of enemy property vested in the Custodian to
the owner thereof or to such other person vide Rule 15
of the Rules. Hence, the vesting of the enemy property
in the Custodian is only as a temporary measure and
he acts as a trustee of the said properties.
3) That in view of the above conclusion, Union of India
cannot assume ownership of the enemy properties
once the said property is vested in the Custodian. This
is because, there is no transfer of ownership from the
owner of the enemy property to the Custodian and
consequently, there is no ownership rights transferred
to the Union of India. Therefore, the enemy properties
which vest in the Custodian are not Union properties.
4) As the enemy properties are not Union properties, clause
(1) of Article 285 does not apply to enemy properties.
Clause (2) of Article 285 is an exception to clause (1)
and would apply only if the enemy properties are Union
properties and not otherwise.
5) In view of the above, the High Court was not right in
holding that the respondent as occupier of the subject
property, is not liable to pay any property tax or other
local taxes to the appellant. In the result, the impugned
order of the High Court dated 29.03.2017 passed in Misc.
Bench No.2317 of 2012 is liable to be set aside and is
accordingly set aside.
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6) Consequently, any demand for payment of taxes under

the Act of 1959 made and thereby paid by the respondent
to the appellant-authority shall not be refunded. However,
if no demand notices have been issued till date, the
same shall not be issued but from the current fiscal year
onwards (2024-2025), the appellant shall be entitled to
levy and collect the property tax as well as water tax
and sewerage charges and any other local taxes in
accordance with law.
In the result, the appeal is allowed in the aforesaid terms.
Parties to bear their respective costs.

Headnotes prepared by: Bibhuti Bhushan Bose Result of the case:

Appeal allowed.
 [2024] 2 S.C.R. 935 : 2024 INSC 151

Basavaraj
v.
Indira and Others
(Civil Appeal No. 2886 of 2012)
29 February 2024
[C.T. Ravikumar and Rajesh Bindal,* JJ.]

Issue for Consideration

High Court, if justified in allowing the amendment application,
changing the nature of suit from partition to declaration.

Headnotes
Code of Civil Procedure, 1908 – Ord. VI r. 17 – Amendment
of pleadings – When allowed – On facts, suit for partition
and separate possession – When the matter reached
the stage of arguments, application for amendment of
the plaint filed by the respondents No. 1 and 2, seeking
relief of declaration of the earlier compromise decree
being null and void, pleading oversight and mistake,
on the part of the respondents No. 1 and 2 – Trial court
dismissed the application, however, the High Court
allowed the same – Correctness:
Held: Application for amendment may be rejected if it seeks
to introduce totally different, new and inconsistent case or
changes the fundamental character of the suit – Ord. VI
r. 17 prevents an application for amendment after the trial
has commenced unless the Court comes to the conclusion
that despite due diligence the party could not have raised
the issue before the commencement of trial – Important
factor, to be considered is as to whether the amendment
would cause prejudice to the other side or it fundamentally
changes the nature and character of the case or a fresh suit
on the amended claim would be barred on the date of filing
the application – On facts, the relief sought would certainly
change the nature of the suit, which may be impermissible –
If the amendment is allowed, it would certainly prejudice the
* Author
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appellant – What cannot be done directly, cannot be allowed

to be done indirectly – Application for amendment was filed
5 years after passing of the compromise decree, which is
sought to be challenged by way of amendment – Limitation
for challenging any decree is three years – As with the
passage of time, right had accrued in favour of the appellant
with reference to challenge to the compromise decree, the
same cannot be taken away on account of delay in filing
the application – Even if on any ground the amendment
could be permitted, still no relief could be claimed as all
the parties thereto were not before the Court in the suit in
question – Impugned order passed by the High Court is set
aside – Application for amendment of the plaint is dismissed.
[Paras 8-14]
Code of Civil Procedure, 1908 – Ord. 23 – Compromise
decree – Challenge to, when:
Held: Appeal is not maintainable against a consent decree –
No separate suit can be filed – Consent decree operates as
an estoppel and binding unless it is set aside by the court by
an order on an application under the proviso to Order XXIII
r. 3 – Only remedy available to a party to a consent decree
is to approach the Court which recorded the compromise
as it was opined to be nothing else but a contract between
the parties superimposed with the seal of approval of the
Court. [Para 7]
Case Law Cited
Revajeetu Builders and Developers v. Narayanaswamy
and sons and others, [2009] 15 SCR 103 : (2009) 10
SCC 84 – relied on.
Vidyabai and others v. Padmalatha and another, [2008]
17 SCR 505 : (2009) 2 SCC 409; Dondapati Narayana
Reddy v. Duggireddy Venkatanarayana Reddy and
others, (2001) 8 SCC 115; Estralla Rubber v. Dass
Estate (P) Ltd., [2001] Suppl. 3 SCR 68 : (2001) 8
SCC 97; Pushpa Devi Bhagat (Dead) through L.R.
Sadhna Rai (Smt.) v. Rajinder Singh and others, [2006]
[2024] 2 S.C.R.  937

Basavaraj v. Indira and Others

Suppl. 3 SCR 370 : (2006) 5 SCC 566; M. Revanna v.

Anjanamma (Dead) by legal representatives and others,
(2019) 4 SCC 332 – referred to.

List of Acts
Code of Civil Procedure, 1908.

List of Keywords
Application for amendment; Due diligence; Commencement of trial;
Suit for partition and separate possession; Compromise decree;
Oversight and by mistake; Delay; Consent decree.

Case Arising From

CIVIL APPELLATE JURISDICTION : Civil Appeal No.2886 of 2012
From the Judgment and Order dated 18.08.2010 of the High Court
of Karnataka at Bangalore in WP No. 82086 of 2010
Appearances for Parties
Nishanth Patil, Ayush P. Shah, Vignesh Adithya S., Ankolekar
Gurudatta, Advs. for the Appellant.
Ashok Kumar Gupta II, Shankar Divate, Advs. for the Respondents.
Judgment / Order of the Supreme Court

Judgment
Rajesh Bindal, J.
1. Vide impugned order1 passed by the High Court2, an application filed
by respondents No. 1 and 2/plaintiffs for amendment of the plaint
was allowed subject to costs of ₹2,000/-.
2. Briefly, the facts available on record are that respondents No. 1 and
2 filed a suit3 for partition of the ancestral property belonging to their
grand father pleading that no actual partition of the property has ever
taken place. When the suit was at the fag end, an application was
filed by respondents No. 1 and 2 seeking amendment of the plaint.

1 Order dated 18.08.2010 passed in W.P. No. 82086 of 2010

2 High Court of Karnataka, Circuit Bench at Gulbarga
3 Original Suit No. 151 of 2005
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The amendment sought was to add prayer in the suit for a declaration
that an earlier compromise decree dated 14.10.2004 was null and
void. As prayer was not made earlier, the court fee required thereon
was also sought to be affixed. The ground on which the amendment
was sought was that due to oversight and mistake, the respondents
No. 1 and 2/plaintiffs were unable to seek the relief of declaration.
No prejudice as such would be caused to the defendants as limited
relief is for fair partition of the ancestral property. The Trial Court4
dismissed the application. However, when the order5 was challenged
before the High Court, the same was set aside and the amendment
prayed for by the plaintiffs was allowed subject to payment of costs.
3. Learned counsel for the appellant submitted that in the case in hand,
there was a family partition in Original Suit No. 401 of 2003 filed
by Smt. Mahadevi and Smt. Sharnamma, wife and daughter-in-law
respectively of defendant No.1/Shivasharnappa, impleading the
plaintiffs and the defendants as party. A compromise decree dated
14.10.2004 was passed by the Lok Adalat, District Legal Services
Authority, Gulbarga. Thereafter, respondents No. 1 and 2 filed a fresh
suit in 2005 seeking partition of the ancestral property. Though in
the suit pleading was there with reference to the earlier compromise
decree, however for the reasons best known to the plaintiffs, no
challenge was made to the same. As a result of the order passed
by the High Court, the nature of the suit was changed from partition
to declaration, which is impermissible.
3.1 Further in terms of proviso to Order VI Rule 17 CPC, no
amendment could be allowed after commencement of the trial.
In the case in hand, the suit was at the fag end, as fixed for
arguments.
3.2 It was further submitted that the compromise decree was passed
on 14.10.2004. In terms of the provisions of Order XXIII Rule
3 CPC, the same could be challenged only before the same
Court and not before any other Court.
3.3 He further contended that there was a specific stand taken
by the appellant/defendant No. 2 in the written statement that

4 First Additional Civil Judge (Senior Division) at Gulbarga

5 Order dated 31.05.2010
[2024] 2 S.C.R.  939

Basavaraj v. Indira and Others

there being a compromise decree in existence, no relief may be

admissible to respondents No. 1 and 2, unless that decree is
challenged. The written statement was filed in August 2005, still
no steps taken by the respondents No. 1 and 2 in that direction.
Part of the suit property having been sold, an amendment was
carried out in the plaint in July 2006 to implead the subsequent
purchaser. Even at that stage, this relief was not sought.
3.4 It was further contended that the relief of declaration of
compromise decree being null and void prayed for by way of
amendment otherwise also was time barred as the compromise
decree was passed on 14.10.2004. The application for
amendment was filed on 08.02.2010. Even the court fee was
sought to be affixed at the time of filing of application for
amendment.
3.5 The application filed by respondents No. 1 and 2 did not meet
the pre-conditions laid down in Order VI Rule 17 CPC for
permitting respondents No. 1 and 2 to amend the pleadings
at the fag end of the trial. No due diligence was pleaded. All
what was stated was that there was oversight on the part of
respondents No. 1 and 2/plaintiffs.
3.6 Referring to the parties who were there in the compromise
decree, it was argued that some of them are not parties in
the suit in question, hence otherwise also challenge to the
compromise decree may not be maintainable.
3.7 In support of the arguments, reliance was placed upon the
judgments of this Court in Revajeetu Builders and Developers
v. Narayanaswamy and sons and others6 and Vidyabai and
others v. Padmalatha and another7
4. In response, learned counsel for respondents No. 1 and 2 submitted
that it was merely an oversight mistake which occurred at the time of
filing of the suit and at the subsequent stage for which the amendment
was prayed for by respondents No. 1 and 2. It is not a case where
the pleadings to that effect are not available on record. Respondents
No. 1 and 2 had fairly pleaded about the earlier compromise decree.

6 [2009] 15 SCR 103 : (2009) 10 SCC 84

7 [2008] 17 SCR 505 : (2009) 2 SCC 409
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Inadvertently, the prayer for declaration thereof as null and void

could not be made. The court fee also could not be deposited. No
fresh evidence is to be led. The case is at the arguments stage.
The same can be argued with mere re-framing of the issues. It will
avoid multiplicity of litigation and ultimately complete justice will be
done amongst the parties, who are merely praying for partition of
the ancestral property. The other side can be compensated with
costs, as was even done by the High Court. No prejudice as such
will be caused to the appellant. Substantial justice will be done
to the parties. In support of the arguments, reliance was placed
upon a judgment of this Court in Dondapati Narayana Reddy v.
Duggireddy Venkatanarayana Reddy and others8 and Estralla
Rubber v. Dass Estate (P) Ltd.9
5. Heard learned counsel for the parties and perused the relevant
referred record.
6. It is a case in which the appellant has been forced into avoidable
unnecessary litigation to rush to this Court. The suit was filed by
respondents No. 1 and 2 in 2005 seeking partition of the ancestral
property. It was specifically pleaded in the suit that there was a
compromise decree between the parties. However, as may be
the advice to respondents No. 1 and 2, despite there being a
compromise decree existing between the parties, no prayer was
made in the suit with reference thereto, if any grievance was there.
It remained simpliciter a suit for partition. A specific stand was taken
by the appellant in the written statement to the effect that the suit is
not maintainable unless cancellation of the compromise decree is
prayed for as the same would operate as res-judicata. The written
statement was filed in August 2005. Despite the specific pleading of
the appellant, the respondents No. 1 and 2 did not take any steps.
6.1 During the pendency of the suit, an amendment was carried
out by respondents No. 1 and 2 to implead respondent No. 4
in the suit who was the purchaser of a part of the suit property.
The same was allowed on 01.07.2006. Thereafter, trial of the
suit continued. When it reached at the stage of arguments in
February 2010 an application was filed by respondents No. 1 and

8 (2001) 8 SCC 115

9 [2001] Suppl. 3 SCR 68 : (2001) 8 SCC 97
[2024] 2 S.C.R.  941

Basavaraj v. Indira and Others

2 seeking amendment of the plaint. The reasons assigned to file

the belated application seeking amendment of the plaint were
that due to oversight and by mistake, the respondents No.1 and
2 failed to seek relief of declaration of the compromise decree
being null and void and were unable to deposit the court fee.
7. The law with reference to challenge to a compromise decree is well
settled. It was opined in Pushpa Devi Bhagat (Dead) through L.R.
Sadhna Rai (Smt.) v. Rajinder Singh and others10 that (i) appeal is
not maintainable against a consent decree; (ii) no separate suit can
be filed; (iii) consent decree operates as an estoppel and binding
unless it is set aside by the court by an order on an application under
the proviso to Order XXIII Rule 3 C.P.C.; and (iv) the only remedy
available to a party to a consent decree is to approach the Court
which recorded the compromise as it was opined to be nothing else
but a contract between the parties superimposed with the seal of
approval of the Court. Relevant part of paragraph No. 17 thereof is
extracted below:
"17. The position that emerges from the amended
provisions of Order 23 can be summed up thus:
(i) No appeal is maintainable against a consent
decree having regard to the specific bar
contained in section 96(3) CPC.
(ii) No appeal is maintainable against the order of
the court recording the compromise (or refusing
to record a compromise) in view of the deletion
of clause (m) Rule 1 Order 43.
(iii) No independent suit can be filed for setting aside
a compromise decree on the ground that the
compromise was not lawful in view of the bar
contained in Rule 3A.
(iv) A consent decree operates as an estoppel and
is valid and binding unless it is set aside by the
court which passed the consent decree, by an
order on an application under the proviso to
Rule 3 of Order 23.

10 [2006] Suppl. 3 SCR 370 : (2006) 5 SCC 566

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Therefore, the only remedy available to a party to a consent decree to

avoid such consent decree, is to approach the court which recorded
the compromise and made a decree in terms of it, and establish that
there was no compromise. In that event, the court which recorded the
compromise will itself consider and decide the question as to whether
there was a valid compromise or not. This is so because a consent
decree, is nothing but contract between parties superimposed with
the seal of approval of the court. The validity of a consent decree
depends wholly on the validity of the agreement or compromise on
which it is made…”
8. Proviso to Order VI Rule 17 CPC provides that no application for
amendment shall be allowed after the trial has commenced, unless
the Court comes to the conclusion that in spite of due diligence, the
party could not have raised the matter before the commencement
of trial. In the case in hand, this is not even the pleaded case of
respondents No. 1 and 2 before the Trial Court in the application
for amendment that due diligence was there at the time of filing of
the suit in not seeking relief prayed for by way of amendment. All
what was pleaded was oversight. The same cannot be accepted as
a ground to allow any amendment in the pleadings at the fag end
of the trial especially when admittedly the facts were in knowledge
of the respondents No. 1 and 2/plaintiffs.
8.1 The relevant paragraphs of the application seeking amendment
of the plaint are reproduced hereunder:
"2. That, due to over sight and by mistake the Plaintiff
was unable to sought relief declaration of decree as
null and void and unable to pay required court fee
some unavoidable circumstances and the proposed
amendment is very essential for deciding the matter
in dispute.
3. xxx
4. That, if the proposed amendment is allowed no
prejudice will be cause to the other side, on the
other hand if it is not allowed then the deponent will
be put to great loss and will also leads multiplicity of
litigation’s. Hence it is just and proper to allow the
proposed amendment to meet the ends of justice.”(sic)
[2024] 2 S.C.R.  943

Basavaraj v. Indira and Others

9. This Court in M. Revanna v. Anjanamma (Dead) by legal

representatives and others 11 opined that an application for
amendment may be rejected if it seeks to introduce totally different,
new and inconsistent case or changes the fundamental character
of the suit. Order VI Rule 17 C.P.C. prevents an application for
amendment after the trial has commenced unless the Court comes
to the conclusion that despite due diligence the party could not have
raised the issue. The burden is on the party seeking amendment
after commencement of trial to show that in spite of due diligence
such amendment could not be sought earlier. It is not a matter of
right. Paragraph No. 7 thereof is extracted below:
"7. Leave to amend may be refused if it introduces
a totally different, new and inconsistent case, or
challenges the fundamental character of the suit. The
proviso to Order 6 Rule 17 CPC virtually prevents
an application for amendment of pleadings from
being allowed after the trial has commenced, unless
the court comes to the conclusion that in spite of
due diligence, the party could not have raised the
matter before the commencement of the trial. The
proviso, to an extent, curtails absolute discretion
to allow amendment at any stage. Therefore, the
burden is on the person who seeks an amendment
after commencement of the trial to show that in
spite of due diligence, such an amendment could
not have been sought earlier. There cannot be any
dispute that an amendment cannot be claimed as a
matter of right, and under all circumstances. Though
normally amendments are allowed in the pleadings
to avoid multiplicity of litigation, the court needs to
take into consideration whether the application for
amendment is bona fide or mala fide and whether
the amendment causes such prejudice to the other
side which cannot be compensated adequately in
terms of money.”
(emphasis supplied)

11 (2019) 4 SCC 332

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10. Initially, the suit was filed for partition and separate possession. By
way of amendment, relief of declaration of the compromise decree
being null and void was also sought. The same would certainly
change the nature of the suit, which may be impermissible.
11. This Court in Revajeetu’s case (supra) enumerated the factors
to be taken into consideration by the court while dealing with an
application for amendment. One of the important factor is as to
whether the amendment would cause prejudice to the other side or
it fundamentally changes the nature and character of the case or
a fresh suit on the amended claim would be barred on the date of
filing the application.
12. If the amendment is allowed in the case in hand, certainly prejudice
will be caused to the appellant. This is one of the important factors to
be seen at the time of consideration of any application for amendment
of pleadings. Any right accrued to the opposite party cannot be taken
away on account of delay in filing the application.
12.1 In the case in hand, the compromise decree was passed on
14.10.2004 in which the plaintiffs were party. The application
for amendment of the plaint was filed on 08.02.2010 i.e. 5
years and 03 months after passing of the compromise decree,
which is sought to be challenged by way of amendment. The
limitation for challenging any decree is three years (Reference
can be made to Article 59 in Part-IV of the Schedule attached
to the Limitation Act, 1963). A fresh suit to challenge the same
may not be maintainable. Meaning thereby, the relief sought
by way of amendment was time barred. As with the passage
of time, right had accrued in favour of the appellant with
reference to challenge to the compromise decree, the same
cannot be taken away. In case the amendment in the plaint
is allowed, this will certainly cause prejudice to the appellant.
What cannot be done directly, cannot be allowed to be done
indirectly.
13. Further, a perusal of the memo of parties in the suit in question and
in the compromise decree shows that the plaintiffs i.e. Sharnamma
@ Mahananda wife of Basvaraj and Mahadevi wife of Shivsharnappa
Nasi in Original Suit No. 401 of 2003 are not party to the present
litigation. Even if on any ground the amendment could be permitted,
still no relief could be claimed with reference to setting aside of the
[2024] 2 S.C.R.  945

Basavaraj v. Indira and Others

compromise decree as all the parties thereto were not before the
Court in the suit in question.
14. For the reasons mentioned above, the present appeal is allowed.
The impugned order passed by the High Court is set aside. The
application filed for amendment of the plaint is dismissed. The
appellant shall be entitled to cost of the proceedings, which are
assessed at ₹1,00,000/- to be paid jointly or severally by respondents
No. 1 and 2. The appellant shall be paid the amount of cost on the
next date of hearing before the Trial Court by way of demand draft.

Headnotes prepared by: Nidhi Jain Result of the case:

Appeal allowed.
 [2024] 2 S.C.R. 946 : 2024 INSC 150

High Court Bar Association, Allahabad

v.
State of U.P. & Ors.
Criminal Appeal No. 3589 of 2023
29 February 2024
[Dr Dhananjaya Y. Chandrachud, CJI, Abhay S. Oka,*
J. B. Pardiwala, Manoj Misra and Pankaj Mithal,* JJ.]

Issue for Consideration

What is the object behind passing interim orders; Whether the
High Courts are empowered to vacate or modify interim relief;
Whether an interim order can come to an end automatically only
due to the lapse of time; What is the scope of exercise of powers
u/Art. 142 of the Constitution; Position of the High Courts and its
power of superintendence; Whether the Court should deal with
an issue not arising for consideration; Effect of directions issued
by the Constitutional Courts to decide pending cases in a time-
bound manner; Whether the Supreme Court, in the exercise of
its jurisdiction u/Art. 142 of the Constitution of India, can order
automatic vacation of all interim orders of the High Courts of
staying proceedings of Civil and Criminal cases on the expiry of
a certain period; Whether the Supreme Court, in the exercise of
its jurisdiction u/Art. 142 of the Constitution of India, can direct the
High Courts to decide pending cases in which interim orders of
stay of proceedings has been granted on a day-to-day basis and
within a fixed period; Procedure to be adopted by High Courts
while passing interim order of stay of proceedings and for dealing
with the applications for vacating interim stay.

Headnotes
Interim Orders – Object of:
Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya
Y. Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) An
order of interim relief is usually granted in the aid of the final relief
sought in the case – An occasion for passing an order of stay of
the proceedings normally arises when the High Court is dealing
with a challenge to an interim or interlocutory order passed during
the pendency of the main case before a trial or appellate Court –
The High Court can grant relief of the stay of hearing of the main
* Author
[2024] 2 S.C.R.  947

High Court Bar Association, Allahabad v. State of U.P. & Ors.

proceedings on being satisfied that a prima facie case is made out

and that the failure to stay the proceedings before the concerned
Court in all probability may render the remedy adopted infructuous
– When the High Court passes an interim order of stay, though
the interim order may not expressly say so, the three factors, viz;
prima facie case, irreparable loss, and balance of convenience, are
always in the back of the judges’ minds – Though interim orders
of stay of proceedings cannot be routinely passed as a matter of
course, it cannot be said that such orders can be passed only in
exceptional cases – Nevertheless, the High Courts, while passing
orders of stay in serious cases like the offences under the PC Act
or serious offences against women and children, must be more
cautious and circumspect. [Para 13]
Interim Orders – Whether the High Courts are empowered to
vacate or modify interim relief:
Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya
Y. Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) The
High Courts are always empowered to vacate or modify an order
of interim relief passed after hearing the parties on the following,
amongst other grounds: - (a)If a litigant, after getting an order
of stay, deliberately prolongs the proceedings either by seeking
adjournments on unwarranted grounds or by remaining absent
when the main case in which interim relief is granted is called out
for hearing before the High Court with the object of taking undue
advantage of the order of stay; (b)The High Court finds that the
order of interim relief is granted as a result of either suppression
or misrepresentation of material facts by the party in whose favour
the interim order of stay has been made; and (c) The High Court
finds that there is a material change in circumstances requiring
interference with the interim order passed earlier – In a given
case, a long passage of time may bring about a material change
in circumstances – These grounds are not exhaustive – There
can be other valid grounds for vacating an order of stay. [Para 15]
Interim Orders – Whether an interim order can come to an
end automatically only due to the lapse of time:
Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya
Y. Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.)
Elementary principles of natural justice, which are well recognised
in jurisprudence, mandate that an order of vacating interim relief
or modification of the interim relief is passed only after hearing all
948 [2024] 2 S.C.R.

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the affected parties – An order of vacating interim relief passed

without hearing the beneficiary of the order is against the basic
tenets of justice – Application of mind is an essential part of any
decision-making process – Therefore, without application of mind,
an order of interim stay cannot be vacated only on the ground of
lapse of time when the litigant is not responsible for the delay – An
interim order lawfully passed by a Court after hearing all contesting
parties is not rendered illegal only due to the long passage of
time. [Para 16]
Constitution of India – What is the scope of exercise of powers
u/Art. 142 of the Constitution:
Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya Y.
Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) Important
parameters for the exercise of the jurisdiction u/Art. 142 of the
Constitution of India which are relevant for deciding the reference
are as follows: (i) The jurisdiction can be exercised to do complete
justice between the parties before the Court – It cannot be exercised
to nullify the benefits derived by a large number of litigants based
on judicial orders validly passed in their favour who are not parties
to the proceedings before this Court; (ii) Article 142 does not
empower this Court to ignore the substantive rights of the litigants;
(iii) While exercising the jurisdiction u/Art. 142 of the Constitution
of India, this Court can always issue procedural directions to the
Courts for streamlining procedural aspects and ironing out the
creases in the procedural laws to ensure expeditious and timely
disposal of cases – However, while doing so, this Court cannot
affect the substantive rights of those litigants who are not parties
to the case before it – The right to be heard before an adverse
order is passed is not a matter of procedure but a substantive right;
and (iv) The power of this Court u/Art. 142 cannot be exercised to
defeat the principles of natural justice, which are an integral part
of jurisprudence. [Para 37]
Constitution of India – Position of the High Courts and its
power of superintendence:
Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya Y.
Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) A High
Court is also a constitutional Court – It is well settled that it is
not judicially subordinate to the Supreme Court – A High Court is
constitutionally independent of the Supreme Court of India – The
power of the High Court u/Art. 227 of the Constitution to have
[2024] 2 S.C.R.  949

High Court Bar Association, Allahabad v. State of U.P. & Ors.

judicial superintendence over all the Courts within its jurisdiction

will include the power to stay the proceedings before such Courts
– By a blanket direction in the exercise of power u/Art. 142 of the
Constitution of India, the Supreme Court cannot interfere with the
jurisdiction conferred on the High Court of granting interim relief
by limiting its jurisdiction to pass interim orders valid only for six
months at a time – Putting such constraints on the power of the
High Court will also amount to making a dent on the jurisdiction of
the High Courts u/Art. 226 of the Constitution, which is an essential
feature that forms part of the basic structure of the Constitution.
[Paras 23 and 24]
Practice and Procedure – Whether the Court should deal with
an issue not arising for consideration:
Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya
Y. Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) In the
case of Sanjeev Coke Manufacturing Company, a Constitution
Bench of the Supreme Court held that (Judges) are not authorised
to make disembodied pronouncements on serious and cloudy
issues of constitutional policy without battle lines being properly
drawn – Judicial pronouncements cannot be immaculate legal
conceptions – It is but right that no important point of law should
be decided without a proper lis between parties properly ranged
on either side and a crossing of the swords – It is inexpedient for
the Supreme Court to delve into problems which do not arise and
express opinion thereon. [Para 25]
Constitution of India – Art. 226 (3) – Making of an application
for vacating interim relief:
Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya
Y. Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) On its
plain reading, clause (3) is applicable only when an interim relief
is granted without furnishing a copy of the writ petition along with
supporting documents to the opposite party and without hearing
the opposite party – Even assuming that clause (3) is not directory,
it provides for an automatic vacation of interim relief only if the
aggrieved party makes an application for vacating the interim relief
and when the application for vacating stay is not heard within the
time specified – Clause (3) will not apply when an interim order in
a writ petition u/Art. 226 is passed after the service of a copy of
the writ petition on all concerned parties and after giving them an
opportunity of being heard – It applies only to ex-parte ad interim
950 [2024] 2 S.C.R.

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orders. [Para 26] Per Pankaj Mithal, J. (concurring) It is noticeable

that u/Art. 226(3) of the Constitution of India, the automatic vacation
of the stay order envisages making of an application to the High
Court for the vacation of the interim stay order – Therefore, filing
of an application for vacating the stay order is a sine qua non for
triggering the automatic vacation of the stay order u/Art. 226(3) if
such an application is not decided within the time prescribed of
two weeks. [Para 6]
Directions by Supreme Court – Effect of directions issued by
the Constitutional Courts to decide pending cases in a time-
bound manner – The three Judges Bench of the Supreme
Court issued various directions in Asian Resurfacing – The
net effect of the directions issued in paragraphs 36 and 37 of
Asian Resurfacing is that the petition in which the High Court
has granted a stay of the proceedings of the trial, must be
decided within a maximum period of six months – If it is not
decided within six months, the interim stay will be vacated
automatically, virtually making the pending case infructuous:
Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya
Y. Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) The
Constitution Benches of the Supreme Court have considered the
issue of fixing timelines for the disposal of cases in the cases of
Abdul Rehman Antulay and P. Ramachandra Rao – The principles
laid down in the decision will apply even to civil cases before the
trial courts – The same principles will also apply to a direction
issued to the High Courts to decide cases on a day-to-day basis
or within a specific time – Thus, the directions of the Court that
provide for automatic vacation of the order of stay and the disposal
of all cases in which a stay has been granted on a day-to-day
basis virtually amount to judicial legislation – The jurisdiction of
this Court cannot be exercised to make such a judicial legislation
– Only the legislature can provide that cases of a particular
category should be decided within a specific time – There are
many statutes which incorporate such provisions – However,
all such provisions are usually held to be directory – A judicial
notice will have to be taken of the fact that in all the High Courts
of larger strength having jurisdiction over larger States, the daily
cause lists of individual Benches of the cases of the aforesaid
categories are of more than a hundred matters – Therefore, once
a case is entertained by the High Court and the stay is granted,
the case has a long life – The High Courts cannot be expected to
[2024] 2 S.C.R.  951

High Court Bar Association, Allahabad v. State of U.P. & Ors.

decide, on a priority basis or a day-to-day basis, only those cases

in which a stay of proceedings has been granted while ignoring
several other categories of cases that may require more priority
to be given – Therefore, constitutional Courts should not normally
fix a time-bound schedule for disposal of cases pending in any
Court – The pattern of pendency of various categories of cases
pending in every Court, including High Courts, is different – The
situation at the grassroots level is better known to the judges
of the concerned Courts – Therefore, the issue of giving out-of
turn priority to certain cases should be best left to the concerned
Courts – The orders fixing the outer limit for the disposal of cases
should be passed only in exceptional circumstances to meet
extraordinary situations. [Paras 28, 29, 30, 32, 33]
Constitution of India – Interim Orders – (i) Whether the
Supreme Court, in the exercise of its jurisdiction u/Art. 142 of
the Constitution of India, can order automatic vacation of all
interim orders of the High Courts of staying proceedings of
Civil and Criminal cases on the expiry of a certain period; (ii)
Whether the Supreme Court, in the exercise of its jurisdiction
u/Art. 142 of the Constitution of India, can direct the High
Courts to decide pending cases in which interim orders of
stay of proceedings has been granted on a day-to-day basis
and within a fixed period:
Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya Y.
Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) The three
Judges Bench of the Supreme Court decided the case of Asian
Resurfacing and issued directions in paragraphs 36 and 37 – The
direction issued in paragraph 36 was regarding automatic vacation
of stay and direction in paragragh 37 was for conducting day-to-day
hearing within a time frame – The present Bench of the Judges
does not concur with the three judges Bench which decided the
case of Asian Resurfacing and issued directions in paragraphs 36
and 37 – Both directions were issued in the exercise of jurisdiction
u/Art.142 of the Constitution – There cannot be automatic vacation
of stay granted by the High Court – The direction issued (in the
case of Asian Resurfacing) to decide all the cases in which an
interim stay has been granted on a day-to-day basis within a time
frame is also not approved – Blanket directions cannot be issued
in the exercise of the jurisdiction u/Art. 142 of the Constitution
of India – Both the questions framed above are answered in the
negative. [Paras 12, 36]
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Interim Orders – Stay order cannot be automatically vacated:

Held: Per Pankaj Mithal, J. (concurring): The stay order granted
in any proceedings would not automatically stand vacated on the
expiry of a particular period until and unless an application to that
effect has been filed by the other side and is decided following the
principles of natural justice by a speaking order – It is expedient
in the interest of justice to provide that a reasoned stay order
once granted in any civil or criminal proceedings, if not specified
to be time bound, would remain in operation till the decision of
the main matter or until and unless an application is moved for its
vacation and a speaking order is passed adhering to the principles
of natural justice either extending, modifying, varying or vacating
the same. [Paras 7 and 8]
Practice and Procedure – Procedure to be adopted by High
Courts while passing interim order of stay of proceedings
and for dealing with the applications for vacating interim stay:
Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya Y.
Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) To avoid
any prejudice to the opposite parties, while granting ex-parte ad-
interim relief without hearing the affected parties, the High Courts
should normally grant ad-interim relief for a limited duration – After
hearing the contesting parties, the Court may or may not confirm
the earlier ad-interim order – Ad-interim relief, once granted, can be
vacated or affirmed only after application of mind by the concerned
Court – Hence, the Courts must give necessary priority to the
hearing of the prayer for interim relief where adinterim relief has
been granted – Though the High Court is not expected to record
detailed reasons while dealing with the prayer for the grant of stay
or interim relief, the order must give sufficient indication of the
application of mind to the relevant factors – An interim order passed
after hearing the contesting parties cannot be vacated by the High
Court without giving sufficient opportunity of being heard to the party
whose prayer for interim relief has been granted – Even if interim
relief is granted after hearing both sides, as observed earlier, the
aggrieved party is not precluded from applying for vacating the
same on the available grounds – In such a case, the High Court
must give necessary priority to the hearing of applications for
vacating the stay, if the main case cannot be immediately taken
up for hearing – Applications for vacating interim reliefs cannot
be kept pending for an inordinately long time. [Paras 34 and 35]
[2024] 2 S.C.R.  953

High Court Bar Association, Allahabad v. State of U.P. & Ors.

Case Law Cited

Asian Resurfacing of Road Agency Private Limited &
Anr. v. Central Bureau of Investigation, [2018] 2 SCR
1045 : (2018) 16 SCC 299 – Reconsidered.
Prem Chand Garg & Anr. v. The Excise Commissioner,
U.P. and Ors., [1963] Suppl. 1 SCR 885 : (1962)
SCC Online SC 37; Supreme Court Bar Association
v. Union of India & Anr., [1998] 2 SCR 795 : (1998) 4
SCC 409; L. Chandra Kumar v. Union of India & Ors.,
[1997] 2 SCR 1186 : (1997) 3 SCC 261; Sanjeev Coke
Manufacturing Company v. M/s. Bharat Coking Coal Ltd.
& Anr, [1983] 1 SCR 1000 : (1983) 1 SCC 147; Abdul
Rehman Antulay & Ors. v. R.S. Nayak & Anr, [1991]
Suppl. 3 SCR 325 : (1992) 1 SCC 225; P. Ramachandra
Rao v. State of Karnataka, [2002] 3 SCR 60 : (2002) 4
SCC 578 – followed.
Deputy Commissioner of Income Tax & Anr. v. Pepsi
Foods Limited, [2021] 4 SCR 1 : (2021) 7 SCC 413;
Tirupati Balaji Developers (P) Ltd. & Ors. v. State of
Bihar & Ors., [2004] Suppl. 1 SCR 494 : (2004) 5 SCC
1 – relied on.
Mohan Lal Magan Lal Thacker v. State of Gujarat,
[1968] 2 SCR 685 : AIR 1968 SC 733; Raza Buland
Sugar Co. Ltd. v. Municipal Board, Rampur, [1965] 1
SCR 970 : AIR 1965 SC 895; Kailash v. Nanhku & Ors,
[2005] 3 SCR 289 : (2005) 4 SCC 480; Deoraj v. State
of Maharashtra & Ors., [2004] 3 SCR 920 : (2004) 4
SCC 697; All India Judges’ Association & Ors. v. Union
of India & Ors., [2002] 2 SCR 712 : (2002) 4 SCC 247;
Imtiyaz Ahmed v. State of Uttar Pradesh & Ors., [2017]
1 SCR 305 : (2017) 3 SCC 658 – referred to.

List of Acts
Constitution of India; Constitution (Forty-fourth Amendment) Act,
1978; Prevention of Corruption Act, 1988; Income Tax Act, 1961.
List of Keywords
Interim orders; Vacation or modification of interim relief;
Automatic end of interim relief; Lapse of time; Enforcement
of decrees and orders of Supreme Court and orders as to
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discovery, etc; Interim orders of the High Courts; Interim orders

of stay of proceedings; Day-to-day basis hearing; Position of
the High Courts; High Court’s power of superintendence; Issue
not arising for consideration; Deciding pending cases in a time-
bound manner; Effect of directions issued by the Constitutional
Courts; Procedure to be adopted by High Courts while passing
interim order; Applications for vacating interim stay.
Case Arising From
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.3589
of 2023
With
Special Leave Petition (Crl.) Nos. 13284-13289 of 2023 and Criminal
Appeal... Diary No. 49052 of 2023
From the Judgment and Order dated 03.11.2023 of the High Court of
Judicature at Allahabad in A482 No. 28574 of 2019
Appearances for Parties
Rakesh Dwivedi, VK Shukla, Kavin Gulati, S.G. Hasnain, Ravindra
Singh, Dinesh Goswami, Sr. Advs., Shantanu Krishna, Nitin Sharma,
Nikhil Sharma, Eklavya Dwivedi, Shantanu Sagar, Anukul Raj, Ankit
Mishra, Harmeet Singh Ruprah, Abhinav Shrivastava, Manu Yadav,
Himanshu Tyagi, Kumar Ayush, Ronak Chaturavedi, Ram Kaushik,
Syed Mohd Fazal, Archit Mandhyan, Raman Yadav, Prabhat Ranjan Raj,
Sidharth Sarthi, Anil Kumar, Gunjesh Ranjan, Animesh Tripathi, Anant
Prakash, Mrs. Kanupriya Mishra, Amit Kumar Singh, Salil Srivastava,
Shaurya Vardhan Singh, Ankit Dwivedi, Mrs. Mukti Chowdhary,
Gyanendra Kumar, Mrs. Vijaya Singh, Shashwat Anand, Apoorv Mishra,
Shashank Shukla, Ashutosh Thakur, Vaibhav Jain, Rituvendra Singh,
Aniruddh Kumar, Rajrshi Gupta, Imran Ullah, Tarun Agarwal, Ankit
Saran, Namit Srivastava, Rakesh Dubey, Swetashwa Agarwal, Javed
H Khan, Praval Tripathi, Shariq Ahmed, Satwik Misra, Ishit Saharia,
Ashish Singh, Amit Singh, Sanjay Kumar Singh, Piyush Kumar, Paritosh
Kumar Singh, Pai Amit, N. Ashwani Kumar, Ms. Pankhuri Bhardwaj, Ms.
Bhavana Duhoon, Ms. Ranu Purohit, Abhiyudaya Vats, Ms. Vanshika
Dubey, Kushal Dube, Tathagata Dutta, P. Ashok, Advs. for the Appellant.
Tushar Mehta, SG, Ajay Kumar Misra, Adv. Gen/Sr. Adv., Vijay
Hansaria, Sr. Adv., Tanmaya Agarwal, Wrick Chatterjee, Mrs. Aditi
[2024] 2 S.C.R.  955

High Court Bar Association, Allahabad v. State of U.P. & Ors.

Agarwal, Vinayak Mohan, Mahfooz Ahsan Nazki, Polanki Gowtham,

Ms. Rajeswari Mukherjee, K.V. Girish Chowdary, T. Vijaya Bhaskar
Reddy, Ms. Archita Nigam, Meeran Maqbool, Ms. Ruchi Guasain,
Fuzail Ahmad Ayyubi, Ibad Mushtaq, Ms. Akanksha Rai, Ms. Anasuya
Choudhury, Ms. Kavya Jhawar, Gaurav Mehrotra, Talha Abdul
Rahman, Nadeem Murtaza, Akber Ahmed, Abhinit Jaiswal, Harsh
Vardhan Mehrotra, Ms. Maria Fatima, Ms. Alina Masoodi, M. Shaz
Khan, Adnan Yousuf Bhat, Ms. Anasuya Chaudhoury, Advs. for the
Respondents.
Judgment / Order of the Supreme Court

Judgment
Abhay S. Oka, J.
Table of Contents*
A. FACTUAL BACKGROUND ..............................................2
I. Directions in Asian Resurfacing ................................2
II. Order of reference to Larger Bench ..........................7
B. SUBMISSIONS ......................................................................8
C. ANALYSIS ............................................................................14
I. Object of passing interim orders .............................14
II. High Court’s power to vacate or modify interim
relief..............................................................................16
III. Whether an interim order can come to an end
automatically only due to the lapse of time ...........17
IV. Scope of exercise of powers under Article 142 of the
Constitution ................................................................ 21
V. Position of High Courts and its power of
superintendence ......................................................29
VI. Whether the Court should deal with an issue not arising
for consideration .......................................................32
VII. Clause (3) of Article 226 of the Constitution ..........33
VIII. Directions issued by the constitutional Courts to
decide pending cases in a time-bound manner .....34

* Ed Note : Pagination as per original judgment.

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IX. Procedure to be adopted by High Courts while passing

interim order of stay of proceedings and for dealing
with the applications for vacating interim stay ......43
D. CONCLUSIONS ...................................................................44

A. FACTUAL BACKGROUND
By the order dated 1st December 2023, a Bench of three Hon’ble
Judges of this Court expressed a view that a decision of this Court
in the case of Asian Resurfacing of Road Agency Private Limited
& Anr. v. Central Bureau of Investigation1 requires reconsideration
by a larger Bench.
I. Directions in Asian Resurfacing
1. In Asian Resurfacing1, this Court dealt with the scope of interference
by the High Court with an order of framing charge passed by the
Special Judge under the provisions of the Prevention of Corruption
Act, 1988 (for short, ‘the PC Act’). The issue was whether an order
of framing charge was an interlocutory order. The High Court held
that an order of framing charge under the PC Act was interlocutory.
A Bench of two Hon’ble Judges of this Court, by the order dated 9th
September 2013, referred the case to a larger Bench to consider the
issue of whether the case of Mohan Lal Magan Lal Thacker v. State
of Gujarat2 was correctly decided. A Bench of three Hon’ble Judges
held that the order of framing charge was neither an interlocutory nor
a final order. Therefore, it was held that the High Court has jurisdiction
in appropriate cases to consider a challenge to an order of framing
charge. Furthermore, the High Court has jurisdiction to grant a stay
of the trial proceedings. Thereafter, it proceeded to consider in which
cases a stay of the proceedings ought to be granted. The Bench
considered the question in the context of a criminal trial, particularly
under the PC Act. In paragraphs 30 and 31, the Bench observed thus:
“30. It is well accepted that delay in a criminal trial,
particularly in the PC Act cases, has deleterious effect
on the administration of justice in which the society has a

1 [2018] 2 SCR 1045 : (2018) 16 SCC 299

2 [1968] 2 SCR 685 : AIR 1968 SC 733
[2024] 2 S.C.R.  957

High Court Bar Association, Allahabad v. State of U.P. & Ors.

vital interest. Delay in trials affects the faith in Rule of Law

and efficacy of the legal system. It affects social welfare
and development. Even in civil or tax cases it has been
laid down that power to grant stay has to be exercised
with restraint. Mere prima facie case is not enough. Party
seeking stay must be put to terms and stay should not be
an incentive to delay. The order granting stay must show
application of mind. The power to grant stay is coupled
with accountability. [Siliguri Municipality v. Amalendu Das,
(1984) 2 SCC 436, para 4 : 1984 SCC (Tax) 133; CCE
v. Dunlop India Ltd., (1985) 1 SCC 260, para 5 : 1985
SCC (Tax) 75; State (UT of Pondicherry) v. P.V. Suresh,
(1994) 2 SCC 70, para 15 and State of W.B. v. Calcutta
Hardware Stores, (1986) 2 SCC 203, para 5]
31. Wherever stay is granted, a speaking order must
be passed showing that the case was of exceptional
nature and delay on account of stay will not prejudice
the interest of speedy trial in a corruption case. Once
stay is granted, proceedings should not be adjourned,
and concluded within two-three months.”
(Emphasis added)
2. We have been called upon to decide the correctness of the view
taken in paragraphs 36 and 37 of the said decision, which read thus:
“36. In view of the above, situation of proceedings
remaining pending for long on account of stay needs to
be remedied. Remedy is required not only for corruption
cases but for all civil and criminal cases where on
account of stay, civil and criminal proceedings are held
up. At times, proceedings are adjourned sine die on
account of stay. Even after stay is vacated, intimation
is not received and proceedings are not taken up. In
an attempt to remedy this situation, we consider it
appropriate to direct that in all pending cases where
stay against proceedings of a civil or criminal trial
is operating, the same will come to an end on expiry
of six months from today unless in an exceptional
case by a speaking order such stay is extended.
In cases where stay is granted in future, the same
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will end on expiry of six months from the date of

such order unless similar extension is granted by
a speaking order. The speaking order must show
that the case was of such exceptional nature that
continuing the stay was more important than having
the trial finalised. The trial court where order of stay
of civil or criminal proceedings is produced, may fix a
date not beyond six months of the order of stay so that
on expiry of period of stay, proceedings can commence
unless order of extension of stay is produced.
37. Thus, we declare the law to be that order framing
charge is not purely an interlocutory order nor a final order.
Jurisdiction of the High Court is not barred irrespective of
the label of a petition, be it under Sections 397 or 482
CrPC or Article 227 of the Constitution. However, the said
jurisdiction is to be exercised consistent with the legislative
policy to ensure expeditious disposal of a trial without the
same being in any manner hampered. Thus considered,
the challenge to an order of charge should be entertained
in a rarest of rare case only to correct a patent error of
jurisdiction and not to reappreciate the matter. Even where
such challenge is entertained and stay is granted,
the matter must be decided on day-to-day basis so
that stay does not operate for an unduly long period.
Though no mandatory time-limit may be fixed, the
decision may not exceed two-three months normally.
If it remains pending longer, duration of stay should
not exceed six months, unless extension is granted
by a specific speaking order, as already indicated.
Mandate of speedy justice applies to the PC Act cases as
well as other cases where at trial stage proceedings are
stayed by the higher court i.e. the High Court or a court
below the High Court, as the case may be. In all pending
matters before the High Courts or other courts relating to
the PC Act or all other civil or criminal cases, where stay
of proceedings in a pending trial is operating, stay will
automatically lapse after six months from today unless
extended by a speaking order on the above parameters.
Same course may also be adopted by civil and criminal
[2024] 2 S.C.R.  959

High Court Bar Association, Allahabad v. State of U.P. & Ors.

appellate/Revisional Courts under the jurisdiction of the

High Courts. The trial courts may, on expiry of the above
period, resume the proceedings without waiting for any
other intimation unless express order extending stay is
produced.”
(Emphasis added)
3. A Miscellaneous Application was filed in the decided case, in light of
the order passed on 4th December 2019 by the Learned Additional
Chief Judicial Magistrate, Pune. When the learned Magistrate was
called upon to proceed with the trial on the ground of automatic
vacation of stay after the expiry of a period of six months, the
learned Magistrate expressed a view that when the jurisdictional
High Court had passed an order of stay, a Court subordinate to the
High Court cannot pass any order contrary to the order of stay. By
the order dated 15th October 2020, this Court held that when the
stay granted by the High Court automatically expires, unless an
extension is granted for good reasons, the Trial Court, on expiry of
a period of six months, must set a date for trial and go ahead with
the same. Later, an attempt was made to seek clarification of the
law laid down in the case of Asian Resurfacing1. This Court, by
the order dated 25th April 2022, did not apply the direction issued
in Asian Resurfacing1 to the facts of the case before it. An attempt
was made to apply the directions to an order of stay of the order
of the learned Single Judge of the High Court passed by a Division
Bench in a Letters Patent Appeal.
II. Order of reference to Larger Bench
4. In the order of reference dated 1st December 2023, in paragraph 10,
this Court observed thus:
“10. We have reservations in regard to the correctness
of the broad formulations of principle in the above terms.
There can be no gainsaying the fact that a stay of an
indefinite nature results in prolonging civil or criminal
proceedings, as the case may be, unduly. At the same
time, it needs to be factored in that the delay is not always
on account of conduct of the parties involved. The delay
may also be occasioned by the inability of the Court to
take up proceedings expeditiously. The principle which
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has been laid down in the above decision to the effect

that the stay shall automatically stand vacated (which
would mean an automatic vacation of stay without
application of judicial mind to whether the stay should
or should not be extended further) is liable to result
in a serious miscarriage of justice.”
(Emphasis added)
5. We are called upon to decide the following questions: -
(a) Whether this Court, in the exercise of its jurisdiction under Article
142 of the Constitution of India, can order automatic vacation
of all interim orders of the High Courts of staying proceedings
of Civil and Criminal cases on the expiry of a certain period?
(b) Whether this Court, in the exercise of its jurisdiction under
Article 142 of the Constitution of India, can direct the High
Courts to decide pending cases in which interim orders of stay
of proceedings has been granted on a day-to-day basis and
within a fixed period?
B. SUBMISSIONS
6. The main submissions were canvassed by Shri Rakesh Dwivedi, the
learned senior counsel appearing on behalf of the appellant in Criminal
Appeal no.3589 of 2023. We are summarising the submissions of
Shri Rakesh Dwivedi as follows:
a. Automatic Vacation of the interim order is in the nature of judicial
legislation. This Court cannot engage in judicial legislation;
b. Article 226 is a part of the basic structure of the Constitution of
India, and it can neither be shut out nor whittled down by the
exercise of powers under Articles 141 and 142;
c. The High Court is also a constitutional Court which is not
judicially subordinate to this Court;
d. An order granting interim relief cannot be passed without an
application of judicial mind. Application of mind is a pre-requisite
of judicial decision making. The absence of application of mind
would render a decision arbitrary. Similarly, an order vacating
interim relief cannot be passed without the application of judicial
mind;
[2024] 2 S.C.R.  961

High Court Bar Association, Allahabad v. State of U.P. & Ors.

e. If an interim order is to be passed, it should be initially for a

short period so that there is an effective opportunity for the
respondent to contest the same;
f. Two Constitution Benches in the cases of Abdul Rehman
Antulay & Ors. v. R.S. Nayak & Anr.3 and P. Ramachandra
Rao v. State of Karnataka4 held that it is not permissible for
this Court to fix the time limit for completion of a trial;
g. No such directions could have been issued in the exercise of
the jurisdiction of this Court under Article 142 of the Constitution
of India;
h. Even under Article 226 (3) of the Constitution, an interim order
cannot be automatically vacated unless a specific application
is made for vacating the interim order;
i. A provision of automatic vacation of the Appellate Tribunal’s stay
order was incorporated in Section 254 (2A) of the Income Tax
Act, 1961 (for short, ‘the IT Act’). It provided that if an appeal
preferred before the Appellate Tribunal was not disposed of
within 365 days, the stay shall stand vacated even if the delay
in disposing of the appeal is not attributable to the assessee.
This court struck down the provision in the case of Deputy
Commissioner of Income Tax & Anr. v. Pepsi Foods Limited5
on the ground that it was manifestly arbitrary; and
j. The automatic vacation of interim relief is unjust, unfair and
unreasonable.
7. Shri Tushar Mehta, the learned Solicitor General appearing for the
State of Uttar Pradesh, supported the submissions of Shri Dwivedi.
In addition, he submitted that:
a. As held by the Constitution Bench in the case of Raza Buland
Sugar Co. Ltd. v. Municipal Board, Rampur6, laws of procedure
are grounded in principles of natural justice, which require that
no decision can be reached behind the back of a person and
in his absence;

3 [1991] Suppl. 3 SCR 325 : (1992) 1 SCC 225

4 [2002] 3 SCR 60 : (2002) 4 SCC 578
5 [2021] 4 SCR 1 : (2021) 7 SCC 413
6 [1965] 1 SCR 970 : AIR 1965 SC 895
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b. If the condition imposed by a provision of law to do a certain

thing within a time frame is upon the institution and the
consequences of that institution failing to comply with the
condition are to fall upon someone who has no control over
the institution, the provision of law will have to be construed
as directory;
c. An interim relief order is always granted after considering the
three factors: prima facie case, the balance of convenience
and irreparable injury to the aggrieved party. Once a finding
is recorded regarding the entitlement of the appellant/
applicant to get the order of stay, the order does not become
automatically bad on the ground that it has lived for six
months; and
d. In the decision of this Court in Kailash v. Nanhku & Ors7, it
has been held that the process of justice may be speeded up
and hurried, but fairness, which is the basic element of justice,
cannot be permitted to be buried. The discretion conferred upon
the High Court cannot be taken away by exercising power under
Article 142 of the Constitution of India.
8. Shri Gaurav Mehrotra, the learned counsel appearing for the applicant
in I.A. no.252872 of 2023 in Criminal Appeal no.3589 of 2023, in
addition to the aforesaid submissions, relied upon a decision of the
Constitution Bench in the case of Sanjeev Coke Manufacturing
Company v. M/s. Bharat Coking Coal Ltd. & Anr8, to contend that
the Court should not decide any important question without there
being a proper lis.
9. Shri Vijay Hansaria, the learned senior counsel appearing for the
Gauhati High Court Bar Association, made the following submissions:
a. As regards the interpretation of clause (3) of Article 226 of the
Constitution of India, various High Courts have taken different
views on the issue of whether the provision for automatic
vacation of stay is mandatory or directory. He urged that the
provision will have to be held as a directory;

7 [2005] 3 SCR 289 : (2005) 4 SCC 480

8 [1983] 1 SCR 1000 : (1983) 1 SCC 147
[2024] 2 S.C.R.  963

High Court Bar Association, Allahabad v. State of U.P. & Ors.

b. In Asian Resurfacing1, the Court was dealing with a petition

filed in the High Court arising from a prosecution under the PC
Act. The cases of other categories were not the subject matter
of challenge before this Court;
c. The power under Article 142 of the Constitution of India can
be exercised for doing complete justice in any case or matter
pending before it. The issue of the duration of the order of stay
did not arise in the case of Asian Resurfacing1; and
d. A successful litigant whose application for stay is allowed by
the High Court cannot be prejudiced only on the ground that
the High Court does not hear the main case within six months
for reasons beyond the control of the said litigant.
10. Shri Amit Pai, the learned counsel appearing for the appellant in one
of the appeals, while adopting the submissions, relied upon a decision
of this Court in the case of Deoraj v. State of Maharashtra & Ors.9
and contended that recourse is taken to the order of grant of interim
relief as the conclusion of hearing on merits is likely to take some
time. He submitted that the said object has not been considered in
Asian Resurfacing1. He urged that passing an interim order of stay
is a judicial act. Therefore, such an order must be vacated only by
a judicial act.
11. Prof (Dr) Pankaj K Phadnis, representing the intervenor – Abhinav
Bharat Congress, has filed written submissions. He has contended that
he was not permitted to join the hearing through video conferencing.
He has come out with the draft of Supreme Court Rules, 2024. His
submissions, based on the draft, are entirely irrelevant.
C. ANALYSIS
12. We have no manner of doubt that the direction issued in paragraph
36 of Asian Resurfacing1 regarding automatic vacation of stay
has been issued in the exercise of the jurisdiction of this Court
under Article 142 of the Constitution of India. Even the direction in
paragraph 37 of conducting day-to-day hearing has been issued
in exercise of the same jurisdiction. The effect of the direction
issued in paragraph 36 is that the interim order of stay granted

9 [2004] 3 SCR 920 : (2004) 4 SCC 697

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in favour of a litigant stands vacated without even giving him an

opportunity of being heard, though there may not be any default
on his part.
I. Object of passing interim orders
13. Before we examine the questions, we need to advert to the object
of passing orders of interim relief pending the final disposal of the
main case. The reason is that the object of passing interim order
has not been considered while deciding Asian Resurfacing1. An
order of interim relief is usually granted in the aid of the final relief
sought in the case. An occasion for passing an order of stay of
the proceedings normally arises when the High Court is dealing
with a challenge to an interim or interlocutory order passed during
the pendency of the main case before a trial or appellate Court.
The High Court can grant relief of the stay of hearing of the main
proceedings on being satisfied that a prima facie case is made out
and that the failure to stay the proceedings before the concerned
Court in all probability may render the remedy adopted infructuous.
When the High Court passes an interim order of stay, though the
interim order may not expressly say so, the three factors, viz; prima
facie case, irreparable loss, and balance of convenience, are always
in the back of the judges’ minds. Though interim orders of stay of
proceedings cannot be routinely passed as a matter of course, it
cannot be said that such orders can be passed only in exceptional
cases. Nevertheless, the High Courts, while passing orders of stay in
serious cases like the offences under the PC Act or serious offences
against women and children, must be more cautious and circumspect.
An occasion for passing an order of stay of proceeding arises as it is
not possible for the High Court to take up the case for final hearing
immediately. While entertaining a challenge to an order passed in
a pending case, if the pending case is not stayed, the trial or the
appellate Court may decide the pending case, rendering the remedy
before the High Court ineffective. Such a situation often leads to the
passing of an order of remand. In our legal system, which is facing
a docket explosion, an order of remand should be made only as a
last resort. The orders of remand not only result in more delays but
also increase the cost of litigation. Therefore, to avoid the possibility
of passing an order of remand, the grant of stay of proceedings is
called for in many cases.
[2024] 2 S.C.R.  965

High Court Bar Association, Allahabad v. State of U.P. & Ors.

II. High Court’s power to vacate or modify interim relief

14. When a High Court grants a stay of the proceedings while issuing
notice without giving an opportunity of being heard to the contesting
parties, it is not an interim order, but it is an ad-interim order of
stay. It can be converted into an interim order of stay only after an
opportunity of being heard is granted on the prayer for interim relief
to all the parties to the proceedings. Ad-interim orders, by their very
nature, should be of a limited duration. Therefore, such orders do
not pose any problem.
15. The High Courts are always empowered to vacate or modify an order
of interim relief passed after hearing the parties on the following,
amongst other grounds: -
(a) If a litigant, after getting an order of stay, deliberately prolongs
the proceedings either by seeking adjournments on unwarranted
grounds or by remaining absent when the main case in which
interim relief is granted is called out for hearing before the
High Court with the object of taking undue advantage of the
order of stay;
(b) The High Court finds that the order of interim relief is granted as
a result of either suppression or misrepresentation of material
facts by the party in whose favour the interim order of stay has
been made; and
(c) The High Court finds that there is a material change in
circumstances requiring interference with the interim order
passed earlier. In a given case, a long passage of time may
bring about a material change in circumstances.
These grounds are not exhaustive. There can be other valid grounds
for vacating an order of stay.
III. Whether an Interim Order can come to an end automatically
only due to the lapse of time
16. Interim order of stay can come to an end: -
(a) By disposal of the main case by the High Court, in which the
interim order has been passed. The disposal can be either on
merits or for default or other reasons such as the abatement
of the case; or
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(b) by a judicial order vacating interim relief, passed after hearing

the contesting parties on the available grounds, some of which
we have already referred to by way of illustration.
Elementary principles of natural justice, which are well recognised in
our jurisprudence, mandate that an order of vacating interim relief or
modification of the interim relief is passed only after hearing all the
affected parties. An order of vacating interim relief passed without
hearing the beneficiary of the order is against the basic tenets of
justice. Application of mind is an essential part of any decision-making
process. Therefore, without application of mind, an order of interim
stay cannot be vacated only on the ground of lapse of time when
the litigant is not responsible for the delay. An interim order lawfully
passed by a Court after hearing all contesting parties is not rendered
illegal only due to the long passage of time. Moreover, the directions
issued in Asian Resurfacing1 regarding automatic vacation of interim
orders of stay passed by all High Courts are applicable, irrespective
of the merits of individual cases. If a High Court concludes after
hearing all the concerned parties that a case was made out for the
grant of stay of proceedings of a civil or criminal case, the order of
stay cannot stand automatically set aside on expiry of the period of
six months only on the ground that the High Court could not hear
the main case. If such an approach is adopted, it will be completely
contrary to the concept of fairness. If an interim order is automatically
vacated without any fault on the part of the litigant only because
the High Court cannot hear the main case, the maxim “actus curiae
neminem gravabit” will apply. No litigant should be allowed to suffer
due to the fault of the Court. If that happens, it is the bounden duty
of the Court to rectify its mistake.
17. In the subsequent clarification in the case of Asian Resurfacing1,
a direction has been issued to the Trial Courts to immediately fix a
date for hearing after the expiry of the period of six months without
waiting for any formal order of vacating stay passed by the High
Court. This gives an unfair advantage to the respondent in the case
before the High Court. Moreover, it adversely affects a litigant’s
right to the remedies under Articles 226 and 227 of the Constitution
of India. Such orders virtually defeat the right of a litigant to seek
and avail of statutory remedies such as revisions, appeals, and
applications under Section 482 of the Code of Criminal Procedure,
[2024] 2 S.C.R.  967

High Court Bar Association, Allahabad v. State of U.P. & Ors.

1973 (for short, ‘Cr. PC’) as well as the remedies under the Code
of Civil Procedure, 1908 (for short, ‘CPC’). All interim orders of stay
passed by all High Courts cannot be set at naught by a stroke of
pen only on the ground of lapse of time.
18. The legislature attempted to provide for an automatic vacation of
stay granted by the Income Tax Appellate Tribunal by introducing the
third proviso to Section 254 (2A) of the IT Act. It provided that if an
appeal in which the stay was granted was not heard within a period
of 365 days, it would amount to the automatic vacation of stay. In
the case of Pepsi Foods Limited5, this Court held that a provision
automatically vacating a stay was manifestly arbitrary and, therefore,
violative of Article 14 of the Constitution of India. Paragraphs 20 and
22 of the said decision read thus:
“20. Judged by both these parameters, there can be
no doubt that the third proviso to Section 254(2-A) of
the Income Tax Act, introduced by the Finance Act,
2008, would be both arbitrary and discriminatory and,
therefore, liable to be struck down as offending Article
14 of the Constitution of India. First and foremost, as
has correctly been held in the impugned judgment,
unequals are treated equally in that no differentiation
is made by the third proviso between the assessees
who are responsible for delaying the proceedings and
assessees who are not so responsible. This is a little
peculiar in that the legislature itself has made the aforesaid
differentiation in the second proviso to Section 254(2-A) of
the Income Tax Act, making it clear that a stay order may
be extended up to a period of 365 days upon satisfaction
that the delay in disposing of the appeal is not attributable
to the assessee. We have already seen as to how, as
correctly held by Narang Overseas [Narang Overseas (P)
Ltd. v. Income Tax Appellate Tribunal, 2007 SCC OnLine
Bom 671 : (2007) 295 ITR 22] , the second proviso was
introduced by the Finance Act, 2007 to mitigate the rigour
of the first proviso to Section 254(2-A) of the Income Tax
Act in its previous avatar. Ordinarily, the Appellate Tribunal,
where possible, is to hear and decide appeals within a
period of four years from the end of the financial year in
which such appeal is filed. It is only when a stay of the
968 [2024] 2 S.C.R.

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impugned order before the Appellate Tribunal is granted,

that the appeal is required to be disposed of within 365
days. So far as the disposal of an appeal by the Appellate
Tribunal is concerned, this is a directory provision. However,
so far as vacation of stay on expiry of the said period is
concerned, this condition becomes mandatory so far as
the assessee is concerned.”
21. .. .. .. .. .. .. .. .. .. ..
22. Since the object of the third proviso to Section
254(2-A) of the Income Tax Act is the automatic vacation
of a stay that has been granted on the completion of
365 days, whether or not the assessee is responsible
for the delay caused in hearing the appeal, such object
being itself discriminatory, in the sense pointed out
above, is liable to be struck down as violating Article
14 of the Constitution of India. Also, the said proviso
would result in the automatic vacation of a stay upon
the expiry of 365 days even if the Appellate Tribunal
could not take up the appeal in time for no fault of
the assessee. Further, the vacation of stay in favour
of the Revenue would ensue even if the Revenue is
itself responsible for the delay in hearing the appeal. In
this sense, the said proviso is also manifestly arbitrary
being a provision which is capricious, irrational and
disproportionate so far as the assessee is concerned.”
(Emphasis added)
Therefore, even if the legislature were to come out with such a
provision for automatic vacation of stay, the same may not stand
judicial scrutiny as it may suffer from manifest arbitrariness.
IV. Scope of exercise of powers under Article 142 of the
Constitution
19. The directions issued in Asian Resurfacing1 are obviously issued
in the exercise of jurisdiction of this Court under Article 142 of the
Constitution, which confers jurisdiction on this Court to pass such
a decree or make such order necessary for doing complete justice
in any case or matter pending before it. In Asian Resurfacing1,
the first issue was, whether an order framing of charge in a case
[2024] 2 S.C.R.  969

High Court Bar Association, Allahabad v. State of U.P. & Ors.

under the PC Act was in the nature of an interlocutory order. The

second question was of the scope of powers of the High Court to
stay proceedings of the trial under the PC Act while entertaining a
challenge to an order of framing charge. The question regarding the
duration of the interim orders passed by the High Courts in various
other proceedings did not specifically arise for consideration in the
case of Asian Resurfacing1. The provisions of Article 142 of the
Constitution of India are meant to further the cause of justice and
to secure complete justice. The directions in the exercise of power
under Article 142 cannot be issued to defeat justice. The jurisdiction
under Article 142 cannot be invoked to pass blanket orders setting at
naught a very large number of interim orders lawfully passed by all
the High Courts, and that too, without hearing the contesting parties.
The jurisdiction under Article 142 can be invoked only to deal with
extraordinary situations for doing complete justice between the parties
before the Court.
20. While dealing with the scope of power under Article 142, a Constitution
Bench of this Court in the case of Prem Chand Garg & Anr. v. The
Excise Commissioner, U.P. and Ors.10, in paragraphs 12 and 13
held thus:
“12. Basing himself on this decision, the Solicitor-General
argues that the power conferred on this Court under
Article 142(1) is comparable to the privileges claimed by
the members of the State Legislatures under the latter
part of Article 194(3), and so, there can be no question of
striking down an order passed by this Court under Article
142(1) on the ground that it is inconsistent with Article 32. It
would be noticed that this argument proceeds on the basis
that the order for security infringes the fundamental right
guaranteed by Article 32 and it suggests that under Article
142(1) this Court has jurisdiction to pass such an order. In
our opinion, the argument thus presented is misconceived.
In this connection, it is necessary to appreciate the actual
decision in the case of Sharma [(1959) 1 SCR 806 at
859-860] and its effect. The actual decision was that the
rights claimable under the latter part of Article 194(3) were

10 [1963] Supp. 1 S.C.R. 885 : 1962 SCC Online SC 37

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not subject to Article 19(1)(a), because the said rights had

been expressly provided for by a constitutional provision
viz. Article 194(3), and it would be impossible to hold that
one part of the Constitution is inconsistent with another
part. The position would, however, be entirely different if
the State Legislature was to pass a law in regard to the
privileges of its members. Such a law would obviously
have to be consistent with Article 19(1)(a). If any of the
provisions of such a law were to contravene any of the
fundamental rights guaranteed by Part III, they would be
struck down as being unconstitutional. Similarly, there can
be no doubt that if in respect of petitions under Article 32
a law is made by Parliament as contemplated by Article
145(1), and such a law, in substance, corresponds to the
provisions of Order 25 Rule 1 or Order 41 Rule 10, it would
be struck down on the ground that it purports to restrict the
fundamental right guaranteed by Article 32. The position
of an order made either under the rules framed by this
Court or under the jurisdiction of this Court under Article
142(1) can be no different. If this aspect of the matter is
borne in mind, there would be no difficulty in rejecting the
Solicitor-General’s argument based on Article 142(1). The
powers of this Court are no doubt very wide and they
are intended to be and will always be exercised in the
interest of justice. But that is not to say that an order
can be made by this Court which is inconsistent with
the fundamental rights guaranteed by Part III of the
Constitution. An order which this Court can make in
order to do complete justice between the parties, must
not only be consistent with the fundamental rights
guaranteed by the Constitution, but it cannot even be
inconsistent with the substantive provisions of the
relevant statutory laws. Therefore, we do not think it
would be possible to hold that Article 142(1) confers upon
this Court powers which can contravene the provisions of
Article 32.
13. In this connection, it may be pertinent to point out
that the wide powers which are given to this Court for
doing complete justice between the parties, can be
[2024] 2 S.C.R.  971

High Court Bar Association, Allahabad v. State of U.P. & Ors.

used by this Court, for instance, in adding parties to the

proceedings pending before it, or in admitting additional
evidence, or in remanding the case, or in allowing a new
point to be taken for the first time. It is plain that in
exercising these and similar other powers, this Court
would not be bound by the relevant provisions of
procedure if it is satisfied that a departure from the
said procedure is necessary to do complete justice
between the parties.”
(Emphasis added)
21. Another Constitution Bench in the case of Supreme Court Bar
Association v. Union of India & Anr.11, in paragraphs 47 and 48,
held thus:
“47. The plenary powers of this Court under Article 142
of the Constitution are inherent in the Court and are
complementary to those powers which are specifically
conferred on the Court by various statutes though are
not limited by those statutes. These powers also exist
independent of the statutes with a view to do complete
justice between the parties. These powers are of very wide
amplitude and are in the nature of supplementary powers.
This power exists as a separate and independent basis
of jurisdiction apart from the statutes. It stands upon the
foundation and the basis for its exercise may be put on a
different and perhaps even wider footing, to prevent injustice
in the process of litigation and to do complete justice
between the parties. This plenary jurisdiction is, thus,
the residual source of power which this Court may draw
upon as necessary whenever it is just and equitable to
do so and in particular to ensure the observance of the
due process of law, to do complete justice between the
parties, while administering justice according to law.
There is no doubt that it is an indispensable adjunct to all
other powers and is free from the restraint of jurisdiction
and operates as a valuable weapon in the hands of the
Court to prevent “clogging or obstruction of the stream of

11 [1998] 2 SCR 795 : (1998) 4 SCC 409

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justice”. It, however, needs to be remembered that the

powers conferred on the Court by Article 142 being
curative in nature cannot be construed as powers which
authorise the Court to ignore the substantive rights of
a litigant while dealing with a cause pending before it.
This power cannot be used to “supplant” substantive law
applicable to the case or cause under consideration of the
Court. Article 142, even with the width of its amplitude,
cannot be used to build a new edifice where none
existed earlier, by ignoring express statutory provisions
dealing with a subject and thereby to achieve something
indirectly which cannot be achieved directly. Punishing
a contemner advocate, while dealing with a contempt of
court case by suspending his licence to practice, a power
otherwise statutorily available only to the Bar Council of
India, on the ground that the contemner is also an advocate,
is, therefore, not permissible in exercise of the jurisdiction
under Article 142. The construction of Article 142 must be
functionally informed by the salutary purposes of the article,
viz., to do complete justice between the parties. It cannot
be otherwise. As already noticed in a case of contempt of
court, the contemner and the court cannot be said to be
litigating parties.
48. The Supreme Court in exercise of its jurisdiction
under Article 142 has the power to make such order as
is necessary for doing complete justice “between the
parties in any cause or matter pending before it”. The
very nature of the power must lead the Court to set
limits for itself within which to exercise those powers
and ordinarily it cannot disregard a statutory provision
governing a subject, except perhaps to balance the
equities between the conflicting claims of the litigating
parties by “ironing out the creases” in a cause or matter
before it. Indeed this Court is not a court of restricted
jurisdiction of only dispute-settling. It is well recognised and
established that this Court has always been a law-maker
and its role travels beyond merely dispute-settling. It is a
“problem-solver in the nebulous areas” (see K. Veeraswami
v. Union of India [(1991) 3 SCC 655 : 1991 SCC (Cri) 734]
[2024] 2 S.C.R.  973

High Court Bar Association, Allahabad v. State of U.P. & Ors.

but the substantive statutory provisions dealing with the

subject-matter of a given case cannot be altogether ignored
by this Court, while making an order under Article 142.
Indeed, these constitutional powers cannot, in any way,
be controlled by any statutory provisions but at the same
time these powers are not meant to be exercised when
their exercise may come directly in conflict with what has
been expressly provided for in a statute dealing expressly
with the subject.”
(Emphasis added)
22. It is very difficult to exhaustively lay down the parameters for the
exercise of powers under Article 142 of the Constitution of India
due to the very nature of such powers. However, a few important
parameters which are relevant to the issues involved in the reference
are as follows:-
(i) The jurisdiction can be exercised to do complete justice between
the parties before the Court. It cannot be exercised to nullify the
benefits derived by a large number of litigants based on judicial
orders validly passed in their favour who are not parties to the
proceedings before this Court;
(ii) Article 142 does not empower this Court to ignore the substantive
rights of the litigants; and
(iii) While exercising the jurisdiction under Article 142 of the
Constitution of India, this Court can always issue procedural
directions to the Courts for streamlining procedural aspects
and ironing out the creases in the procedural laws to ensure
expeditious and timely disposal of cases. This is because, while
exercising the jurisdiction under Article 142, this Court may not
be bound by procedural requirements of law. However, while
doing so, this Court cannot affect the substantive rights of those
litigants who are not parties to the case before it. The right to
be heard before an adverse order is passed is not a matter of
procedure but a substantive right.
(iv) The power of this Court under Article 142 cannot be exercised
to defeat the principles of natural justice, which are an integral
part of our jurisprudence.
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V. Position of the High Courts and its power of superintendence

23. A High Court is also a constitutional Court. It is well settled that it is
not judicially subordinate to this Court. In the case of Tirupati Balaji
Developers (P) Ltd. & Ors. v. State of Bihar & Ors.12, this Court
has explained the position of the High Courts vis-à-vis this Court. In
paragraph 8, this Court observed thus:
“8. Under the constitutional scheme as framed for
the judiciary, the Supreme Court and the High Courts,
both are courts of record. The High Court is not a
court “subordinate” to the Supreme Court. In a way
the canvas of judicial powers vesting in the High Court is
wider inasmuch as it has jurisdiction to issue all prerogative
writs conferred by Article 226 of the Constitution for the
enforcement of any of the rights conferred by Part III of the
Constitution and for any other purpose while the original
jurisdiction of the Supreme Court to issue prerogative writs
remains confined to the enforcement of fundamental rights
and to deal with some such matters, such as Presidential
elections or inter-State disputes which the Constitution does
not envisage being heard and determined by High Courts.
The High Court exercises power of superintendence
under Article 227 of the Constitution over all subordinate
courts and tribunals; the Supreme Court has not been
conferred with any power of superintendence. If the
Supreme Court and the High Courts both were to be
thought of as brothers in the administration of justice,
the High Court has larger jurisdiction but the Supreme
Court still remains the elder brother. There are a few
provisions which give an edge, and assign a superior place
in the hierarchy, to the Supreme Court over High Courts.
So far as the appellate jurisdiction is concerned, in all civil
and criminal matters, the Supreme Court is the highest and
the ultimate court of appeal. It is the final interpreter of the
law. Under Article 139-A, the Supreme Court may transfer
any case pending before one High Court to another High
Court or may withdraw the case to itself. Under Article 141

12 [2004] Supp. 1 SCR 494 : (2004) 5 SCC 1

[2024] 2 S.C.R.  975

High Court Bar Association, Allahabad v. State of U.P. & Ors.

the law declared by the Supreme Court shall be binding

on all courts, including High Courts, within the territory of
India. Under Article 144 all authorities, civil and judicial, in
the territory of India — and that would include High Courts
as well — shall act in aid of the Supreme Court.”
(Emphasis added)
A High Court is constitutionally independent of the Supreme Court of
India and is not subordinate to this Court. This Court has dealt with
the issue of jurisdiction of the High Courts in the case of L. Chandra
Kumar v. Union of India & Ors13. The relevant part of paragraph 78
and paragraph 79 read thus:
“78. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. We, therefore,
hold that the power of judicial review over legislative
action vested in the High Courts under Article 226 and
in this Court under Article 32 of the Constitution is
an integral and essential feature of the Constitution,
constituting part of its basic structure. Ordinarily,
therefore, the power of High Courts and the Supreme
Court to test the constitutional validity of legislations
can never be ousted or excluded.
79. We also hold that the power vested in the High
Courts to exercise judicial superintendence over
the decisions of all courts and tribunals within their
respective jurisdictions is also part of the basic
structure of the Constitution. This is because a situation
where the High Courts are divested of all other judicial
functions apart from that of constitutional interpretation, is
equally to be avoided.”
(Emphasis added)
24. The power of the High Court under Article 227 of the Constitution to
have judicial superintendence over all the Courts within its jurisdiction
will include the power to stay the proceedings before such Courts. By
a blanket direction in the exercise of power under Article 142 of the
Constitution of India, this Court cannot interfere with the jurisdiction

13 [1997] 2 SCR 1186 : (1997) 3 SCC 261

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conferred on the High Court of granting interim relief by limiting its

jurisdiction to pass interim orders valid only for six months at a time.
Putting such constraints on the power of the High Court will also
amount to making a dent on the jurisdiction of the High Courts under
Article 226 of the Constitution, which is an essential feature that forms
part of the basic structure of the Constitution.
VI. Whether the Court should deal with an issue not arising for
consideration
25. In the case of Sanjeev Coke Manufacturing Company,8 a Constitution
Bench of this Court in paragraph 11 held thus:
“11. ..............................................................We have
serious reservations on the question whether it is open to a
court to answer academic or hypothetical questions on such
considerations, particularly so when serious constitutional
issues are involved. We (Judges) are not authorised to
make disembodied pronouncements on serious and
cloudy issues of constitutional policy without battle
lines being properly drawn. Judicial pronouncements
cannot be immaculate legal conceptions. It is but
right that no important point of law should be decided
without a proper lis between parties properly ranged
on either side and a crossing of the swords. We think
it is inexpedient for the Supreme Court to delve into
problems which do not arise and express opinion
thereon.”
(Emphasis added)
In Asian Resurfacing1, there was no lis before this
Court arising out of the orders of stay granted in different
categories of cases pending before the various High Courts.
This Court was dealing with a case under the PC Act. Thus,
an attempt was made to delve into an issue which did not
arise for consideration.
VII. Clause (3) Of Article 226 of the Constitution
26. In this case, it is unnecessary for this Court to decide whether clause
(3) of Article 226 of the Constitution of India is mandatory or directory.
Clause (3) of Article 226 reads thus:
[2024] 2 S.C.R.  977

High Court Bar Association, Allahabad v. State of U.P. & Ors.

“226. Power of High Courts to issue certain writs:

(1) .. .. .. .. .. .. .. .. .. .. .. .. .. ..
(2) .. .. .. .. .. .. .. .. .. .. .. .. .. ..
(3) Where any party against whom an interim order, whether
by way of injunction or stay or in any other manner, is
made on, or in any proceedings relating to, a petition under
clause (1), without—
(a) furnishing to such party copies of such petition and
all documents in support of the plea for such interim
order; and
(b) giving such party an opportunity of being heard,
makes an application to the High Court for the vacation
of such order and furnishes a copy of such application to
the party in whose favour such order has been made or
the counsel of such party, the High Court shall dispose
of the application within a period of two weeks from the
date on which it is received or from the date on which
the copy of such application is so furnished, whichever is
later, or where the High Court is closed on the last day of
that period, before the expiry of the next day afterwards
on which the High Court is open; and if the application is
not so disposed of, the interim order shall, on the expiry
of that period, or, as the case may be, the expiry of the
said next day, stand vacated.”
On its plain reading, clause (3) is applicable only when an
interim relief is granted without furnishing a copy of the writ
petition along with supporting documents to the opposite
party and without hearing the opposite party. Even assuming
that clause (3) is not directory, it provides for an automatic
vacation of interim relief only if the aggrieved party makes
an application for vacating the interim relief and when the
application for vacating stay is not heard within the time
specified. Clause (3) will not apply when an interim order in
a writ petition under Article 226 is passed after the service of
a copy of the writ petition on all concerned parties and after
giving them an opportunity of being heard. It applies only to
ex-parte ad interim orders.
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VIII. Directions issued by the constitutional Courts to decide

pending cases in a time-bound manner
27. The net effect of the directions issued in paragraphs 36 and
37 of Asian Resurfacing1 is that the petition in which the High
Court has granted a stay of the proceedings of the trial, must be
decided within a maximum period of six months. If it is not decided
within six months, the interim stay will be vacated automatically,
virtually making the pending case infructuous. In fact, in paragraph
37, this Court directed that the challenge to the order of framing
charge should be entertained in a rare case, and when the stay
is granted, the case should be decided by the High Court on a
day-to-day basis so that the stay does not operate for an unduly
long period.
28. The Constitution Benches of this Court have considered the issue
of fixing timelines for the disposal of cases in the cases of Abdul
Rehman Antulay3 and P. Ramachandra Rao4. In the case of Abdul
Rehman Antulay3, in paragraph 83, this Court held thus:
“83. But then speedy trial or other expressions conveying
the said concept — are necessarily relative in nature. One
may ask — speedy means, how speedy? How long a delay
is too long? We do not think it is possible to lay down any
time schedules for conclusion of criminal proceedings. The
nature of offence, the number of accused, the number
of witnesses, the workload in the particular court, means
of communication and several other circumstances have
to be kept in mind. For example, take the very case in
which Ranjan Dwivedi (petitioner in Writ Petition No.
268 of 1987) is the accused. 151 witnesses have been
examined by the prosecution over a period of five years.
Examination of some of the witnesses runs into more than
100 typed pages each. The oral evidence adduced by the
prosecution so far runs into, we are told, 4000 pages.
Even though, it was proposed to go on with the case five
days of a week and week after week, it was not possible
for various reasons viz., non-availability of the counsel,
non-availability of accused, interlocutory proceedings
and other systemic delays. A murder case may be a
simple one involving say a dozen witnesses which can
[2024] 2 S.C.R.  979

High Court Bar Association, Allahabad v. State of U.P. & Ors.

be concluded in a week while another case may involve a

large number of witnesses, and may take several weeks.
Some offences by their very nature e.g., conspiracy cases,
cases of misappropriation, embezzlement, fraud, forgery,
sedition, acquisition of disproportionate assets by public
servants, cases of corruption against high public servants
and high public officials take longer time for investigation
and trial. Then again, the workload in each court, district,
region and State varies. This fact is too well known to merit
illustration at our hands. In many places, requisite number
of courts are not available. In some places, frequent
strikes by members of the bar interferes with the work
schedules. In short, it is not possible in the very nature of
things and present-day circumstances to draw a time-limit
beyond which a criminal proceeding will not be allowed to
go. Even in the USA, the Supreme Court has refused to
draw such a line. Except for the Patna Full Bench decision
under appeal, no other decision of any High Court in this
country taking such a view has been brought to our notice.
Nor, to our knowledge, in United Kingdom. Wherever a
complaint of infringement of right to speedy trial is made
the court has to consider all the circumstances of the case
including those mentioned above and arrive at a decision
whether in fact the proceedings have been pending for
an unjustifiably long period. In many cases, the accused
may himself have been responsible for the delay. In such
cases, he cannot be allowed to take advantage of his
own wrong. In some cases, delays may occur for which
neither the prosecution nor the accused can be blamed
but the system itself. Such delays too cannot be treated
as unjustifiable — broadly speaking. Of course, if it is a
minor offence — not being an economic offence — and
the delay is too long, not caused by the accused, different
considerations may arise. Each case must be left to be
decided on its own facts having regard to the principles
enunciated hereinafter. For all the above reasons, we are
of the opinion that it is neither advisable nor feasible
to draw or prescribe an outer time-limit for conclusion
of all criminal proceedings. It is not necessary to do
so for effectuating the right to speedy trial. We are also
980 [2024] 2 S.C.R.

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not satisfied that without such an outer limit, the right

becomes illusory.”
(Emphasis added)
In paragraph 27 of the decision in the case of P. Ramachandra Rao4,
this Court observed thus:
“27. Prescribing periods of limitation at the end of
which the trial court would be obliged to terminate the
proceedings and necessarily acquit or discharge the
accused, and further, making such directions applicable
to all the cases in the present and for the future amounts
to legislation, which, in our opinion, cannot be done by
judicial directives and within the arena of the judicial
law-making power available to constitutional courts,
howsoever liberally we may interpret Articles 32, 21, 141
and 142 of the Constitution. The dividing line is fine but
perceptible. Courts can declare the law, they can interpret
the law, they can remove obvious lacunae and fill the gaps
but they cannot entrench upon in the field of legislation
properly meant for the legislature. Binding directions can be
issued for enforcing the law and appropriate directions may
issue, including laying down of time-limits or chalking out a
calendar for proceedings to follow, to redeem the injustice
done or for taking care of rights violated, in a given case
or set of cases, depending on facts brought to the notice
of the court. This is permissible for the judiciary to do.
But it may not, like the legislature, enact a provision
akin to or on the lines of Chapter XXXVI of the Code
of Criminal Procedure, 1973.”
(Emphasis added)
The principles laid down in the decision will apply even to civil cases
before the trial courts. The same principles will also apply to a
direction issued to the High Courts to decide cases on a day-to-day
basis or within a specific time. Thus, the directions of the Court that
provide for automatic vacation of the order of stay and the disposal
of all cases in which a stay has been granted on a day-to-day basis
virtually amount to judicial legislation. The jurisdiction of this Court
cannot be exercised to make such a judicial legislation. Only the
[2024] 2 S.C.R.  981

High Court Bar Association, Allahabad v. State of U.P. & Ors.

legislature can provide that cases of a particular category should

be decided within a specific time. There are many statutes which
incorporate such provisions. However, all such provisions are usually
held to be directory.
29. Ideally, the cases in which the stay of proceedings of the civil/criminal
trials is granted should be disposed of expeditiously by the High
Courts. However, we do not live in an ideal world. A judicial notice
will have to be taken of the fact that except High Courts of smaller
strength having jurisdiction over smaller States, each High Court is
flooded with petitions under Article 227 of the Constitution of India for
challenging the interim orders passed in civil and criminal proceedings,
the petitions under Section 482 of the Cr.PC for challenging the
orders passed in the criminal proceedings and petitions filed in the
exercise of revisional jurisdiction under the CPC and the Cr. PC. A
judicial notice will have to be taken of the fact that in all the High
Courts of larger strength having jurisdiction over larger States, the
daily cause lists of individual Benches of the cases of the aforesaid
categories are of more than a hundred matters. Therefore, once a
case is entertained by the High Court and the stay is granted, the
case has a long life.
30. There is a huge filing of regular appeals, both civil and criminal in
High Courts. After all, the High Courts deal with many other important
matters, such as criminal appeals against acquittal and conviction,
bail petitions, writ petitions, and other proceedings that involve the
issues of liberty under Article 21 of the Constitution of India. The High
Courts deal with matrimonial disputes, old appeals against decrees of
civil courts, and appeals against appellate decrees. There are cases
where senior citizens or second or third-generation litigants are parties.
The High Courts cannot be expected to decide, on a priority basis or
a day-to-day basis, only those cases in which a stay of proceedings
has been granted while ignoring several other categories of cases
that may require more priority to be given.
31. The situation in Trial and district Courts is even worse. In 2002,
in the case of All India Judges’ Association & Ors. v. Union of
India & Ors.14, this Court passed an order directing that the judge-
to-population ratio within twenty years should be 50 per million. Even

14 [2002] 2 SCR 712 : (2002) 4 SCC 247

982 [2024] 2 S.C.R.

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as of today, we are not able to reach the ratio of even 25 per million.
The directions issued in the case of Imtiyaz Ahmed v. State of
Uttar Pradesh & Ors.15 have not been complied with by the States
by increasing the Judge strength of the Trial and District Courts.
The figures of pendency of cases in our trial Courts are staggering.
There are different categories of cases which, by their very nature,
are required to be given utmost priority, such as the cases of the
accused in jail and the cases of senior citizens. For example, there are
many legislations like the Hindu Marriage Act, 1955, the Protection of
Women from Domestic Violence Act, 2005, the Negotiable Instruments
Act, 1881 etc which prescribe specific time limits for the disposal of
cases. However, due to the huge filing and pendency, our Courts
cannot conclude the trials within the time provided by the statutes.
There is a provision in the Code of Criminal Procedure, 1973, in the
form of Section 309, which requires criminal cases to be heard on a
day-to-day basis once the recording of evidence commences. The
same Section provides that in case of certain serious offences against
women, the cases must be decided within two months of filing the
charge sheet. Unfortunately, our Criminal Courts are not in a position
to implement the said provision. Apart from dealing with huge arrears,
our Trial Courts face the challenge of dealing with a large number of
cases made time-bound by our constitutional Courts. Therefore, in
the ordinary course, the constitutional Courts should not exercise the
power to direct the disposal of a case before any District or Trial Court
within a time span. In many cases, while rejecting a bail petition, a
time limit is fixed for disposal of trial on the ground that the petitioner
has undergone incarceration for a long time without realising that
the concerned trial Court may have many pending cases where the
accused are in jail for a longer period. The same logic will apply to the
cases pending before the High Courts. When we exercise such power
of directing High Courts to decide cases in a time-bound manner, we
are not aware of the exact position of pendency of old cases in the
said Courts, which require priority to be given. Bail petitions remain
pending for a long time. There are appeals against conviction pending
where the appellants have been denied bail.
32. Therefore, constitutional Courts should not normally fix a time-bound
schedule for disposal of cases pending in any Court. The pattern of

15 [2017] 1 SCR 305 : (2017) 3 SCC 658

[2024] 2 S.C.R.  983

High Court Bar Association, Allahabad v. State of U.P. & Ors.

pendency of various categories of cases pending in every Court,

including High Courts, is different. The situation at the grassroots level
is better known to the judges of the concerned Courts. Therefore,
the issue of giving out-of-turn priority to certain cases should be best
left to the concerned Courts. The orders fixing the outer limit for the
disposal of cases should be passed only in exceptional circumstances
to meet extraordinary situations.
33. There is another important reason for adopting the said approach.
Not every litigant can easily afford to file proceedings in the
constitutional Courts. Those litigants who can afford to approach the
constitutional Courts cannot be allowed to take undue advantage by
getting an order directing out-of-turn disposal of their cases while
all other litigants patiently wait in the queue for their turn to come.
The Courts, superior in the judicial hierarchy, cannot interfere with
the day-to-day functioning of the other Courts by directing that only
certain cases should be decided out of turn within a time frame. In
a sense, no Court of law is inferior to the other. This Court is not
superior to the High Courts in the judicial hierarchy. Therefore, the
Judges of the High Courts should be allowed to set their priorities on
a rational basis. Thus, as far as setting the outer limit is concerned,
it should be best left to the concerned Courts unless there are very
extraordinary circumstances.
IX. Procedure to be adopted by High Courts while passing interim
order of stay of proceedings and for dealing with the applications
for vacating interim stay
34. At the same time, we cannot ignore that once the High Court stays
a trial, it takes a very long time for the High Court to decide the main
case. To avoid any prejudice to the opposite parties, while granting
ex-parte ad-interim relief without hearing the affected parties, the High
Courts should normally grant ad-interim relief for a limited duration. After
hearing the contesting parties, the Court may or may not confirm the
earlier ad-interim order. Ad-interim relief, once granted, can be vacated
or affirmed only after application of mind by the concerned Court. Hence,
the Courts must give necessary priority to the hearing of the prayer
for interim relief where ad-interim relief has been granted. Though the
High Court is not expected to record detailed reasons while dealing
with the prayer for the grant of stay or interim relief, the order must give
sufficient indication of the application of mind to the relevant factors.
984 [2024] 2 S.C.R.

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35. An interim order passed after hearing the contesting parties cannot
be vacated by the High Court without giving sufficient opportunity
of being heard to the party whose prayer for interim relief has been
granted. Even if interim relief is granted after hearing both sides, as
observed earlier, the aggrieved party is not precluded from applying
for vacating the same on the available grounds. In such a case, the
High Court must give necessary priority to the hearing of applications
for vacating the stay, if the main case cannot be immediately taken
up for hearing. Applications for vacating interim reliefs cannot be
kept pending for an inordinately long time. The High Courts cannot
take recourse to the easy option of directing that the same should
be heard along with the main case. The same principles will apply
where ad-interim relief is granted. If an ad-interim order continues for
a long time, the affected party can always apply for vacating ad-interim
relief. The High Court is expected to take up even such applications
on a priority basis. If an application for vacating ex-parte ad interim
relief is filed on the ground of suppression of facts, the same must
be taken up at the earliest.
D. CONCLUSIONS
36. Hence, with greatest respect to the Bench which decided the case,
we are unable to concur with the directions issued in paragraphs
36 and 37 of the decision in the case of Asian Resurfacing1. We
hold that there cannot be automatic vacation of stay granted by the
High Court. We do not approve the direction issued to decide all
the cases in which an interim stay has been granted on a day-to-
day basis within a time frame. We hold that such blanket directions
cannot be issued in the exercise of the jurisdiction under Article 142
of the Constitution of India. We answer both the questions framed
in paragraph 5 above in the negative.
37. Subject to what we have held earlier, we summarise our main
conclusions as follows:
a. A direction that all the interim orders of stay of proceedings
passed by every High Court automatically expire only by reason
of lapse of time cannot be issued in the exercise of the jurisdiction
of this Court under Article 142 of the Constitution of India;
b. Important parameters for the exercise of the jurisdiction under
Article 142 of the Constitution of India which are relevant for
deciding the reference are as follows:
[2024] 2 S.C.R.  985

High Court Bar Association, Allahabad v. State of U.P. & Ors.

(i) The jurisdiction can be exercised to do complete justice

between the parties before the Court. It cannot be exercised
to nullify the benefits derived by a large number of litigants
based on judicial orders validly passed in their favour who
are not parties to the proceedings before this Court;
(ii) Article 142 does not empower this Court to ignore the
substantive rights of the litigants;
(iii) While exercising the jurisdiction under Article 142 of the
Constitution of India, this Court can always issue procedural
directions to the Courts for streamlining procedural aspects
and ironing out the creases in the procedural laws to ensure
expeditious and timely disposal of cases. However, while
doing so, this Court cannot affect the substantive rights of
those litigants who are not parties to the case before it.
The right to be heard before an adverse order is passed
is not a matter of procedure but a substantive right; and
(iv) The power of this Court under Article 142 cannot be
exercised to defeat the principles of natural justice, which
are an integral part of our jurisprudence.
c. Constitutional Courts, in the ordinary course, should refrain
from fixing a time-bound schedule for the disposal of cases
pending before any other Courts. Constitutional Courts may
issue directions for the time-bound disposal of cases only in
exceptional circumstances. The issue of prioritising the disposal
of cases should be best left to the decision of the concerned
Courts where the cases are pending; and
d. While dealing with the prayers for the grant of interim relief,
the High Courts should take into consideration the guidelines
incorporated in paragraphs 34 and 35 above.
38. We clarify that in the cases in which trials have been concluded as
a result of the automatic vacation of stay based only on the decision
in the case of Asian Resurfacing1, the orders of automatic vacation
of stay shall remain valid.
39. The reference is answered accordingly. We direct the Registry to
place the pending petitions before the appropriate Benches for
expeditious disposal.
986 [2024] 2 S.C.R.

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Pankaj Mithal, J.
1. Concurring with the opinion expressed by my brother Justice Oka for
himself and other puisne Judges, including the Hon’ble Chief Justice, I
would like to add that in Asian Resurfacing of Road Agency Private
Limited & Anr. vs. Central Bureau of Investigation1, this Court
while deciding the issues arising therein went ahead in observing
and directing that where a challenge to an order framing charge is
entertained and stay is granted, the matter must be decided on day to
day basis so that the stay may not continue for an unduly long time.
It was further observed that though no mandatory time limit may be
fixed for deciding such a challenge, the stay order may not normally
exceed two to three months or a maximum of six months unless it is
extended by specific speaking order. Further directions were issued
that in all pending matters before the High Court or other Courts
relating to Prevention of Corruption Act or all other civil or criminal
cases where stay is operating in pending trials, it will automatically
lapse after six months unless a speaking order is passed extending
the same. The Trial Court may, on expiry of the above period resume
the proceedings without waiting for any intimation unless express
order extending the stay is produced before the Court.
2. The above directions in Asian Resurfacing issued in exercise of
power of doing complete justice under Article 142 of the Constitution
of India are analogous to the constitutional provision as contained in
clause (3) of Article 226 of the Constitution of India which has been
inserted with effect from 1.8.1979 vide the Constitution (Forty-fourth
Amendment) Act, 1978. It reads as under:
“(3) Where any party against whom an interim order,
whether by way of injunction or stay or in any other manner,
is made on, or in any proceedings relating to, a petition
under clause (1), without—
(a) furnishing to such party copies of such petition and
all documents in support of the plea for such interim
order; and
(b) giving such party an opportunity of being heard,

1 [2018] 2 SCR 1045 : (2018) 16 SCC 299

[2024] 2 S.C.R.  987

High Court Bar Association, Allahabad v. State of U.P. & Ors.

makes an application to the High Court for the vacation

of such order and furnishes a copy of such application to
the party in whose favour such order has been made or
the counsel of such party, the High Court shall dispose
of the application within a period of two weeks from the
date on which it is received or from the date on which
the copy of such application is so furnished, whichever is
later, or where the High Court is closed on the last day of
that period, before the expiry of the next day afterwards
on which the High Court is open; and if the application is
not so disposed of, the interim order shall, on the expiry
of that period, or, as the case may be, the expiry of the
said next day, stand vacated.”
3. No doubt, the above provision is in respect to petitions filed before the
High Court invoking the extraordinary jurisdiction of the Court and is
not meant to be applied specifically to other proceedings, nonetheless
the principles behind the said provision can always be extended to
other proceedings as has been done in Asian Resurfacing. It is worth
noting that wherever under a statute any such time limit has been
prescribed or is fixed for deciding a particular nature of proceeding,
it has been held to be directory in nature rather than mandatory. So
appears to be the position with regard to the applicability of Article
226(3) of the Constitution of India.
4. It is well recognised that no one can be made to suffer on account of
any mistake or fault of the Court which means that even delay on part
of the Court in deciding the proceedings or any application therein
would not be detrimental to any of the parties to the litigation much
less to the party in whose favour an interim stay order is passed.
5. It is settled in law that grant of interim stay order ought to be
ordinarily by a speaking order and therefore as a necessary corollary,
a stay order once granted cannot be vacated otherwise than by a
speaking order, more so, when its extension also requires reasons
to be recorded.
6. It is noticeable that under Article 226(3) of the Constitution of India,
the automatic vacation of the stay order envisages making of an
application to the High Court for the vacation of the interim stay
order. Therefore, filing of an application for vacating the stay order
is a sine qua non for triggering the automatic vacation of the stay
988 [2024] 2 S.C.R.

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order under Article 226(3) if such an application is not decided within

the time prescribed of two weeks.
7. In other words, applying the above analogy or principle, the stay order
granted in any proceedings would not automatically stand vacated
on the expiry of a particular period until and unless an application to
that effect has been filed by the other side and is decided following
the principles of natural justice by a speaking order.
8. Sometimes, in quest of justice we end up doing injustice. Asian
Resurfacing is a clear example of the same. Such a situation created
ought to be avoided in the normal course or if at all it arises be
remedied at the earliest. In doing so, we have to adopt a practical
and a more pragmatic approach rather than a technical one which
may create more problems burdening the courts with superfluous
or useless work. It is well said that useless work drives out the
useful work. Accordingly, it is expedient in the interest of justice
to provide that a reasoned stay order once granted in any civil or
criminal proceedings, if not specified to be time bound, would remain
in operation till the decision of the main matter or until and unless
an application is moved for its vacation and a speaking order is
passed adhering to the principles of natural justice either extending,
modifying, varying or vacating the same.
9. The reference made to this Court is answered and disposed of
accordingly.

Headnotes prepared by: Ankit Gyan Result of the case:

Reference answered.
 [2024] 2 S.C.R. 989 : 2024 INSC 167

Dattatraya
v.
The State of Maharashtra
Criminal Appeal No. 666 of 2012
01 February 2024
[Sudhanshu Dhulia and Prasanna B. Varale, JJ.]

Issue for Consideration

Whether the courts below were justified in convicting the appellant
u/ss. 302 and 316 IPC and sentencing to undergo life imprisonment
and 10 years of R.I. respectively along with fine, for causing death
of his wife as also the child she was bearing by pouring kerosene
on her and then setting her on fire.

Headnotes
Penal Code, 1860 – ss. 304 Part II and 316 – Culpable homicide
not amounting to murder – Causing death of quick unborn
child by act amounting to culpable homicide – Prosecution
case that on the fateful night the husband in an inebriated
state, picked a fight with his nine months pregnant wife and
then poured kerosene on her, as a result she sustained in 98%
burn injuries and subsequently died – She also gave birth to
still born child – Dying declaration recorded – Maternal grand
mother of the deceased witness to the incident – Conviction
of the appellant u/ss. 302 and 316 and sentenced to life
imprisonment and 10 years of R.I. respectively along with fine
by the courts below – Correctness:
Held: Prosecution has been able to prove its case beyond
reasonable doubt regarding the incident – Maternal grand mother
of the deceased witnessed the incident – She along with the
maternal aunt clearly established the facts – Even though PW
1 who recorded dying declaration was declared hostile, there is
sufficient evidence to prove that it was the appellant who had
poured kerosene on the deceased which led to the burn injuries
and the death of the deceased and the child she was bearing –
Fact that the deceased gave birth to a stillborn child on the next
day while she was still alive and the death was caused by the act
of the appellant, makes a case u/s. 316 – From every available
990 [2024] 2 S.C.R.

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evidence placed by the prosecution, it is a case where a sudden

fight took place between the husband and wife – Deceased at
that time was carrying a pregnancy of nine months and it was
the act of pouring kerosene on the deceased that resulted in the
fire and the subsequent burn injuries and the ultimate death of
the deceased – Said act at the hands of the appellant would be
covered under the fourth exception given u/s 300 – Act of the
appellant was not premeditated, but is a result of sudden fight
and quarrel in the heat of passion – Thus, it would be a case of
culpable homicide not amounting to murder u/s. 304 Part II in as
much as, though the accused had knowledge of the consequences
of the act he was committing, yet there was no intention to cause
death – Findings of s. 302 converted to that of s. 304 Part II and
the accused sentenced to 10 years of R.I – Since the appellant
has already undergone incarceration for more than 10 years, he
be released forthwith from the jail unless required in some other
offence. [Paras 11, 12, 14, 17-21]

Case Law Cited

Kalu Ram v. State of Rajasthan, (2000) 10 SCC 324
– referred to.

List of Acts
Penal Code, 1860; Code of Criminal Procedure, 1973.

List of Keywords
Causing death of quick unborn child by act amounting to culpable
homicide; Dying declaration; Life imprisonment; Culpable homicide
not amounting to murder; Knowledge of the consequences of the
act; Intention to cause death; Premeditated act; Sudden fight and
quarrel in the heat of passion; Prove its case beyond reasonable
doubt; Evidence; Witnesses; Sufficient proof; Burn injuries;
Incarceration.

Case Arising From

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.666
of 2012
From the Judgment and Order dated 23.11.2010 of the High Court of
Bombay at Aurangabad in CRLA No.6 of 2009
[2024] 2 S.C.R.  991

Dattatraya v. The State of Maharashtra

Appearances for Parties

Sudhanshu S . Choudhari, Sr. Adv., Ms. Rucha Pande, M Veera
Ragavan, Ms. Gautami Yadav, Pranjal Chapalgaonkar, M. A.
Chinnasamy, Advs. for the Appellant.
Bharat Bagla, Siddharth Dharmadhikari, Aaditya Aniruddha Pande,
Sourav Singh, Aditya Krishna, Ms. Raavi Sharma, Adarsh Dubey,
Advs. for the Respondent.
Judgment / Order of the Supreme Court

Order
This appeal arises out of the final judgment and order dated
23.11.2010 passed by the Aurangabad Bench of Bombay High
Court in Criminal Appeal No. 06/2009 whereby the conviction of
the appellant under Sections 302 and 316 of the Indian Penal Code
(for short ‘IPC’) was upheld and the appellant was sentenced to
undergo life imprisonment under Section 302 and 10 years of R.I.
under Section 316 of IPC, and was directed to pay fine amount of
Rs.5000 and Rs.2000/-, respectively.
2. The facts of this case are that the appellant (32 years of age in the
year 2007), was married to one, Meenabai Dattatraya Gawali, (who
was 30 years of age on the date of the incident). The wife Meenabai
(deceased) was having a pregnancy of nine months at that time. It is
the case of the prosecution that the appellant came home at about
10.00 P.M. on the fateful night of 26.01.2007 in an inebriated state.
He then picked a fight with his wife while she was cooking food in
the kitchen and poured kerosene on her and as the stove burst, the
wife sustained burn injuries, which in hospital were determined as
98%. She was taken to the Civil Hospital, Solapur at about midnight,
where the first injury report itself indicates that she sustained burn
injuries of about 98%. A statement is then recorded of the deceased
at 01.30 AM on 27.01.2007, which states as under:-
“ STATEMENT
Solapur
Dated-27/01/2007
Time-01.30 AM
Saturday after completing Friday
992 [2024] 2 S.C.R.

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Patient is conscious oriental and fit for giving valid

statement at present.
1.41 AM – 27.01.2007 – Sd/- Deshpande

Smt.Minabai Datta Gavli, age 30 years, R/o. A. Kata

Savargaon, Tq.Taljapur, District. Osmanabad gives
statement that in the night on Friday 26.01.2007 at 10 PM
there was trifle dispute between husband and wife and at
the time of cooking Mr. Dattatraya Gavli, age 40 years,
service-wireman with the anger of dispute poured rockel
on me. At that time stove flared up and I burned up to
98%. My husband is also burned 40%, Mr. Datta Gavli has
also burnt. He got burnt while putting out the fire. At that
time husband had drunk liquor. He was addicted to liquor.
My grandmother admitted in Civil Hospital at night 12 am.
Now I am under treatment and giving statement myself.

Yours faithfully
Thumb Impression
Thumb Impression of left hand of
Smt. Minabai Dattatraya Gavli

Before (M.V.Wagh) Executive Magistrate Office, Solapur.

Patient was conscious oriented and fit for giving valid
statement.
(Exh.33)
Sd/- A.P.Deshpande-”

3. A case is then registered at Tamalwadi Police Station, as Crime No.

12/2007, filed under Section 307 of the IPC against the appellant.
4. As we have already stated above, the deceased at that time was
nine months pregnant. She gave birth to a stillborn child on the next
day i.e., 28.01.2007 and died on 04.02.2007.
5. The offence which was registered under Section 307 of the IPC was
converted into an offence under Section 302 of the IPC and another
charge under Section 3161 was added.

1 Section 316.Causing death of quick unborn child by act amounting to culpable homicide.-- Who-
[2024] 2 S.C.R.  993

Dattatraya v. The State of Maharashtra

6. The police after an investigation filed its chargesheet in the Court

of Judicial Magistrate, F.C., Tuljapur, which was registered as RCC
No.96/2007 and the case was committed to Sessions, where it
was ultimately placed before Addl. Sessions Court, Usmanabad,
Maharashtra. The appellant faced the Trial Court where he was
convicted of offences under Sections 302 and 316 of IPC and
sentenced to undergo life imprisonment and 10 years of rigorous
imprisonment respectively, along with fine and default stipulation.
7. The matter was taken in an appeal before the Bombay High Court
by the appellant which was dismissed.
8. The Special Leave Petition later was filed by the appellant before
this Court in which leave was granted vide order dated 09.04.2012.
9. We have heard Mr.Sudhanshu S. Choudhari, learned counsel
appearing for the appellant and Mr.Bharat Bagla, learned counsel
appearing for the respondent, at some length.
10. The prosecution in this case had examined nine prosecution witnesses
and placed relevant documents such as medical reports, dying
declaration etc., in order to establish its case. The appellant gave
his statement under Section 313 of the Cr.P.C., but did not produce
any defence witnesses. In his statement, under Section 313 of the
Cr.P.C., the appellant admits to the fact that at the relevant point of
time, PW-7 who is the maternal grandmother of the deceased (the
wife of the appellant) was residing with them. He also admits that
his wife was nine months pregnant at the time of the incident and
gave birth to a stillborn child on 28.01.2007. He, however, denies
all instances of quarreling with his wife and committing the act as
alleged by the prosecution. PW-7 here is the star witness of the
prosecution, who was present in the house and was witness to the
crime. There is also a dying declaration.
11. After hearing the learned counsel for the parties and then examining
the evidence placed by the prosecution, we find that there is an
overwhelming evidence placed by the prosecution before the Trial
Court regarding the incident itself. The prosecution has been able

ever does any act under such circumstances, that if he thereby caused death he would be guilty of cul-
pable homicide, and does by such act cause the death of a quick unborn child, shall be punished with im-
prisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
994 [2024] 2 S.C.R.

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to prove its case beyond reasonable doubt regarding the incident

itself inasmuch as the incident took place on midnight of 26.01.2007
and 27.01.2007, and the appellant who was in an inebriated state,
picked a quarrel with his wife and while she was cooking his meal
in the kitchen, poured kerosene on her as a result of which she
sustained burn injuries and subsequently died.
12. The fact that the appellant had quarreled with the deceased and had
poured kerosene on her is well established. The statement given by
the deceased herself, which the prosecution has placed as a dying
declaration, categorically states that she was being tortured at the
hands of her husband and that her husband was having an affair
with another woman, and that on the fateful day, he returned late
at night in an inebriated state had a fight with her and then threw
kerosene on her, as a result, she sustained burn injuries. But then,
she also states that he also tried to extinguish the fire and as a
result, he too got burn injuries. The other evidence as we have stated
above, is in the form of PW-7, Chaturabai Tukaram Kale, who is the
maternal grand mother of the deceased, who was residing with the
deceased and her husband (appellant) eight to nine days prior to
the incident, and was taking care of the deceased as she was on
the family way. She also supports the story that the appellant was
having an affair with another woman which was the main reason
for the quarrel between the couple. On the fateful day, the two were
quarreling because of this reason alone and the appellant, thereafter,
threw kerosene on his wife, and set her on fire. Having witnessed
the incident she came out of the house and started shouting that
my grand daughter has been set on fire.
13. Another prosecution witness which is worth mentioning here is PW-8
i.e. Vimal Suryakant Salunkhe, who is the maternal aunt, of the
deceased and the daughter of PW-7. This witness was told by the
deceased that the appellant had kept a mistress and this resulted
in frequent fights between husband and wife (i.e., the deceased).
Deceased had also informed her that her husband i.e., the accused,
was addicted to liquor. She was told about the incident by her mother
(PW-7) at about 1 ‘O’ Clock in the night, and the fact that the burn
injuries were caused by the act of the accused (the appellant). On
information received from her mother (PW-7), she went to the Civil
Hospital, Solapur, along with her husband where she saw Meena
(the deceased), in a burnt condition and it was the deceased who
[2024] 2 S.C.R.  995

Dattatraya v. The State of Maharashtra

told her that the appellant had kept a mistress at Kati-Sawargaon

and it was for this reason, that he was picking quarrels with her. At
the time of the incident, she was cooking food on the stove for her
husband and it was for this reason that when he poured kerosene
on her, which was lying in the can, the stove burst and she came out
of the room shouting for help. She was also asked by people who
had gathered at the house by that time as to why her husband has
done this to her. This witness (PW-8), then states that the deceased
died in the hospital after nine days. She had also recognized the
accused who was before the Court. This witness was again put to a
lengthy cross examination without giving any benefit to the defence.
14. Both PW-7 and PW-8 have clearly established the fact that the burn
injuries were caused by the appellant and that he had returned to
his house in an inebriated state and was under the influence of
liquor while he did the act, after picking a quarrel with his wife. The
presence of PW-7, being a witness, in the house at the time of the
incident was never in doubt.
15. The statement was given to PW-8 by the deceased stating how she
sustained burn injuries at the hands of her husband, i.e., the present
appellant, and the same was first recorded in the statement which
was given immediately after she had reached the hospital at about
01.30 AM on 27.01.2007, before PW-1. PW-1 was working as ‘Avval
Karkun’2 in the Tahsil Office, North Solapur, at the relevant point of
time and was requested by the police at 12:30 AM in the night to
record the dying declaration of the deceased at Civil Hospital, Solapur.
16. The examination-in-chief of PW-1 reads as under:-
“ Exam-in-Chief by APP Shri Jadhav
1. I am working as Aval Karkun in Tahsil office,
North Solapur. Since 2d Jan. 2007 I am working as
Special Executive Magistrate. For two days, work
of recording of dying declaration was allotted to
me on Friday and Saturday. On 26th Jan. 2007 I
was in my house. Police had been to my house in
the night at about 12.30 O’clock. I was requested
to record the dying declaration orally. Thereafter

2 Special Executive Magistrate

996 [2024] 2 S.C.R.

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I had been to Civil Hospital, Solapur. A letter was

given to me for recording dying declaration of
Meena Gawali and her husband Datta Gawali. I
am having the copy of letter with me. I had given
my endorsement on the office copy of the letter
of the police. The said letter now shown to me
is same. It is at exh.23. Thereafter I had been to
Medical officer Shri A.P. Deshpande and requested
him to show the patient. The patients were shown
to me. Both the patients sustained burn injuries.
Before recording DD I requested medical officer
to examine the patient and certify about the same.
Doctor examined Dattatraya Bhanudas Gawali. Dr.
Deshpande accordingly made the endorsement
on the statement of Dattatraya Gawali at the top
of the same. The patient disclosed his name as
Dattatraya Bhanudas Gawali R/o. Kati Sawargaon.
As per the statement given by the patient, I
recorded the same. I read over the statement to
Dattarya and he admitted the same to be correct.
I obtained the left thumb mark of the patient. I
again requested the Medical officer to examine the
patient and to tell me as to whether he is conscious
or not. Doctor examined patient and certified the
patient to be conscious. The endorsement now
shown to me is of medical officer. While recording
the statement I myself, Datta Gawali and medical
officer only were there. I put my signature on the
statement. The statement now shown to me is the
same. It is in my hand writing. It is at exh. 24. The
patient disclosed me that on 26.01.2007, in the
night there was quarrel between myself and my
wife and at the relevant time, I poured kerosene
on her person in the angry mood when she was
cooking food. Dur to that according to the patient
they both sustained burn injury. He told me that
he was under the influence of liquor.
2. I also recorded the dying declaration of Meenabai
Gawali and requested Dr. A.P. Deshpande to
[2024] 2 S.C.R.  997

Dattatraya v. The State of Maharashtra

examine patient before recording her statement.

After examining the patient Doctor told me that
patient was conscious and was in position
to give statement. Accordingly doctor put his
endorsement on the dying declaration in the
beginning of the statement. The patient disclosed
her name as Meena Datta Gawali, R/o. Kati
Sawargaon. Meenabai told me that in the nigh on
26.01.2007 when she was cooking the food there
was quarrel between herself and her husband and
at the relevant time her husband poured kerosene
on her person in angry mood due to which there
was bursting of stove in which she sustained burn
injury. She also told that her husband was under
the influence of liquor. Accordingly I recorded
the dying declaration given by Meenabai. The
same was read over to the deceased which she
admitted to be true and correct. I also obtained
the left thumb mark of the patient on the dying
declaration. Again I requested the medical officer
to examine the patient and tell me as to whether
she was in position to give statement or not.
Doctor A.P. Deshpande again examined the
patient and certified the patient to be conscious.
Accordingly he put the endorsement alongwith
his signature on the dying declaration. At the
time of recording of dying declaration I myself,
patient and doctor only were there. The dying
declaration now shown to me is the same. It is
in my hand writing. It bears my signature. It is at
exh. 25. The contents therein are true and correct.
Thereafter I handed over the statements to the
police chauky, Civil hospital, Solapur.”
17. This witness was cross-examined by the defence as there was
some discrepancy in his statement as to whether the deceased was
in a proper state of mind to give a statement. His examination-in-
chief was taken again by the Assistant Public Prosecutor and the
witness was declared hostile only to the extent of discrepancy that
the patient was not in a position to talk. But nothing substantially
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moves on this aspect, inasmuch as, even if we do not consider the

dying declaration of the deceased which was given at 01.30 AM in
the night on 27.01.2007, there is sufficient evidence to prove that
it was the appellant who had poured kerosene on the deceased
which led to the burn injuries and the death of the deceased and
the child she was bearing. There is no doubt that an offence under
Section 316 has clearly been made out. We only have to examine
whether an offence here is under Section 302 of IPC or is it of a
lesser magnitude.
18. Having considered the entire evidence at length, we are also of the
considered opinion that under the given facts and circumstances of
the case, it would not be a case of murder but of culpable homicide
not amounting to murder for the reasons which we want to state
as under.
19. We have, by and large, accepted the case of the prosecution as to
the incident itself. There is sufficient evidence to prove that the burn
injury was caused to the deceased by an act done at the hands of
the appellant and it was the appellant who had come to his house
under the influence of liquor and poured kerosene on his wife while
she was cooking food for him on a stove, which resulted in bursting
of the stove and causing burn injuries on the deceased. There is also
sufficient proof of the fact that the husband and wife were having
frequent fights even earlier. This has come out in the deposition of
PW-7 and her cross-examination has inspired our confidence as well
as that of PW-8 though she is not an eye-witness to the incident. The
fact that the deceased gave birth to a stillborn child on the next day
i.e., 28.01.2007 while she was still alive and the death was caused
by the act of the appellant which we have already stated above, also
makes a case under Section 316 of the Indian Penal Code.
20. From every available evidence, which was placed by the prosecution,
it is a case where a sudden fight took place between the husband
and wife. The deceased at that time was carrying a pregnancy of
nine months and it was the act of pouring kerosene on the deceased
that resulted in the fire and the subsequent burn injuries and the
ultimate death of the deceased. In our considered opinion, this act at
the hands of the appellant will be covered under the fourth exception
given under Section 300 of the IPC, i.e., “Culpable homicide is not
murder if it is committed without premeditation in a sudden fight in
[2024] 2 S.C.R.  999

Dattatraya v. The State of Maharashtra

the heat of passion upon a sudden quarrel and without the offender’s
having taken undue advantage or acted in a cruel or unusual manner”.
21. The act of the appellant is not premeditated, but is a result of sudden
fight and quarrel in the heat of passion. Therefore, we convert the
findings of Section 302 to that of 304 Part-II, as we are of the opinion
that though the appellant had knowledge that such an act can result
in the death of the deceased, but there was no intention to kill the
deceased. Therefore, this is an offence which would come under
Part-II not under Part-I of Section 304 of the IPC.
On almost similar facts, (as are present in the case at hand), this
Court had converted the findings of Section 302 to that of Section
304 Part II IPC. The case of which reference is being made here is
Kalu Ram v. State of Rajasthan (2000) 10 SCC 324. The appellant
who had been convicted under Section 302 IPC for causing death of
his wife by pouring kerosene on her and then setting her on fire was
convicted by the Trial Court under Section 302, which was upheld
by the High Court. The facts of the case are as follows :-
In the above case, the appellant who in an inebriated state was
pressurizing his wife to part with some ornaments so that he could
buy some more liquor. On her refusal he poured kerosene on her and
set her on fire by lighting a matchstick. But then he also tried to pour
water on her to save her. This Court was thus of the opinion that :
“7….Very probably he would not have anticipated that
the act done by him would have escalated to such a
proportion that she might die. If he had ever intended
her to die he would not have alerted his senses to
bring water in an effort to rescue her. We are inclined
to think that all that the accused thought of was to
inflict burns to her and to frighten her but unfortunately
the situation slipped out of his control and it went to
the fatal extent. He would not have intended to inflict
the injuries which she sustained on account of his
act. Therefore we are persuaded to bring down the
offence from first degree murder to culpable homicide
not amounting to murder.
8. We therefore alter the conviction from Section 302
IPC to Section 304 Part II IPC...”
1000 [2024] 2 S.C.R.

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The facts of the present case, as we have already discussed above,

by and large reflect the same situation, nature of crime as well as
the act of the accused and the consequences of his action. We are
inclined to accept the arguments raised by the learned senior counsel
for the appellant, Mr. Sudhanshu S. Choudhari that under the present
circumstances it would indeed be a case of culpable homicide not
amounting to murder as given in Section 304 Part II in as much as,
though the accused had knowledge of the consequences of the act
he was committing, yet there was no intention to cause death.
The appeal is partly allowed. We convert the findings of Section 302
to that of Section 304 Part II of IPC and sentence the accused to 10
years of R.I. To this extent the findings given by the trial court and
High Court will stand modified. We have also been informed that
the appellant has already undergone incarceration for more than 10
years. Therefore, he shall be released forthwith from the jail, unless
he is required in some other offence.

Headnotes prepared by: Nidhi Jain Result of the case:

Appeal partly allowed.
 [2024] 2 S.C.R. 1001 : 2024 INSC 148

Bharti Cellular Limited (Now Bharti Airtel Limited)

v.
Assistant Commissioner of Income Tax, Circle 57, Kolkata
and Another
(Civil Appeal No. 7257 of 2011)
28 February 2024
[Sanjiv Khanna* and S.V.N. Bhatti, JJ.]
Issue for Consideration
The liability to deduct tax at source u/s.194-H, Income Tax Act,
1961 on the amount which, as per the Revenue, is a commission
payable to an agent by the assessees-cellular mobile telephone
service providers under the franchise/distributorship agreement
between the assessees and the franchisees/distributors.

Headnotes
Income Tax Act, 1961 – s.194-H – When not attracted –
Assessees entered into franchise or distribution agreements
and sold start-up kits, recharge vouchers at a discounted
price to the franchisee/distributors – As per Revenue, the
difference between ‘discounted price’ and ‘sale price’ in the
hands of the franchisee/distributors being in the nature of
‘commission or brokerage’ was the income of the franchisee/
distributors, the relationship between the assessees and the
franchisee/distributor was in the nature of principal and agent,
and thus, the assesses were liable to deduct tax at source
u/s.194-H – As per the assessees, neither the discount was
a ‘commission or brokerage’ u/Explanation (i) to s.194-H nor
were the franchisees/distributors their agents:
Held: Whether in law the relationship between the parties is that
of principal-agent is answered by applying s.182, Contract Act,
1872 – The obligation to deduct tax at source in terms of s.194-H
arises when the legal relationship of principal-agent is established
– Contractual obligations of the distributors/franchisees, do not
reflect a fiduciary character of the relationship, or the business
being done on the principal’s account – Franchisees/distributors
earn their income when they sell the prepaid products to the
retailer or the end-user/customer – Their profit consists of the
difference between the sale price received by them from the

* Author
1002 [2024] 2 S.C.R.

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retailer/end-user/customer and the discounted price at which

they ‘acquired’ the product – Though the discounted price is
fixed or negotiated between the assessee and the franchisee/
distributor, the sale price received by the franchisee/distributor
is within their sole discretion – Assessee has no say in this
matter – Assessee does not at any stage either pay or credit
the account of the franchisee/distributor with the income by way
of commission or brokerage on which tax at source u/s.194-H is
to be deducted – Expression “direct or indirect” used in s.194-H
Explanation (i) is no doubt meant to ensure that “the person
responsible for paying” does not dodge the obligation to deduct
tax at source, even when the payment is indirectly made by the
principal-payer to the agent-payee however, deduction of tax at
source in terms of s.194-H is not to be extended and widened in
ambit to apply to true/genuine business transactions, where the
assessee is not the person responsible for paying or crediting
income– Assessees neither pay nor credit any income to the
person with whom he has contracted and are not privy to the
transactions between distributors/franchisees and third parties–
It is impossible for the assessees to deduct tax at source and
comply with s.194-H, on the difference between the total/sum
consideration received by the distributors/ franchisees from third
parties and the amount paid by the distributors/franchisees to
them – Payee receives payment when the third party makes the
payment – This payment is not the payment received or payable
by the assessee as the principal – The distributor/franchisee is
not the trustee who is to account for this payment to the assessee
as the principal – Assessees not under legal obligation to deduct
tax at source on the income/profit component in the payments
received by the distributors/franchisees from the third parties/
customers, or while selling/transferring the pre-paid coupons
or starter-kits to the distributors – s.194-H not applicable to
the facts and circumstances of this case – Judgments of High
Courts of Delhi and Calcutta set aside. [Paras 6, 29, 31, 34,
36, 37 and 42]
Contract Act, 1872 – s.182 – ‘agent’ and ‘principal’ – Whether
a legal relationship of a principal and agent exists, factors
to be taken into consideration:
Held: (a) The essential characteristic of an agent is the legal
power vested with the agent to alter his principal’s legal
[2024] 2 S.C.R.  1003

Bharti Cellular Limited (Now Bharti Airtel Limited) v. Assistant

Commissioner of Income Tax, Circle 57, Kolkata and Another

relationship with a third party and the principal’s co-relative

liability to have his relations altered – (b) As the agent acts
on behalf of the principal, one of the prime elements of the
relationship is the exercise of a degree of control by the principal
over the conduct of the activities of the agent – This degree of
control is less than the control exercised by the master on the
servant, and is different from the rights and obligations in case
of principal to principal and independent contractor relationship
– (c) The task entrusted by the principal to the agent should
result in a fiduciary relationship – The fiduciary relationship is
the manifestation of consent by one person to another to act
on his or her behalf and subject to his or her control, and the
reciprocal consent by the other to do so – (d) As the business
done by the agent is on the principal’s account, the agent is liable
to render accounts thereof to the principal – An agent is entitled
to remuneration from the principal for the work he performs for
the principal – Other relevant aspects/considerations, discussed.
[Paras 8, 9]
Income Tax Act, 1961 – Explanation (i) to s.194-H:
Held: The words “direct” or “indirect” in Explanation (i) to s.194-H
are with reference to the act of payment – The legislative intent
to include “indirect” payment ensures that the net cast by the
section is plugged and not avoided or escaped, albeit it does not
dilute the requirement that the payment must be on behalf “the
person responsible for paying”– This means that the payment/
credit in the account should arise from the obligation of “the person
responsible for paying” – The payee should be the person who
has the right to receive the payment from “the person responsible
for paying” – Further, explanation (i) to s.194-H, by using the
word “indirectly”, does not regulate or curtail the manner in which
the assessee can conduct business and enter into commercial
relationships – Neither does the word “indirectly” create an
obligation where the main provision does not apply – The tax
legislation recognises diverse relationships and modes in which
commerce and trade are conducted, albeit obligation to tax at
source arises only if the conditions as mentioned in s.194-H
are met and not otherwise – This principle does not negate the
compliance required by law – Latter portion of the Explanation
(i) to s.194-H is a requirement and a pre-condition – It should
not be read as diminishing or derogating the requirement of
1004 [2024] 2 S.C.R.

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the principal and agent relationship between the payer and the
recipient/payee. [Paras 4, 5 and 34]
Income Tax Act, 1961 – Issue as regards the liability to
deduct tax at source u/s.194-H on the amount which, as per
the Revenue, is a commission payable to an agent by the
assessees under the franchise/distributorship agreement
between the assessees and the franchisees/distributors –
Plea of the Revenue relying upon the decision of this Court
in Singapore Airlines Ltd. and Another v. Commissioner of
Income Tax [2022] 9 SCR 1 that assessees would be liable
to deduct tax at source even if they are not making payment
or crediting the income to the account of the franchisee/
distributor:
Held: Rejected – When the obligation, and the time and manner
in which the tax is mandated by law to be deducted at source, is
fixed by the statute, the same cannot be shifted/altered/modified
or postponed on a concession in the court by the Revenue –
The concession may be granted, when permissible, by way of a
circular issued in accordance with s.119 – Decision in Singapore
Airlines Limited can not be read in the manner as suggested by
the Revenue. [Para 38]
Franchise agreement and distributorship agreement –
Distinction – Legal position of a distributor different from
agent – Distributor, an independent contractor:
Held: Legal position of a distributor, it is to be generally regarded
as different from that of an agent – The distributor buys goods
on his account and sells them in his territory – In such cases,
distributor is an independent contractor – Unlike an agent, he
does not act as a communicator or creator of a relationship
between the principal and a third party – Franchise agreements
are normally considered as sui generis, though they have
been in existence for some time – They provide a mechanism
whereby goods and services may be distributed – In franchise
agreements, the supplier or the manufacture, i.e. a franchisor,
appoints an independent enterprise as a franchisee through
whom the franchisor supplies certain goods or services – There
is a close relationship between a franchisor and a franchisee
because a franchisee’s operations are closely regulated, and this
possibly is a distinction between a franchise agreement and a
[2024] 2 S.C.R.  1005

Bharti Cellular Limited (Now Bharti Airtel Limited) v. Assistant

Commissioner of Income Tax, Circle 57, Kolkata and Another

distributorship agreement – Franchise agreements are extremely

detailed and complex – Notwithstanding the strict restrictions
placed on the franchisees, the relationship may in a given case
be that of an independent contractor – Facts of each case and
the authority given by ‘principal’ to the franchisees matter and
are determinative – Further, an independent contractor is free
from control on the part of his employer, and is only subject to
the terms of his contract – But an agent is not completely free
from control, and the relationship to the extent of tasks entrusted
by the principal to the agent are fiduciary – As contract with an
independent agent depends upon the terms of the contract,
sometimes an independent contractor looks like an agent from
the point of view of the control exercisable over him, but on an
overview of the entire relationship the tests specified in clauses
(a) to (d) in paragraph 8 may not be satisfied – The distinction
is that independent contractors work for themselves, even when
they are employed for the purpose of creating contractual relations
with the third persons – An independent contractor is not required
to render accounts of the business, as it belongs to him and not
his employer. [Paras 39, 40]
Law relating to agency – Exclusion of servants and
independent contractors:
Held: ‘Agent’ denotes a relationship that is very different from that
existing between a master and his servant, or between a principal
and principal, or between an employer and his independent
contractor – Although servants and independent contractors are
parties to relationships in which one person acts for another, and
thereby possesses the capacity to involve them in liability, yet
the nature of the relationship and the kind of acts in question
are sufficiently different to justify the exclusion of servants and
independent contractors from the law relating to agency – Term
‘agent’ should be restricted to one who has the power of affecting
the legal position of his principal by the making of contracts, or
the disposition of the principal’s property; viz. an independent
contractor who may, incidentally, also affect the legal position of
his principal in other ways – This can be ascertained by referring
to and examining the indicia mentioned in clauses (a) to (d) in
paragraph 8 of this judgment – It is in the restricted sense in
which the term agent is used in Explanation (i) to s.194-H of the
Income Tax Act, 1961. [Para 41]
1006 [2024] 2 S.C.R.

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Doctrine/Principles – Doctrine of presumption against

doubtful penalisation:
Held: The deduction of tax provisions should be programmatically
and realistically construed – In case of a legal or factual doubt in a
given case, the assessee can rely on the doctrine of presumption
against doubtful penalisation – Whether or not the said doctrine
should be applied will depend on facts and circumstances of the
case, including the past practice followed by the assessee and
accepted by the department – When there is apparent divergence
of opinion, to avoid litigation and pitfalls associated, it may be
advisable for the Central Board of Direct Taxes to clarify doubts
by issuing appropriate instruction/circular after ascertaining view
of the assesses and stakeholders. [Para 35]
Words and expressions – ‘power’; ‘authority’.

Case Law Cited

Singapore Airlines Ltd. and Another v. Commissioner
of Income Tax, [2022] 9 SCR 1 : (2023) 1 SCC 497 –
dsitinguished.
Bhopal Sugar Industries Limited v. Sales Tax Officer,
Bhopal, [1977] 3 SCR 578 : (1977) 3 SCC 147;
Commissioner of Income Tax, Ahmedabad and Others v.
Ahmedabad Stamp Vendors Association, (2014) 16 SCC
114; Ahmedabad Stamp Vendors Association v. Union of
India, (2002) 257 ITR 202 (Guj.); Director, Prasar Bharati
v. Commissioner of Income Tax, Thiruvananthapuram,
[2018] 3 SCR 287 : (2018) 7 SCC 800; Securities
and Exchange Board of India v. Sunil Krishna Khaitan
and Others, [2022] 18 SCR 987 : (2023) 2 SCC 643
– referred to.
Commissioner of Income Tax v. Singapore Airlines Ltd.,
(2009) 319 ITR 29 – referred to.
Labreche v. Harasymiw, (1992) 89 DLR (4th) 95 at
107 – referred to.

Books and Periodicals Cited

F.E. Dowrick, The Relationship of Principal and Agent,
17 MLR 24, 37 (1954); Restatement (Third) Of Agency
(American Law Institute Publishers 2007); Warren A.
[2024] 2 S.C.R.  1007

Bharti Cellular Limited (Now Bharti Airtel Limited) v. Assistant

Commissioner of Income Tax, Circle 57, Kolkata and Another

Seavey, The Rationale of Agency, 29 YALE L.J. 859,

866 (1920); G.H.L. Fridman, The Law of Agency 33
(Butterworths, 7 ed. 1996) – referred to.

List of Acts
Income Tax Act, 1961; Contract Act, 1872; Indian Telegraph Act,
1885.

List of Keywords
Liability to deduct tax at source; Cellular mobile telephone service
providers; Agent; Principal; Franchise/distributorship agreement;
Commission; Brokerage; Power; Authority; Fiduciary character of
the relationship; Servants; Independent contractor; Independent
agent; Law relating to agency; Doctrine of presumption against
doubtful penalisation.

Case Arising From

CIVIL APPELLATE JURISDICTION : Civil Appeal No.7257 of 2011
With
Civil Appeal Nos. 2652-2653, 4949-4950, 4947-4948 of 2015, 7455
of 2018, 111, 2860 of 2021, 8902 of 2022, 7729, 7735, 7736, 7737,
7738, 7739, 7740, 7741, 7742, 7743, 7679, 7680, 7681, 7682, 7744,
7745, 7746, 7747, 7748, 7848, 7849, 7852, 7853, 7854, 7855, 7856,
7857, 7859 of 2023, 3514, 3515, 3516 And 3517 of 2024
From the Judgment and Order dated 19.05.2011 of the High Court at
Calcutta in ITA No.222 of 2006
Appearances for Parties
Balbir Singh, N. Venkatraman, A.S.Gs., Arvind P. Datar, Ajay Vohra,
Arijit Prasad, Kavin Gulati, Sr. Advs., Kumar Visalaksh, Udit Jain,
Archit Gupta, Arihant Tater, Ajitesh Dayal Singh, Praveen Kumar,
Harish Pandey, Raj Bahadur Yadav, Digvijay Dam, V.C. Bharathi,
Santosh Kumar, Rupesh Kumar, Prahlad Singh, Alka Agarwal, Ms.
Ankita Anilkumar Singh, Deepak Kumar, Indrajit Prasad, Shyam
Gopal, Aditya Rathore, Naman Tandon, Samarvir Singh, Prasenjeet
Mohapatra, Sachit Jolly, Ms. Anuradha Dutt, Ms. Disha Jham, Ms.
Soumya Singh, Ms. B. Vijayalakshmi Menon, Abhishek Vikas, Mahesh
Agarwal, Rishi Agrawala, Ms. Sayree Basu Mullick, Ms. Madhvi
Agarwal, M.S. Ananth, Ms. Sayree Basu Mullik, Abhinabh Garg, E.C.
Agrawala, Advs. for the appearing parties.
1008 [2024] 2 S.C.R.

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Judgment / Order of the Supreme Court

Judgment
Sanjiv Khanna, J.
This common judgment decides the aforestated appeals preferred
by the Revenue and the assessees, who are cellular mobile
telephone service providers. The issue relates to the liability
to deduct tax at source under Section 194-H of the Income
Tax Act, 19611 on the amount which, as per the Revenue, is a
commission payable to an agent by the assessees under the
franchise/ distributorship agreement between the assessees and
the franchisees/distributors. As per the assessees, neither are they
paying a commission or brokerage to the franchisees/distributors,
nor are the franchisees/distributors their agents. The High Courts
of Delhi and Calcutta have held that the assessees were liable
to deduct tax at source under Section 194-H of the Act, whereas
the High Courts of Rajasthan, Karnataka and Bombay have held
that Section 194-H of the Act is not attracted to the circumstances
under consideration.
2. To avoid prolixity and repetition, we are not referring to the facts
and arguments in the beginning, and will preface our judgment by
reproducing Section 194-H of the Act and explaining its contours.
The relevant portion of Section 194-H reads as under:
“194-H. Commission or brokerage.— Any person, not
being an individual or a Hindu undivided family, who is
responsible for paying, on or after the 1st day of June,
2001, to a resident, any income by way of commission (not
being insurance commission referred to in Section 194-D)
or brokerage, shall, at the time of credit of such income
to the account of the payee or at the time of payment of
such income in cash or by the issue of a cheque or draft
or by any other mode, whichever is earlier, deduct income
tax thereon at the rate of five per cent:
Provided that no deduction shall be made under this
section in a case where the amount of such income or,

1 “The Act”, for short.

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Bharti Cellular Limited (Now Bharti Airtel Limited) v. Assistant

Commissioner of Income Tax, Circle 57, Kolkata and Another

as the case may be, the aggregate of the amounts of

such income credited or paid or likely to be credited or
paid during the financial year to the account of, or to, the
payee, does not exceed fifteen thousand rupees:
Provided further that an individual or a Hindu undivided
family, whose total sales, gross receipts or turnover from
the business or profession carried on by him exceed one
crore rupees in case of business or fifty lakh rupees in
case of profession during the financial year immediately
preceding the financial year in which such commission
or brokerage is credited or paid, shall be liable to deduct
income tax under this section.
Provided also that no deduction shall be made under this
section on any commission or brokerage payable by Bharat
Sanchar Nigam Limited or Mahanagar Telephone Nigam
Limited to their public call office franchisees.

xx xx xx”
3. Section 194-H of the Act imposes the obligation to deduct tax at
source, states that any person responsible for paying at the time of
credit or at the time of payment, whichever is earlier, to a resident any
income by way of commission or brokerage, shall deduct income tax
at the prescribed rate The expression “any person (...) responsible for
paying” is a term of art, defined vide Section 2042 of the Act. As per

2 204. Meaning of “person responsible for paying”.—For the purposes of the foregoing provisions of
this chapter and Section 285, the expression “person responsible for paying” means—
(i) in the case of payments of income chargeable under the head “Salaries” other than payments by
the Central Government or the Government of a State, the employer himself or, if the employer is
a company, the company itself, including the principal officer thereof;
(ii) in the case of payments of income chargeable under the head “Interest on securities” other than
payments made by or on behalf of the Central Government or the Government of a State, the local
authority, corporation or company, including the principal officer thereof;
(ii-a) in the case of any sum payable to a non-resident Indian, being any sum representing consider-
ation for the transfer by him of any foreign exchange asset, which is not a short-term capital asset,
the authorised person responsible for remitting such sum to the non-resident Indian or for crediting
such sum of his Non-resident (External) Account maintained in accordance with the Foreign Ex-
change Management Act, 1999 (42 of 1999)], and any rules made thereunder;
(ii-b) in the case of furnishing of information relating to payment to a non-resident, not being a company,
or to a foreign company, of any sum, whether or not chargeable under the provisions of this Act,
the payer himself, or, if the payer is a company, the company itself including the principal officer
thereof;
(iii) in the case of credit or, as the case may be, payment of any other sum chargeable under the provi-
sions of this Act, the payer himself, or, if the payer is a company, the company itself including the
principal officer thereof.
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the clause (iii) of Section 204, in the case of credit or in the case of
payment in cases not covered by clauses (i), (ii), (ii)(a), (ii)(b), “the
person responsible for paying” is the payer himself, or if the payer
is a company, the company itself and the principal officer thereof.
4. Explanation (i) to Section 194-H3 of the Act defines the expressions
‘commission’ or ‘brokerage’, as:
“Explanation. — For the purposes of this section, —
(i) “commission or brokerage” includes any payment
received or receivable, directly or indirectly, by a
person acting on behalf of another person for services
rendered (not being professional services) or for any
services in the course of buying or selling of goods
or in relation to any transaction relating to any asset,
valuable article or thing, not being securities;”
Payment is received when it is actually received or
paid. The payment is receivable when the amount
is actually credited in the books of the payer to the
account of the payee, though the actual payment
may take place in future. The payment received or

(iv) in the case of credit, or as the case may be, payment of any sum chargeable under the provisions
of this Act made by or on behalf of the Central Government or the Government of a State, the draw-
ing and disbursing officer or any other person, by whatever name called, responsible for crediting,
or as the case may be, paying such sum.
(v) in the case of a person not resident in India, the person himself or any person authorised by such
person or the agent of such person in India including any person treated as an agent under Sec-
tion 163.]
Explanation. —For the purposes of this section, —
(a) “non-resident Indian” and “foreign exchange asset” shall have the meanings assigned to them in
Chapter XII-A;
(b) “authorised person” shall have the meaning assigned to it in clause (c) of Section 2 of the Foreign
Exchange Management Act, 1999 (42 of 1999).
3 Sub-section 1 to Section 194-H of the Act can be interpreted as requiring deduction of tax at source on
commission and brokerage, even when the principal and agent relationship does not exist between the
parties. Explanation (i) to Section 194-H of the Act can be read as expanding and widening the scope of
the provision of sub-section (1) to include in the ambit of brokerage and commission, payments made
by the principal to the agent, when covered under the four corners of the said explanation. We would
not like to pronounce on this aspect as it has not been argued by the Revenue, and it appears that the
requirement of relationship of principal and agent has been read into the main section. Further, applying
common or commercial parlance meaning to the terms ‘brokerage’ or ‘commission’, given the wide di-
vergence in which it is understood, would lead to confusion and has pitfalls. Deduction of Tax provisions
should be pragmatically and realistically construed, and not as enmeshes or by adopting catch-as-catch-
can approach. When doubts exist, the Central Board of Direct Taxes may examine this question and may
issue appropriate instructions/circular after ascertaining the views of assessees and other stakeholders.
The decision should be clear, and we trust and hope that an obligation, if imposed, will be prospective.
(See paragraph 34 of the judgment.)
[2024] 2 S.C.R.  1011

Bharti Cellular Limited (Now Bharti Airtel Limited) v. Assistant

Commissioner of Income Tax, Circle 57, Kolkata and Another

receivable should be to a person acting on behalf of

another person. The words “another person” refers to
“the person responsible for paying”. The words “direct”
or “indirect” in Explanation (i) to Section 194-H of the
Act are with reference to the act of payment. Without
doubt, the legislative intent to include “indirect” payment
ensures that the net cast by the section is plugged
and not avoided or escaped, albeit it does not dilute
the requirement that the payment must be on behalf
“the person responsible for paying”. This means that
the payment/credit in the account should arise from
the obligation of “the person responsible for paying”.
The payee should be the person who has the right to
receive the payment from “the person responsible for
paying”. When this condition is satisfied, it does not
matter if the payment is made “indirectly”.4
5. The services rendered by the agent to the principal, according to the
latter portion of Explanation (i) to Section 194-H of the Act, should
not be in the nature of professional services. Further, Explanation
(i) to Section 194-H of the Act restricts application of Section 194-
H of the Act to the services rendered by the agent to the principal
in the course of buying and selling of goods, or in relation to any
transaction relating to any asset, valuable article, or thing, not being
securities. The latter portion of the Explanation (i) to Section 194-
H of the Act is a requirement and a pre-condition. It should not be
read as diminishing or derogating the requirement of the principal
and agent relationship between the payer and the recipient/payee.
6. It is settled by a series of judgments of this Court that the expression
‘acting on behalf of another person’ postulates the existence of a
legal relationship of principal and agent, between the payer and the
recipient/payee.5 The law of agency is technical. Whether in law the
relationship between the parties is that of principal-agent is answered

4 We are unable to visualize ‘indirect’ credit in the books of the payer to the account of the payee. Credit
entry is required even in cases of set-off. Nevertheless, this judgment should not be read as laying down
that ‘indirect’ credit in the books shall not require deduction of tax under Section 194-H of the Act.
5 Singapore Airlines Ltd. and Another v. Commissioner of Income Tax, [2022] 9 S.C.R. 1 : (2023) 1 SCC
497, ¶¶ 23-29.
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by applying Section 182 of the Contract Act, 18726. Therefore, the

obligation to deduct tax at source in terms of Section 194-H of the Act
arises when the legal relationship of principal-agent is established. It is
necessary to clarify this position, as in day to day life, the expression
‘agency’ is used to include a vast number of relationships, which are
strictly, not relationships between a principal and agent.
7. Section 182 of the Contract Act, defines the words ‘agent’ and
‘principal’ and reads as under:
“182. “Agent” and “principal” defined.— An “agent” is a
person employed to do any act for another, or to represent
another in dealings with third persons. The person for
whom such act is done, or who is so represented, is called
the “principal”.”
Agency in terms of Section 182 exists when the principal employs
another person, who is not his employee, to act or represent
him in dealings with a third person. An agent renders services
to the principal. The agent does what has been entrusted to him
by the principal to do. It is the principal he represents before
third parties, and not himself. As the transaction by the agent
is on behalf of the principal whom the agent represents, the
contract is between the principal and the third party. Accordingly
the agent, except in some circumstances, is not liable to the
third party.
8. Agency is therefore a triangular relationship between the principal,
agent and the third party. In order to understand this relationship,
one has to examine the inter se relationship between the principal
and the third party and the agent and the third party. When we
examine whether a legal relationship of a principal and agent exists,
the following factors/aspects should be taken into consideration:
(a) The essential characteristic of an agent is the legal power
vested with the agent to alter his principal’s legal relationship
with a third party and the principal’s co-relative liability to have
his relations altered.7

6 “Contract Act”, for short.

7 F.E. Dowrick, The Relationship of Principal and Agent, 17 MLR 24, 37 (1954).
[2024] 2 S.C.R.  1013

Bharti Cellular Limited (Now Bharti Airtel Limited) v. Assistant

Commissioner of Income Tax, Circle 57, Kolkata and Another

(b) As the agent acts on behalf of the principal, one of the prime
elements of the relationship is the exercise of a degree of control
by the principal over the conduct of the activities of the agent. This
degree of control is less than the control exercised by the master on
the servant, and is different from the rights and obligations in case
of principal to principal and independent contractor relationship.
(c) The task entrusted by the principal to the agent should result
in a fiduciary relationship. The fiduciary relationship is the
manifestation of consent by one person to another to act on
his or her behalf and subject to his or her control, and the
reciprocal consent by the other to do so.8
(d) As the business done by the agent is on the principal’s account,
the agent is liable to render accounts thereof to the principal.
An agent is entitled to remuneration from the principal for the
work he performs for the principal.
9. At this stage, three other relevant aspects/considerations should
be noted. First is the difference between ‘power’ and ‘authority’.
The two terms though connected, are not synonymous. Authority
refers to a factual position, that is, the terms of contract between
the two parties. The power of the agent however, is not, strictly
speaking, conferred by the contract or by the principal but by the
law of agency. When a person gives authority to another person to
do the acts which bring the law of agency into play, then, the law
vests power with the agent to affect the principal’s legal relationship
with the third parties. The extent and existence of the power with
the agent is determined by public policy. The authority, as observed
above, refers to the factual situation. The second consideration is
that the primary task of an agent is to enter into contracts on behalf
of his principal, or to dispose of his principal’s property. The factors
mentioned in clauses (b) to (d) in paragraph 8 above flow, and are
indicia of this primary task. Clauses (b) to (d) of paragraph 8 are
useful as tests or standards to examine the true nature or character
of the relationship. Lastly, the substance of the relationship between
the parties, notwithstanding the nomenclature given by the parties
to the relationship, is of primary importance. The true nature of the
relationship is examined by reference to the functions, responsibility

8 Restatement (Third) of Agency (American Law Institute Publishers 2007).

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and obligations of the so-called agent to the principal and to the

third parties.
10. An agent is distinct from a servant, in that an agent is subject to
less control than a servant, and has complete, or almost complete
discretion as to how to perform an undertaking. As Seavey said, ‘‘a
servant (...) is an agent under more complete control than is a non-
servant’’.9 The difference is “in the degree of control rather than in
the acts performed. The servant sells primarily his services measured
by time; the agent his ability to produce results.”10 This distinction
can be criticised, for servants may have very wide discretion, and
may not really be subject to control at all in practice, while agents
may have their power to act circumscribed by detailed instructions.11
11. This Court in Bhopal Sugar Industries Limited v. Sales Tax Officer,
Bhopal12, has expounded the difference between principal-agent and
principal-principal relationship, in the following words:-
“5. … the essence of the matter is that in a contract of sale,
title to the property passes on to the buyer on delivery of the
goods for a price paid or promised. Once this happens the
buyer becomes the owner of the property and the seller has no
vestige of title left in the property. The concept of a sale has,
however, undergone a revolutionary change, having regard
to the complexities of the modern times and the expanding
needs of the society, which has made a departure from the
doctrine of laissez faire by including a transaction within the
fold of a sale even though the seller may by virtue of an
agreement impose a number of restrictions on the buyer, e.g.
fixation of price, submission of accounts, selling in a particular
area or territory and so on. These restrictions per se would
not convert a contract of sale into one of agency, because
in spite of these restrictions the transaction would still be a
sale and subject to all the incidents of a sale. A contract of
agency, however, differs essentially from a contract of sale
inasmuch as an agent after taking delivery of the property

9 Warren A. Seavey, The Rationale of Agency, 29 YALE L.J. 859, 866 (1920).
10 Ibid.
11 G.H.L. Fridman, The Law of Agency 33 (Butterworths, 7 ed. 1996).
12 [1977] 3 SCR 578 : (1977) 3 SCC 147.
[2024] 2 S.C.R.  1015

Bharti Cellular Limited (Now Bharti Airtel Limited) v. Assistant

Commissioner of Income Tax, Circle 57, Kolkata and Another

does not sell it as his own property but sells the same as
the property of the principal and under his instructions and
directions. Furthermore, since the agent is not the owner of
the goods, if any loss is suffered by the agent he is to be
indemnified by the principal. This is yet another dominant
factor which distinguishes an agent from a buyer—pure and
simple. In Halsbury’s Laws of England, Vol. 1, 4th Edn., in
para 807 at p. 485, the following observations are made:
“807. Rights of agent. —The relation of principal
and agent raises by implication a contract on
the part of the principal to reimburse the agent
in respect of all expenses, and to indemnify him
against all liabilities, incurred in the reasonable
performance of the agency, provided that such
implication is not excluded by the express terms
of the contract between them, and provided
that such expenses and liabilities are in fact
occasioned by his employment.”
12. The aforesaid judgment in the context of distinction between a
contract of sale and contract of agency observes that the agent
is authorised to sell or buy on behalf of the principal, whereas the
essence of contract of sale is the transfer of title of goods for the
price paid or promised to be paid. In case of an agency to sell, the
agent who sells them to the third parties, sells them not as his own
property, but as a property of the principal, who continues to be the
owner of the goods till the sale. The transferee is the debtor and
liable to account for the price to be paid to the principal, and not to
the agent for the proceeds of the sale. An agent is entitled to his
fee or commission from the principal.
13. This distinction and test was referred to by this Court in Commissioner
of Income Tax, Ahmedabad and Others v. Ahmedabad Stamp
Vendors Association13, which is a case relating to Section 194-H
of the Act. This Court had approved the decision of the High Court
in Ahmedabad Stamp Vendors Association v. Union of India14.
We may also refer to two more decisions of this Court. In the case

13 (2014) 16 SCC 114.

14 (2002) 257 ITR 202 (Guj.).
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of Director, Prasar Bharati v. Commissioner of Income Tax,

Thiruvananthapuram15, this Court has observed that the explanation
appended to Section 194-H of the Act defining the expression
‘commission or brokerage’ is an inclusive definition giving wide
meaning to the expression ‘commission’. The second decision is
in the case of Singapore Airlines Limited v. Commissioner of
Income Tax, Delhi16, which we shall refer to subsequently in some
detail as to its exact purport and ratio. However, at this stage, we
would like to examine in some detail commercial relationships in
the nature of an independent contractor, that are legally, principal
to principal dealings.
14. The passage from Bhopal Sugar Industries Limited (supra)
highlights the principles and the complexities involved in determining
the correct nature of the legal relationship between a principal and
an agent. Law permits individuals to enter into complex contracts
incorporating multiple rights and obligations. The relationships
between contacting parties have become multi-dimensional, which
may not strictly fall within an employer-employee, principal-agent or
principal-principal relationship. A singular contract may create different
legal relationships and obligations. Independent contractors on
occasion act for themselves, and at other times may be creating legal
relations between their employers and third persons. For example,
a solicitor may start by giving advice (independent contractor), and
then as a consequence make a contract for his employer with another
person (agent).
15. In Labreche v. Harasymiw17, Valin J. delineated the question of
what an agency involves, stating that: (i) it refers to the power of the
agent to affect the principal’s position. However, this is not the sole
test, though it still remains one of the main criteria in determining
whether someone is an agent. There are several features in the
definition of an agent18. There can be several situations where one
person represents or acts for another, but this does not create the
relationship of principal and agent. It is only when the representation

15 [2018] 3 SCR 287 : (2018) 7 SCC 800.

16 [2022] 9 SCR 1 : (2023) 1 SCC 497.
17 (1992) 89 DLR (4th) 95 at 107.
18 See ¶8 of the judgment.
[2024] 2 S.C.R.  1017

Bharti Cellular Limited (Now Bharti Airtel Limited) v. Assistant

Commissioner of Income Tax, Circle 57, Kolkata and Another

or action on another’s behalf affects the latter’s legal position, that

is to say his rights against, or his liability towards, other people, that
the law of agency applies; (ii) the second feature is the importance
of the way in which law regards the relationship which is created.
The effect of the law is that it regulates the way in which parties
conduct themselves. The conduct of the parties is considered in
terms of law, regardless of the language or nomenclature used by the
parties. The true factual position must be investigated to determine
whether a relationship of agency has come into existence between
a set of parties or individuals.
16. The significant observation in the aforesaid judgment is that all kinds
of interactions with third parties or interested parties, resulting from
the introduction of the third parties with one who wishes a particular
undertaking to be performed, may not be a result of an agency. For
instance, a retail dealer or supplier of goods, obtains goods from
a wholesale supplier or a manufacturer for subsequent resale to
retail customers or suppliers who, in turn, deals with retail dealers
or shopkeepers. Such ‘middlemen’ are sometimes referred to as
‘agents’, when in fact they are franchisees of the manufacturer or
supplier, or are distributors of the manufactures’ goods, perhaps
with a ‘sole agency’ or special dealership for his goods. Such
‘agents’ can be real buyers, acting as principals on their own behalf.
Consequently, they are not liable to the manufacturer or supplier in
the way an agent might be for failure of duty, nor do their contracts
with other parties – whether it be suppliers, retail dealers or individual
customers – hold the party who sold to them, liable, for any breach
including misrepresentation or sale of defective goods. The seller’s
contractual or tortious liability is different from the manufacturer’s
liability on account of warranty/guarantee, statutory liability or even
obligation to a third party who purchases the goods or avails services
from/through the independent contractor. An agent renders service
to the principal, who he/she represents, and therefore the principal,
and not the agent, is liable to the third parties. Further, the money
received by an independent contractor from his customers will belong
to the independent contractor and not to the party who sold to him.
The money will be a part of such independent contractor’s property
in the event of his bankruptcy or liquidation. This may be the case
even if the contract of sale is one of ‘sale or return’. It is important
to avoid confusion, by applying the legal tests, that may arise where
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the functions of the ‘buyer’ – described as an ‘agent’ – is really as

that of a ‘middleman’, and the necessary elements for creation of
principal and an agent relationship are absent. Two level commercial
transaction can result in an tripartite arrangement/agreement with
respective rights and obligations, without any of the two parties
having principal-agent relationship.
17. Clause (d) in paragraph 8 observes that the agent is liable to render
accounts to the principal as the business done by the agent is on
principal’s account. The agent is entitled to remuneration from the
principal for the work he performs. To decide whether a contracting
party acts for himself as an independent contractor, we may examine
whether in the course of work, he intends to make profits for himself,
or is entitled to receive prearranged remuneration. If the party is
concerned about acting for himself and making the maximum profits
possible, he is usually regarded as a buyer, or an independent
contractor and not as an agent of the principal. This would be true
even when certain terms and conditions have been fixed relating
to the manner in which the seller conducts his business. We shall
subsequently further elucidate on the characteristics of an independent
contractor, and differentiate them from the principal-agent relationship.
18. We now turn to the facts of the present case. The assessees, as
noticed above, are cellular mobile telephone service providers in
different circles as per the licence granted to them under Section
4 of the Indian Telegraph Act, 1885 19 by the Department of
Telecommunications20, Government of India. To carry on business,
the assessees have to comply with the licence conditions and
the rules and regulations of the DoT and the Telecom Regulatory
Authority of India.21 Cellular mobile telephone service providers
have wide latitude to select the business model they wish to adopt
in their dealings with third parties, subject to statutory compliances
being made by the operators. As per the business model adopted by
the telecom companies, the users can avail post-paid and prepaid
connections. In the present case, we are only concerned with the
business operations under the prepaid model.

19 The ‘1885 Act’, for short.

20 ‘DoT’, for short.
21 ‘TRAI’, for short.
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Bharti Cellular Limited (Now Bharti Airtel Limited) v. Assistant

Commissioner of Income Tax, Circle 57, Kolkata and Another

19. Under the prepaid business model, the end-users or customers

are required to pay for services in advance, which can be done
by purchasing recharge vouchers or top-up cards from the
retailers. For a new prepaid connection, the customers or end-
users purchase a kit, called a start-up pack, which contains a
Subscriber Identification Mobile card22, commonly known as SIM
card, and a coupon of the specified value as advance payment
to avail the telecom services.
20. The assessees have entered into franchise or distribution agreements
with several parties, the terms and conditions of which we would
refer to subsequently. It is the case of the assessees that they sell
the start-up kits and recharge vouchers of the specified value at a
discounted price to the franchisee/distributors. The discounts are
given on the printed price of the packs. This discount, as per the
assessees, is not a ‘commission or brokerage’ under Explanation
(i) to Section 194-H of the Act. The Revenue, on the other hand,
submits that the difference between ‘discounted price’ and ‘sale
price’ in the hands of the franchisee/distributors being in the nature
of ‘commission or brokerage’ is the income of the franchisee/
distributors, the relationship between the assessees and the
franchisee/distributor is in the nature of principal and agent, and
therefore, the assesses are liable to deduct tax at source under
Section 194-H of the Act.
21. In order to decide the dispute in question, we would like to refer to
some of the relevant clauses of the franchisee/distributor agreement
between Bharti Airtel Limited and the franchisee/distributors, which
read as under23:
Bharti Airtel Limited
“WHEREAS THE FRANCHISEE has approached BML
and have expressed their keen desire to be one of the
FRANCHISEE’s to undertake the job of promoting and
marketing of Pre Paid and also other related services
all under the brand name of “MAGIC” to the potential

22 ‘SIM card’, for short.

23 Agreements in the case of assessees Vodafone Idea Limited (formerly known as Vodafone Mobile Ser-
vices Limited) and Idea Cellular Limited (now known as Vodafone Idea Limited) are somewhat different.
To avoid repetition or prolixity, we are not reproducing the said clauses.
1020 [2024] 2 S.C.R.

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subscribers, under the terms of this Agreement. The

FRANCHISEE has also represented that they have
infrastructure, manpower and experience in the above
area and they possess the financial to perform the above
functions and such other functions as may be assigned
to them by BML from time to time.

xx xx xx
A. It is expressly understood that the Agreement does
not confer any exclusive right to the FRANCHISEE to
market the Services nor does the Agreement gives any
territorial right to the FRANCHISEE. The BML expressly
reserves its right to enter into similar arrangements with
other party(ies) to market and promote the Services
and to market the Services directly to the customers if
considered appropriate in terms of business exigency and
market requirements.

xx xx xx
2.1 Subject to the terms and conditions of this Agreement,
BML hereby appoints Central Supply Corporation, as its
FRANCHISEE to promote and market the Pre Paid Services
of BML and more particularly in terms of the policies of
BML as shall be informed by BML from time to time and
the FRANCHISEE hereby accepts the appointment as the
FRANCHISEE of BML.

xx xx xx
2.3 The parties recognize that it is commercially prudent
and desirable for the FRANCHISEE in the performance of
the obligations under this Agreement to appointment (sic)
Retailers/outlets for the retail promotion and marketing of
Pre Paid services. In such an event the FRANCHISEE
shall obtain the prior approval of BML for appointment(s)
of Retailers/outlets, and also to the terms and conditions
of such appointment.
2.4 The FRANCHISEE acknowledges that the business of
cellular mobile services is extremely competitive and exists
[2024] 2 S.C.R.  1021

Bharti Cellular Limited (Now Bharti Airtel Limited) v. Assistant

Commissioner of Income Tax, Circle 57, Kolkata and Another

in an ever expanding market. The FRANCHISEE agrees

and acknowledges that during the term of this Agreement it
shall not undertake the activities under this Agreement for
any other provider of Cellular Mobile Telephone Services
or any similar competitive business.

xx xx xx
3.1 The FRANCHISEE warrants and represents that:
(a) It has all necessary statutory, regulatory and municipal
permissions, approvals and permits for the running and
operation of its establishment and for the conduct of its
business, more particularly for the business as provided
for in this Agreement.
(b) It is in compliance of all laws, regulars and rules in the
conduct of its business and the running of its business
establishment.
3.2 The FRANCHISEE shall indemnify and keep indemnified
BML from and against all and any costs, expenses and
charges imposed on BML as a result of any action by a
statutory, regulatory or municipal authority arising out of
non-compliance by the FRANCHISEE of laws, rules or
regulations in the running, operation and conduct of its
business and business establishment, more particularly
with respect to the conduct of its business provided for
in this Agreement.

xx xx xx
4.1 The FRANCHISEE shall maintain a suitable
establishment for the conduct of its business and the
performance of its obligations under this Agreement. The
FRANCHISEE shall use its best efforts to actively provide
effective ways to market and promote the Pre Paid Services
and shall always act in the interest of both BML and the
subscribers to the Services of BML.
4.2 As covenanted for in clause 2.4, the FRANCHISEE shall
not involve himself in any manner either directly or indirectly in
any business or activity which is competitive with the business
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of activities of BML. The FRANCHISEE acknowledges that

the adherence to this provision is a material obligation of
the FRANCHISEE under this Agreement.

xx xx xx
4.4 The FRANCHISEE shall, in the conduct of its business
and performing its obligations under this Agreement, conform
and adhere to the policies of BML communicated to the
FRANCHISEE from time to time. The FRANCHISEE shall
not charge the customers of BML for the services anything
more than the rates specified by the BML from time to time.
4.5 The FRANCHISEE shall employ adequate employees
for performing its obligations under this Agreement and in
the promoting and marketing of the Pre Paid Services. All
contractual and statutory payments, including wages and
salaries to the employees of the FRANCHISEE, shall be
the sole liability and responsibility of the FRANCHISEE.
4.6 The FRANCHISEE in respect of its business
establishment shall, if so desired by BML, in order to
effectively project the Franchisee, make alterations,
modifications in and install such furniture, fixture and
air conditioning equipment, fax, computer, with internet
connection as required necessary and mutually agreed
upon and the cost of such alterations, renovation shall be
borne exclusively by the FRANCHISEE.
4.7 The FRANCHISEE agrees and undertakes to maintain
proper and sufficient quantities of the prepaid start up packs
and recharge coupons in respect of the Pre Paid service
in order to meet the market requirements at all times and
in accordance with the guidelines and instructions issued
by BML from time to time.
4.8 The FRANCHISEE shall use its best efforts and
endeavours to market and promote the Pre Paid Services
to meet the growing demands of the Subscribers. At no
point of time shall any right, title or interest pass to the
FRANCHISEE in respect of the Pre-Paid Cards for the
Pre Paid Services given to the subscribers for connection
[2024] 2 S.C.R.  1023

Bharti Cellular Limited (Now Bharti Airtel Limited) v. Assistant

Commissioner of Income Tax, Circle 57, Kolkata and Another

to the Service and all right, title, ownership and property

rights in such cards shall at all times vest with BML.
4.9 The FRANCHISEE shall seek prior written approval
from BML for its promotional literature campaign (including
promotional material which bears the Trademarks, logos
and trade names of BML) for the Pre Paid Services. BML
will not share the expenditure incurred by the FRANCHISEE
for such advertising and publicity of the Services unless
agreed to earlier in writing. Any share of the expenditure
stated above and the ratio for the same shall be decided
by BML from time to time at its sole discretion.
4.10 The FRANCHISEE shall be solely liable and
responsible, at its business premises, for the safety and
storage of all pre paid start up kits, recharge cards and other
material in respect of the Pre Paid Services. BML shall not
be liable for any loss, pilferage or damage to the items as
stated here above and the FRANCHISEE shall indemnify
BML from all loss caused to BML arising out of any loss,
pilferage or damage to the items as stated here above.

xx xx xx
4.12 The liability to insure and keep insured the items as
stated in Clause 4.10 at the business establishment of
the FRANCHISEE shall be of the FRANCHISEE and the
liability for any loss or damage due to any fire, burglary,
theft, etc. will be that of the FRANCHISEE.

xx xx xx
4.14 The FRANCHISEE shall be responsible for collection
of all necessary agreement/contract forms and other related
forms, and for obtaining the signature of the customer on
these forms. The FRANCHISEE shall forward all such
forms, duly completed in all respects and signed by
customers to BML for its verification and records.

xx xx xx
5.1 From time to time, BML will review with the FRANCHISEE
minimum subscription, targets for the Pre Paid Services,
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taking into account the market development and market

potential and other relevant factors. The achievements of
these prescribed targets by the FRANCHISEE is a material
obligation of the FRANCHISEE under this Agreement.

xx xx xx
6.2 The FRANCISEE shall employ a fully trained service
staff whose training has been completed in accordance
with the standards set out by BML.

xx xx xx
8.1 The FRANCHISEE’s price and payment for services
will be specified by BML from time to time. The rates are
subject to variation during the terms of this Agreement at
the sole discretion of BML and shall be intimated to the
Distributor from time to time.

xx xx xx
8.3 All other tax liabilities arising in connection with or out of
the agreement transactions pertaining to the FRANCHISEE
shall be the responsibility of the FRANCHISEE.

xx xx xx
10.1 The FRANCHISEE accepts for all purposes that all
trademarks, logos, trade names or identifying marks and
slogans used by BML in respect of the Service and the
Pre Paid Services, whether registered or not, constitute the
exclusive property of BML or their affiliated companies as
the case may be, and cannot be used by the FRNCHISEE
except in connection with the promotion and marketing of
the Services of BML and that too with the express written
consent of BML. The FRANCHISEE shall not contest, at
any time, the right of the BML or its affiliated companies
to any such Trademark or trade name used or claimed by
BML or such affiliated companies in respect of the Service
or Pre Paid Services.

xx xx xx
[2024] 2 S.C.R.  1025

Bharti Cellular Limited (Now Bharti Airtel Limited) v. Assistant

Commissioner of Income Tax, Circle 57, Kolkata and Another

11.2 During the term of this Agreement, the FRANCHISEE

is authorised to use BML’s trademarks, logos and trade
names only in connection with the FRANCHISEE’s use of
such trademarks, logos and trade names as set out in this
Agreement. The FRANCHISEE’s use of such trademarks,
logos and trade names shall be in accordance with the
guidelines issued by BML. Nothing herein shall give the
FRANCHISEE any right, title or interest in such trademarks,
logos or trade names, in the event of termination of this
Agreement, however caused, the FRANCHISEE’S right to
use such Trademarks, logos or trade names shall cease
forthwith. The FRANCHISEE agrees not to attach any
additional trademarks, logos or trade designation to the
Trademarks of BML.
11.3 For as long as this Agreement continues in force but
not thereafter, the FRANCHISEE may identify itself as
an authorised FRANCHISEE of BML, but shall not use
the Trademarks, logos and trade names of BML as part
of its proprietorship name/corporate/partnership name or
otherwise indicate to the public that it is an affiliate of BML.

xx xx xx
11.5 BML shall allow the FRANCHISEE to use its logo
to be displayed on the sign board to be placed at the
FRANCHISEE’s outlet(s) and on the each memos and/or
official business documents issued by the FRANCHISEE
towards the services effected from the outlet(s). However,
the intellectual property rights associated with Trademarks,
logos and trade names are and shall remain the sole
property of BML.

xx xx xx
14.1 BML shall not be liable to the FRANCHISEE or any
other party by virtue of the termination of this Agreement
for any reason whatsoever, including but not limited to any
claim for loss of profits or compensation or prospective
profits or on account of any expenditure, investments,
leases, capital improvements or any other commitments
1026 [2024] 2 S.C.R.

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made by the FRANCHISEE in connection with the business

made in reliance upon or by virtue of FRANCHISEE’s
appointment under this Agreement. It is expressly agreed
that no compensation whatsoever shall be payable by
BML to the FRANCHISEE upon the termination of this
Agreement.
14.2 Upon receipt of any notice of termination of this
Agreement the FRANCHISEE shall conduct all its operations
until the effective date of termination mentioned in such
notice in the manner which is consistent with the obligation
of the FRANCHISEE hereunder and the FRANCHISEE
shall not prejudice the reputation or goodwill of BML and
the interests of the subscribers in any manner whatsoever.
14.3 Upon termination of this Agreement for any reason,
the FRANCHISEE shall cease to represent himself as the
authorised FRANCHISEE of BML and shall not act in a
manner, which is likely to cause confusion or to deceive
the public. The FRANCHISEE shall promptly remove all
Trademarks, signs, words, trademarks (sic), logos and any
other representations connected with BML. In the event
the FRANCHISEE fails to comply with the above, BML
shall have the right to enter upon the FRANCHISEE’s
premises and remove, without liability, all Trademarks,
signs, logos, trademarks (sic), materials written documents
and any other representations connected with BML and
the FRANCHISEE shall reimburse to BML all costs and
expenses incurred thereof.
14.4 In the event of termination of this Agreement,
FRANCHISEE shall return to BML by the effective date
of termination all advertising and promotional materials,
marketing aids and other documents and materials
received and all Confidential Information received under
this Agreement.
14.5 Both parties agree that goodwill created with respect
to Service and Pre Paid Services is the exclusive property
of BML. Any expenditure for promotion, advertising and
other efforts by FRANCHISEE is made with the knowledge
that this Agreement may be terminated pursuant to
[2024] 2 S.C.R.  1027

Bharti Cellular Limited (Now Bharti Airtel Limited) v. Assistant

Commissioner of Income Tax, Circle 57, Kolkata and Another

Article 13 hereof. Under no circumstance shall BML be

obliged to pay to the FRANCHISEE upon termination of
this Agreement any termination pay or compensation for
subscriber acquisition, special indemnification, or any other
termination compensation.

xx xx xx
16.1 The FRANCHISEE understands that it is an
independently owned business entity and this Agreement
does not make the FRANCHISEE, its employees, associates
or agents as employees, agents or legal representatives of
BML for any purpose whatsoever. The FRANCHISEE has
no express or implied right or authority to assume or to
undertake any obligation in respect of or on behalf of or in
the name of BML, or to bind BML in any manner. In case,
the FRANCHISEE, its employees, associates or agents
hold out as employees, agents, or legal representatives of
BML, the FRANCHISEE shall forthwith upon demand make
good any/all loss, cost, damages, including consequential
loss, suffered by BML on this account.
16.2 It is understood that the relationship between the parties
is solely on principal-to-principal. FRANCHISEE shall not
acquire, by virtue of any provision of this Agreement or
otherwise, any right, power or capacity to act as an agent
or commercial representative of BML for any purpose
whatsoever. Nothing contained in the contract shall be
deemed or construed as creating a joint venture relationship
or legal partnership etc. between BML and the FRANCHISEE.
16.3 The FRANCHISEE shall not obtain/offer the pre
paid cards and/or recharge coupons for the Pre Paid
Service from any other source other than BML unless
such permission is granted in writing by BML in order to
meet the specific needs of the market and subscribers as
determined by BML.

xx xx Xx”
22. As per the agreement, the franchisee/distributor is appointed for
marketing of prepaid services and for appointing the retailer or
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outlets for sale promotion. It is pertinent to note that the retailers

or outlets for sale promotion are appointed by the franchisee/
distributor and not the assessee. The franchisees/distributors have
agreed not to undertake activities mentioned in the agreement
for any other competitive cellular mobile telephone service
provider in the business. The franchisees/distributors have to
comply with statutory, regulatory and municipal permissions
while conducting the business. The franchisees/distributors
have agreed to indemnify and keep indemnified the assessee
against any and all costs, expenses and charges imposed on
the assessee because of any action by a statutory, regulatory
or municipal authority due to non-compliance by the franchisee/
distributor. The franchisee/ distributor has to maintain a suitable
establishment for the conduct of business and performance
of obligations. While doing so, the franchisee/distributor shall
conform and adhere to the policies communicated to it from
time to time by the assessee. The franchisee/distributor shall
employ adequate employees for performing its obligations, and
all contractual and statutory payments, including wages, are to
be paid by the franchisee/distributor. The assessee can, if it so
desires, call upon the franchisee/distributor to make alterations,
modifications in furniture, air conditioning equipment etc., as
required and necessary and mutually agreed. Costs of such
alternations and distributions are to be borne by the franchisee/
distributor.
23. The franchisee/distributor has to maintain proper and sufficient
quantities of prepaid start-up packs and recharge coupons to
meet the market requirements. The franchisee/distributor shall
follow the guidelines and directions issued by the assessee from
time to time. At no point of time, the right, title, or interest in the
prepaid cards shall pass on to the franchisee/distributor. All rights,
title ownership and property rights in the cards shall rest with the
assessee. The franchisee/distributor shall be solely responsible
and liable for safety and storage of prepaid start-up kits, recharge
cards and other material. The assessee will not be liable for any
loss, pilferage or damage to the pre-paid coupons/starter-kits. The
franchisee/ distributor is to indemnify the assessee for any loss
caused on this account. The franchisee/distributor is to insure the
prepaid start-up kits/ recharge coupons. The liability for any loss
[2024] 2 S.C.R.  1029

Bharti Cellular Limited (Now Bharti Airtel Limited) v. Assistant

Commissioner of Income Tax, Circle 57, Kolkata and Another

or damage due to fire, burglary, theft etc. is that of the franchisee/

distributor.
24. On termination of the agreement, the franchisee/distributor shall
continue its operation till the effective date of termination mentioned
in the notice. Upon termination, the franchisee/distributor is required
to return all advertising and promotional material, etc. to the assessee
by the effective date of termination. Further, the assessee is not
liable to the franchisee/distributor or any other party for any loss of
profits or compensation or prospective profits or on account of any
expenditure, etc. in the event of termination.
25. The assessee is to review the minimum subscriptions/targets for
prepaid services taking into account market development and potential
and other relevant factors. The franchisee/distributor is to employ a
fully trained service staff, who have undergone training in accordance
to the standards set out by the assessee. The franchisee/distributor
will be responsible to collect all necessary agreement/contract forms
and other related forms, after obtaining signatures of the customers
on the said forms. These forms, duly completed in all respects and
signed by the customers, will be forwarded to the assessee for its
verification and record.
26. The franchisee’s/distributor’s price and payment for services will
be specified by the assessee from time to time. The rates can be
varied during the terms of the agreement at the discretion of the
assessee and such variation is to be intimated to the franchisee/
distributor. All tax liabilities in connection with, or arising out of, the
transactions pertaining to the agreement shall be the responsibility
of the franchisee/distributor.
27. The trademarks, logos, trade names or identifying marks and
slogans used by the assessee, whether registered or not, are
exclusive property of the assessee or the affiliated companies.
The use of such marks, logos etc. will be in accordance with the
guidelines issued by the assessee. As long as the agreement is in
force, but not thereafter, the franchisee/distributor shall identify itself
as an authorised franchisee, but shall not use trademarks, logos,
tradenames, as part of its proprietorship name/corporate/ partnership
name or otherwise. The franchisee/distributor is entitled to use its
logo on the side door at its outlets and on its memos and official
business documents towards the services effected from the outlet.
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28. On the question of actual business financial model adopted and

followed, it is an admitted position that the franchisees/distributors
were required to pay in advance the price of the welcome kit
containing the SIM card, recharge vouchers, top-up cards, e-tops,
etc. The abovementioned price was a discounted one. Such discounts
were given on the price printed on the pack of the prepaid service
products. The franchisee/distributor paid the discounted price
regardless of, and even before, the prepaid products being sold and
transferred to the retailers or the actual consumer. The franchisee/
distributor was free to sell the prepaid products at any price below
the price printed on the pack. The franchisee/distributor determined
his profits/income.
29. The Revenue has highlighted that the prepaid SIM cards were not the
property of franchisee/distribution and no right, title or interest was
transferred to them. These were always to remain the property of the
assessee. This is correct, but it is equally true that this is a mandate
and requirement of the licence issued to the assessee by the DoT.
In actual practice, the right to use the SIM card and its possession
is handed over and given to the end-user, that is, the customer who
installs the SIM card in his phone to avail the telecommunication
services. Similarly, the franchisees/distributors are to ensure that the
post-paid customers/end-users fill up the form as prescribed along
with the documents which are given and submitted to the assessee.
These are mandates prescribed by the licence issued by the DoT
to the assessees. The contractual obligations of the distributors/
franchisees, do not reflect a fiduciary character of the relationship,
or the business being done on the principal’s account.
30. The franchisees/distributors earn their income when they sell the
prepaid products to the retailer or the end-user/customer. Their
profit consists of the difference between the sale price received by
them from the retailer/end-user/customer and the discounted price
at which they have ‘acquired’ the product. Though the discounted
price is fixed or negotiated between the assessee and the franchisee/
distributor, the sale price received by the franchisee/ distributor is
within the sole discretion of the franchisee/distributor. The assessee
has no say in this matter.
31. It is not the case of the Revenue that the tax at source under Section
194-H of the Act is to be deducted on the difference between the
[2024] 2 S.C.R.  1031

Bharti Cellular Limited (Now Bharti Airtel Limited) v. Assistant

Commissioner of Income Tax, Circle 57, Kolkata and Another

printed price and the discounted price. This cannot be the case as
the Revenue cannot insist that the franchisee/distributor must sell
the products at the printed price and not at a figure or price below
the printed price. The obligation to deduct tax at source is fixed
by the statute itself, that is, on the date of actual payment by any
mode, or at the time when income is credited to the account of the
franchisee/distributor, whichever is earlier. In the context of the present
case, the income of the franchisee/distributor, being the difference
between the sale price received by the franchisee/distributor and the
discounted price, is paid or credited to the account of the franchisee/
distributor when he sells the prepaid product to the retailer/end-
user/customer. The sale price and accordingly the income of the
franchisee/distributor is determined by the franchisee/distributor and
the third parties. Accordingly, the assessee does not, at any stage,
either pay or credit the account of the franchisee/distributor with the
income by way of commission or brokerage on which tax at source
under Section 194-H of the Act is to be deducted.
32. Faced with the above situation, the Revenue has relied upon the
use of the expression “payment received or receivable directly or
indirectly by a person acting on behalf of the other person”, that is, ‘the
principal’. It is argued that even if the franchisee/distributor receives
payment in the form of income from the retailer/end-user/customer,
it would require deduction of tax at source as payment received or
receivable, directly or indirectly, is to be subjected to deduction of
tax. In support of the argument, reliance is placed upon decision in
the case of Singapore Airlines Limited (supra).
33. The decision in Singapore Airlines Limited (supra) is required to
be understood in the context of the contract in the said case, which
was in terms of the rules/agreement set up by the International
Airport Transport Association 24. IATA would fix a ceiling price,
and the price an airline could charge from its customers with a
discretion to the airlines to sell their tickets at a net fare lower
than the base fare but not higher. The air carriers were required
to furnish a fare list to the Director General of Civil Aviation. The
arrangement between the airlines and travel agents was covered

24 ‘IATA’, for short.

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by the Passenger Sales Agency Agreement25, which would set

out the conditions under which the travel agent carried out sale of
tickets along with other ancillary services. The travel agents were
entitled to 7% commission on sale of the tickets for its services
as the standard commission based on the price bar set by the
IATA. The airlines were deducting tax at source under Section
194-H of the Act on the 7% commission. In addition to the 7%
commission, the travel agents were also entitled to additional/
supplementary commission on the tickets sold by them. The
additional/supplementary commission and the amount at which
the tickets were sold were computed by the travel agents and
transmitted to the billing and settlement plan (BSP). The BSP,
functioning under the aegis of the IATA, managed, inter alia,
logistics vis-à-vis payments, and acted as a forum for agents and
airlines to examine details pertaining to the sale of the flight tickets.
33.1 This Court examined the operation of the BSP where the
financial data regarding sale of tickets was stored. The BSP
agglomerated the data from multiple transactions. Thereupon,
this data was transmitted either bimonthly or twice a month to
the airlines. It is on the basis of this data that the airlines/air
carriers were required to pay the additional commission to the
travel agents. These are the striking distinguishing features in
Singapore Airlines Limited (supra) case.
33.2 Having considered the aforesaid mechanism and the nature
of relationship between a principal and an agent26, this Court
found considerable merit in the argument of the Revenue
that the airlines/ air carriers utilised the BSP to discern the
amount earned as additional/supplementary commission and
accordingly arrive at the income earned by the agent to deduct
tax at source, in accordance with the provisions of Section 194-
H of the Act. If the aforesaid mechanism is understood, then
it is not difficult to appreciate and understand the conclusion
arrived at by this Court in the said case.

25 ‘PSA’, for short.

26 As stated above the airlines were deducting tax at source under Section 194-H on the 7% commission
(standard commission). The dispute only related to whether the airlines were liable to deduct tax at
source on the additional commission (supplementary commission).
[2024] 2 S.C.R.  1033

Bharti Cellular Limited (Now Bharti Airtel Limited) v. Assistant

Commissioner of Income Tax, Circle 57, Kolkata and Another

33.3 Thus, the question whether there was relationship of principal

and agent was not in dispute, but nevertheless the assessees
in the said case disputed liability to deduct tax at source on the
additional/supplementary commission. However, the judgment
does refer to the difference between the legal relationship of
master and servant, principal and agent, and between principal
and principal. In this context, reference is made to the statement
of law in Halsbury’s Law of England27, which reads:
“The difference between the relations of master and
servant and of principal and agent may be said to be this:
a principal has the right to direct what work the agent has
to do: but a master has the further right to direct how the
work is to be done.”

xx xx xx
“An agent is to be distinguished on the one hand from a
servant, and on the other from an independent contractor.
A servant acts under the direct control and supervision
of his master, and is bound to conform to all reasonable
orders given him in the course of his work; an independent
contractor, on the other hand, is entirely independent of
any control or interference and merely undertakes to
produce a specified result, employing his own means to
produce that result. An agent, though bound to exercise
his authority in accordance with all lawful instructions
which may be given to him from time to time by his
principal, is not subject in its exercise to the direct control
or supervision of the principal. An agent, as such is not
a servant, but a servant is generally for some purposes
his master’s implied agent, the extent of the agency
depending upon the duties or position of the servant.”
34. We have already expounded on the main provision of Section 194-
H of the Act, which fixes the liability to deduct tax at source on the
‘person responsible to pay’ – an expression which is a term of art
– as defined in Section 204 of the Act and the liability to deduct tax
at source arises when the income is credited or paid by the person

27 Vol. 22, p. 113, ¶ 192 and Vol. 1, at p. 193, Article 345.

1034 [2024] 2 S.C.R.

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responsible for paying.28 The expression “direct or indirect” used

in Explanation (i) to Section 194-H of the Act is no doubt meant
to ensure that “the person responsible for paying” does not dodge
the obligation to deduct tax at source, even when the payment is
indirectly made by the principal-payer to the agent-payee. However,
deduction of tax at source in terms of Section 194-H of the Act is
not to be extended and widened in ambit to apply to true/genuine
business transactions, where the assessee is not the person
responsible for paying or crediting income. In the present case, the
assessees neither pay nor credit any income to the person with
whom he has contracted. Explanation (i) to Section 194-H of the
Act, by using the word “indirectly”, does not regulate or curtail the
manner in which the assessee can conduct business and enter
into commercial relationships. Neither does the word “indirectly”
create an obligation where the main provision does not apply. The
tax legislation recognises diverse relationships and modes in which
commerce and trade are conducted, albeit obligation to tax at source
arises only if the conditions as mentioned in Section 194-H of the
Act are met and not otherwise. This principle does not negate the
compliance required by law.
35. Deduction of tax at source is a substantial source of the direct tax
revenue. The ease of collection and recovery is obvious. Deduction
and deposit of tax at source checks evasion and non-payment of
tax. It expands the tax base. However, the assessee as a deductor
is not paying tax on his/her income, and collects and pays tax
otherwise payable by the third party. Liability of the third party to pay
tax when not deducted remains unaffected. Failure to deduct tax at
source has serious and quasi-penal consequences for an assessee.
The deduction of tax provisions should be programmatically and
realistically construed, and not as enmeshes or by adopting catch-
as-catch-can approach. In case of a legal or factual doubt in a given
case, the assessee can rely on the doctrine of presumption against
doubtful penalisation.29 Whether or not the said doctrine should

28 See ¶ 5 of the judgment.

29 See Securities and Exchange Board of India v. Sunil Krishna Khaitan and Others, [2022] 18 SCR 987 :
(2023) 2 SCC 643. However, in the present case doctrine of presumption against doubtful penalisation
is not applicable. The assessees were earlier deducting tax at source under Section 194-H of the Act,
though the amount on which tax was being deducted is unclear. On legal opinion they stopped deducting
tax at source.
[2024] 2 S.C.R.  1035

Bharti Cellular Limited (Now Bharti Airtel Limited) v. Assistant

Commissioner of Income Tax, Circle 57, Kolkata and Another

be applied30, will depend on facts and circumstances of the case,

including the past practice followed by the assessee and accepted
by the department. When there is apparent divergence of opinion,
to avoid litigation and pitfalls associated, it may be advisable for the
Central Board of Direct Taxes to clarify doubts by issuing appropriate
instruction/circular after ascertaining view of the assesses and
stakeholders.31 In addition to enhancing revenue and ensuring tax
compliance, an equally important aim/objective of the Revenue is
to reduce litigation. The instructions/circular, if and when issued,
should be clear, and when justified – require the obligation to be
made prospective.
36. Notably, the Delhi High Court in Commissioner of Income Tax v.
Singapore Airlines Ltd.32 had held that tax under Section 194-H
of the Act is not required to be deducted on the discounted tickets
sold by the airlines/air carriers through travel agents. Revenue did
not challenge the decision of the Delhi High Court to this extent and
therefore, this dictum attained finality. As noted, it is not the case
of the Revenue that tax is to be deducted when payment is made
by the distributors/franchisees to the mobile service providers. It is
also not the case of the revenue that tax is to be deducted under
Section 194-H of the Act on the difference between the maximum
retail price income of the distributors/ franchisees and the price paid
by the distributors/franchisees to the assessees. The assessees
are not privy to the transactions between distributors/franchisees
and third parties. It is, therefore, impossible for the assessees to
deduct tax at source and comply with Section 194-H of the Act, on
the difference between the total/sum consideration received by the
istributors/ franchisees from third parties and the amount paid by
the distributors/ franchisees to them.
37. The argument of the Revenue that assessees should periodically
ask for this information/data and thereupon deduct tax at source
should be rejected as far-fetched, imposing unfair obligation and
inconveniencing the assesses, beyond the statutory mandate. Further,
it will be willy-nilly impossible to deduct, as well as make payment

30 This would include the question of prospective or retrospective application.

31 We do acknowledge that the Central Board of Direct Taxes has on several occasions quelled doubts and
issued instructions/circulars.
32 (2009) 319 ITR 29.
1036 [2024] 2 S.C.R.

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of the tax deducted, within the timelines prescribed by law, as these

begin when the amount is credited in the account of the payee by
the payer or when payment is received by the payee, whichever is
earlier. The payee receives payment when the third party makes the
payment. This payment is not the payment received or payable by
the assessee as the principal. The distributor/franchisee is not the
trustee who is to account for this payment to the assessee as the
principal. The payment received is the gross income or profit earned
by the distributor/franchisee. It is the income earned by distributor/
franchisee as a result of its efforts and work, and not a remuneration
paid by the assessee as a cellular mobile telephone service provider.
38. We must, therefore, reject the argument of the Revenue relying upon
the decision of this Court in Singapore Airlines Limited (supra)
that assessees would be liable to deduct tax at source even if the
assessees are not making payment or crediting the income to the
account of the franchisee/distributor. When the obligation, and the
time and manner in which the tax is mandated by law to be deducted
at source, is fixed by the statute, the same cannot be shifted/altered/
modified or postponed on a concession in the court by the Revenue.
The concession may be granted, when permissible, by way of a
circular issued in accordance with Section 119 of the Act. We do not
think that the decision in Singapore Airlines Limited (supra) can
be read in the manner as suggested by the Revenue.
39. Coming back to the legal position of a distributor, it is to be generally
regarded as different form that of an agent. The distributor buys
goods on his account and sells them in his territory. The profit
made is the margin of difference between the purchase price and
the sale price. The reason is, that the distributor in such cases is
an independent contractor. Unlike an agent, he does not act as a
communicator or creator of a relationship between the principal and
a third party. The distributor has rights of distribution and is akin
to a franchisee. Franchise agreements are normally considered
as sui generis, though they have been in existence for some time.
Franchise agreements provide a mechanism whereby goods and
services may be distributed. In franchise agreements, the supplier
or the manufacture, i.e. a franchisor, appoints an independent
enterprise as a franchisee through whom the franchisor supplies
certain goods or services. There is a close relationship between
a franchisor and a franchisee because a franchisee’s operations
[2024] 2 S.C.R.  1037

Bharti Cellular Limited (Now Bharti Airtel Limited) v. Assistant

Commissioner of Income Tax, Circle 57, Kolkata and Another

are closely regulated, and this possibly is a distinction between a

franchise agreement and a distributorship agreement. Franchise
agreements are extremely detailed and complex. They may
relate to distribution franchises, service franchises and production
franchises. Notwithstanding the strict restrictions placed on the
franchisees – which may require the franchisee to sell only the
franchised goods, operate in a specific location, maintain premises
which are required to comply with certain requirements, and even
sell according to specified prices – the relationship may in a given
case be that of an independent contractor. Facts of each case and
the authority given by ‘principal’ to the franchisees matter and are
determinative.
40. An independent contractor is free from control on the part of his
employer, and is only subject to the terms of his contract. But an
agent is not completely free from control, and the relationship to the
extent of tasks entrusted by the principal to the agent are fiduciary.
As contract with an independent agent depends upon the terms of
the contract, sometimes an independent contractor looks like an
agent from the point of view of the control exercisable over him,
but on an overview of the entire relationship the tests specified in
clauses (a) to (d) in paragraph 8 may not be satisfied. The distinction
is that independent contractors work for themselves, even when
they are employed for the purpose of creating contractual relations
with the third persons. An independent contractor is not required
to render accounts of the business, as it belongs to him and not
his employer.
41. Thus, the term ‘agent’ denotes a relationship that is very different
from that existing between a master and his servant, or between a
principal and principal, or between an employer and his independent
contractor. Although servants and independent contractors are parties
to relationships in which one person acts for another, and thereby
possesses the capacity to involve them in liability, yet the nature of the
relationship and the kind of acts in question are sufficiently different
to justify the exclusion of servants and independent contractors from
the law relating to agency. In other words, the term ‘agent’ should be
restricted to one who has the power of affecting the legal position
of his principal by the making of contracts, or the disposition of
the principal’s property; viz. an independent contractor who may,
incidentally, also affect the legal position of his principal in other ways.
1038 [2024] 2 S.C.R.

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This can be ascertained by referring to and examining the indicia

mentioned in clauses (a) to (d) in paragraph 8 of this judgment. It is
in the restricted sense in which the term agent is used in Explanation
(i) to Section 194-H of the Act.
42. In view of the aforesaid discussion, we hold that the assessees
would not be under a legal obligation to deduct tax at source on
the income/profit component in the payments received by the
distributors/franchisees from the third parties/customers, or while
selling/transferring the pre-paid coupons or starter-kits to the
distributors. Section 194-H of the Act is not applicable to the facts
and circumstances of this case. Accordingly, the appeals filed by
the assessee – cellular mobile service providers, challenging the
judgments of the High Courts of Delhi and Calcutta are allowed and
these judgments are set aside. The appeals filed by the Revenue
challenging the judgments of High Courts of Rajasthan, Karnataka
and Bombay are dismissed. There would be no orders as to cost.
Pending applications, if any, shall stand disposed of.

Headnotes prepared by: Divya Pandey Result of the case:

Appeals filed by the assessees
are allowed and that of the
Revenue are dismissed.
 [2024] 2 S.C.R. 1039 : 2024 INSC 154

State of Punjab
v.
Gurpreet Singh & Ors.
(Criminal Appeal Nos. 664-665 of 2024)
06 February 2024
[Surya Kant* and K.V. Viswanathan, JJ.]

Issue for Consideration

High Court, if justified in acquitting the main accused and the co-
accused of the charges u/s. 302/34 IPC.

Headnotes
Penal Code, 1860 – s. 302 – Murder – Acquittal by High
Court, if sustainable – Prosecution case that main accused
armed with pistol shot his ex mother-in-law resulting in her
death – Other co-accused accompanied the main accused
– Motive behind the murder was that the main accused
believed that his ex-mother-in-law was responsible for
the divorce from his ex-wife, sabotaging his plan to settle
abroad – Conviction and sentence of the main accused u/s.
302 and the co-accused u/ss. 302/34 by the trial court, on
basis of the testimonies of the complainant-husband of the
deceased and his daughter – However, acquittal by the High
Court – Sustainability:
Held: Reasons assigned by the High Court for disbelieving the
testimonies of the complainant-husband of the deceased and
his daughter, cannot be concurred with – There is no suggestion
to the complainant, and his daughter that they had some other
reason to implicate the main accused falsely, who happens to be
the former husband of the elder daughter – On the contrary, the
prosecution successfully established that main accused had been
nursing a grudge against the deceased, which stands proved
– Presence of the complainant at the time of occurrence, his
prompt reporting of the crime, and the swift action taken by the
police immediately upon receipt of the said report, cumulatively
and unequivocally established the prosecution case beyond any
doubt – There could not be, in all probabilities, any meeting
of the minds within a few minutes after the occurrence, so as

* Author
1040 [2024] 2 S.C.R.

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to create a false narrative only to implicate main accused –

Unfiltered version of the complainant conclusively established the
veracity of his subsequent deposition – Overwhelming evidence,
to establish the recovery of weapon of crime-pistol along with
live cartridges and one empty shell at the instance of the main
accused – Submission that none of the neighbours came forward
to witness the occurrence totally illogical and a misconceived
notion – Thus, the reasons assigned by the High Court while
granting acquittal to the main accused totally perverse and as a
result of misreading of the evidence on record – Order of acquittal
qua main accused u/s. 302 set aside, and that of the trial court
convicting him and sentencing him to life imprisonment restored
– However, the reasons assigned by the High Court in support
of the acquittal of co-accused are possible and plausible – High
Court seems right in extending the benefit of doubt qua them.
[Paras 24-33, 35, 36]
Constitution of India – Art. 136 – Intervention in acquittal
orders under:
Held: Once the appellate court acquits the accused, the
presumption of innocence as it existed before conviction by the
trial court, stands restored, and this Court, while scrutinizing
the evidence, would proceed with great circumspect and would
not routinely interfere with an order of acquittal, save when the
impeccable prosecution evidence nails the accused beyond
any doubt – Where on consideration of the material on record,
even if two views are possible, yet this Court, while exercising
powers Art. 136 would not tinker with an order of acquittal – An
erroneous or perverse approach to the proven facts of a case
and/or ignorance of some of the vital circumstances would amount
to a grave and substantial miscarriage of justice – In such a
case, this Court would be justified in exercising its extraordinary
jurisdiction to undo the injustice mete out to the victims of a
crime. [Paras 15, 18]
First Information Report – Prompt lodging of – Significance:
Held: Prompt lodging of an FIR helps dispel suspicions related to
the potential exaggeration of the involvement of individuals and
adds credibility to the prosecution’s argument – Promptly lodged
FIR reflects the first-hand account of what happened and who was
responsible for the offence in question. [Para 30]
[2024] 2 S.C.R.  1041

State of Punjab v. Gurpreet Singh & Ors

Witness – Natural witness, when – Evidentiary value:

Held: Incident, which transpires partly within the confines of the
house, the family members and close relatives naturally become
the witnesses – These individuals cannot be considered incidental
witnesses; instead, they emerge as the most natural witnesses –
Typically, a close relative is unlikely to shield the actual culprit and
falsely implicate an innocent person – While it is acknowledged that
emotions can run high and personal animosity may exist, merely
being related does not provide a valid basis for criticism, instead,
familial ties often serve as a reliable assurance of truth. [Para 29]

Case Law Cited

State of Karnataka v. J. Jayalalitha [2017] 5 SCR 525 :
(2017) 6 SCC 263; Rajesh Prasad v. State of Bihar,
[2022] 3 SCR 1046 : (2022) 3 SCC 471; Thoti Manohar
v. State Of Andhra Pradesh, [2012] 5 SCR 1129 : (2012)
SCC 7 723; Nand Lal v. State of Chhattisgarh, [2023]
2 SCR 276 : (2023) 10 SCC 470; Thulia Kali v. State
of Tamil Nadu, [1972] 3 SCR 622 : (1972) 3 SCC 393;
State of Punjab v. Surja Ram, [1995] Suppl. 2 SCR
590 : (1995) Supp (3) SCC 419; Girish Yadav v. State
of M.P., [1996] 3 SCR 1021 : (1996) 8 SCC 186; Takdir
Samsuddin Sheikh v. State of Gujarat, (2011) 10 SCC
158 – referred to.

List of Acts
Penal Code, 1860; Constitution of India.
List of Keywords
Murder; Acquittal; Motive; Natural witnesses; Testimonies; False
implication; Recovery of weapon; Travesty of justice; Benefit
of doubt; Presumption of innocence; Extraordinary jurisdiction;
First Information Report; Prompt lodging of FIR; Witness.
Case Arising From
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.664-
665 of 2024
From the Judgment and Order dated 05.12.2019 of the High Court
of Punjab and Haryana at Chandigarh in CrA-D-1606-DB of 2015
(O&M) and CRR No. 2942 of 2015 (O&M)
1042 [2024] 2 S.C.R.

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Appearances for Parties

Gaurav Dhama, A.A.G., Ms. Rooh-e-hina Dua, Malivka Raghavan,
Harshit Khanduja, Umang Mehta, Mohammad Salam, Advs. for the
Appellant.
Miss Aanchal Jain, Karan Dewan, Kartik Yadav, Advs. for the
Respondents.
Judgment / Order of the Supreme Court

Judgment
Surya Kant, J.
Delay condoned.
2. Leave granted.
3. These appeals are directed against the judgment dated 05.12.2019,
passed by the High Court of Punjab and Haryana at Chandigarh
(hereinafter, ‘High Court’), allowing Criminal Appeal, CRA-D-
1606-DB-2015 (O&M) filed by Gurpreet Singh, Kashmira Singh and
Jagdeep Singh (Respondent Nos. 1-3) and Criminal Revision, CRR-
2942-2015 (O&M) filed by Harpreet Singh against their conviction
awarded by the Learned Additional Sessions Judge, Ludhiana
(hereinafter, ‘Trial Court’) vide judgments dated 29.09.2015 and
02.07.2015 respectively. The High Court has, through the impugned
judgment, acquitted all the four Respondents of the charges under
Section 302 read with Section 34 of the Indian Penal Code, 1860
(hereinafter, ‘IPC’).
Facts:
4. At this juncture, it is imperative to delve into the factual matrix to set
out the context of the present proceedings.
5. FIR No. 100 dated 18.07.2012, was registered at Police Station City
Jagraon, District Ludhiana Rural, under Sections 302 and 34 of IPC
and Sections 25, 27, 54, and 59 of the Arms Act, 1959. The subject
FIR was lodged on the statement of Gursewak Singh (P.W.2), the
Complainant, who stated that his elder daughter, Kirandeep Kaur,
was married to Gurpreet Singh (main accused) in the year 2009
and they got divorced in the year 2011. On 18.07.2012, at about
1.30 p.m., the Complainant was taking rest in his bedroom while
[2024] 2 S.C.R.  1043

State of Punjab v. Gurpreet Singh & Ors

his wife, Amarjit Kaur, and their son and younger daughter were
on the first floor. At the exact time of the incident, the Complainant
received information from Amarjit Kaur, who was standing on the
stairs, that someone was calling for him. The Complainant opened
the drawing-room door to check the main gate, wherein he saw
Gurpreet Singh, accompanied by an unidentified individual, who
had entered the porch by jumping the compound wall. Gurpreet
Singh was armed with a pistol, while the unidentified person held
a hockey stick. No sooner did the Complainant open the drawing-
room door Gurpreet Singh shot at the Complainant’s wife, Amarjit
Kaur, under the right ear from a close range. When the Complainant
accessed the main gate, he saw brothers of Gurpreet Singh,
namely, Harpreet Singh and Joga Singh (sons of Puran Singh r/o
Bhodipura), standing there besides an Innova car. The Complainant
shouted at them and tried to catch hold of the assailants, but they
crossed the main gate and fled in the Innova car. The reason for
enmity, according to the Complainant, was that the daughter of
the Complainant, Kirandeep Kaur, had cleared the IELTS exam
and had shifted to Australia. Gurpreet Singh also wanted to settle
in Australia, but due to their divorce, his dreams were shattered,
and he blamed Amarjit Kaur, the wife of the Complainant to be
responsible for the divorce.
6. The prosecution examined as many as 10 witnesses to bring the
guilt home, including Gursewak Singh, P.W.2 (the Complainant) and
his daughter, Harmandeep Kaur (P.W.3), both eyewitnesses. The
entire case of the prosecution is based upon the version of these
two eyewitnesses, who claimed that the murder took place in the
broad daylight in front of them.
7. The Trial Court, having found the version of the two eyewitnesses to
be trustworthy, which was duly corroborated by the medical evidence
and the recovery of the weapon, held Gurpreet Singh guilty of the
offence under Section 302 IPC, whereas his co-accused were held
guilty for the offence under Section 302/34 IPC. All of them were
sentenced to undergo life imprisonment.
8. The High Court, vide the impugned judgment, disbelieved the
version of Gursewak Singh (P.W.2, the Complainant) and his
daughter, Harmandeep Kaur (P.W.3), primarily for the reasons that
(i) Gursewak Singh (P.W.2) had gone for the medical checkup of
1044 [2024] 2 S.C.R.

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his son to a hospital in Jagraon. It was not possible for him to reach
back Doraha at the time of occurrence, as the distance was of about
70 kms. (ii) Gursewak Singh (P.W.2) failed to disclose the names
of the co-accused, Harpreet Singh and Kashmira Singh, in his first
version, and he is stated to have re-collected their names after
about five hours. (iii) It is doubtful that Harmandeep Kaur (P.W.3)
would be attending her classes from her parental house rather than
from her in-laws’ house since she got married only a few months
ago. (iv) No Test Identification Parade was conducted. (v) There is
a great mystery about the nomination of Jagdeep Singh, Harpreet
Singh S/o Veer Singh and Kashmira Singh because, as per the
testimony of the eyewitnesses, they were never named before the
police, and even the Investigating Officer has also not disclosed as
to how these persons have been nominated as accused. (vi) These
discrepancies, inconsistencies and unexplained circumstances go to
the root of the case and severely dent the credibility of Gursewak
Singh (P.W.2) and his daughter.
9. The High Court, thus, viewed that once the defence is able to cast
a reasonable doubt on the story of the prosecution, the necessary
consequence will be the acquittal of the accused.
10. Discontented with the acquittal of the accused persons, the State of
Punjab is in appeal before us.
Contentions of Parties
11. Mr. Gaurav Dhama, learned Additional Advocate General for the
State of Punjab, argued that the High Court erred in acquitting the
accused, by setting aside the well-reasoned findings by the Trial Court,
which categorically stated that based on the direct and unequivocal
statements provided by both the witnesses (P.W.2 and P.W.3), it was
conclusively proved that Gurpreet Singh fired shots at Amarjit Kaur.
The Complainant and the eyewitness, having lost a close family
member in the incident, had no motive to protect the real accused
or falsely implicate the innocent persons of committing the crime.
Mr. Dhama vehemently contended that Gurpreet Singh harboured
suspicions that the deceased played a big role in his divorce. He
kept holding a grudge against her, which served as the motive for
the murder. Additionally, the testimonies of Gursewak Singh (P.W.2)
and his daughter, Harmandeep Kaur (P.W.3), distinctly indicated that
soon after Amarjit Kaur was shot, she was discovered to be dead,
[2024] 2 S.C.R.  1045

State of Punjab v. Gurpreet Singh & Ors

prompting them to alert the authorities. Furthermore, P.W.3 provided

a clear and unequivocal identification of the accused-Respondents
as the assailants at the police station, which was substantiated by
a proper identification in the court.
12. Per contra, Mr. Karan Dewan, learned counsel on behalf of the
Respondents, urged that this Court, in exercise of the power under
Article 136 of the Constitution, should be extremely cautious in
interfering with an order of acquittal passed by the High Court. Further,
the offence took place in the broad daylight, it is quite strange that
none of the neighbours witnessed the occurrence. He maintains
that the High Court has rightly cast doubt on the prosecution’s case
as the testimony of P.W.2 and P.W.3 does not inspire confidence.
He also contended that P.W.3 was a married girl, and it was highly
unlikely that she was attending classes from her paternal home
despite getting married only a few months ago.
Analysis
13. Having heard the learned Counsel for the parties at a considerable
length, we find that two questions fall for our consideration in the
present appeal; (i) whether a case is made out for interference by
this Court under Article 136; (ii) whether the acquittal of Respondents
is sustainable, if the answer of the first question is in the affirmative.
Scope of Interference
14. Learned counsel for the Respondents very passionately contends
that the case does not fall within such exceptional category where
this Court, while exercising its power under Article 136 of the
Constitution, should interfere in a well-reasoned order of acquittal
passed by the High Court.
15. There is no gainsaying that once the appellate court acquits
the accused, the presumption of innocence as it existed before
conviction by the Trial Court, stands restored, and this Court, while
scrutinizing the evidence, will proceed with great circumspect and
will not routinely interfere with an order of acquittal, save when the
impeccable prosecution evidence nails the accused beyond any
doubt. In other words, where on consideration of the material on
record, even if two views are possible, yet this Court, while exercising
powers under Article 136 of the Constitution, will not tinker with an
order of acquittal.
1046 [2024] 2 S.C.R.

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16. State of Karnataka v. J. Jayalalitha1 does acknowledge that a

judgment of acquittal strengthens the presumption of innocence
in favour of the accused. Nevertheless, the caveat is that the
court must not shy away from its responsibility to prevent a
miscarriage of justice and must intervene when necessary. If the
acquittal is based on irrelevant grounds, if the High Court allows
itself to be misled by distractions, if the High Court dismisses the
evidence accepted by the Trial Court without proper consideration,
or if the High Court’s flawed approach leads to the neglect of
vital evidence, this Court is obligated to intervene to uphold the
interests of justice and address any concerns within the judicial
conscience.
17. In Rajesh Prasad v. State of Bihar2, this Court has outlined the
principles guiding its intervention in acquittal orders under Article
136. These are:
(i) An intervention is warranted when the High Court’s approach
or reasoning is deemed perverse. This occurs when the High
Court, based on suspicion and surmises, rejects evidence
or when the acquittal is primarily rooted in an exaggerated
adherence to the rule of giving the benefit of doubt in favour
of the accused.
(ii) Another circumstance for intervention arises when the acquittal
would lead to a significant miscarriage of justice. This refers to
situations where the High Court, through a cursory examination
of evidence, severs the connection between the accused and
the crime.
18. An erroneous or perverse approach to the proven facts of a case
and/or ignorance of some of the vital circumstances would amount
to a grave and substantial miscarriage of justice. In such a case,
this Court will be justified in exercising its extraordinary jurisdiction
to undo the injustice mete out to the victims of a crime.
19. Keeping these principles in mind, we proceed to analyse the legal
evidence on record and how the High Court appears to have fallen
in an error, at least partially, if not in entirety.

1 [2017] 5 SCR 525 : (2017) 6 SCC 263.

2 [2022] 3 SCR 1046 : (2022) 3 SCC 471.
[2024] 2 S.C.R.  1047

State of Punjab v. Gurpreet Singh & Ors

Acquittal Order qua Gurpreet Singh (Main Accused)

20. With a view to establish charges against Gurpreet Singh, the
prosecution relied on the testimonies of Gursewak Singh (P.W.2),
Harmandeep Kaur (P.W.3) and Hari Mittar (P.W.9). A brief
summarization of their testimonies is necessitated hereunder.
21. P.W.2, Gursewak Singh, the deceased’s husband, is the Complainant
in FIR No. 100/2012. He provided a detailed account of the incident
to the police, recounting that his wife, who was standing on the
stairs, informed him of someone calling from outside the main gate.
Upon opening the door of the drawing room, he witnessed Gurpreet
Singh armed with a pistol. Gurpreet Singh and the unidentified
person (Jagdeep Singh, named later on during the testimony) had
entered the house by scaling the wall of the house. While P.W.2
was standing at the drawing-room door, Gurpreet Singh aimed the
pistol at Amarjit Kaur, shot her under the right ear causing her to
fall. P.W.2 raised the alarm, and upon reaching the main gate, he
saw Gurpreet Singh, along with Harpreet Singh, Kashmira Singh,
and Jagdeep Singh, making their escape in an Innova car. P.W.2
asserted that the motive behind the murder was related to his elder
daughter, Kirandeep Kaur, who was earlier married to Gurpreet Singh
and had relocated to Australia. Due to the divorce from Kirandeep,
Gurpreet Singh’s plans to settle in Australia were thwarted, and he
held the deceased Amarjit Kaur responsible for the divorce.
22. P.W.3, Harmandeep Kaur, the younger daughter of the deceased,
recounted that she, along with her brother and mother, was on the
terrace of the house. Amarjit Kaur, hence deceased, while descending
the stairs, informed Gursewak Singh P.W.2 of the call. P.W.2 opened
the drawing room door to check the main gate. In the meantime,
Gurpreet Singh, armed with a pistol, and Jagdeep Singh, wielding
a hockey stick, entered the premises by scaling the boundary wall.
Gurpreet Singh aimed the pistol at Amarjit Kaur, who was standing on
the stairs, firing a shot that struck below her right ear. Subsequently,
Gurpreet Singh and Jagdeep Singh fled in an Innova car. P.W.3
also detailed the motive, indicating that Gurpreet Singh believed
Amarjit Kaur was responsible for the divorce from Kirandeep Kaur,
sabotaging his plan to settle in Australia.
23. P.W.9, Hari Mittar, the Investigating Officer of the case, reported that
upon reaching the scene of the incident, he documented the statement
1048 [2024] 2 S.C.R.

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of P.W.2 and compiled an inquest report concerning the deceased,

Amarjit Kaur. Additionally, he mentioned that after the arrest, Gurpreet
Singh was interrogated where he made a disclosure statement (Ex.
PW9/F) revealing the concealment of a 12-bore country-made pistol
along with two live cartridges in bushes opposite Gurudwara Bhaura
Sahib. Acting on this disclosure statement, the police successfully
recovered a 12-bore country-made pistol, one empty cartridge, and
two live cartridges of the same calibre.
24. The Trial Court, deeming P.W.2 and P.W.3 as natural witnesses,
based its findings on their testimonies to establish the involvement of
Gurpreet Singh in the murder of Amarjit Kaur. Furthermore, the Trial
Court noted that there was no apparent motive for P.W.2 and P.W.3
to protect the real culprits and falsely accuse innocent individuals in
connection with the crime. The pertinent paragraph is outlined below:
“51. Thus, the presence of both the complainant and
Harmandeep Kaur at the place of occurrence comes across
as natural presence. From the direct and unequivocal
testimonies of both theses witnesses the fact that accused
Gurpreet Singh shot at Amarjit Kaur is duly established.
The complainant and the eye witness lost their family
member in the incident. There would be no reason for the
complainant and Harmandeep Kaur to shield the actual
culprits and to name the innocent as the perpetrators of
the crime.”
25. The High Court, however, in the impugned judgment, stated that the
defence has been able to cast a reasonable doubt on the prosecution’s
story. Consequently, High Court has disbelieved the testimonies of
P.W.2 and P.W.3.
26. We have given our thoughtful consideration to the reasons assigned
by the High Court, and we find it extremely difficult to concur with
the same. We say so for the reason that the presence of Gursewak
Singh (P.W.2) in his own house cannot indeed be doubted for the
simple reason that the occurrence took place at 1.30 p.m. and he
made a call to the Police Control Room at 1.40 p.m. The fact that
in the very first version, Gursewak Singh disclosed the name of the
Gurpreet Singh, as being the killer of his wife, leaves no room to
doubt that he was physically present in the house and witnessed
the occurrence.
[2024] 2 S.C.R.  1049

State of Punjab v. Gurpreet Singh & Ors

27. Similarly, the reason assigned by the High Court to discard the version
of Harmandeep Kaur (P.W.3) (daughter of the deceased) is wholly
untenable. We cannot at all countenance that a daughter, after her
marriage, would permanently stay at her in-laws’ house and would
not visit her parents after her marriage. Such a sweeping conclusion
is neither traceable to Punjab’s social culture nor it appeals to our
common sense. It is on record that Harmandeep Kaur (P.W.3) was
a student before and after her marriage. It is natural that even after
her marriage, Harmandeep Kaur (P.W.3) wanted to continue her
studies, and therefore was staying with her parents. We see no
unnatural or unexpected circumstances in she being present in her
paternal home on the fateful day.
28. There is no suggestion to Gursewak Singh, P.W.2 (Complainant), and
his daughter Harmandeep Kaur (P.W.3) that they had some other
reason to implicate Gurpreet Singh falsely, who happens to be the
former husband of the daughter of P.W.2. There was no criminal or
civil case filed by the Kirandeep Kaur (ex-wife of Gurpreet Singh),
Gursewak Singh (P.W.2) or his family members against Gurpreet
Singh. On the contrary, the prosecution has successfully established
that Gurpreet Singh had been nursing a grudge against the deceased,
whom he held responsible for the divorce from the elder daughter of
the deceased. It has also come on record that the elder daughter,
Kirandeep Kaur, with whom Gurpreet Singh was earlier married, had
settled in Australia even before her marriage. Gurpreet Singh was
keen to migrate from India and settle down in Australia. His plans
could not materialise because of the divorce from his wife. In such
circumstances, the attribution of motive by the prosecution stands
proved.
29. We cannot be oblivious to the fact that when the wife of Gursewak
Singh (P.W.2) or the mother of Harmandeep Kaur (P.W.3) is suddenly
killed in their presence, they would not like the real accused to go
scot-free. In the absence of any previous motive, it is not at all
comprehensible that they would falsely implicate Gurpreet Singh. It
was not a case where the Complainant had enmity with someone and
he concocted a story to implicate Gurpreet Singh post the occurence.
This Court, in Thoti Manohar v. State Of Andhra Pradesh3, observed

3 [2012] 5 SCR 1129 : (2012) SCC 7 723.

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that in the incident, which transpired partly within the confines of the
house and extended slightly beyond the deceased’s premises, the
family members and close relatives naturally become the witnesses.
These individuals cannot be considered incidental witnesses; instead,
they emerge as the most natural witnesses in the given factual context.
Typically, a close relative is unlikely to shield the actual culprit and
falsely implicate an innocent person. While it is acknowledged that
emotions can run high and personal animosity may exist, merely
being related does not provide a valid basis for criticism; instead,
familial ties often serve as a reliable assurance of truth.
30. Most importantly, Gursewak Singh (P.W.2) narrated the entire
occurrence on a call made to the Police Control Room within ten
minutes of the occurrence. There could not be, in all probabilities,
any meeting of the minds within a few minutes after the occurence,
so as to create a false narrative only to implicate Gurpreet Singh.
The unfiltered version of the Complainant, in our considered opinion,
conclusively establishes the veracity of his subsequent deposition.
This Court, in Nand Lal v. State of Chhattisgarh4, has categorically
held that the prompt lodging of an FIR helps dispel suspicions related
to the potential exaggeration of the involvement of individuals and
adds credibility to the prosecution’s argument. A promptly lodged
FIR reflects the first-hand account of what happened and who was
responsible for the offence in question. (See also: Thulia Kali v.
State Of Tamil Nadu (1972) 3 SCC 393, State of Punjab v. Surja
Ram 1995 Supp (3) SCC 419, Girish Yadav v. State of M.P (1996)
8 SCC 186 and Takdir Samsuddin Sheikh v. State of Gujarat
(2011) 10 SCC 158).
31. It is pertinent to refer to the endorsement of FIR No. 100, dated
18.07.2012, where it is clearly mentioned that as soon as the
information was received through Police Control Room, a police party
headed by Sub-Inspector Hari Mittar along with ASI Baldev Singh
and four Head Constables reached the house of Gursewak Singh
(Complainant) at Tower Colony, Jagraon where the dead body of
Amarjit Kaur was lying near the stairs. The Complainant’s statement
was recorded, and an intimation to this effect was sent to the higher
officers and the Control Room. This entire exercise got completed

4 [2023] 2 SCR 276 : (2023) 10 SCC 470.

[2024] 2 S.C.R.  1051

State of Punjab v. Gurpreet Singh & Ors

by 3.15 p.m. A report to this effect had already been sent to the
Ilaka Magistrate, and the dead body was brought for postmortem
at about 6.35 p.m. The presence of Gursewak Singh at the time of
occurrence, his prompt reporting of the crime, and the swift action
taken by the police immediately upon receipt of the said report,
have cumulatively and unequivocally established the prosecution
case beyond any doubt.
32. This is also a matter of record that the weapon of crime, namely, the
pistol, was recovered from Gurpreet Singh pursuant to his disclosure
statement. There is overwhelming evidence, including the statement
of S.I. Hari Mittar (P.W.9) to establish the recovery of country-made
pistol at the instance of Gurpreet Singh. The recovery of the weapon
of crime, along with live cartridges and one empty shell, has been
elaborately explained by Hari Mittar (P.W.9) in his cross-examination,
which inspires confidence. The statement of P.W.9, Hari Mittar has
been duly corroborated by ASI Baldev Singh (P.W.8) besides Head
Constable Sukhdev Singh (P.W.6).
33. The contention that none of the neighbours came forward to witness
the occurrence is totally illogical and a misconceived notion. The
prosecution case is that the occurrence took place inside the house.
When the police reached the spot immediately after the occurrence,
the dead body was found lying inside the house near the stairs.
It is, thus, natural that the residents in the adjoining houses did
not see the occurrence. The shot was fired at close range, and,
the people in the neighbourhood obviously did not come to know
about the incident. No adverse inference can be drawn against the
prosecution on this count. The time of occurrence, i.e., 1.30 p.m.,
also indicates that most of the people in the neighbourhood were
inside their houses and could not be expected outside in the streets
keeping in view the hot and humid weather of July as it prevails in
the State of Punjab. We are, therefore, of the considered opinion
that the reasons assigned by the High Court while granting acquittal
to Gurpreet Singh are totally perverse and as a result of misreading
of the evidence on record. In this view of the matter, sustaining the
acquittal of Gurpreet Singh, would amount to a travesty of justice
and it, thus, warrants interference by this Court in the exercise of
its jurisdiction, which we invoke sparingly. Consequently, the order
of acquittal passed by the High Court qua Gurpreet Singh cannot
be sustained and is set aside.
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Acquittal Order qua the Co-Accused

34. Adverting to the prosecution case against Kashmira Singh and
Jagdeep Singh (Respondent Nos. 2 and 3 herein) in the appeal
arising out of CRA-D-1606-DB-2015 (O&M) and Harpreet Singh, who
was the appellant before the High Court in CRR-2942-2015(O&M),
we are satisfied that the reasons assigned by the High Court in
support of their acquittal are possible and plausible. We say so in
light of the fact that (i) Gursewak Singh (P.W.2 – Complainant) did
not mention their names when he called the Police Control Room
at 1.40 p.m. immediately after the occurrence. (ii) Gursewak Singh
(P.W.2 – Complainant) merely stated that there were some unknown
persons accompanying Gurpreet Singh (iii) In fact, P.W.2 and 3
both did not know the above-named three persons – who were
nominated as co-accused of Gurpreet Singh. (iv) Gursewak Singh
(P.W.2) is claimed to have recollected their names after about five
hours of the occurrence. It is difficult to accept how he re-collected
their names, more so when the prosecution did not lead any further
evidence as to how he knew them prior to the occurrence. (v)
The possibility of pointing out their names by someone else thus
cannot be ruled out.
35. The Investigating Officer has also failed to disclose as to how he
found these respondents to be connected with the crime during
the course of investigation. There is no convincing explanation to
implicate them as co-accused. There is also not an iota of evidence
to suggest that the Respondents (Kashmira Singh, Jagdeep Singh
and Harpreet Singh) had any meeting with Gurpreet Singh and/or
they had conspired with him for the execution of the crime. There
is no specific motive attributed to them. In such circumstances, the
High Court seems right in extending the benefit of doubt qua them.
Conclusion and Directions
36. For the reasons aforestated, the Criminal Appeal No.664 of 2024
@ SLP(Crl.)No.1852/2024 is allowed in part; the judgment dated
05.12.2019, passed by the High Court of Punjab and Haryana at
Chandigarh, acquitting Gurpreet Singh of the offence under Section
302 IPC is set aside, and that of the Trial Court convicting him and
sentencing him to life imprisonment is restored. The bail bonds
of Gurpreet Singh, if any, are hereby cancelled. He is directed to
surrender and be taken into custody forthwith to serve the remainder
[2024] 2 S.C.R.  1053

State of Punjab v. Gurpreet Singh & Ors

of the sentence. The appeal qua Kashmira Singh and Jagdeep Singh
is dismissed.
37. Criminal appeal No.665 of 2024 @ SLP(Crl.)No.1853 of 2024 against
acquittal of Harpreet Singh is dismissed.
38. The present appeals are disposed of in the above terms.

Headnotes prepared by: Nidhi Jain Result of the case:

Appeals disposed of.
 [2024] 2 S.C.R. 1054 : 2024 INSC 177

M. Vijayakumar
v.
State of Tamil Nadu
(Criminal Appeal No. 1078 of 2024)
21 February 2024
[C.T. Ravikumar* and Rajesh Bindal, JJ.]

Issue for Consideration

Prosecution, if succeeded in establishing that there was mens rea
on the part of the appellant to commit the offence rather to push the
victim to commit suicide and to attract the offence u/s. 306, IPC.

Headnotes
Penal Code, 1860 – s. 306 – Abetment of suicide – Conviction
u/s. 306, when sustainable – Prosecution case that the
appellant and others abducted and wrongful confined the
victim for repayment of the balance amount and the inability
to withstand the torment, he committed suicide – Conviction
of the appellant u/ss. 306, 342 and 365 by the trial court,
however, the High Court acquitted him for the offence u/ss.
342 and 365 but upheld conviction for the offence u/s. 306 –
Sustainability:
Held: One has to consider the mens rea of the accused/convict
to bring about suicide of the victim – It requires an active act or
direct act which led the victim to commit suicide seeing no option;
and the act must have been of such a degree intending to push
the deceased into such a position that he/she committed suicide
– Gravamen of the offence punishable u/s. 306, is abetting suicide
– Abetment imposes a mental process of instigating a person or
initially aiding a person in doing the offence – Evidence of the
prosecution witness did not reveal existence of the element of
mens rea on the part of the appellant abetting the deceased to
commit suicide – There is nothing in their oral testimonies which
would suggest that the appellant had instigated the deceased to
commit suicide – Though the prosecution got a case that one
person had witnessed the appellant taking the victim and wrongfully
confining him in the said shop, the said person was not examined
by the prosecution – At any rate, the fact is that the appellant was

* Author
[2024] 2 S.C.R.  1055

M. Vijayakumar v. State of Tamil Nadu

already acquitted for the offence u/s. 342 and 365 IPC – s. 106 of
the Evidence Act cannot be used to shift the burden of proving the
offence from the prosecution to the accused – High Court erred
in applying s. 106 – Thus, there is absolute absence of any basis
for its application against the appellant in view of the evidence
on record – Prosecution miserably failed to establish that the
appellant had abetted the victim to commit suicide – Conviction
of the appellant u/s. 306, IPC cannot be sustained – Appellants
conviction u/s. 306 quashed and set aside and he is acquitted.
[Paras 14, 17-22]
Criminal law – Mens rea – Meaning of:
Held: Mens rea means a guilty mind – As a general rule, every
crime requires a mental element, the nature of which, will depend
upon definition of the particular crime in question – Although it is
impossible to ascribe any particular meaning to the term ‘mens
rea’ as the circumstance to determine the existence of mens rea
depends upon the ingredients constituting the particular offence
and the expression used in the definition of the particular offence
to constitute such offence. [Para 15]
Evidence Act, 1872 – s. 106 – Burden of proving fact especially
within knowledge – Application of s. 106:
Held: Section 106 is an exception to the general rule laid down
in s. 101 which casts burden of proving a fact on the party who
substantially asserts the affirmative of the issue – s. 106 is not
intended to relieve any person of that duty or burden – It says
that when a fact to be proved, either affirmatively or negatively, is
especially within the knowledge of a person, it is for him to prove
it – s. 106 in its application to criminal cases, applies where the
defence of the accused depends on his proving a fact especially
within his knowledge and of nobody else – s.106 cannot be used
to shift the burden of proving the offence from the prosecution
to the accused – It can only when the prosecution led evidence,
which, if believed, will sustain a conviction or which makes out a
prima facie case, that the question of shifting the onus to prove
such facts on the accused would arise. [Para 18]

Case Law Cited

M. Mohan v. State represented by the Deputy
Superintendent of Police, [2011] 3 SCR 437 : (2011) 3
SCC 626; Madan Mohan Singh v. State of Gujarat, [2010]
1056 [2024] 2 S.C.R.

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10 SCR 351 : (2010) 8 SCC 628; Sawal Das v. State of

Bihar, [1974] 3 SCR 74 : AIR 1974 SC 778 – relied on.
Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi),
[2009] 13 SCR 230 : (2009) 16 SCC 605, Director of
Enforcement v. MCTM Corp. Pvt. Ltd. & Ors., [1996] 1
SCR 215 : AIR 1996 SC 1100 – referred to.

Books and Periodicals Cited

Halsbury’s Laws of England (4th Edn., Vol-11, Para –
10) – referred to.

List of Acts
Penal Code, 1860; Evidence Act, 1872.

List of Keywords
Suicide; Abetment of suicide; Mens rea; Instigation; Burden of
proof; Kidnapping; Wrongful confinement.

Case Arising From

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1078
of 2024
From the Judgment and Order dated 25.01.2019 of the High Court
of Judicature at Madras in CRLA No. 667 of 2011
Appearances for Parties
G. Sivabalamurugan, Selvaraj Mahendran, C. Adhikesavan, S.B.
Kamalanathan, P.V. Harikrishnan, Sunil Singh Rawat, Kartik Sandal,
Advs. for the Appellant.
D. Kumanan, Mrs. Deepa. S, Sheikh F. Kalia, Veshal Tyagi, Advs.
for the Respondent.
Judgment / Order of the Supreme Court

Judgment
C.T. Ravikumar, J.
Leave granted.
1. This appeal is directed against the Judgment dated 25.01.2019
passed by the High Court of Judicature at Madras (for short the
[2024] 2 S.C.R.  1057

M. Vijayakumar v. State of Tamil Nadu

“High Court”) in Criminal Appeal No. 667 of 2011 whereunder the

appellant’s conviction under Sections 342 and 365 of the Indian
Penal Code, 1860 (IPC for short) was reversed and he was acquitted
therefrom, but his conviction for the offence under Section 306,
IPC was confirmed. The sentence imposed for the said conviction
was reduced to three years rigorous imprisonment from rigorous
imprisonment for seven years.
2. As a matter of fact, the appellant stood trial along with the four
others, including his father Muthu (A-3). The appellant and one
Ravichandran (A-2) stood trial for the offences under Sections
306, 342 and 365, IPC whereas the others were charged only
for offences under Sections 342 and 306 IPC. After the trial, the
appellant was convicted for all the offences for which he stood
the trial and at the same time all his co-accused were acquitted
from all the charges. As noticed hereinbefore, in the appellant’s
appeal the High Court confirmed the conviction under Section
306, IPC and acquitted him only of the other two offences. Hence,
this appeal.
3. Heard learned counsel for the appellant and also the learned Standing
Counsel for the State of Tamil Nadu.
4. Before dealing with the contentions and the evidence on record
which ultimately resulted in the confirmation of the conviction of
the appellant under Section 306, IPC, certain relevant aspects of
Section 306, IPC with reference to certain relevant decisions are to
be looked into. There can be no doubt with respect to the position
that to bring home a charge under Section 306, IPC it is incumbent
upon the prosecution to establish :
a) That the victim of the offence committed suicide;
b) That the accused abetted the commission of suicide;
c) That the abetment attracts the ingredients under Section
107,IPC.
5. Section 107, IPC defines the offence of abetment and it is constituted
by any of the following:-
a) instigation to commit the offence; or
b) engaging in conspiracy to commit it; or
c) intentionally aiding a person to commit it.
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6. Now, bearing in mind the scope and ambit of Section 107, IPC
and its co-relation with Section 306, IPC and the decision of
this Court in M. Mohan v. State represented by the Deputy
Superintendent of Police1 and in Madan Mohan Singh v. State
of Gujarat2 we will proceed to consider the case. After referring to
an earlier decision in Chitresh Kumar Chopra v. State (Govt. of
NCT of Delhi)3, this Court in M. Mohan’s case (supra) analysed
the meaning of the word ‘abetment’ and held in paragraphs 44
and 45 thus:-
“44. Abetment involves a mental process of instigating
a person or intentionally aiding a person in doing of a
thing. Without a positive act on the part of the accused
to instigate or aid in committing suicide, conviction cannot
be sustained.
45. The intention of the legislature and the ratio of the
cases decided by this Court are clear that in order to
convict a person under Section 306 IPC there has to be a
clear mens rea to commit the offence. It also requires an
active act or direct act which led the deceased to commit
suicide seeing no option and this act must have been
intended to push the deceased into such a position that
he/she committed suicide.”
7. In the decision in Madan Mohan Singh’s case (supra) this Court
was considering an appeal against dismissal of a petition filed under
Section 482 Cr. PC to quash the FIR registered against the appellant
therein under different Sections of IPC including Section 306, IPC.
For the purpose of this case, it is only referred to paragraph 12
therein, insofar as it is relevant which reads thus:-
“In order to bring out an offence under Section 306 IPC
specific abetment as contemplated by Section 107 IPC on
the part of the accused with an intention to bring about
the suicide of the person concerned as a result of that
abetment is required. The intention of the accused to aid

1 [2011] 3 SCR 437 : (2011) 3 SCC 626

2 [2010] 10 SCR 351 : (2010) 8 SCC 628
3 [2009] 13 S.C.R. 230 : (2009) 16 SCC 605
[2024] 2 S.C.R.  1059

M. Vijayakumar v. State of Tamil Nadu

or to instigate or to abet the deceased to commit suicide

is a must for this particular offence under Section 306
IPC………”
8. Thus, an analysis of the provisions under Section 306, IPC with
reference to abetment as contemplated under Section 107, IPC
and the decisions in M. Mohan’s case (supra) and Madan Mohan
Singh’s case (supra) would reveal that while considering the question
as to whether a person can be convicted under Section 306, IPC
or whether a conviction thereunder could be sustained, one has to
consider the mens rea of the accused/convict to bring about suicide
of the victim. Needless to say, that it requires an active act or direct
act which led the victim to commit suicide seeing no option; and in
other words, the act must have been of such a degree intending to
push the deceased into such a position that he/she committed suicide.
Bearing in mind the aforesaid position, we will analyse the case of
the prosecution and the evidence on record to find out whether the
prosecution had succeeded in bringing conviction to the appellant
under Section 306, IPC.
9. A brief reference to the prosecution case is required in the above
regard. As per the prosecution, the victim Senthil Kumar, while
working as a supplier in Salem Hotel belonging to one Muthu (A-3),
borrowed an amount of Rs. 2000/- from the appellant who is the
son of A-3. It is the case that the latter arranged it as a loan on
the request of the deceased, from one Kishore, Venkatachalpati
Finance. The deceased failed to repay the borrowed amount and
then the finance company pestered the appellant for repayment.
Enraged by this, the appellant along with one Ravichandran (A-
2) kidnapped the deceased and brought him to the shop of A-2
and from there took him and wrongfully confined him in the tailor
shop of one Sampath Kumar (PW-3), on 06.12.2002 demanding
repayment of the borrowed amount. For wrongfully confining him
and thereby instigating him to commit suicide, accused Nos. 3 to 5
had played their role along with the appellant and A2. It is unable
to withstand the torment that Senthil Kumar committed suicide by
hanging in the tailoring shop of PW-3. Indisputably, this was the
prosecution case. But the indisputable and the undisputed position
is that the prosecution which is supposed to establish its case, as
is put forth by it, failed to prove the same. No volume of argument
is required to come to such a conclusion as the very acquittal of all
1060 [2024] 2 S.C.R.

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the co-accused of the appellant by the trial Court and the acquittal
of the appellant of the conviction under Sections 342 and 365, IPC,
by the High Court as per the impugned judgment, would speak for
itself. It is also an undisputable position that despite the acquittal
of the co-accused of the appellant and thereafter, the appellant,
as above, no appeal was preferred against their acquittal. In the
contextual situation it is also relevant to note that though the
aforementioned Kishore was cited as a witness for the prosecution
but was not examined. According to the prosecution one Alexander
had witnessed the appellant taking the deceased and wrongfully
confining him in the tailoring shop of PW-3, Smapath Kumar.
However, he was also not examined. In view of the aforesaid facts
and the judgments of the trial Court as also the High Court it can be
indubitably said that the case of the prosecution put forth that the
deceased Senthil Kumar was kidnapped and wrongfully confined
in the tailoring shop of PW-3 Sampath Kumar was not attempted
to be established by the prosecution by examining the aforesaid
Kishore and Alexander and at any rate, case of kidnapping and
wrongful confinement against the appellant was disbelieved by
the High Court.
10. Bearing in mind the aforesaid circumstance that the contentions
against the conviction under Section 306, IPC have to be appreciated.
11. Through PW-2, who claimed to be the wife of the deceased
Senthil Kumar, the prosecution attempted to establish that one
week prior to the occurrence the appellant along with three others
went to the house of the deceased and created a ruckus and
at that time PW-2 alone was there. According to her, when the
deceased came back home, she divulged the entire episode to
him. Further, she would depose that her husband had received
Rs. 2000/- for interest and it was to be repaid in instalments.
She would also depose that earlier, the deceased himself had
deposited two installments of Rs. 400/- each, towards the loan
amount directly to the aforementioned financial institution. She
has also deposed that subsequent to the appellant’s iniquitous
visit as above, she asked him to come on Wednesday and then
paid him an amount of Rs.800/-.
12. PW-2 further deposed that while leaving the house, after that first
iniquitous visit, the appellant threatened that the deceased would
[2024] 2 S.C.R.  1061

M. Vijayakumar v. State of Tamil Nadu

be lifted unless the balance amount is not returned. Going by the

evidence of PW2 out of borrowed amount of Rs. 2,000/- an amount
of Rs. 1,600/- was paid back. Hence, going by the prosecution case
the kidnapping and consequential wrongful confinement was due to
the failure on the part of the deceased to repay the balance amount.
But then, as noticed above, the case of kidnapping and wrongful
confinement was disbelieved by the High Court and consequently, the
appellant’s conviction under Sections 342 and 365, IPC was set aside
and the conviction under Section 306, IPC alone was sustained. It is
in the aforesaid context that we have referred to and analysed the
provisions under Section 306, IPC and also referred to the decisions
in M. Mohan’s case (supra) and Madan Mohan Singh’s case (supra).
In the light of the provisions thus analysed with reference to the said
decisions the question to be considered is whether the prosecution
had succeeded in establishing that there was mens rea on the part
of the appellant to commit the offence rather to push the victim to
commit suicide and to attract the offence under Section 306, IPC.
13. While considering the said question it is relevant to take into account
the fact that though the prosecution had attempted to establish
the case that the appellant and the second accused herein had
committed the offences under Sections 306, 342 and 365, IPC.
With the acquittal of the appellant and the second accused under
those offences there can be no case of kidnapping or wrongful
confinement of the deceased Senthil Kumar, by the appellant. In
paragraph 2.1 of the impugned judgment itself the High Court took
note of the prosecution case. It is only apropos to extract paragraph
2.1 which reads thus:-
“2.1 It is the case of the prosecution that the deceased
Senthil Kumar had borrowed Rs.2,000/- from Vijayakumar
(A1), which Vijayakumar (A1) had borrowed from a Finance
Company; when Senthil Kumar did not return the money,
the Finance Company started mounting pressure on
Vijayakumar (A1); therefore, it is alleged that Vijayakumar
(A1) and Ravichandran (A2) abducted Senthil Kumar on
06.12.2002 and locked him up in the tailoring shop of
Sampath Kumar (PW3) and thereby wrongfully restrained
him demanding repayment of the amount; unable to
withstand the torment Senthil Kumar committed suicide
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by hanging in the tailoring shop of Sampath Kumar (PW3)

on 06.12.2002.”
14. Thus, it is to be considered when the case put forth by the prosecution
is abduction and wrongful confinement of the appellant for repayment
of the balance amount and the inability to withstand the torment
as the instances for accusing the appellant for commission of the
offence of ‘abetment of suicide’, how conviction under Section 306,
IPC can be sustained in the light of his acquittal under Sections 342
and 365, IPC.
15. In the contextual situation, in view of the analysis of the provisions
under Section 306, IPC and the decisions referred to supra, we will
also have to consider what is mens rea? ‘Mens rea’ means a guilty
mind. As a general rule, every crime requires a mental element,
the nature of which, will depend upon definition of the particular
crime in question. Although it is impossible to ascribe any particular
meaning to the term ‘mens rea’ as the circumstance to determine
the existence of mens rea depends upon the ingredients constituting
the particular offence and the expression used in the definition of the
particular offence to constitute such offence. It is only appropriate
to refer to Halsbury’s Laws of England (4th Edn., Vol-11, Para-10),
going by the same:
“…it is impossible to ascribe any particular meaning to
the term ‘mens rea’, concepts such as those of intention,
recklessness and knowledge which commonly used as
the basis for criminal liability and in some respects, it may
be said to be fundamental to it. Generally, subject to both
qualification and exception, a person is not to be made
criminally liable for serious crimes unless he intends to
cause or foresees that he will probably cause or at the
lowest he may cause the elements which constitute a
crime in question.”
16. In the decision in Director of Enforcement v. MCTM Corp. Pvt.
Ltd. & Ors.4, it was observed that mens rea is a state of mind and
held that under the criminal law mens rea is considered as the
“guilty intention” and unless it is found that the ‘accused’ had the

4 [1996] 1 S.C.R. 215 : AIR 1996 SC 1100

[2024] 2 S.C.R.  1063

M. Vijayakumar v. State of Tamil Nadu

guilty intention to commit the crime, he could not be held guilty of

committing the crime.
17. In the case on hand the question to be considered is whether the
appellant had instigated as envisaged under Section 107, IPC,
to commit the offence under Section 306, IPC. It is in the said
circumstances that we have earlier referred to the ingredients to
attract offence under Section 306, IPC. Essentially the gravamen of
the offence punishable under Section 306, IPC, is abetting suicide.
Abetment imposes a mental process of instigating a person or initially
aiding a person in doing the offence. In the case on hand, the question
is whether the appellant abetted the deceased Senthil Kumar to
commit suicide. The evidence of the prosecution witness viz., PW-1
and PW-3 did not reveal existence of the element of mens rea on the
part of the appellant. There is nothing in their oral testimonies which
would suggest that the appellant had instigated the deceased Senthil
Kumar to commit suicide. In this context, it is to be noted that the
victim committed suicide inside the tailoring shop of PW-3 Sampath
Kumar. He would submit that on 06.12.2002 at about 06.30 pm he
locked his shop and left the key of the shop with A-3, father of the
appellant. Sampath Kumar would further depose that he came to know
about the commission of suicide by Senthil Kumar inside his tailoring
shop only in the next morning by about 9 O’clock. We have already
noted that though the prosecution got a case that one Alexander had
witnessed the appellant taking the victim and wrongfully confining
him in the said shop, the said Alexander was not examined by the
prosecution. At any rate, the fact is that the appellant was already
acquitted for the offence under Sections 342 and 365, IPC. It is also
to be noted that though A-3, Muthu, (the father of the appellant) was
the person to whom PW-3 said to have handed over the key of his
shop, he was acquitted by the trial Court and no appeal was filed
against his acquittal. The impugned judgment would reveal that even
after acquitting the appellant for the offences under Sections 342 &
365, IPC, the High Court confirmed his conviction under Section 306,
IPC, holding that the appellant had failed to offer explanation as to
how the deceased Senthil Kumar entered into the tailoring Shop of
PW-3 to commit suicide in terms of Section 106 of the Evidence Act.
18. We are at a loss to understand as to how Section 106 of the Evidence
Act could be applied in the case on hand against the appellant in
view with facts narrated above. This Section is an exception to the
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general rule laid down in Section 101 which casts burden of proving
a fact on the party who substantially asserts the affirmative of the
issue. Section 106 is not intended to relieve any person of that duty
or burden. On the contrary, it says that when a fact to be proved,
either affirmatively or negatively, is especially within the knowledge
of a person, it is for him to prove it. This Section, in its application to
criminal cases, applies where the defence of the accused depends
on his proving a fact especially within his knowledge and of nobody
else. In short, Section 106 cannot be used to shift the burden of
proving the offence from the prosecution to the accused. It can only
when the prosecution led evidence, which, if believed, will sustain a
conviction or which makes out a prima facie case, that the question
of shifting the onus to prove such fact(s) on the accused would arise.
(See the decision in Sawal Das v. State of Bihar5).
19. In view of the exposition of law as above and in the absence of
anything to make Section 106 applicable to shift the onus on the
appellant, the High Court had committed an error in applying Section
106 of the Evidence Act, in the instant case.
20. We have no hesitation, therefore, to hold that there is absolute
absence of any basis for its application against the appellant in view
of the evidence on record.
21. The upshot of the discussion is that the prosecution has miserably
failed to establish that the appellant herein had abetted the victim to
commit suicide. The conviction of the appellant under Section 306,
IPC cannot be sustained.
22. Resultantly this appeal stands allowed. The appellants conviction
under Section 306, IPC which was confirmed vide judgment dated
25.01.2019 passed by the High Court in Criminal Appeal No.667/2011
is quashed and set aside. Consequently, he stands acquitted of the
offence under Section 306, IPC. The appellant is already on bail.
His bail bonds are discharged.
23. Pending application(s), if any, shall stand disposed of.

Headnotes prepared by: Nidhi Jain Result of the case:

Appeal allowed.

5 [1974] 3 SCR 74 : AIR 1974 SC 778

 [2024] 2 S.C.R. 1065 : 2024 INSC 184

Najrul Seikh
v.
Dr. Sumit Banerjee & Anr.
(Civil Appeal No. 2877 of 2024)
22 February 2024
[Vikram Nath and Satish Chandra Sharma, JJ.]

Issue for Consideration

Whether the State Commission and the National Commission
were justified in exonerating the respondents-doctors of all the
charges of misconduct/medical negligence in performing the
cataract surgery of complainant’s son leading to complete loss of
vision in his right eye.

Headnotes
Consumer Protection Act, 1986 – s. 12 – Deficiency in service
– Medical negligence – Complainant’s 13 year old son lost
complete vision in his right eye following an allegedly negligent
cataract surgery by the respondents-doctors – District forum
allowed the claim for compensation – However, the State
Commission and the National Commission set aside the order
exonerating the respondents of all the charges of misconduct/
negligence – Correctness:
Held: While the report of the Medical Council can be relevant for
determining deficiency of service before a consumer forum, it cannot
be determinative, especially when it contradicts the evidentiary
findings made by a consumer forum – Both the State Commission
and the National Commission ought to have examined the evidence
in totality, instead, they mechanically and exclusively relied upon
the Medical Council report and reiterated its findings without any
reference to the evidence of the doctor – Appellate forum was
tasked with the duty of undertaking a more thorough examination
of the evidence on record, which they failed – Specific findings
made by the District forum regarding lapses in duty of care by
respondent No.1 vis-a-vis both pre-operative and post-operative
standards for conducting a traumatic cataract surgery – Through
the expert evidence of the doctor, a nexus was established between
the lapses in post-operative care and the development of loss of
vision after the operation, which remained uncontroverted – Holding
1066 [2024] 2 S.C.R.

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of the District forum is strengthened not only by the report of the

Medical Council but also by the admission of the respondent No. 1
itself that management and rehabilitation of traumatic cataract for
a child is very difficult, unpredictable, and prone to complications
– Furthermore, in cases of deficiency of medical services, duty
of care does not end with surgery, thus, the finding of the District
forum that there was a deficiency in the medical services provided
by the respondents to the complainant’s son affirmed – Order of
the State Commission and the National Commission set aside.
[Paras 12-16]

List of Acts
Consumer Protection Act, 1986.

List of Keywords
Deficiency in service; Medical negligence; Compensation; Exonerating
of the charges of misconduct/negligence; Medical Council report;
Duty of care; Lapses in pre-operative and post-operative standards;
Cataract surgery; Loss of vision; Deficiency of medical services.

Case Arising From

CIVIL APPELLATE JURISDICTION: Civil Appeal No.2877 of 2024
From the Judgment and Order dated 09.06.2016 of the National
Consumer Disputes Redressal Commission, New Delhi in RP No.
526 of 2016
Appearances for Parties
Rupesh Kumar, Sr. Adv., Ms. Pankhuri Shrivastava, Ms. Neelam
Sharma, Advs. for the Appellant.
Partha Sil, Sanjiv Kr. Saxena, Chirag Joshi, Ms. Sayani Bhattacharya,
Abhiraj Chaudhary, Advs. for the Respondents.
Judgment / Order of the Supreme Court

Order
1. Delay condoned.
2. Leave granted.
3. The Appellant before us, a BPL card holder, is the father of Master
Irshad, a 13-year-old boy who lost complete vision in his right eye
[2024] 2 S.C.R.  1067

Najrul Seikh v. Dr. Sumit Banerjee & Anr.

following an allegedly negligent cataract surgery undertaken by the

Respondents. The complaint preferred by the Appellant under Section
12 of the Consumer Protection Act, 1986 was allowed by the District
Consumer Disputes Redressal Commission (‘DCDRC’) However, the
order of the DCDRC was set aside by the West Bengal State Consumer
Disputes Redressal Commission (‘SCDRC’) and thereafter, the revision
petition preferred by the Appellant before the National Consumer
Disputes Redressal Commission (the ‘NCDRC’) was also dismissed
vide order dated 09.06.2016, which is impugned before this Court.
Brief Facts:
4. The facts, to the extent relevant, are that on 14.11.2006, Master
Irshad sustained an injury in his right eye. The next day, he was
taken to Disha Eye Hospital and the examination report revealed
that Irshad was suffering from traumatic cataract and required
a minor surgery. Being unable to finance his son’s treatment at
Disha Eye Hospital, the Appellant approached Respondent No.1,
a doctor and partner at Megha Eye Centre i.e., Respondent No.
2 on 18.11.2006.
5. Thereafter, Respondent No. 1 affirmed the previous medical opinion
and accordingly, conducted the surgery on 24.11.2006. After the
surgery, Irshad began experiencing irritation, pain, and blood clotting
and despite visiting Respondent No. 1 multiple times, there was no
improvement in his condition. Eventually, Respondent No.1 referred
them to the Regional Institute of Ophthalmology (‘RIO’) and a month
later, on 19.04.2007, the Appellant and his son visited the RIO and
were informed that it was a case of Retinal detachment leading to
permanent loss of vision in the right eye, caused due to the faulty
operation conducted by Respondent No. 1.
6. Vide order dated 16.05.2013, the DCDRC found that there was deficiency
in the medical services provided by the Respondents herein and inter
alia directed payment of INR 9,00,000 as compensation, in favour of
the Appellant within a period of one month, failing which, the amount
would be subject to an interest @ 10% until the date of realisation.
The DCDRC relied on the uncontroverted expert evidence provided by
Dr. Anindya Gupta, RMO-cum-Clinical tutor from the Burdwan Medical
College to hold that Irshad lost his vision due to the negligent and
careless attitude of Respondent No. 1 manifesting through lapses in
pre-operative and post-operative care and rehabilitation.
1068 [2024] 2 S.C.R.

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7. On the other hand, the SCDRC vide order dated 11.09.2015 held
that the Appellant herein failed to establish deficiency of service/
negligence on part of the Respondents and dismissed the complaint
of the Appellant. The SCDRC relied on the report of the West Bengal
Medical Council (the ‘Medical Council’) dated 18.05.2015 which
exonerated Respondent No. 1 of all charges of misconduct/negligence
and instead found contributory negligence on part of the Appellant
as he visited the RIO only after a delay of 1 month, contrary to the
advice of Respondent No. 1.
8. Similarly, the NCDRC also held that there was no negligence on part
of the Respondents and concluded that the Appellant’s delay of one
month in approaching the RIO was fatal for his son.
Submissions & Analysis:
9. Learned Counsel for the Appellant vehemently contends that the
NCDRC failed to consider that the SCDRC undertook a selective
appreciation of evidence, completely disregarding the uncontroverted
expert evidence provided by Dr. Gupta regarding the lapses in pre-
operative and post-operative care provided by the Respondents.
10. Per Contra, Learned Counsel for the Respondents submits that
both the NCDRC and the SCDRC have correctly placed reliance
on the decision of the Medical Council to arrive at their conclusions
regarding the absence of negligence on part of the Respondents.
11. This Court has heard the Learned Counsel for the parties and
perused the record.
12. Upon perusal of the orders of the NCDRC and the SCDRC, we
find significant merit in the contention of the Learned Counsel for
the Appellant. At this stage, it would be appropriate to refer to the
findings of the DCDRC regarding the negligence of the Respondents.
The operative paragraph(s) of the order passed by the DCDRC read
as under:
“So, we are very much affirmed that diagnosis of Disha Eye
Hospital regarding “traumatic cataract” was known to the
O.P. No.1 before the operation. This O.P. No.l has admitted
in the last portion, of para-23 of the written version by
saying that ‘from medical point of view it is well established
that management and rehabilitations of traumatic cataract,
[2024] 2 S.C.R.  1069

Najrul Seikh v. Dr. Sumit Banerjee & Anr.

specially in a child, is very difficult, unpredictable and any

complication may happen at any moment and it cannot
be ascertained before hand. Unfortunately this type of
complication happened to the son of the complainant.
If that be the position, why the doctor did not take any
post-operative care of traumatic cataract. In this regard the
expert doctor Anindya Gupta who is the RMO-cum-Clinical
Tutor department of Ophthalmology, Burdwan Medical
College and Hospital has specifically stated that “prior to
operation skin test is done for determining any drug allergy
if at all”. But no test of drug allergy was advised in the
prescriptions. Apart from that expert doctor has stated that
OT date was on 24.11.2006 but the medical card of the
patient does not reflect the treatment prior to 24.11.2006
except urine test pending and there is nothing mention
of next date of review after 24.11.2006. It has further
stated normally a patient is checked on the next date of
operation if not discharged earlier. The expert doctor has
further stated that theoretically speaking any check after
72 hours of the operation is sufficient in a normal case
during post-operative period but the card shows that the
next date of checking is 1.12.2006 after (24.11.2006, date
of OT). The expert doctor further stated that on 6.12.2006
the vision rating, is not normal. It is pertinent to point that
the expert doctor has specifically stated that “as a doctor
one should take care of all risk factor of the patient before
performing the operation”. So, it is clear inspite of knowing
the fact of seriousness of the treatment i.e. operation of
traumatic cataract O.P. No.l doctor did nothing on the
medical point of view. So, we are opined that it is not only
the unfortunate of the patient but it is the unfortunate of
the society at large that this type of unruly negligent doctor
still performing operation in the medical field, particularly
when he had no faith upon the medical science and
medical ethics and regulations. In this regard the expert
doctor has stoutly stated in the end of his deposition that
a doctor must always be updated. If a doctor violates the
code of medical ethics and regulations it can be said to
be professional misconduct.
1070 [2024] 2 S.C.R.

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Apart from that, the expert did not stop of saying against
the treatment of this O.P. No.l but stated “non-adherence
to medical prescription, post-operative trauma etc. are the
contributory factor for the loss of vision after operation.
Extra Capsular Surgery is the modern level of surgery and
risk factor may be less in case of Extra Capsular Surgery
compared to other method of surgery which is available in
all Eye Hospital. The O.P. No.l has admitted in para No.20
of written version that he is being a one of the partner of
Megha Eye Centre, which is well equipped and (modernized
institution with world class microscope for examination. If
that be so, what prompted the O.P. No.1 not to induct surgery
in the modern method i.e. Capsular Surgery?, particularly
when he was well aware regarding the gravity of disease
namely traumatic cataract and also aware that on medical
point of view management and rehabilitation of traumatic
cataract specially in a child is very difficult, unpredictable
and any type of complication may happen at any point of
time which cannot be ascertained before hand.”
It is evident that the DCDRC has made specific findings regarding
lapses in duty of care by Respondent No.1 vis a vis both pre-operative
and post-operative standards for conducting a traumatic cataract
surgery. More pertinently, through the evidence of Dr. Gupta, a
nexus was established between the lapses in post-operative care
(the delay in review, the abnormal vision rating on 06.12.2006 which
was left unchecked by Respondent No. 1, failure to undertake extra
capsular method of surgery despite having the necessary equipment)
and the development of loss of vision after the operation. It must be
re-emphasized that the expert evidence of Dr. Gupta went entirely
uncontroverted due to the absence of cross-examination and the
failure of the Respondents to bring on record any other contradictory
expert evidence.
13. Despite the presence of evidence pointing towards negligence of the
Respondents, both the SCDRC and the NCDRC failed to consider
it and relied only on the report of the Medical Council. On a perusal
of the Medical Council report, it appears that the Medical Council
did not delve into the nuances of pre-operative and post-operative
care. Further, the finding of contributory negligence attributed to the
Appellant is entirely unsubstantiated by expert opinion.
[2024] 2 S.C.R.  1071

Najrul Seikh v. Dr. Sumit Banerjee & Anr.

14. Under these circumstances, both the SCDRC and the NCDRC ought
to have examined the evidence in totality, especially since this plea
was urged by the Counsel for the Appellant in both the forums.
Instead, both the forums have mechanically and exclusively relied
upon the Medical Council report and reiterated its findings without
any reference to the evidence of Dr. Gupta. While the report of the
Medical Council can be relevant for determining deficiency of service
before a consumer forum, it cannot be determinative, especially when
it contradicts the evidentiary findings made by a consumer forum.
In these circumstances, the appellate forum is tasked with the duty
of undertaking a more thorough examination of the evidence on
record. On this failing alone, the orders of the SCDRC and DCDRC
deserve to be set aside.
15. As it stands today, the specific findings made by the DCDRC regarding
lapses in post-operative care by the Respondents and the resultant
development of Retinal detachment remains unchallenged by the
other evidence on record. In fact, the holding of the DCDRC is
strengthened not only by the report of the Medical Council which states
that development of Retinal Detachment is not uncommon in cases
of blunt trauma as in the case of Irshad, but also by the admission
of the Respondent No. 1 itself that management and rehabilitation of
traumatic cataract for a child is very difficult, unpredictable, and prone
to complications. That being the case, and in view of the established
principle of law that in cases of deficiency of medical services, duty
of care does not end with surgery, we have no hesitation in affirming
the finding of the DCDRC that there was a deficiency in the medical
services provided by the Respondents to the Appellant’s son.
16. In view of the aforesaid, the present appeal succeeds and the order
of the NCDRC and the SCDRC are set aside. Accordingly, the
Respondents are directed to comply with the order of the DCDRC
within one month from the date of this order.
17. Resultantly, the appeal stands allowed.
18. Pending applications, if any, shall also stand disposed of.

Headnotes prepared by: Nidhi Jain Result of the case:

Appeal allowed.
 [2024] 2 S.C.R. 1072 : 2024 INSC 134

Satender Kumar Antil

v.
Central Bureau of Investigation and Anr.
MA No. 2034 of 2022
In
MA No.1849 of 2021
In
SLP (Crl.) No.5191 of 2021
13 February 2024
[M. M. Sundresh and S.V.N. Bhatti, JJ.]

Issue for Consideration

The Amicus submitted report dated 10.02.2024 indicating the
directions that have been complied with by the parties in terms of
the judgment passed by the Supreme Court in Satender Kumar
Antil**. On basis of the said report, various directions are issued for
due compliance by the States/Union Territories/CBI and High Courts.

Headnotes
Code of Criminal Procedure, 1973 – ss. 41, 41A, 438, 440, 88,
170, 204, 209, 436A – Supreme Court Directions – Compliance
of directions by the States, Union Territories and CBI
Requirement of:
Held: The directions contained in para 100.2, 100.4, 100.7 of
Satender Kumar Antil and also the directions to public prosecutors
in terms of order dated 21.03.2023 of the Supreme Court are
required to be complied with by States, Union Territories and CBI
as per the time schedule stipulated – So far as the directions in
para 100.2, 100.3, 100.5, 100.6, 100.7, 100.8, 100.9, 100.10,
100.11 of Satender Kumar Antil; the direction dated 03.02.2023
for inclusion of the judgment in Siddharth v. State of UP and
Satender Kumar Antil in the curriculum of judicial academies and
the direction dated 21.03.2023 for application of the judgment in
Satender Kumar Antil to s.438 of CrPC, by and large apply to High
Courts. [Paras E and F]
Code of Criminal Procedure, 1973 – ss. 41, 41A, 438, 440,
88, 170, 204, 209, 436A – Supreme Court Directions – Details
of directions to be complied with by the States, High Court,
Union of India and CBI. [Para F, 1-38]
[2024] 2 S.C.R.  1073

Satender Kumar Antil v. Central Bureau of Investigation and Anr.

Directions by Supreme Court – Directions issued to NALSA:

Held: (i) In terms of the order dated 02.05.2023, NALSA shall
supply updated information with regard to para 100.8 and 100.10 in
Satender Kumar Antil; (ii) NALSA shall inform the follow-up action
taken by NALSA and State Legal Services Authorities of the States
and Union Territories as provided to NALSA by various authorities
including the State governments and Union Territories; (iii) In order
to provide to adequate updated information, all the States and
Union Territories directed to cooperate with NALSA. [Para F, 39]
Directions by Supreme Court – Standard Operating Procedure
(SOP) – Undertrial Prisoners – Convicted Prisoners:
Held: (i) A document titled “Guidelines and standard operating
procedure for implementation of the scheme for support to poor
prisoners” taken on record and made part of this Order; (ii) In
furtherance of the subsequent orders passed by this Court on
ancillary issues concerned with training public prosecutors and
including judgments of this Court in the Curriculum of State Judicial
Academies, a further direction on an SOP framed by Central
Government need to be passed – The SOP if put in place by the
Central Government, will indeed alleviate the situation of under
trial prisoners by way of establishment of a dedicated empowered
committee and funds etc.; (iii) For benefit of the under-trial prisoners,
the SOP in its entirety is extracted in the present order. [Para I]
Directions by Supreme Court – E-mail ID:
Held: A dedicated email id to be created, so that the reports are
saved or exchanged simultaneously – E-mail id to be used hereafter
for serving and receiving affidavits/reports. [Para J]

Case Law Cited

Satender Kumar Antil v. Central Bureau of Investigation,
[2022] 10 SCR 351 : (2022) 10 SCC 51**; Siddharth v.
State of UP, (2022) 1 SCC 676; Arnesh Kumar v. State
of Bihar and Anr., [2014] 8 SCR 128 : (2014) 8 SCC
273 – referred to.

Books and Periodicals Cited

A document titled “Guidelines and standard operating
procedure for implementation of the scheme for support
to poor prisoners”.
1074 [2024] 2 S.C.R.

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List of Acts
Code of Criminal Procedure, 1973.

List of Keywords
Supreme Court directions; Compliance of directions in Satender
Kumar Antil case; Standard Operating Procedure; Undertial
prisoners; Convicted prisoners.

Case Arising From

CRIMINAL APPELLATE JURISDICTION : MA No.2034 of 2022
In
MA No.1849 of 2021
In
Special Leave Petition (Criminal) No.5191 of 2021
With
MA No.2035 of 2022 In Slp (Crl.) No.5191 of 2021
From the Judgment and Order dated 01.07.2021 of the High Court of
Judicature at Allahabad in CRMABA No.7598 of 2021
Appearances for Parties
Sidharth Luthra, Sr. Adv., Akbar Siddique, Ayush Agarwal, Rajneesh
Sharma, Pankaj Singhal, Udbhav Sinha, Harsh Kumar Singh, Parv
K Garg, Parwez Akhtar, Animesh Mishra, Javed Muzaffar, Advs. for
the Petitioner.
Suryaprakash V Raju, Mrs. Aishwariya Bahti, A.S.Gs., Ms. Ankita
Choudhary, Rajesh Mahajan, A.A.Gs., Gaurav Agrwal, R. Basant,
Vikram Choudhary, Sr. Advs., Mukesh Kumar Maroria, Vineet Singh,
Ms. Sairica S Raju, Ritwiz Rishabh, Annam Venkatesh, Ms. Priyanka
Das, Udai Khanna, Mohd Akhil, Padmesh Mishra, Ms. Shradha
Deshmukh, Tacho Eru, Vatsal Joshi, Kanu Agarwal, Varun Chugh,
Bhuvan Kapoor, Krishna Kant Dubey, Piyush Beriwal, Ms. Indira
Bhakar, Anil Hooda, Harish Pandey, Rajesh Singh Chauhan, Ms.
Rashmi Nandakumar, T. G. Narayanan Nair, Ms. Swathi H. Prasad,
Mahesh Agarwal, Ankur Saigal, Anshuman Srivastava, Shashwat
Singh, E. C. Agrawala, Avijit Mani Tripathi, T.K. Nayak, Ms. Marbiang
Khongwir, Mrs. Rekha Bakshi, R. Ayyam Perumal, Ms. Manisha
[2024] 2 S.C.R.  1075

Satender Kumar Antil v. Central Bureau of Investigation and Anr.

Chava, A. Renganath, Amit Sharma, Dipesh Sinha, Ms. Pallavi Barua,

Ms. Aparna Singh, Ms. K. Enatoli Sema, Ms. Limayinla Jamir, Amit
Kumar Singh, Ms. Chubalemla Chang, Prang Newmai, Gautam
Narayan, Ms. Asmita Singh, Harshit Goel, K.V. Vibu Prasad, Praveen
Swarup, Shishir Kumar Saxena, R.N. Pareek, Baij Nath Yadav,
Ankur Parihar, Jagmohan Pareek, Ravi Kumar, Aman, Ms. Devina
Sehgal, Mohd. Ashaab, Ankur Prakash, Ashutosh Kumar Sharma,
Ms. Priyanka Singh, Amod Kumar Bidhuri, Alok Kumar Pandey,
Sunny Choudhary, Kshitiz Singh, Aaditya Aniruddha Pande, Siddharth
Dharmadhikari, Bharat Bagla, Sourav Singh, Aditya Krishna, Ms.
Preet S. Phanse, Pukhrambam Ramesh Kumar, Karun Sharma, Ms.
Anupama Ngangom, Ms. Rajkumari Divyasana, Abhimanyu Tewari,
Ms. Eliza Bar, Ms. Swati Ghildiyal, Ms. Deepanwita Priyanka, Ms.
Devyani Bhatt, Amit Gupta, Shiv Verma, Ms. Muskan Nagpal, Aditya
Jain, Ms. Bhavya Golecha, Arjun Garg, Aakash Nandolia, Ms. Sagun
Srivastava, Ms. Nisha Pandey, P. I. Jose, Ravi Sagar, James P.
Thomas, Remish Lakra, Hira Lal, Suvendu Suvasis Dash, Mrs. Swati
Vaibhav, Mrs. Shruti Vaibhav, Malak Manish Bhatt, Tapesh Kumar
Singh, Nishe Rajen Shonker, Mrs. Anu K Joy, Alim Anvar, Abraham
Mathew, Kunal Chatterji, Nikhil Jain, V. N. Raghupathy, Manendra
Pal Gupta, Prakash Jadhav, Ravichandra Jadhav, Gagan Gupta,
Kumar Mihir, Sanjai Kumar Pathak, Arvind Kumar Tripathi, Mrs.
Shashi Pathak, Purvish Jitendra Malkan, Ms. Dharita Purvish Malkan,
Alok Kumar, Ms. Deepa Gorasia, Parth Awasthi, Pashupathi Nath
Razdan, Astik Gupta, Abhay Anil Anturkar, Dhruv Tank, Aniruddha
Awalgaonkar, Ms. Surbhi Kapoor, Sameer Abhyankar, Aakash Thakur,
Ms. Vani Vandana Chhetri, Ms. Nishi Sangtani, Ms. Zinnea Mehta,
Rahul Kumar, Mahfooz Ahsan Nazki, Polanki Gowtham, KV Girish
Chowdary, T Vijaya Bhaskar Reddy, Ms. Rajeswari Mukherjee, Meeran
Maqbool, Ms. Archita Nigam, Ms. Pallavi Langar, Ms. Pragya Baghel,
Honey Khanna, Yashvaradhan, Apoorv Shukla, Prabhleen A. Shukla,
Aman Panwar, Akash Panwar, Shivam Singh Baghel, Mudit Gupta,
Karan Sharma, Ms. Jyoti Babbar, Ranjeeb Kamal Bora, Ramesh
Babu M.R. Ashish Batra, Anupam Raina, Somesh Chandra Jha,
Kaushik Choudhury, Debojit Borkakati, M/S. Arputham Aruna and Co,
Varinder Kumar Sharma, Somanadri Goud Katam, Sirajuddin, Ms.
Rooh-e-hina Dua, Shaurya Sahay, Pradeep Misra, Ajay Pal, Prashant
Shrikant Kenjale, Manish Kumar, Maibam Nabaghanashyam Singh,
Advs. for the Respondents.
By Courts Motion
1076 [2024] 2 S.C.R.

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Judgment / Order of the Supreme Court

Order
A. Heard learned Amicus, Mr. Siddharth Luthra, Senior Advocate Mr.
Gaurav Agarwal for National Legal Services Authority (hereinafter
referred to as “NALSA”) and Additional Solicitor General of India,
Ms. Aishwarya Bhati for the Union.
B. We have perused the compliance affidavits filed by the respective
States, Union Territories, Central Bureau of Investigation and
NALSA on the directions issued by this Court in the Judgment
reported in Satender Kumar Antil v. Central Bureau of Investigation,
(2022) 10 SCC 51 and the periodical orders passed therein. The
learned Amicus having gone through these compliance affidavits
in great detail has submitted a tabular chart and report dated
10.02.2024 indicating the directions that have been complied with
by the parties present before us in terms of the judgment passed
by this Court in Satender Kumar Antil (Supra) case.
C. For the comprehensive implementation of the directions in
Satender Kumar Antil (Supra) case, the Amicus upon thorough
study and verification of the details forcefully argues that certain
directions fall within the domain of States/Union Territories/CBI,
and High Courts and a few directions fall within the domain of
both the States and the High Courts. Therefore, for effective
monitoring by this Court it is completely desirable to combine
the stake holders for reporting in a convenient way and are
heard on a particular day.
D. The directions contained in para 100.2, 100.4, 100.7 of Satender
Kumar Antil (Supra) and also the directions to public prosecutors
in terms of order dated 21.03.2023 of this Court need top most
attention and are required to be complied with by States, Union
Territories and CBI as per the time schedule stipulated.
E. So far as the directions in para 100.2, 100.3, 100.5, 100.6, 100.7,
100.8, 100.9, 100.10, 100.11 of Satender Kumar Antil (Supra);
the direction dated 03.02.2023 for inclusion of the judgment
in Siddharth v. State of UP, (2022) 1 SCC 676 and Satender
Kumar Antil (Supra) in the curriculum of judicial academies and
the direction dated 21.03.2023 for application of the judgment in
Satender Kumar Antil (Supra) to Section 438 of Code of Criminal
Procedure, 1973 (hereinafter referred to as “CrPC”), by and large
[2024] 2 S.C.R.  1077

Satender Kumar Antil v. Central Bureau of Investigation and Anr.

apply to High Courts. From a larger perspective, direction in a

few paragraphs is complied with by both i.e. the States/Union
Territories and High Courts, in consultation with each other. The
suggestion of Amicus informs that directions individually obligated
are carried out independently and where mutual consultation in
complying with the directions is necessary, such consultation is
undertaken and responsibility is fixed on one authority for due
compliance.
F. The report dated 10.02.2024 is accepted by us in its entirety and
therefore, now we issue directions for due compliance by the
States/Union Territories/CBI and High Courts. For the sake of
convenience, the directions to various States and Union Territories
are issued and we wish to verify and deal with the compliance
in the manner suggested by this Order.
1. State of Andhra Pradesh -Directions to be complied with:
(i) In terms of the direction contained in para 100.2, it is directed to
provide the particulars of First Information Reports of cognizable
and non-bailable cases in which the mandate of Sections 41,
41-A of CrPC and Arnesh Kumar v. State of Bihar and Anr.,
(2014) 8 SCC 273 has not been followed and consequently to
provide the details of necessary actions that have been taken
against erring police officers. Also, in terms of direction contained
in para 100.2, information has to be provided as to whether the
Standing Order is being complied with by Investigating Officers.
(ii) In terms of direction contained in para 100.7, it is directed that
the State shall provide details of Special Courts constituted and
the necessary steps taken for creation of Additional Special
Courts and its stage.
(iii) Compliance with order dated 21.03.2023 passed by this Court:
(a) In terms of the above referred order, we direct the State to
ensure that the prosecutors are stating the correct position
of law as per the judgment passed by this Court in the case
of Siddharth (Supra) and Satender Kumar Antil (Supra).
(b) To circulate the judgment passed by this Court in the case
of Siddharth (Supra) and Satender Kumar Antil (Supra).
(c) To train and update the prosecutors on a periodical basis
and provide details of the same.
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1.1 High Court of Andhra Pradesh -Directions to be complied

with:
(i) In terms of directions contained in para 100.2, there is a contrary
stand that conditions in relation to Sections 41 and 41-A of
CrPC and Arnesh Kumar (Supra) have been complied with,
yet bail has been granted, therefore the High Court is directed
to inform about clear instances of the same.
(ii) In terms of directions contained in para 100.5, there is part
non-compliance in so far as insistence of bail application under
Section 88 of CrPC, therefore, the High Court is required to
inform on its compliance alone.
(iii) In terms of directions contained in para 100.7, details as to the
number of Special Courts created and the need for creation of
more Special Courts shall be provided.
(iv) In terms of directions contained in para 100.8 and 100.9, the
High Court should inform this Court as to the steps taken for
a list of identified prisoners who are unable to comply with bail
conditions and why sureties are not being produced in many
cases though bail stands granted, and what steps have been
taken to alleviate this situation.
(v) In terms of directions contained in para 100.11, there is no
adequate compliance and complete information with respect to
some Courts, therefore needful be done in this regard.
(vi) In terms of direction contained in order dated 03.02.2023,
the High Court should inform on compliance for inclusion of
Siddharth (Supra) and Satender Kumar Antil (Supra) in the
curriculum of judicial academy.
(vii) To inform on whether the judgment in Satender Kumar Antil
(Supra) is being applied to petitions under Section 438 of CrPC.
2. Union Territory of Andaman and Nicobar Islands -Directions to
be complied with:
(i) In terms of direction contained in para 100.2, it is directed to
provide the particulars of First Information Reports of cognizable
and non-bailable cases in which the mandate of Sections 41,
41-A of CrPC and Arnesh Kumar (Supra) has not been followed
and consequently to provide the details of necessary actions
[2024] 2 S.C.R.  1079

Satender Kumar Antil v. Central Bureau of Investigation and Anr.

that have been taken against erring police officers. Also, in

terms of direction contained in para 100.2, information has to
be provided as to whether the Standing Order is being complied
with by Investigating Officers.
(ii) In terms of direction contained in para 100.7, it is directed
that the Union Territory shall provide details of Special Courts
constituted and the necessary steps taken for creation of
Additional Special Courts and its stage.
(iii) Compliance with order dated 21.03.2023 passed by this Court:
(a) In terms of the above referred order, we direct the Union
Territory to ensure that the prosecutors are stating the correct
position of law as per the judgment passed by this Court
in Siddharth (Supra) and Satender Kumar Antil (Supra).
(b) To circulate the judgment passed by this Court in Siddharth
(Supra) and Satender Kumar Antil (Supra)
(c) To train and update the prosecutors on a periodical basis
and provide details of the same.
2.1 High Court of Calcutta (Refer to Serial No. 36.1)
3. State of Arunachal Pradesh -Directions to be complied with:
(i) In terms of direction contained in para 100.2, it is directed to
provide the particulars of First Information Reports of cognizable
and non-bailable cases in which the mandate of Sections 41,
41-A of CrPC and Arnesh Kumar (Supra) has not been followed
and consequently to provide the details of necessary action that
have been taken against erring police officers. Also, in terms
of direction contained in para 100.2, information has to be
provided as to whether the Standing Order is being complied
with by Investigating Officers.
(ii) In terms of direction contained in para 100.7, it is directed that
the State shall provide details of Special Courts constituted and
the necessary steps taken for creation of Additional Special
Courts and its stage.
(iii) Compliance with order dated 21.03.2023 passed by this Court:
(a) In terms of the above referred order, we direct the State
to ensure that the prosecutors are stating the correct
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position of law as per the judgment passed by this Court

in Siddharth (Supra) and Satender Kumar Antil (Supra).
(b) To circulate the judgment passed by this Court in Siddharth
(Supra) and Satender Kumar Antil (Supra).
(c) To train and update the prosecutors on a periodical basis
and provide details of the same.
3.1 High Court of Gauhati (Refer to Serial No. 4.1)
4. State of Assam -Directions to be complied with:
(i) In terms of directions contained in para 100.2, it is directed to
provide the particulars of First Information Reports of cognizable
and non-bailable cases in which the mandate of Sections 41,
41-A of CrPC and Arnesh Kumar (Supra) has not been followed
and consequently to provide the details of necessary actions
that have been taken against erring police officers. Also, in
terms of direction contained in para 100.2, information has to
be provided as to whether the Standing Order is being complied
with by Investigating Officers.
(ii) In terms of direction contained in para 100.7, it is directed that
the State shall provide details of Special Courts constituted and
the necessary steps taken for creation of Additional Special
Courts and its stage.
(iii) In terms of direction contained in para 100.9, it has been
disclosed that bail applications under Section 440 of CrPC have
not been received in relation to prisoners, therefore needful
be done.
(iv) Compliance with order dated 21.03.2023 passed by this Court:
(a) To circulate the judgment passed by this Court in Siddharth
(Supra) and Satender Kumar Antil (Supra).
(b) To train and update the prosecutors on a periodical basis
and provide details of the same.
4.1 High Court of Gauhati -Directions to be complied with:
(i) In terms of directions contained in para 100.2 and 100.3, there
is a contrary stand that conditions in relation to Sections 41 and
41-A of CrPC and Arnesh Kumar have been complied with, yet
[2024] 2 S.C.R.  1081

Satender Kumar Antil v. Central Bureau of Investigation and Anr.

bail has been granted, therefore the High Court is directed to

inform about clear instances of the same. Specific emphasis
shall be laid on the reports of district Barpeta, Biswanath and
Dimahasao as per the affidavit filed.
(ii) In terms of directions contained in para 100.7, details as to the
number of Special Courts created and the need for creation of
more Special Courts shall be provided.
(iii) In terms of directions contained in para 100.8 and 100.9, the
High Court should inform this Court as to the steps taken for
a list of identified prisoners who are unable to comply with bail
conditions and why sureties are not being produced in many
cases though bail stands granted and what steps have been
taken to alleviate this situation.
(iv) In terms of direction contained in para 100.9, it has been
disclosed that bail applications under Section 440 of CrPC have
not been received in relation to prisoners, therefore needful
be done.
(v) In terms of direction contained in order dated 03.02.2023,
the High Court should inform on compliance for inclusion of
Siddharth (Supra) and Satender Kumar Antil (Supra) in the
curriculum of judicial academy, because it seems that there is
no amendment to the curriculum of the State Judicial Academy.
5. State of Bihar -Directions to be complied with:
(i) In terms of direction contained in para 100.2, it is directed to
provide the particulars of First Information Reports of cognizable
and non-bailable cases in which the mandate of Sections 41,
41-A of CrPC and Arnesh Kumar (Supra) has not been followed
and consequently to provide the details of necessary actions
that have been taken against erring police officers. Also, in
terms of direction contained in para 100.2, information has to
be provided as to whether the Standing Order is being complied
with by Investigating Officers.
(ii) In terms of direction contained in para 100.7, it appears that
there is 1 vacancy out of 74 in Bihar Prohibition and Excise
Courts and 3 out of 14 in Schedule Castes and Scheduled
Tribes Courts. However, no further information is provided for
filling the said vacancies. Therefore, it is directed that the State
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shall provide details of the same and also about the Special
Courts constituted and the necessary steps taken for creation
of Additional Special Courts and its stage.
(iii) Compliance with order dated 21.03.2023 passed by this Court:
(a) To train and update the prosecutors on a periodical basis
and provide details of the same.
5.1 High Court of Patna -Directions to be complied with:
(i) In terms of direction contained in para 100.2, it is directed to
provide the particulars of First Information Reports of cognizable
and non-bailable cases in which the mandate of Sections 41,
41-A of CrPC and Arnesh Kumar (Supra) has not been followed
and consequently to provide the details of necessary actions
that have been taken against erring police officers. Also, in
terms of direction contained in para 100.2, information has to
be provided as to whether the Standing Order is being complied
with by Investigating Officers.
(ii) There is part compliance of the directions issued in para 100.3,
100.5, and 100.11 in districts such as Aurangabad, Aaria and
Banka. Therefore, it is directed that a complete compliance shall
be made in respect of these paragraphs and districts thereof.
(iii) So far as para 100.6 is concerned, it is reported that certain
districts such as Bhagalpur, Munger, Patna, and Chappra are
not in compliance. Therefore, it is directed that compliance for
the same shall be made.
(iv) In terms of direction contained in para 100.7, it is directed that
the High Court shall provide details of Special Courts constituted
and the necessary steps taken for creation of Additional Special
Courts and its stage. The High Court is also directed to inform
about the steps being undertaken to fill the existing vacancies.
(v) As per the report, the directions contained in para 100.9 has been
partly complied with. Therefore, it is directed that necessary steps
shall be taken to ensure complete compliance of this direction.
(vi) The direction contained in para 100.10 is not complied with in
District Bhagalpur, Munger, Gopalganj, Patna and Chappra.
Therefore, necessary steps shall be taken to ensure complete
compliance.
[2024] 2 S.C.R.  1083

Satender Kumar Antil v. Central Bureau of Investigation and Anr.

(vii) In terms of direction contained in order dated 03.02.2023,

the High Court should inform on compliance for inclusion of
Siddharth (Supra) and Satender Kumar Antil (Supra) in the
curriculum of judicial academy.
(viii) To inform on whether the judgment in Satender Kumar Antil
(Supra) is being applied to petitions under Section 438 of CrPC.
6. Union Territory of Chandigarh -Directions to be complied with:
(i) In terms of direction contained in para 100.2, it is directed to
provide the particulars of First Information Reports of cognizable
and non-bailable cases in which the mandate of Sections 41,
41-A of CrPC and Arnesh Kumar (Supra) has not been followed
and consequently to provide the details of necessary actions
that have been taken against erring police officers. Also, in
terms of direction contained in para 100.2, information has to
be provided as to whether the Standing Order is being complied
with by Investigating Officers.
(ii) In terms of direction contained in para 100.7, it is directed
that the Union Territory shall provide details of Special Courts
constituted and the necessary steps taken for creation of
Additional Special Courts and its stage.
(iii) Compliance with order dated 21.03.2023 passed by this Court:
(a) In terms of the above referred order, we direct the Union
Territory to ensure that the prosecutors are stating the
correct position of law as per the judgment passed by
this Court in Siddharth (Supra) and Satender Kumar Antil
(Supra).
(b) To circulate the judgment passed by this Court in Siddharth
(Supra) and Satender Kumar Antil (Supra).
(c) To train and update the prosecutors on a periodical basis
and provide details of the same.
6.1 High Court of Punjab and Haryana (Refer to Serial No. 28.1)
7. State of Chhattisgarh -Directions to be complied with:
(i) In terms of direction contained in para 100.2, it is directed to
provide the particulars of First Information Reports of cognizable
and non-bailable cases in which the mandate of Sections 41,
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41-A of CrPC and Arnesh Kumar (Supra) has not been followed
and consequently to provide the details of necessary actions
that have been taken against erring police officers. Also, in
terms of direction contained in para 100.2, information has to
be provided as to whether the Standing Order is being complied
with by Investigating Officers.
(ii) In terms of direction contained in para 100.7, it is directed that
the State shall provide details of Special Courts constituted and
the necessary steps taken for creation of Additional Special
Courts and its stage.
(iii) The affidavit filed by the State has a tabular chart in which
data provided does not divulge into whether adherence to
the directions is being done as most columns are filled as
‘N/A’. We expect that detailed information will be filed in
respect of all columns to appreciate the implementation of
the directions.
(iv) Compliance with order dated 21.03.2023 passed by this Court:
(a) It appears from the affidavit filed by State that there is no
clarity as to whether any training has been carried out or
not. Therefore, details of the same shall be provided and
if no training programme has been conducted, then the
same shall be done periodically.
7.1 High Court of Chhattisgarh -Directions to be complied with:
(i) In terms of the directions contained in para 100, it was directed
that the compliance of these directions will be indicated by
way of a detailed model tabular chart. However, that has
not been done. Therefore, a detailed tabular chart shall be
filed for those directions that fall within the domain of the
High Court.
(ii) To inform on whether the judgment in Satender Kumar Antil
(Supra) is being applied to petitions under Section 438 of
CrPC.
(iii) In terms of direction contained in order dated 03.02.2023,
the High Court should inform on compliance for inclusion of
Siddharth (Supra) and Satender Kumar Antil (Supra) in the
curriculum of judicial academy.
[2024] 2 S.C.R.  1085

Satender Kumar Antil v. Central Bureau of Investigation and Anr.

(iv) In terms of direction contained in para 100.7, it is directed that

the High Court shall provide details of Special Courts constituted
and the necessary steps taken for creation of Additional Special
Courts and its stage. The High Court is also directed to inform
about the steps being undertaken to fill the existing vacancies.
8. Union Territory of Dadra and Nagar Haveli and Daman and Diu
-Directions to be complied with:
(i) In terms of direction contained in para 100.2, it is directed to
provide the particulars of First Information Reports of cognizable
and non-bailable cases in which the mandate of Sections 41,
41-A of CrPC and Arnesh Kumar (Supra) has not been followed
and consequently to provide the details of necessary actions
that have been taken against erring police officers. Also, in
terms of direction contained in para 100.2, information has to
be provided as to whether the Standing Order is being complied
with by Investigating Officers.
(ii) In terms of direction contained in para 100.7, it is directed
that the Union Territory shall provide details of Special Courts
constituted and the necessary steps taken for creation of
Additional Special Courts and its stage. The Union Territory is
also directed to inform about the steps being undertaken to fill
the existing vacancies.
8.1 High Court of Bombay (Refer to Serial No. 21.1)
9. National Capital Territory of Delhi -Directions to be complied with:
(i) In terms of direction contained in para 100.2, it is directed to
provide the particulars of First Information Reports of cognizable
and non-bailable cases in which the mandate of Sections 41,
41-A of CrPC and Arnesh Kumar (Supra) has not been followed
and consequently to provide the details of necessary actions
that have been taken against erring police officers. Also, in
terms of direction contained in para 100.2, information has to
be provided as to whether the Standing Order is being complied
with by Investigating Officers.
(ii) In terms of direction contained in para 100.7, it is directed
that the Union Territory shall provide details of Special Courts
constituted and the necessary steps taken for creation of
Additional Special Courts and its stage.
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9.1 High Court of Delhi -Directions to be complied with:

(i) In terms of directions contained in para 100.2 and 100.3, there
is a contrary stand that conditions in relation to Sections 41 and
41-A of CrPC and Arnesh Kumar (Supra) have been complied
with, yet bail has been granted. Therefore, the High Court is
directed to inform about clear instances of the same.
(ii) In terms of directions contained in para 100.5, there is part
compliance as per chart ‘A’, however certain Courts have not
complied with the same. Therefore, it is directed that needful
be done for complete compliance.
(iii) In terms of directions contained in para 100.6, there is part
compliance in the districts as per the affidavit. Therefore, it is
directed that needful be done for complete compliance.
(iv) In terms of directions contained in para 100.8 and 100.9, the
High Court should inform this Court as to the steps taken for
a list of identified prisoners who are unable to comply with
bail conditions and what steps have been taken to alleviate
this situation.
(v) In terms of direction contained in para 100.9, it has been
disclosed that bail applications under Section 440 of CrPC
have not been received in relation to prisoners. Therefore,
needful be done.
(vi) To inform on whether the judgment in Satender Kumar Antil
(Supra) is being applied to petitions under Section 438 of CrPC.
10. State of Goa -Directions to be complied with:
(i) In terms of direction contained in para 100.2, it is directed to
provide the particulars of First Information Reports of cognizable
and non-bailable cases in which the mandate of Sections 41,
41-A of CrPC and Arnesh Kumar (Supra) has not been followed
and consequently to provide the details of necessary actions
that have been taken against erring police officers. Also, in
terms of direction contained in para 100.2, information has to
be provided as to whether the Standing Order is being complied
with by Investigating Officers.
(ii) In terms of direction contained in para 100.7, it is directed that
the State shall provide details of Special Courts constituted
[2024] 2 S.C.R.  1087

Satender Kumar Antil v. Central Bureau of Investigation and Anr.

and the necessary steps taken for creation of Additional

Special Courts and its stage. The State is also directed to
inform about the steps being undertaken to fill the existing
vacancies.
(iii) Compliance with order dated 21.03.2023 passed by this Court:
(a) In terms of the above referred order, we direct the State
to ensure that the prosecutors are stating the correct
position of law as per the judgment passed by this Court
in Siddharth (Supra) and Satender Kumar Antil (Supra).
(b) To circulate the judgment passed by this Court in Siddharth
(Supra) and Satender Kumar Antil (Supra)
(c) To train and update the prosecutors on a periodical basis
and provide details of the same.
10.1 High Court of Bombay (Refer to Serial No. 21.1)
11. State of Gujarat -Directions to be complied with:
(i) In terms of direction contained in para 100.2, it is directed to
provide the particulars of First Information Reports of cognizable
and non-bailable cases in which the mandate of Sections 41,
41-A of CrPC and Arnesh Kumar (Supra) has not been followed
and consequently to provide the details of necessary actions
that have been taken against erring police officers. Also, in
terms of direction contained in para 100.2, information has to
be provided as to whether the Standing Order is being complied
with by Investigating Officers.
(ii) In terms of direction in para 100.7, the State is directed to give
details of the number of Special Courts constituted and whether
any steps are underway for creation of Additional Special Courts
and at what stage.
(iii) Compliance with order dated 21.03.2023 passed by this Court:
(a) The State is directed to issue directions to the Prosecutors
to place on record the correct legal position as per Siddharth
(Supra) and Satender Kumar Antil vs. CBI (Supra).
(b) The State is directed to ensure the circulation of judgment
of Siddharth (Supra) and Satender Kumar Antil (Supra)
to Prosecutors, and
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(c) The State is directed to train and update the Prosecutors

on a periodical basis and provide details of the same.
11.1 High Court of Gujarat -Directions to be complied with:
(i) In terms of the directions issued in Para 100.2, bail is being
granted for non-compliance of Sections 41 and 41-A of CrPC
in districts such as Botad, Chhotadeupur, Junagadh and Surat.
However, it has been stated that the directions of Sections 41
and 41-A of CrPC are being complied with. As both situations
cannot co-exist, the High Court is directed to provide details
pertaining to the compliance of the aforesaid directions. Also,
in terms of direction contained in para 100.2, information has to
be provided as to whether the Standing Order is being complied
with by Investigating Officers.
(ii) In terms of the directions issued in Paras 100.5 and 100.6, it
is found that the same have been complied with only partially.
The High Court is directed to ensure complete and uniform
compliance of the same and furnish information in this regard.
(iii) In terms of the directions issued in Para 100.7, the High Court
is directed to furnish information regarding its compliance.
(iv) In terms of the directions issued in Para 100.8, the High Court is
directed to provide detailed information regarding the measures
taken for those prisoners who have not been able to furnish
sureties despite grant of bail.
(v) In terms of the directions issued in Para 100.10, the High
Court is directed to ensure compliance of the same and furnish
information.
(vi) To inform on whether the judgment in Satender Kumar Antil
(Supra) is being applied to petitions under Section 438 of CrPC.
(vii) In terms of direction contained in order dated 03.02.2023,
the High Court should inform on compliance for inclusion of
Siddharth (Supra) and Satender Kumar Antil (Supra) in the
curriculum of judicial academy.
12. State of Haryana -Directions to be complied with:
(i) In terms of direction contained in para 100.2, it is directed to
provide the particulars of First Information Reports of cognizable
[2024] 2 S.C.R.  1089

Satender Kumar Antil v. Central Bureau of Investigation and Anr.

and non-bailable cases in which the mandate of Sections 41,

41-A of CrPC and Arnesh Kumar (Supra) has not been followed
and consequently to provide the details of necessary actions
that have been taken against erring police officers. Also, in
terms of direction contained in para 100.2, information has to
be provided as to whether the Standing Order is being complied
with by Investigating Officers.
(ii) In terms of direction contained in Para 100.7, the State is directed
to give details of the number of Special Courts constituted
and whether any steps are underway for creation of Additional
Special Courts and at what stage.
(iii) Compliance with order dated 21.03.2023 passed by this Court;
(a) The State is directed to issue directions to Prosecutors to
place on record the correct legal position as per Siddharth
(Supra) and Satender Kumar Antil (Supra),
(b) The State is directed to ensure circulation of judgment in
Siddharth (Supra) and Satender Kumar Antil (Supra) to
Prosecutors, and
(c) The State is directed to train and update Prosecutors on
a periodical basis and provide details of the same.
12.1 High Court of Punjab and Haryana (Refer to Serial No. 28.1)
13. State of Himachal Pradesh -Directions to be complied with:
(i) In terms of direction contained in para 100.2, it is directed to
provide the particulars of First Information Reports of cognizable
and non-bailable cases in which the mandate of Sections 41,
41-A of CrPC and Arnesh Kumar (Supra) has not been followed
and consequently to provide the details of necessary actions
that have been taken against erring police officers. Also, in
terms of direction contained in para 100.2, information has to
be provided as to whether the Standing Order is being complied
with by Investigating Officers.
(ii) In terms of direction contained in para 100.7, the State is directed
to give details of the number of Special Courts constituted
and whether any steps are underway for creation of Additional
Special Courts and at what stage.
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(iii) Provide detailed Tabular chart (Part A) and steps taken to

facilitate release of undertrial prisoners who continue to be in
jail despite grant of bail.
13.1 High Court of Himachal Pradesh -Directions to be complied
with:
(i) In terms of the directions issued under Para 100.7, the High
Court is directed to furnish information regarding the requirement
of Special Courts and the status of any proposals for the same.
(ii) In terms of directions issued under Para 100.8, the High Court is
directed to ensure compliance and furnish information regarding
steps taken to alleviate the conditions of the prisoners who have
been identified as not being able to furnish sureties despite bail
having been granted.
(iii) In terms of the directions issued under Para 100.9, the High
Court is directed to ensure compliance as to the filing of bail
applications on behalf of undertrial prisoners and to furnish
information on the same.
(iv) To inform on whether the judgment in Satender Kumar Antil
(Supra) is being applied to petitions under Section 438 of CrPC.
(v) In terms of direction contained in order dated 03.02.2023,
the High Court should inform on compliance for inclusion
of Siddharth (Supra) and Satender Kumar Antil (Supra) in
curriculum of judicial academy.
14. Union Territory of Jammu and Kashmir -Directions to be complied
with:
(i) In terms of direction contained in para 100.2, the Union Territory
is directed to provide the particulars of First Information Reports
of cognizable and non-bailable cases in which the mandate
of Sections 41, 41-A of CrPC and Arnesh Kumar (Supra) has
not been followed and consequently to provide the details of
necessary actions that have been taken against erring police
officers. Also, in terms of direction contained in para 100.2,
information has to be provided as to whether the Standing Order
is being complied with by Investigating Officers.
(ii) In terms of direction contained in para 100.7, the Union Territory
is directed to give details of the number of Special Courts
[2024] 2 S.C.R.  1091

Satender Kumar Antil v. Central Bureau of Investigation and Anr.

constituted and whether any steps are underway for creation

of Additional Special Courts and at what stage.
14.1 High Court of Jammu and Kashmir and Ladakh -Directions
to be complied with:
(i) Regarding the directions in Para 100.2, discrepancy is noted
in districts such as Jammu, Ramban and Bandipora, wherein
it is stated that there is compliance of Sections 41 and 41-A
of CrPC, yet bail is being granted for non-compliance of the
same which is contradictory to each other. The High Court is
directed to ensure proper compliance and furnish information
on the same.
(ii) With regards to the directions issued in para 100.5, discrepancy
is noted in the affidavits dated 09.03.2023, which shows “yes”
under the relevant column, while the affidavit dated 11.04.2023
shows “N/A”. The High Court is directed to ensure compliance
of the aforementioned directions and furnish information on
the same.
(iii) In terms of directions issued in Para 100.7, the High Court is
directed to ensure compliance and furnish information regarding
the constitution of Special Courts in consultation with the Union
Territory.
(iv) In terms of the directions issued in paras 100.8 and 100.9, the
High Court should inform this Court as to whether any steps have
been taken to identify prisoners who are unable to comply with
bail conditions and unable to furnish sureties in many cases,
and what steps have been taken to alleviate this situation.
(v) In terms of direction contained in order dated 03.02.2023,
the High Court should inform on compliance for inclusion
of Siddharth (Supra) and Satender Kumar Antil (Supra) in
curriculum of judicial academy.
(vi) To inform on whether the judgment in Satender Kumar Antil
(Supra) is being applied to petitions under Section 438 of CrPC.
15. State of Jharkhand -Directions to be complied with:
(i) In terms of direction contained in para 100.2, it is directed to
provide the particulars of First Information Reports of cognizable
and non-bailable cases in which the mandate of Sections 41,
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41-A of CrPC and Arnesh Kumar (Supra) has not been followed
and consequently to provide the details of necessary actions
that have been taken against erring police officers. Also, in
terms of direction contained in para 100.2, information has to
be provided as to whether the Standing Order is being complied
with by Investigating Officers.
(ii) In terms of direction contained in para 100.7, the State is directed
to give details of the number of Special Courts Constituted
and whether any steps are underway for creation of Additional
Special Courts and at what stage.
(iii) Compliance with order dated 21.03.2023 passed by this Court:
(a) The State is directed to issue directions to Prosecutors to
place on record the correct legal position as per Siddharth
(Supra) and Satender Kumar Antil (Supra),
(b) The State is directed to circulate the judgment in Siddharth
(Supra) and Satender Kumar Antil (Supra) to Prosecutors.
(c) The State is directed to train and update the Prosecutors
on a periodical basis and provide details of the same.
15.1 High Court of Jharkhand -Directions to be complied with:
(i) In terms of the directions issued in para 100.2, it is noted that
in districts such as Godda and East Singhbhum, bail has been
granted for non-compliance of Sections 41 and 41-A of CrPC,
while it has been mentioned that the conditions as stipulated
in the statutory provisions are being complied with which are
contradictory to each other. The High Court is directed to furnish
information regarding such discrepancy.
(ii) The directions in Para 100.5 have not been complied with in
certain districts such as Bokaro, West Singhbhum, Godda,
Chatra, Dumka. The High Court is directed to ensure compliance
of the same and furnish information.
(iii) In terms of the directions issued in Para 100.7, the High Court
is directed to ensure compliance and furnish information
regarding the constitution of Special Courts and whether any
steps are underway for creation of Additional Special Courts
and at what stage.
[2024] 2 S.C.R.  1093

Satender Kumar Antil v. Central Bureau of Investigation and Anr.

(iv) The High Court is directed to ensure compliance with the

directions of para 100.8 and furnish information on the steps
taken to alleviate the situations of prisoners who are not able
to furnish sureties despite grant of bail.
(v) The High Court is directed to ensure compliance with the
directions issued in Para 100.9, and furnish information on
the same.
(vi) To inform on whether the judgment in Satender Kumar Antil
(Supra) is being applied to petitions under Section 438 of CrPC.
16. State of Karnataka -Directions to be complied with:
(i) In terms of direction contained in para 100.2, it is directed to
provide the particulars of First Information Reports of cognizable
and non-bailable cases in which the mandate of Sections 41,
41-A of CrPC and Arnesh Kumar (Supra) has not been followed
and consequently to provide the details of necessary action that
have been taken against erring police officers. Also, in terms
of direction contained in para 100.2, information has to be
provided as to whether the Standing Order is being complied
with by Investigating Officers.
(ii) In terms of the direction in para 100.7, the State is directed
to give the details of the number of Special Courts constituted
and whether any steps are underway for creation of Additional
Special Courts and at what stage.
16.1 High Court of Karnataka -Directions to be complied with:
(i) To ensure uniform compliance of the directions issued in para
100.5 and furnish information on the same.
(ii) To ensure compliance of the directions issued in para 100.7 and
furnish information in consultation with the State Government
regarding constitution of any Additional Special Courts, as well
as the steps taken to resolve the vacancy in the Special Courts
already constituted.
(iii) To ensure compliance with the directions issued in para 100.9
and to furnish information on the same.
(iv) To ensure uniform compliance of the directions issued in
para 100.10 as it has been noted that only a few districts
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such as Chitradurg, Kolar and Raichur have complied with

the same. The High Court is directed to ensure uniform
compliance by all districts concerned and furnish information
on the same.
(v) In terms of direction contained in order dated 03.02.2023,
the High Court should inform on compliance for inclusion of
Siddharth (Supra) and Satender Kumar Antil (Supra) in the
curriculum of judicial academy.
17. State of Kerala -Directions to be complied with:
(i) In terms of direction contained in para 100.2, it is directed to
provide the particulars of First Information Reports of cognizable
and non-bailable cases in which the mandate of Sections 41,
41-A of CrPC and Arnesh Kumar (Supra) has not been followed
and consequently to provide the details of necessary actions
that have been taken against erring police officers. Also, in
terms of direction contained in para 100.2, information has to
be provided as to whether the Standing Order is being complied
with by Investigating Officers.
(ii) The State is directed to give details of steps taken to ensure
compliance of direction contained in Para 100.5 in the districts
of Kollam, Pathanamthitta, Kalpetta and Kasargod, as it appears
from the Additional compliance affidavit dated 14.04.2023 filed
by the State that the aforementioned districts have not complied
with the said direction.
(iii) In terms of the directions contained in para 100.7, the
State is directed to give details of the number of Special
Courts constituted and whether any steps are underway
for the creation of Additional Special Courts and at what
stage and whether the vacancies that existed then have
been filled now.
(iv) State is directed to give details of steps taken to ensure
release of undertrial prisoners who are unable to comply with
bail conditions.
(v) Compliance with order dated 21.03.2023 passed by this Court:
(a) The State is directed to provide training to Prosecutors on
a periodical basis and provide details of the same.
[2024] 2 S.C.R.  1095

Satender Kumar Antil v. Central Bureau of Investigation and Anr.

17.1 High Court of Kerala -Directions to be complied with:

(i) Directions issued in para 100.5 are shown to be only partly
complied with. The High Court is directed to ensure complete
compliance and furnish information on the same.
(ii) In terms of direction contained in para 100.7, the High Court
is directed to give details of the number of Special Courts
constituted and whether any steps are underway for creation
of Additional Special Courts and at what stage.
(iii) The High Court is directed to ensure compliance with the terms
of para 100.8 and furnish information regarding the steps taken
to alleviate the conditions of the prisoners.
(iv) To ensure compliance with the directions issued in para 100.9
and furnish information on the same.
(v) In terms of direction contained in order dated 03.02.2023,
the High Court should inform on compliance for inclusion of
Siddharth (Supra) and Satender Kumar Antil (Supra) in the
curriculum of judicial academy.
(vi) To inform on whether the judgment in Satender Kumar Antil
(Supra) is being applied to petitions under Section 438 of CrPC.
18. Union Territory of Ladakh -Directions to be complied with:
(i) In terms of direction contained in para 100.2, the Union Territory
is directed to provide the particulars of the First Information
Reports of cognizable and non-bailable cases in which the
mandate of Sections 41, 41-A of CrPC and Arnesh Kumar
(Supra) has not been followed and consequently to provide
the details of necessary action that have been taken against
erring police officers. Also, in terms of direction contained in
para 100.2, information has to be provided as to whether the
Standing Order is being complied with by Investigating Officers.
(ii) In terms of direction contained in para 100.7, the Union Territory
is directed to give details of the number of Special Courts
constituted and whether any steps are underway for creation
of Additional Special Courts and at what stage.
18.1 High Court of Jammu and Kashmir and Ladakh (Refer to
Serial No. 14.1)
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19. Union Territory of Lakshadweep -Directions to be complied with:

(i) In terms of direction contained in para 100.2, the Union
Territory is directed to provide the particulars of the First
Information Reports of cognizable and non-bailable cases in
which the mandate of Sections 41, 41-A of CrPC and Arnesh
Kumar (Supra) has not been followed and consequently
to provide the details of necessary actions that have been
taken against erring police officers. Also, in terms of direction
contained in para 100.2, information has to be provided as
to whether the Standing Order is being complied with by
Investigating Officers.
(ii) In terms of direction contained in para 100.7, the Union Territory
is directed to give details of the number of Special Courts
constituted and whether any steps are underway for creation
of Additional Special Courts and at what stage.
(iii) Compliance with order dated 21.03.2023 passed by this Court:
(a) The Union Territory is directed to issue directions to
Prosecutors to place on record the correct legal position as
per Siddharth (Supra) and Satender Kumar Antil (Supra),
(b) The Union Territory is directed to circulate the judgment
in Siddharth (Supra) and Satender Kumar Antil (Supra)
to Prosecutors.
(c) The Union Territory is directed to train and update the
Prosecutors on a periodical basis and provide details of
the same.
19.1 High Court of Kerala (Refer to Serial No. 17.1)
20. State of Madhya Pradesh -Directions to be complied with:
(i) In terms of direction contained in para 100.2, it is directed to
provide the particulars of First Information Reports of cognizable
and non-bailable cases in which the mandate of Sections 41,
41-A of CrPC and Arnesh Kumar (Supra) has not been followed
and consequently to provide the details of necessary actions
that have been taken against erring police officers.
(ii) In terms of the direction contained in para 100.7, the State
is directed to give details of the number of Special Courts
[2024] 2 S.C.R.  1097

Satender Kumar Antil v. Central Bureau of Investigation and Anr.

constituted and whether any steps are underway for creation

of Additional Special Courts and at what stage.
(iii) Compliance with order dated 21.03.2023 passed by this Court:
(a) The State is directed to issue directions to Prosecutors to
place on record the correct legal position as per Siddharth
(Supra) and Satender Kumar Antil (Supra),
(b) The State is directed to ensure circulation of judgment in
Siddharth (Supra) and Satender Kumar Antil (Supra) to
Prosecutors,
(c) The State is directed to provide training and update
Prosecutors on a periodical basis and provide details of
the same
20.1 High Court of Madhya Pradesh -Directions to be complied
with:
(i) In terms of the directions issued in para 100.2, it is noted that
there is discrepancy insofar as bail is being granted on non-
compliance of Sections 41 and 41-A, however, it is also stated
that the statutory provisions are being complied with. Since the
two situations cannot co-exist, the High Court is directed to
ensure uniform compliance and furnish information on the same.
(ii) In terms of para 100.5, the High Court is directed to ensure
uniform compliance and furnish information on the same
(iii) In terms of the direction contained in para 100.7, the State
is directed to give details of the number of Special Courts
constituted and whether any steps are underway for creation
of Additional Special Courts and at what stage.
(iv) To ensure compliance with the directions issued in para 100.8,
100.9 and 100.10 and furnish information regarding the same.
(v) In terms of direction contained in order dated 03.02.2023,
the High Court should inform on compliance for inclusion of
Siddharth (Supra) and Satender Kumar Antil (Supra) in the
curriculum of the judicial academy.
(vi) To inform on whether the judgment in Satender Kumar Antil
(Supra) is being applied to petitions under Section 438 of CrPC.
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21. State of Maharashtra -Directions to be complied with:

(i) From perusal of records, we find that the State of Maharashtra
alone has not filed compliance affidavits as per the directions
issued in Satender Kumar Antil (Supra) and subsequent orders
passed by this Court. Therefore, the State is directed to file
a detailed compliance affidavit as per Satender Kumar Antil
(Supra) and subsequent orders passed by this court within a
period of 8 weeks and the same shall also be circulated with
learned amicus who upon perusal shall file a report within 2
weeks thereafter.
21.1 High Court of Bombay -Directions to be complied with:
(i) In terms of direction contained in para 100.2, as per report,
compliance has been made. However, no details have been
furnished on whether bail is being granted or not. Therefore, a
detailed affidavit on this count shall be filed.
(ii) In terms of direction contained in para 100.3 and 100.5,
there is part compliance of direction, since it is revealed that
some District Courts such as Dhule, Nandurbar, Parbhani
and Ratnagiri are asking for bail applications despite filing of
chargesheet without arrest. Furthermore, in respect of South
Goa and Dadra and Nagar Haveli there is non-compliance,
therefore, it is directed that necessary steps shall be taken in
respect of these districts and an affidavit indicating compliance
shall be filed.
(iii) In terms of direction contained in para 100.7, the affidavit does
not indicate anything on constitution of Special Courts and
existing vacancies thereof except for a statement indicating
details of Special Courts constituted under 7 different statutes.
(iv) In terms of direction contained in para 100.8, no information
has been provided about identification of under trial prisoners
and action taken in view of Section 440 of CrPC. Therefore, it
is directed that immediate steps shall be taken in this regard.
(v) In terms of direction contained in order dated 03.02.2023,
the High Court should inform on compliance for inclusion of
Siddharth (Supra) and Satender Kumar Antil (Supra) in the
curriculum of judicial academy.
[2024] 2 S.C.R.  1099

Satender Kumar Antil v. Central Bureau of Investigation and Anr.

(vi) To inform on whether the judgment in Satender Kumar Antil

(Supra) is being applied to petitions under Section 438 of CrPC.
22. State of Manipur -Directions to be complied with:
(i) In terms of direction contained in para 100.2, it is directed to
provide particulars of First Information Reports of cognizable
and non-bailable cases in which the mandate of Sections 41,
41-A of CrPC and Arnesh Kumar (Supra) has not been followed,
and consequently to provide the details of necessary actions
that have been taken against erring police officers. Also, in
terms of direction contained in para 100.2, information has to
be provided as to whether the Standing Order is being complied
with by Investigating Officers.
(ii) In terms of para 100.7, it is directed that the State shall provide
details of whether any steps are underway for creation of Special
Courts and Additional Special Courts and if so, then at what
stage. Furthermore, details of assessment as to the High Court’s
request for 3 Special Courts shall also be provided.
(iii) Compliance with order dated 21.03.2023 passed by this Court:
(a) To train and update the prosecutors on a periodical basis
and provide details of the same.
22.1 High Court of Manipur -Directions to be complied with:
(i) In terms of directions contained in para 100.2, it has come to
our attention that there are certain Courts namely JMFC Imphal
East, JMFC Jiribam and JMFC Thoubal where bail has been
granted in non-compliance of Sections 41 & 41-A of CrPC. State
affidavit is silent on the disciplinary or administrative action as
indicated in the Standing Order. The same is mandated to be
duly furnished.
(ii) In terms of directions contained in para 100.7, it has been stated
that the High Court is pursuing with the State Government for
constituting three Additional Special Courts. The latest status
of the same needs to be duly updated.
(iii) In terms of directions contained in para 100.8 and 100.9, the
High Court should inform this Court as to the steps taken for
a list of identified prisoners who are unable to comply with
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bail conditions and unable to furnish sureties in many cases,

though bail stands granted and what steps have been taken
to alleviate this situation.
(iv) In terms of directions contained in para 100.11, there is no
adequate compliance and incomplete information with respect
to some of the Courts has been provided. Therefore, needful
be done in this regard. The relevant information should also
be furnished.
(v) In terms of direction contained in order dated 03.02.2023,
the High Court should inform on compliance for inclusion of
Siddharth (Supra) and Satender Kumar Antil (Supra) in the
curriculum of judicial academy.
(vi) To furnish information on whether the directions of Satender
Kumar Antil (Supra) is being applied to petitions under Section
438 of CrPC or not.
23. State of Meghalaya -Directions to be complied with:
(i) In terms of direction contained in para 100.2, it is directed to
provide particulars of First Information Reports of cognizable
and non-bailable cases in which the mandate of Sections 41,
41-A of CrPC and Arnesh Kumar (Supra) has not been followed,
and consequently to provide the details of necessary actions
that have been taken against erring police officers. Also, in
terms of direction contained in para 100.2, information has to
be provided as to whether the Standing Order is being complied
with by Investigating Officers.
(ii) In terms of para 100.7, it is directed that the State shall provide
details of Special Courts constituted and the necessary steps
taken for creation of Additional Special Courts and its stage.
23.1 High Court of Meghalaya -Directions to be complied with:
(i) In terms of directions contained in para 100.7, it has come to
our attention that the affidavit of the High Court is silent over
the constitution of Special Courts in consultation with the State
Government. The latest status of the same needs to be duly
updated and furnished.
(ii) In terms of directions contained in para 100.8 and 100.9, the
High Court has identified nearly 42 prisoners who are not able
[2024] 2 S.C.R.  1101

Satender Kumar Antil v. Central Bureau of Investigation and Anr.

to furnish sureties despite bail. Detailed information and steps

taken to alleviate the situation have however not been provided.
Therefore, needful be done in this regard.
(iii) In terms of direction contained in order dated 03.02.2023,
the High Court should inform on compliance for inclusion of
Siddharth (Supra) and Satender Kumar Antil (Supra) in the
curriculum of judicial academy.
(iv) To furnish information on whether the directions of Satender
Kumar Antil (Supra) is being applied to petitions under Section
438 of CrPC or not.
24. State of Mizoram -Directions to be complied with:
(i) In terms of direction contained in para 100.2, it is directed to
provide particulars of First Information Reports of cognizable
and non-bailable cases in which the mandate of Sections 41,
41-A of CrPC and Arnesh Kumar (Supra) has not been followed,
and consequently to provide the details of necessary action that
has been taken against erring police officers. Also, in terms of
direction contained in para 100.2, information has to be provided
as to whether the Standing Order is being complied with by
Investigating Officers.
(ii) In terms of para 100.7, it is directed that the State shall provide
details of Special Courts constituted and the necessary steps
taken for creation of Additional Special Courts and its stage.
24.1 High Court of Gauhati (Refer to Serial No: 4.1)
25. State of Nagaland -Directions to be complied with:
(i) In terms of direction contained in para 100.2, it is directed to
provide particulars of First Information Reports of cognizable
and non-bailable cases in which the mandate of Sections 41,
41-A of CrPC and Arnesh Kumar (Supra) has not been followed,
and consequently to provide the details of necessary actions
that have been taken against erring police officers. Also, in
terms of direction contained in para 100.2, information has to
be provided as to whether the Standing Order is being complied
with by Investigating Officers.
(ii) In terms of para 100.7, it is directed that the State shall
provide details of Special Courts constituted and the
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necessary steps taken for creation of Additional Special

Courts and its stage.
(iii) Compliance with order dated 21.03.2023 passed by this Court:
(a) To circulate the judgment passed by this Court in Siddharth
(Supra) and Satender Kumar Antil (Supra)
(b) To train and update the prosecutors on a periodical basis
and provide details of the same.
25.1 High Court of Gauhati (Refer to Serial No: 4.1)
26. State of Odisha -Directions to be complied with:
(i) In terms of direction contained in para 100.2, it is directed to
provide particulars of First Information Reports of cognizable
and non-bailable cases in which the mandate of Sections 41,
41-A of CrPC and Arnesh Kumar (Supra) has not been followed,
and consequently to provide the details of necessary actions
that have been taken against erring police officers. Also, in
terms of direction contained in para 100.2, information has to
be provided as to whether the Standing Order is being complied
with by Investigating Officers.
(ii) In terms of para 100.7, it is directed that the State shall provide
details of Special Courts constituted and the necessary steps
taken for creation of Additional Special Courts and its stage.
(iii) Compliance with order dated 21.03.2023 passed by this Court:
(a) To train and update the prosecutors on a periodical basis
and provide details of the same.
26.1 High Court of Odisha -Directions to be complied with:
(i) In terms of directions contained in para 100.2, it has come to
our attention that there is contradiction in the same inasmuch
as if there is compliance of Arnesh Kumar (Supra) vis-à-vis
compliance of Sections 41 and 41-A of CrPC., then bail ought
not to have been granted due to non-compliance of the same.
The position on the same is mandated to be clarified and duly
furnished.
(ii) In terms of directions contained in para 100.5, there is partial
non-compliance insofar as several districts are insisting for bail
[2024] 2 S.C.R.  1103

Satender Kumar Antil v. Central Bureau of Investigation and Anr.

application under Section 88 of CrPC. Therefore, the High Court

is required to inform on its compliance alone.
(iii) In terms of directions contained in para 100.7, it has come to
our attention that the affidavit of the High Court is silent over the
constitution of Special Courts in consultation with the respective
State Government. The latest status of the same needs to be
duly updated and furnished.
(iv) In terms of directions contained in para 100.8 and 100.9, though
the High Court has endeavoured to identify prisoners who are
unable to comply with the bail conditions and is stated to have
informed them about their rights under Section 440 of CrPC,
however, subsequently no bail applications were received under
Section 440 of CrPC in most districts. Therefore, the High Court
is required to inform on its compliance alone.
(v) In terms of directions contained in para 100.11, there is partial
non-compliance in some districts as regular bail applications
are not decided within two weeks. Therefore, needful be done
in this regard and compliance of the same be ensured. The
relevant information should also be furnished.
(vi) In terms of direction contained in order dated 03.02.2023,
the High Court should inform on compliance for inclusion of
Siddharth (Supra) and Satender Kumar Antil (Supra) in the
curriculum of judicial academy.
(vii) To furnish information on whether the directions of Satender
Kumar Antil (Supra) is being applied to petitions under Section
438 of CrPC or not.
27. Union Territory of Puducherry -Directions to be complied with:
(i) In terms of direction contained in para 100.2, it is directed to
provide particulars of First Information Reports of cognizable
and non-bailable cases in which the mandate of Sections 41,
41-A of CrPC and Arnesh Kumar (Supra) has not been followed,
and consequently to provide the details of necessary action that
has been taken against erring police officers. Also, in terms of
direction contained in para 100.2, information has to be provided
as to whether the Standing Order is being complied with by
Investigating Officers.
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(ii) In terms of para 100.7, it is directed that the Union Territory

shall provide details of Special Courts constituted and the
necessary steps taken for the creation of Additional Special
Courts and its stage.
(iii) Compliance with order dated 21.03.2023 passed by this Court:
(a) In terms of the above referred order, we direct the Union
Territory to ensure that the prosecutors are stating the
correct position of law as per the judgment passed by
this Court in Siddharth (Supra) and Satender Kumar Antil
(Supra).
(b) To circulate the judgment passed by this Court in Siddharth
(Supra) and Satender Kumar Antil (Supra)
(c) To train and update the prosecutors on a periodical basis
and provide details of the same.
27.1 High Court of Madras (Refer to Serial No: 31.1)
28. State of Punjab -Directions to be complied with:
(i) In terms of direction contained in para 100.2, it is directed to
provide particulars of First Information Reports of cognizable
and non-bailable cases in which the mandate of Sections 41,
41-A of CrPC and Arnesh Kumar (Supra) has not been followed,
and consequently to provide the details of necessary actions
that have been taken against erring police officers. Also, in
terms of direction contained in para 100.2, information has to
be provided as to whether the Standing Order is being complied
with by Investigating Officers.
(ii) In terms of para 100.7, it is directed that the State shall provide
details of Special Courts constituted and the necessary steps
taken for creation of Additional Special Courts and its stage.
28.1 High Court of Punjab and Haryana -Directions to be
complied with:
(i) In terms of the directions issued in Para 100.2 and 100.3,
bail has been granted in non-compliance of Sections 41 and
41-A of CrPC, notably in districts such as Amritsar, Kapurthala
and Mansa. On the basis of the compliance affidavit dated
10.11.2022, it is noted that bail has been granted for non-
[2024] 2 S.C.R.  1105

Satender Kumar Antil v. Central Bureau of Investigation and Anr.

compliance even though it has been stated that there is

compliance of the said directions. Since both situations cannot
co-exist and are self-contradictory, the High Court is directed
to report on the compliance of the aforementioned directions.
(ii) In terms of directions contained in para 100.5, there is partial
non-compliance insofar as several districts are insisting for bail
application under Section 88 of CrPC. Therefore, the High Court
is required to inform on its compliance alone.
(iii) In terms of directions contained in para 100.7, it has come to
our attention that the affidavit of the High Court is silent over
the constitution of Special Courts in consultation with the State
Government. The latest status of the same needs to be duly
updated and furnished.
(iv) In terms of directions contained in para 100.8, though the High
Court has identified prisoners who are unable to furnish sureties
despite bail, detailed information and steps taken to alleviate
the situation has however not been provided. Therefore, needful
be done in this regard.
(v) In terms of direction contained in order dated 03.02.2023,
the High Court should inform on compliance for inclusion of
Siddharth (Supra) and Satender Kumar Antil (Supra) in the
curriculum of judicial academy.
(vi) To furnish information on whether the directions in Satender
Kumar Antil (Supra) is being applied to petitions under Section
438 of CrPC or not.
29. State of Rajasthan -Directions to be complied with:
(i) In terms of direction contained in para 100.2, it is directed to
provide particulars of First Information Reports of cognizable
and non-bailable cases in which the mandate of Sections 41
and 41-A of CrPC has not been followed, and consequently to
provide the details of necessary actions that have been taken
against erring police officers.
(ii) In terms of para 100.7, it is directed that the State shall
provide details of Special Courts constituted and the
necessary steps taken for creation of Additional Special
Courts and its stage.
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(iii) Compliance with order dated 21.03.2023 passed by this Court:

(a) To train and update the prosecutors on a periodical basis
and provide details of the final outcome of the same.
29.1 High Court of Rajasthan -Directions to be complied with:
(i) In terms of directions contained in para 100.7, it has come to
our attention that the affidavit of the High Court is silent over the
constitution of Special Courts in consultation with the respective
State Government. The latest status of the same needs to be
duly updated and furnished.
(ii) In terms of directions contained in para 100.8 and 100.9, though
the High Court has endeavoured to identify prisoners who are
unable to comply with the bail conditions and is stated to have
informed them about their rights under Section 440 of CrPC.
However, subsequently no bail applications were received under
Section 440 of CrPC in most districts. Therefore, the High Court
is required to inform on its compliance alone.
(iii) In terms of direction contained in order dated 03.02.2023,
the High Court should inform on compliance for inclusion of
Siddharth (Supra) and Satender Kumar Antil (Supra) in the
judicial academy curriculum.
(iv) To furnish information on whether the directions of Satender
Kumar Antil (Supra) is being applied to petitions under Section
438 of CrPC or not.
30. State of Sikkim -Directions to be complied with:
(i) In terms of direction contained in para 100.2, it is directed to
provide particulars of First Information Reports of cognizable
and non-bailable cases in which the mandate of Sections 41,
41-A of CrPC and Arnesh Kumar (Supra) has not been followed,
and consequently also provide the details of necessary actions
that have been taken against erring police officers. Also, in
terms of direction contained in para 100.2, information has to
be provided as to whether the Standing Order is being complied
with by Investigating Officers.
(ii) In terms of para 100.7, it is directed that the State shall provide
details of Special Courts constituted and the necessary steps
taken for creation of Additional Special Courts and its stage.
[2024] 2 S.C.R.  1107

Satender Kumar Antil v. Central Bureau of Investigation and Anr.

30.1 High Court of Sikkim -Directions to be complied with:

(i) In terms of the directions issued in Para 100.2 and 100.3, bail
has been granted in non-compliance of Sections 41 and 41-A
of CrPC. On the basis of the compliance affidavit, it is noted
that bail has been granted for non-compliance even though it
has been stated that there is compliance of the said directions.
Since both situations cannot co-exist and are self-contradictory,
the High Court is directed to report on the compliance of the
aforementioned directions.
(ii) In terms of directions contained in para 100.7, it has come to
our attention that the affidavit of the High Court is silent over
the constitution of Special Courts in consultation with the State
Government. The latest status of the same needs to be duly
updated and furnished.
(iii) In terms of directions contained in para 100.8 and 100.9, though
the High Court has endeavoured to identify prisoners who are
unable to comply with the bail conditions and is stated to have
informed them about their rights under Section 440 of CrPC,
however, subsequently no bail applications were received under
Section 440 of CrPC in most districts. Therefore, the High Court
is required to inform on its compliance alone.
(iv) In terms of directions contained in para 100.11, there is partial
non-compliance in some districts as regular bail applications
are not decided within two weeks. Therefore, needful be done
in this regard and compliance be ensured. It is also to be noted
that most of the districts show the data as Nil and in some
cases N/A against the Anticipatory Bail column. The relevant
data needs to be furnished in detail.
31. State of Tamil Nadu -Directions to be complied with:
(i) In terms of direction contained in para 100.2, it is directed to
provide particulars of First Information Reports of cognizable
and non-bailable cases in which the mandate of Sections 41,
41-A of CrPC and Arnesh Kumar (Supra) has not been followed,
and consequently to provide the details of necessary actions
that have been taken against erring police officers. Also, in
terms of direction contained in para 100.2, information has to
be provided as to whether the Standing Order is being complied
with by Investigating Officers.
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(ii) In terms of para 100.7, it is directed that the State shall provide
details of Special Courts constituted and the necessary steps
taken for creation of Additional Special Courts and its stage.
(iii) Compliance with order dated 21.03.2023 passed by this Court:
(a) To circulate the judgment passed by this Court in Siddharth
(Supra) and Satender Kumar Antil (Supra).
(b) To train and update the prosecutors on a periodical basis
and provide details of the same.
31.1 High Court of Madras -Directions to be complied with:
(i) In terms of the directions issued in Para 100.2 and 100.3, bail
has been granted in non-compliance of Sections 41 and 41-A
of CrPC. On the basis of the compliance affidavit, it is noted
that bail has been granted for non-compliance even though it
has been stated that there is compliance of the said directions.
Since both situations cannot co-exist and are self-contradictory,
the High Court is directed to report on the compliance of the
aforementioned directions.
(ii) In terms of directions contained in para 100.5, there is partial
non-compliance insofar as some district courts are insisting for
bail application under Section 88 of CrPC. Therefore, the High
Court is required to inform on its compliance alone.
(iii) In terms of directions contained in para 100.8 and 100.9, though
the High Court has endeavoured to identify prisoners who are
unable to comply with the bail conditions and is stated to have
informed them about their rights under Section 440 of CrPC,
however, subsequently no bail applications were received under
Section 440 of CrPC in most districts. Therefore, the High Court
is required to inform on its compliance alone.
(iv) In terms of directions contained in para 100.11, there is partial
non-compliance in some districts as regular bail applications are
not decided within two weeks. Therefore, needful be done in this
regard and compliance be ensured. The relevant information
should also be furnished.
(v) To furnish information on whether the directions of Satender
Kumar Antil (Supra) is being applied to petitions under Section
438 of CrPC or not.
[2024] 2 S.C.R.  1109

Satender Kumar Antil v. Central Bureau of Investigation and Anr.

32. State of Telangana -Directions to be complied with:

(i) In terms of direction contained in para 100.2, it is directed to
provide the particulars of First Information Reports of cognizable
and non-bailable cases in which the mandate of Sections 41,
41-A of CrPC and Arnesh Kumar (Supra) has not been followed
and consequently to provide the details of necessary actions
that have been taken against erring police officers. Also, in
terms of direction contained in para 100.2, information has to
be provided as to whether the Standing Order is being complied
with by Investigating Officers.
(ii) In terms of direction contained in para 100.7, it is directed that
the State shall provide details of Special Courts constituted and
the necessary steps taken for creation of Additional Special
Courts and its stage.
(iii) Compliance with order dated 21.03.2023 passed by this Court:
(a) To circulate the judgment passed by this Court in Siddharth
(Supra) and Satender Kumar Antil (Supra).
32.1 High Court of Telangana -Directions to be complied with:
(i) In terms of the directions issued in Para 100.2 and 100.3, bail
has been granted in non-compliance of Sections 41 and 41-A
of CrPC. On the basis of the compliance affidavit, it is noted
that bail has been granted for non-compliance even though it
has been stated that there is compliance of the said directions.
Since both situations cannot co-exist and are self-contradictory,
the High Court is directed to report on the compliance of the
aforementioned directions.
(ii) In terms of directions contained in para 100.5, there is partial
non-compliance insofar as some district courts are insisting for
bail application under Section 88 of CrPC. Therefore, the High
Court is required to inform on its compliance alone.
(iii) In terms of directions contained in para 100.8 and 100.9, though
the High Court has endeavoured to identify prisoners who are
unable to comply with the bail conditions and is stated to have
informed them about their rights under Section 440 of CrPC,
however, subsequently no bail applications were received under
Section 440 of CrPC in most districts. Therefore, the High Court
is required to inform on its compliance alone.
1110 [2024] 2 S.C.R.

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(iv) To furnish information on whether the directions of Satender

Kumar Antil (Supra) is being applied to petitions under Section
438 of CrPC or not.
(v) In terms of direction contained in order dated 03.02.2023,
the High Court should inform on compliance for inclusion of
Siddharth (Supra) and Satender Kumar Antil (Supra) in the
curriculum of judicial academy.
33. State of Tripura -Directions to be complied with:
(i) In terms of direction contained in para 100.2, it is directed to
provide the particulars of First Information Reports of cognizable
and non-bailable cases in which the mandate of Sections 41,
41-A of CrPC and Arnesh Kumar (Supra) has not been followed
and consequently to provide the details of necessary actions
that have been taken against erring police officers. Also, in
terms of direction contained in para 100.2, information has to
be provided as to whether the Standing Order is being complied
with by Investigating Officers.
(ii) In terms of direction contained in para 100.7, it is directed that
the State shall provide details of Special Courts constituted and
the necessary steps taken for creation of Additional Special
Courts and its stage.
(iii) Compliance with order dated 21.03.2023 passed by this Court:
(a) In terms of the above referred order, we direct the State
to ensure that the prosecutors are stating the correct
position of law as per the judgment passed by this Court
in Siddharth (Supra) and Satender Kumar Antil (Supra).
(b) To circulate the judgment passed by this Court in Siddharth
(Supra) and Satender Kumar Antil (Supra)
(c) To train and update the prosecutors on a periodical basis
and provide details of the same.
31.1 High Court of Tripura -Directions to be complied with:
(i) In terms of the directions issued in Para 100.2 and 100.3, bail
has been granted in non-compliance of Sections 41 and 41-A
of CrPC. On the basis of the compliance affidavit, it is noted
that bail has been granted for non-compliance even though it
[2024] 2 S.C.R.  1111

Satender Kumar Antil v. Central Bureau of Investigation and Anr.

has been stated that there is compliance of the said directions.

Since both situations cannot co-exist and are self-contradictory,
the High Court is directed to report on the compliance of the
aforementioned directions.
(ii) In terms of directions contained in para 100.5, there is non-
compliance insofar as District courts are insisting for bail
application under Section 88 of CrPC. Therefore, the High Court
is required to inform on its compliance alone.
(iii) In terms of directions contained in para 100.8 and 100.9, though
the High Court has endeavoured to identify prisoners who are
unable to comply with the bail conditions and is stated to have
informed them about their rights under Section 440 of CrPC,
however, subsequently no bail applications were received under
Section 440 of CrPC in most districts. Therefore, the High Court
is required to inform on its compliance alone.
(iv) To furnish information on whether the directions of Satender
Kumar Antil (Supra) is being applied to petitions under Section
438 of CrPC or not.
(v) In terms of direction contained in order dated 03.02.2023,
the High Court should inform on compliance for inclusion of
Siddharth (Supra) and Satender Kumar Antil (Supra) in the
curriculum of judicial academy.
34. State of Uttarakhand -Directions to be complied with:
(i) In terms of direction contained in para 100.2, it is directed to
provide the particulars of First Information Reports of cognizable
and non-bailable cases in which the mandate of Sections 41,
41-A of CrPC and Arnesh Kumar (Supra) has not been followed
and consequently to provide the details of necessary actions
that have been taken against erring police officers. Also, in
terms of direction contained in para 100.2, information has to
be provided as to whether the Standing Order is being complied
with by Investigating Officers.
(ii) In terms of direction contained in para 100.7, it is directed that
the State shall provide details of Special Courts constituted and
the necessary steps taken for creation of Additional Special
Courts and its stage.
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34.1 High Court of Uttarakhand -Directions to be complied with:

(i) In terms of the directions issued in Para 100.2 and 100.3, bail
has been granted in non-compliance of Sections 41 and 41-A
of CrPC. On the basis of the compliance affidavit, it is noted
that bail has been granted for non-compliance even though it
has been stated that there is compliance of the said directions.
Since both situations cannot co-exist and are self-contradictory,
the High Court is directed to report on the compliance of the
aforementioned directions.
(ii) In terms of directions contained in para 100.5, there is non-
compliance insofar as some District courts are insisting for bail
application under Section 88 of CrPC. Therefore, the High Court
is required to inform on its compliance alone.
(iii) In terms of directions contained in para 100.8 and 100.9, though
the High Court has endeavoured to identify prisoners who are
unable to comply with the bail conditions and is stated to have
informed them about their rights under Section 440 of CrPC,
however, subsequently no bail applications were received under
Section 440 of CrPC in most districts. Therefore, the High Court
is required to inform on its compliance alone.
(iv) In terms of directions contained in para 100.11, there is partial
non-compliance in some districts as regular bail applications
are not decided within two weeks. Therefore, the needful be
done in this regard and compliance be ensured. The relevant
information should also be furnished.
(v) To furnish information on whether the directions of Satender
Kumar Antil (Supra) is being applied to petitions under Section
438 of CrPC or not.
35. State of Uttar Pradesh -Directions to be complied with:
(i) In terms of direction contained in para 100.2, it is directed to
provide the particulars of First Information Reports of cognizable
and non-bailable cases in which the mandate of Sections 41,
41-A of CrPC and Arnesh Kumar (Supra) has not been followed
and consequently to provide the details of necessary actions
that have been taken against erring police officers. Also, in
terms of direction contained in para 100.2, information has to
[2024] 2 S.C.R.  1113

Satender Kumar Antil v. Central Bureau of Investigation and Anr.

be provided as to whether the Standing Order is being complied

with by Investigating Officers.
(ii) In terms of direction contained in para 100.7, it is directed that
the State shall provide details of Special Courts constituted and
the necessary steps taken for creation of Additional Special
Courts and its stage.
(iii) Compliance with order dated 21.03.2023 passed by this Court:
(a) In terms of the above referred order, we direct the State
to ensure that the prosecutors are stating the correct
position of law as per the judgment passed by this Court
in Siddharth (Supra) and Satender Kumar Antil (Supra).
(b) To circulate the judgment passed by this Court in Siddharth
(Supra) and Satender Kumar Antil (Supra).
(c) To train and update the prosecutors on a periodical basis
and provide details of the same.
35.1 High Court of Allahabad -Directions to be complied with:
(i) In terms of the compliance of the directions issued in Para
100.2, the affidavit submitted highlights discrepancy, wherein
information highlights compliance of Sections 41 and 41-A of
CrPC, however, bail is being granted due to non-compliance of
the same in certain districts such as Barabanki, Farrukhabad,
Kansiram Nagar, Lakhimpur Kheri, and Moradabad. Since the
two conditions cannot co-exist, the High Court is directed to
ensure uniform compliance and furnish information on the same.
(ii) In terms of the directions issued in Para 100.5, the High Court is
directed to ensure compliance to the effect that bail applications
should not be insisted upon in applications under Sections 88,
170, 204 and 209 of CrPC as they are being insisted upon in
certain districts such Agra, Chitrakoot and Sambhal, and to
furnish information on the same.
(iii) In terms of the directions issued in Para 100.6, the High Court
is directed to ensure compliance of the same and furnish
information.
(iv) In terms of the directions issued in Para 100.7, the High Court
is directed to ensure compliance with respect to consultation
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with the State Government for constitution of Special Courts

and filling vacancies in the existing District Courts, and to
furnish information on the steps taken to comply with the
same.
(v) In terms of the directions issued in Paras 100.8 and 100.9, it
is noted that despite the identification of undertrial prisoners,
sufficient steps have not been taken to ensure compliance by
filing applications on their behalf under Section 440 of CrPC, in
most districts. The High Court is directed to ensure compliance
and furnish information on the same.
(vi) In terms of the directions issued in Para 100.11, the High
Court is directed to furnish complete information regarding the
compliance of the directions in all districts and to take steps
for compliance.
(vii) The High Court is directed to identify judicial officers passing
orders in non-conformity with the directions issued by this Court
in Satender Kumar Antil (Supra), in terms of the order dated
02.05.2023 of this Court, and to provide details as to the actions
taken against erring officers.
(viii) To furnish information on whether the directions of Satender
Kumar Antil (Supra) is being applied to petitions under Section
438 of CrPC or not.
36. State of West Bengal -Directions to be complied with:
(i) In terms of direction contained in para 100.2, it is directed to
provide the particulars of First Information Reports of cognizable
and non-bailable cases in which the mandate of Sections 41,
41-A of CrPC and Arnesh Kumar (Supra) has not been followed
and consequently to provide the details of necessary actions
that have been taken against erring police officers. Also, in
terms of direction contained in para 100.2, information has to
be provided as to whether the Standing Order is being complied
with by Investigating Officers.
(ii) In terms of direction contained in para 100.7, it is directed that
the State shall provide details of Special Courts constituted and
the necessary steps taken for creation of Additional Special
Courts and its stage.
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Satender Kumar Antil v. Central Bureau of Investigation and Anr.

36.1 High Court of Calcutta -Directions to be complied with:

(i) In terms of the compliance of the directions issued in Para
100.2, the affidavit submitted highlights discrepancy in districts
such as Alipore and Birbhum, wherein information highlights
compliance of Sections 41 and 41-A of CrPC, however, bail is
being granted due to non-compliance of the same in districts
such as Alipore and Birbhum and the Union Territory of Andaman
and Nicobar. Since the two conditions cannot co-exist, the High
Court is directed to ensure uniform compliance and furnish
information on the same.
(ii) In terms of the directions issued in para 100.5, some districts
have not complied with the same as per the information provided.
The High Court is directed to ensure uniform compliance of the
directions and furnish information on the same.
(iii) In terms of the directions issued in 100.7, the High Court is
directed to take steps to ensure compliance of the same and
furnish information.
(iv) The directions issued in Para 100.8 as well as 100.9 are noted
to have been only partly complied with in most districts barring
a few. The High Court is directed to take steps to ensure
compliance of the directions issued in their entirety and furnish
information on the same.
(v) The High Court is directed to provide complete information
regarding the compliance of the directions issued in Para 100.11,
and ensure compliance of the same.
(vi) In terms of direction contained in order dated 03.02.2023,
the High Court should inform on compliance for inclusion of
Siddharth (Supra) and Satender Kumar Antil (Supra) in the
curriculum of judicial academy.
37. Union of India -Directions to be complied with:
(i) In terms of the direction contained in para 100.1, the Union is
directed to inform the Court as to whether any Bail Law is in
contemplation or under preparation.
(ii) To inform the Court as to whether any assessment has been
done to ascertain the requirement of creating further Special
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Courts (CBI) in districts with high pendency of cases, with

requisite data.
(iii) To inform the Court as to whether or not the investigative
agencies (other than CBI) under its ambit are following the
directions of this Court as laid down in Satender Kumar Antil
(Supra).
38. Central Bureau of Investigation -Directions to be complied with:
(i) In terms of direction contained in para 100.2, it is directed to
provide the particulars of First Information Reports of cognizable
and non-bailable cases in which the mandate of Sections 41,
41-A of CrPC and Arnesh Kumar (Supra) has not been followed
and consequently to provide the details of necessary actions
that have been taken against erring police officers. Also, in
terms of direction contained in para 100.2, information has to
be provided as to whether the Standing Order/Criminal Manual
is being complied with by Investigating Officers.
(ii) Compliance with order dated 21.03.2023 passed by this Court:
(a) To circulate the judgment passed by this Court in Siddharth
(Supra) and Satender Kumar Antil (Supra)
(b) To train and update the prosecutors on a periodical basis
and provide details of the same.
39. NALSA -Directions to be complied with:
(i) In terms of the order dated 02.05.2023, NALSA shall supply
updated information with regard to para 100.8 and 100.10 in
Satender Kumar Antil (Supra)
(ii) NALSA shall inform the follow-up action taken by NALSA
and State Legal Services Authorities of the States and Union
Territories as provided to NALSA by various authorities including
the State governments and Union Territories.
(iii) In order to provide to this Court adequate updated information,
we deem it appropriate to direct all the States and Union
Territories to cooperate with NALSA.
G. In view of the above referred report and affidavits, we direct all
the States, Union Territories, High Courts, Union of India, CBI
and NALSA to file their updated compliance affidavits on the
above referred aspects within a period of 8 weeks from today,
[2024] 2 S.C.R.  1117

Satender Kumar Antil v. Central Bureau of Investigation and Anr.

and the learned Amicus upon perusal of the same shall file a
report on these compliances in 2 weeks thereafter.
H. The matter will be listed on 07.05.2024, and we wish to take up
this matter in a phased manner. The States and High Courts
from serial numbers 1 to 10 will be taken up on 07.05.2024,
and the monitoring as to due compliance by the remaining stake
holders will be taken up subsequently in a staggered manner.
I. STANDARD OPERATING PROCEDURE (SOP)
(i) Ms. Aishwarya Bhati, learned Additional Solicitor General
has invited our attention to a document titled as “Guidelines
and standard operating procedure for implementation of
the scheme for support to poor prisoners” and requested
that the same may form part of record and the Order of
this Court. The same shall be taken on record.
(ii) In furtherance of the subsequent orders passed by this
Court on ancillary issues concerned with training public
prosecutors and including judgments of this Court in the
Curriculum of State Judicial Academies, we wish to further
pass a direction on an SOP framed by Central Government.
The SOP if put in place by the Central Government, will
indeed alleviate the situation of under trial prisoners by
way of establishment of a dedicated empowered committee
and funds etc.
(iii) For the sake of convenience and for extending the benefit
of this SOP to the under-trial prisoners, we wish to extract
the SOP in its entirety in this Order so that all concerned
parties act in tandem to ensure due compliance of this
SOP and the compliance thereof is incorporated in the
next report.
“Guidelines and Standard Operating Procedure
for implementation of the Scheme for support
to poor prisoners
i) Funds to the States/UTs will be provided through
the Central Nodal Agency (CNA). The National
Crime Records Bureau has been designated as
the CNA for this scheme.
ii) States/UTs will draw the requisite amount from
the CNA on case-to-case basis and reimburse
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the same to the concerned competent authority

(Court) for providing relief to the prisoner.
iii) An ‘Empowered Committee’ may be constituted
in each District of the State/UT, comprising
of i) District Collector (DC)/District Magistrate
(DM), ii) Secretary, District Legal Services
Authority, iii) Superintendent of Police, iv)
Superintendent/ Dy. Supdt. of the concerned
Prison and v) Judge incharge of the concerned
Prison, as nominee of the District Judge.
Note: This Empowered Committee will assess
the requirement of financial support in each
case for securing bail or for payment of fine,
etc. and based on the decision taken, the DC/
DM will draw money from the CNA account and
take necessary action.
Note: The Committee may appoint a Nodal
Officer and take assistance of any civil society
representative/social worker/ District Probation
Officer to assist them in processing cases of
needy prisoners.
iv) An Oversight Committee may be constituted at the
State Government level, comprising of i) Principal
Secretary (Home/Jail), ii) Secretary (Law Deptt), iii)
Secretary, State Legal Services Authority, iv) DG/IG
(Prisons) and v) Registrar General of the High Court.
Note: The composition of the State level ‘Empowered
Committee’ and ‘Oversight Committee’ are suggestive
in nature. Prisons/persons detained therein being
‘State-List” subject, it is proposed that the Committees
may be constituted and notified by the concerned
State Governments/UT Administrations.
Standard Operating Procedure
UNDERTRIAL PRISONERS
1. If the undertrial prisoner is not released from the jail
within a period of 7 days of order of grant of bail,
[2024] 2 S.C.R.  1119

Satender Kumar Antil v. Central Bureau of Investigation and Anr.

then the jail authority would inform Secretary, District

Legal Services Authority (DLSA).
2. Secretary, DLSA would inquire and examine whether
the undertrial prisoner is not in a position to furnish
financial surety for securing bail in terms of the bail
conditions.
For this, DLSA may take the assistance of Civil Society
representatives, social workers/ NGOs, District
Probation officers or revenue officer. This exercise
would be completed in a time bound manner within
a period of 10 days.
3. Secretary, DLSA will place all such cases before
the District Level Empowered Committee every 2-3
weeks.
4. After examination of such cases, if the Empowered
Committee recommends that the identified poor
prisoner be extended the benefit of financial benefit
under ‘Support to poor prisoners Scheme”, then
the requisite amount upto Rs. 40,000/- per case for
one prisoner, can be drawn and made available to
the Hon’ble Court by way of Fixed Deposit or any
other method, which the District Committee feels
appropriate.
5. This benefit will not be available to persons who are
accused of offences under Prevention of Corruption
Act, Prevention of Money Laundering Act, NDPS or
Unlawful Activities Prevention Act or any other Act
or provisions, as may be specified later.
6. If the prisoner is acquitted/convicted, then appropriate
orders may be passed by the trial Court so that the
money comes back to the Government’s account as
this is only for the purposes of securing bail unless the
accused is entitled to the benefit of bail U/s. 389 (3)
Cr.P.C. in which event the amount can be utilised for
bail by Trial Court to enable the accused to approach
the Appellate Court and also if the Appellate Court
grants bail U/s. 389 (1) of Cr.P.C.
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7. If the bail amount is higher than Rs. 40,000/-,

Secretary, DLSA may exercise discretion to pay
such amount and make a recommendation to the
Empowered Committee. Secretary, DLSA may also
engage with legal aid advocate with a plea to have
the surety amount reduced. For any amount over and
above Rs. 40,000/-, the proposal may be approved
by the State level Oversight Committee.
CONVICTED PRISONERS:
1. If a convicted person is unable to get released from
the jail on account of non- payment of fine amount,
the Superintendent of the Jail would immediately
inform Secretary, DLSA (Time bound manner: 7 days).
2. Secretary, DLSA would enquire into the financial
condition of the prisoner with the help of District Social
Worker, NGOs, District Probation Officer, Revenue
Officer who would be mandated to cooperate with
the Secretary, DLSA. (Time bound manner: 7 days)
3. The Empowered Committee will sanction the release
of the fine amount upto Rs. 25,000/- to be deposited
in the Court for securing the release of the prisoner.
For any amount over and above Rs. 25,000/-,
the proposal may be approved by the State level
Oversight Committee.”
J. EMAIL ID
At last, the learned Amicus has suggested for creating a dedicated
email id for the purpose of these proceedings pending before us so
that the reports are saved or exchanged simultaneously. Considering
the convenience of all parties present here, we accept the suggestion
so made and accordingly give liberty to the learned amicus to create
the email id, and circulate the same to all the counsel/parties. Email
id shall be used hereafter for serving and receiving affidavits / reports.

Headnotes prepared by: Ankit Gyan Result of the case:

Directions issued.
 [2024] 2 S.C.R. 1121 : 2024 INSC 175

Vedanta Limited
v.
The State of Tamil Nadu & Ors
(Special Leave Petition (Civil) Nos. 10159-10168 of 2020)
29 February 2024
[Dr Dhananjaya Y. Chandrachud, CJI, J. B . Pardiwala and
Manoj Misra, JJ.]

Issue for Consideration

Impugned orders passed by the High Court directing closure of the
copper smelter operated by the petitioner at the industrial complex in
Tamil Nadu for violations of numerous environmental norms, if justified.

Headnotes
Environmental Laws – Environmental pollution and degradation
– Copper smelter operated by the petitioner at the industrial
complex in Thoothukudi in Tamil Nadu – Closure of, for
violations of numerous environmental norms by the High
Court – Interference with:
Held: Industrial establishment was not exculpated of its liability for
environmental violations – Closure of the industry is undoubtedly not
a matter of first choice – Nature of the violations and the repeated
nature of the breaches coupled with the severity of the breach of
environmental norms left neither the statutory authorities nor the
High Court with the option to take any other view unless they were
to be oblivious of their plain duty – Unit, has been contributing to
the productive assets of the nation and providing employment and
revenue in the area – The Court has to be mindful of the principles of
sustainable development, the polluter pays principle, and the public
trust doctrine which underscore the importance of balancing economic
interests with environmental and public welfare concerns – While
the industry has played a role in economic growth, the health and
welfare of the residents of the area is a matter of utmost concern –
State Government is responsible for preserving and protecting their
concerns – All persons have the right to breathe clean air, drink clean
water, live a life free from disease and sickness, and for those who
till the earth, have access to uncontaminated soil – These rights are
not only recognized as essential components of human rights but
are also enshrined in various international treaties and agreements –
They must be protected and upheld by governments and institutions
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– Without these basic rights, increased revenue and employment

cease to have any real meaning – Thus, interference u/Art. 136 not
warranted – High Court justified in making the observations in regard
to the lack of alacrity on the part of the Pollution Control Board in
discharging its duties, thus the observations not to be expunged or
obliterated from the record. [Paras 22-25, 28, 29, 32]
Constitution of India – Art. 136 – Exercise of power u/Art.136,
when:
Held: Is to be exercised sparingly and only when exceptional
circumstances exist which justify the exercise of its discretion – On
facts, as regards the challenge to the order passed by the High
Court directing the closure of the copper smelter operated by the
petitioner at the industrial complex in Tamil Nadu, this Court to apply
the principles of judicial review bearing on whether the findings
arrived at by the High Court are borne out from the record or
conversely, are based on misappreciation of law and fact. [Para 18]
Doctrines/Principles – Polluter pays principle – Meaning of:
Held: Is a widely accepted norm in international and domestic
environmental law – It asserts that those who pollute or degrade the
environment should bear the costs of mitigation and restoration –
Polluter pays principle serves as a reminder that economic activities
should not come at the expense of environmental degradation or
the health of the population. [Para 24]
Doctrines/Principles – Public trust doctrine – Meaning of:
Held: Public trust doctrine, recognized in various jurisdictions,
including India, establishes that the state holds natural resources
in trust for the benefit of the public – It reinforces the idea that the
State must act as a steward of the environment, ensuring that the
common resources necessary for the well-being of the populace
are protected against exploitation or degradation. [Para 25]
Intergenerational equity – Concept of :
Held: It suggests that the “present residents of the earth hold
the earth in trust for future generations and at the same time the
present generation is entitled to reap benefits from it” – Planet
and its invaluable resources must be conscientiously conserved
and responsibly managed for the use and enjoyment of future
generations, emphasising the enduring obligation to safeguard the
environmental heritage for the well-being of all. [Para 27]
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Vedanta Limited v. The State of Tamil Nadu & Ors

Case Law Cited

Tamil Nadu Pollution Control Board v. Sterlite Industries
(India) Limited, [2019] 3 SCR 777 : (2019) 19 SCC 479;
Sterlite Industries (India) Limited v. Union of India, (2013)
4 SCC 575; Chandi Prasad Chokhani v. State of Bihar,
AIR (1961) SC 1708; Pritam Singh v. State, [1950] 1 SCR
453 : (1950) SCC 189; Subhash Kumar v. State of Bihar,
[1991] 1 SCR 5 : (1991) 1 SCC 598; Vellore Citizens’
Welfare Forum v. Union of India, [1996] Suppl. 5 SCR
241 : (1996) 5 SCC 647; G. Sundarrajan v. Union of
India, [2013] 8 SCR 631 : (2013) 6 SCC 620; D. Swamy
v. Karnataka State Pollution Control Board, [2022] 15
SCR 547 : (2022) SCC OnLine SC 1278 – referred to.

Books and Periodicals Cited

Werner Scholtz, ‘Equity’ in (Lavanya Rajamani and
Jaqueline Peel, eds.) The Oxford Handbook of
International Environmental Law (2nd edn., 2021) –
referred to.

List of Acts
Constitution of India; Water (Prevention and Control of Pollution
Act) 1974; Air (Prevention and Control of Pollution) Act 1981.

List of Keywords
Environmental pollution; Copper smelter; Environmental norms;
Industrial establishment; Environmental violations; Judicial
review; Statutory authorities and bodies; Principles of sustainable
development; Polluter pays principle; Public trust doctrine;
Balancing economic interests; Public welfare concerns; Economic
growth; Health and welfare; Human rights; International treaties
and agreements; Economic growth; Sustainable progress; Pollution
Control Board; Environmental law; Environmental degradation;
Natural resources; Intergenerational equity; Environmental heritage.

Case Arising From

CIVIL APPELLATE JURISDICTION : Special Leave Petition (Civil)
Nos.10159-10168 of 2020
With
Special Leave Petition (Civil) Nos.10461-10462 of 2020 and Civil
Appeal Nos.276-285 of 2021
1124 [2024] 2 S.C.R.

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From the Judgment and Order dated 18.08.2020 of the High Court
of Judicature at Madras in WP Nos.5756, 5764, 5771, 5772, 5773,
5774, 5776, 5792, 5801 and 5793 of 2019
Appearances for Parties
Mrs. Aishwarya Bhati, A.S.G., C.S. Vaidyanathan, Gopal
Sankaranarayanan, Pinaki Mishra, Shyam Divan, Krishnan Venugopal,
Sanjay Upadhyay, Colin Gonsalves, Sr. Advs., Ms. Purnima Krishna,
Siddhant Kohli, Vinayak Goel, Ms. Tanya Srivastava, Karamveer
Singh Yadav, R. Gunaalan, Nitish Raj, Sachin S., Arunpandiyan
S., P. S. Sudheer, Bharat Sood, Ms. Anne Mathew, Ms. Miranda
Solaman, Sameer Parekh, Ms. Sonali Basu Parekh, D. P. Mohanty,
Sumit Goel, Ms. Sreeparna Basak, Ishan Nagar, Jayant Bajaj, Ms.
Aditi, Sudipto Sircar, Adith Deshmukh, Ms. Gitanjali Sanyal, Ms.
Mansi Bachani, Ms. Meghna Sharma, M/s. Parekh & Co., M. Yogesh
Kanna, G. Ananda Selvam, Ms. Msm Aasai Thambi, Mayilsamy. K,
Dr. Kayathri, G. Muthu Kumaran, Sanchit Maheshwari, Ms. Lakshmi
Ramamurthy, Mayank Pandey, Ms. Bani Dikshit, Padmesh Mishra,
Ms. Shivika Mehra, Ms. Shagun Thakur, Ms. Srishti Mishra, Arvind
Kumar Sharma, M.F. Philip, D. Kumanan, Mrs. Deepa. S, Sheikh F.
Kalia, Veshal Tyago, A Yogeswaran, Ms. B Poonghkhullali, T. V. S.
Raghavendra Sreyas, Siddharth Vasudev, Parijat Kishore, S. Beno
Bencigar, Satya Mitra, Ms. Kawalpreet Kaur, Paul Kumar Kalai, A.
Selvin Raja, Sabarish Subramanian, G. Sivabalamurugan, Selvaraj
Mahendran, C. Adhikesavan, S. B. Kamalanathan, P.V. Harikrishnan,
Sunil Singh Rawat, Kartik Sandal, Anshuman Ashok, Advs. for the
appearing parties.
Judgment / Order of the Supreme Court

Judgment
Table of Contents*
A. SLP (C) Nos 10159-10168 and 10461-10462 of 2020 ........ 3
i. Background ..................................................................3
ii. The judgment of this Court in 2013 ...........................4
iii. The decision in this case ............................................6
a. Violations of environmental norms and
* Ed Note : Pagination as per original judgment.
[2024] 2 S.C.R.  1125

Vedanta Limited v. The State of Tamil Nadu & Ors

consequent harm .................................................. 6

b. The High Court did not commit an error
of jurisdiction ..........................................................8
c. Interference under Article 136 is not
warranted .............................................................10
B. Civil Appeal Nos. 276-285 of 2021 ...................................17

A. SLP (C) Nos 10159-10168 and 10461-10462 of 2020

i. Background
1. The Special Leave Petitions arise from a judgment dated 18 August
2020 of a Division Bench of the High Court of Judicature at Madras in
a batch of ten petitions under Article 226 of the Constitution of India.
2. A series of orders passed in April and May 2018 by the Tamil Nadu
Pollution Control Board1 and by the Government of Tamil Nadu
and an order dated 29 March 2013 passed by the former form the
subject of the challenge.
3. By the orders impugned, the copper smelter operated by the petitioner
(Vedanta Limited) at the SIPCOT industrial complex in Thoothukudi
in Tamil Nadu was directed to be closed for violations of numerous
environmental norms.
4. Initially, there was a challenge before the National Green Tribunal.
The order of the Tribunal was placed in issue before this Court by the
TNPCB and became the subject matter of a judgment delivered by
this Court on 18 February 2019, reported as Tamil Nadu Pollution
Control Board v. Sterlite Industries (India) Limited.2 While coming
to the conclusion that there was an absence of jurisdiction on the
part of the National Green Tribunal, this Court granted liberty to the
operator of the unit to move the High Court in appropriate proceedings
under Article 226 of the Constitution.
5. This resulted in the institution of the petitions before the High Court,
as noticed above, and the judgment of the High Court which has
been questioned in these proceedings.

1 “TNPCB”
2 [2019] 3 SCR 777 : (2019) 19 SCC 479.
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ii. The judgment of this Court in 2013

6. An earlier judgment of this Court, reported as Sterlite Industries
(India) Limited v. Union of India,3 concerned the same unit as in
the present proceedings. Environmental clearances were granted to
the unit in 1995 and it commenced production in 1997. Separate writ
petitions were instituted before the High Court, inter alia for directions
to cancel the environmental clearances; close the operation of the
unit; and to the state to take action against the unit for its failure
to take safety measures to remedy pollution and to protect against
industrial accidents. By an order dated 28 September 2010, the High
Court allowed the writ petitions and directed that the unit be closed.
On appeal, a two-Judge Bench of this Court in Sterlite Industries
(supra) adjudicated the validity of this order. This Court held that:
a. The High Court was not justified in interfering with the decision
to grant environmental clearance on the ground of procedural
impropriety;
b. The High Court was not justified in directing the closure of the
plant on the ground that it was located in the SIPCOT industrial
complex which was within a 25 km radius of four ecologically
sensitive islands in the Gulf of Mannar. This is because one
of the consent orders permitted the establishment of the plant
at this location. However, the possibility of shifting the plant in
the future was not precluded, if it became necessary for the
purpose of conserving the environment;
c. The High Court ought not to have interfered with the exercise of
power by the TNPCB, which reduced the width of the mandated
green belt in the no-objection certificate;
d. Article 21 of the Constitution empowered the High Court to
direct the plant to be closed if it was found to be polluting
the environment, notwithstanding the fact that environmental
clearances had been granted. This could be done if no other
remedial measure was available; and
e. Inspections of the unit indicated that some emissions and
effluents were beyond the permissible limit prescribed by

3 (2013) 4 SCC 575.

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Vedanta Limited v. The State of Tamil Nadu & Ors

TNPCB. The unit was polluting the environment in violation of

legal norms (detailed in the following paragraphs).
7. In terms of the directions of this Court, TNPCB issued directions
for the removal of deficiencies. It was then claimed on behalf of
the unit that the deficiencies had been removed. On the basis of a
joint inspection by National Environmental Engineering Research
Institute4 and the Central Pollution Control Board,5 this Court found
that several suggestions towards remediation had been complied
with. This Court was of the view that closure was therefore not the
only remedy. Though there was a suppression of fact by the unit, the
Court was not inclined to order closure at that stage and imposed
instead a requirement of compensation quantified at Rs. 100 crores
for non-compliance with environmental parameters and operating
without consent in terms of the applicable environmental law:
“47. … we are of the view that the appellant Company
should be held liable for a compensation of Rs 100 crores
for having polluted the environment in the vicinity of its
plant and for having operated the plant without a renewal
of the consents by the TNPCB for a fairly long period
and according to us, any less amount, would not have
the desired deterrent effect on the appellant Company.”
8. While setting aside the order of closure, this Court nonetheless
observed that its judgment would not prevent TNPCB from issuing
directions to the unit including a direction for closure, if required.
iii. The decision in this case
a. Violations of environmental norms and consequent harm
9. Before assessing the submissions of the parties, it is necessary to
understand the basis for the decision of the High Court as well of this
Court in 2013. It is not possible for this Court to assess the merits of
the submissions, shorn of the context in which the decision(s) were
rendered. Both this Court in Sterlite Industries (supra) as well as the
High Court in the impugned judgment found that the unit of the petitioner
was guilty of serious violations of environmental and other laws.

4 “NEERI”
5 “CPCB”
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10. In 2013, this Court in Sterlite Industries (supra) found that the unit
had violated the law in more than one way:
a. The unit had caused pollution between 1997 and 2012;
b. The reports of NEERI indicated non-compliance with
environmental standards;
c. The unit had operated without a renewal of the consent to
operate for a long period of time; and
d. There was an act of suppression and misrepresentation on the
part of the unit in the proceedings before this Court.
11. In the impugned judgment, the High Court inter alia found that:
a. The unit had operated without consent from TNPCB for about
sixteen years;
b. The unit had operated without hazardous waste management
authorisation for about ten years;
c. The unit did not have appropriate systems in place for the
disposal of hazardous waste;
d. There was a substantial presence of Total Dissolved Solids
(TDS) in the water;
e. The unit dumped large amounts of copper slag, leading to air
and water pollution. The dumped copper slag also caused the
river in Thootukudi to flood. This was a violation of the conditions
in terms of which the relevant authorities had granted consent;
f. The unit failed to comply with the requirement of maintaining
a green belt;
g. The regulator, TNPCB, did not exercise its powers in a timely
and effective fashion, as mandated by law; and
h. TNPCB established that the unit flouted the law for over twenty-
two years. There was no error in the decision of the authorities
to direct the closure of the unit.
12. This Court must have due regard to these findings of fact and law
while adjudicating whether grounds for interference with the impugned
judgment are made out.
b. The High Court did not commit an error of jurisdiction
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Vedanta Limited v. The State of Tamil Nadu & Ors

13. Essentially, five grounds were urged in the orders for the closure of
the unit. They are:
a. The unit had failed to furnish ground water examination reports
to ascertain the impact on ground water quality;
b. An extensive amount of copper slag lying on third party land had
not been removed. A physical barrier had not been constructed
between the copper slag and the river to prevent the slag from
reaching the river;
c. The unit had applied for authorization to generate and dispose
of hazardous waste but did not have an extant licence;
d. There was a failure to measure emissions in terms of the
National Air Quality Ambient Standards; and
e. The requirement of a gypsum pond (mandated by guidelines
issued by CPCB) had not been observed.
14. Apart from the merits, the principal submission which has been
urged on behalf of the petitioner by Mr Shyam Divan, senior counsel
(supported by Mr Krishnan Venugopal, senior counsel) is that since
the closure was founded on the above five grounds, the High Court
was not justified, while exercising its writ jurisdiction under Article 226
of the Constitution, in enquiring into other grounds of environmental
violations.
15. The above submission has been opposed both by Mr CS
Vaidyanathan, senior counsel appearing on behalf of the TNPCB
and Mr Gopal Sankaranarayanan, senior counsel appearing on
behalf of the Government of Tamil Nadu. They have submitted, on
the basis of the reliefs which were sought in the writ proceedings,
that the petitioners had not merely challenged the orders adverse
to them but had, in addition, sought a mandamus for the issuance
of renewal permissions. Hence, it was urged that in such an event,
it was open to the High Court not only to enquire into the grounds
on which closure had been directed but to determine whether the
petitioner was entitled to a renewal of permissions.
16. From a reading of the judgment of the High Court, it has emerged that
the petitioner had expressly consented to the High Court enquiring
into all the facets of the matter so as to determine fully and finally
as to whether the petitioner would be entitled to a renewal of the
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permissions which were granted to it. Otherwise, even if the orders

impugned were to be set aside, both the Board and the Government
would have been justified in requesting the High Court to remand
the proceedings back to the competent statutory authorities for re-
determination afresh. This course of action was obviated on the
petitioner submitting to the High Court that it was ready and willing
to have the High Court evaluate the entirety of the matter in its full
perspective.
17. The petitioner having agreed to this course of action, we are not
inclined to entertain the submission that the High Court has committed
an error of jurisdiction. The hearing before the High Court spanned
forty-two days and the High Court has rendered a judgment on all
factual and legal aspects, after considering as many as thirty-eight
issues.
c. Interference under Article 136 is not warranted
18. In considering the merits of the challenge, this Court would have
to apply settled principles of judicial review bearing on whether the
findings which have been arrived at by the High Court are borne
out from the record or conversely, are based on misappreciation of
law and fact. This Court may exercise its power under Article 136
sparingly and only when exceptional circumstances exist which justify
the exercise of its discretion.6
19. From the material which has emerged on the record and having
considered the rival submissions, we are of the view that the areas
which are matters of serious concern are:
a. The failure of the petitioner at the material time to remove the
copper slag which was dumped indiscriminately at almost eleven
sites in the vicinity including private land adjoining the river;
b. The failure to abide by the conditions in the ‘consent to operate’
governing the disposal of gypsum;
c. The failure to obtain authorisation for the disposal of hazardous
waste; and
d. The failure of the petitioner to continue remediating the pollution

6 Chandi Prasad Chokhani v. State of Bihar, AIR 1961 SC 1708; Pritam Singh v. State, [1950] 1 SCR
453 : 1950 SCC 189.
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Vedanta Limited v. The State of Tamil Nadu & Ors

caused by it despite findings and directions by multiple judicial

fora at different points in time, including by this Court in 2013.
20. The judgment of this Court in Sterlite Industries (supra) afforded
the petitioner sufficient opportunity to take remedial action. The
consequence of the adjudication by this Court was not to obliterate
the environmental violations which had preceded it. This Court came
to the conclusion that there indeed were environmental violations,
which were additionally compounded by a suppression of material
facts. As the court held:
“48. We now come to the submission of Mr Prakash that
we should not grant relief to the appellants because of
the misrepresentation and suppression of material facts
made in the special leave petition that the appellants have
always been running their plant with statutory consents
and approvals and misrepresentation and suppression
of material facts made in the special leave petition
that the plant was closed at the time the special leave
petition was moved and a stay order was obtained from
this Court … There is no doubt that there has been
misrepresentation and suppression of material facts
made in the special leave petition but to decline relief
to the appellants in this case would mean closure of
the plant of the appellants. … For these considerations of
public interest, we do not think it will be a proper exercise
of our discretion under Article 136 of the Constitution to
refuse relief on the grounds of misrepresentation and
suppression of material facts in the special leave petition.”
(emphasis supplied)
21. The Court in the earlier round of litigation would conceivably have
been justified in rejecting the challenge to the judgment of the High
Court but nonetheless held that closure was a matter of last option
and that an opportunity for remediation ought to be granted. At the
same time, while imposing an environmental compensation quantified
at Rs. 100 crores, this Court clarified that TNPCB would be acting
within the scope of its statutory powers including in directing closure,
in the future. As the Court held:
“50. … we make it clear that this judgment will not stand in
the way of the TNPCB issuing directions to the appellant
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Company, including a direction for closure of the plant,

for the protection of environment in accordance with law.
51. We also make it clear that the award of damages
of Rs 100 crores by this judgment against the appellant
Company for the period from 1997 to 2012 will not stand in
the way of any claim for damages for the aforesaid period
or any other period in a civil court or any other forum in
accordance with law.”7
22. The tenor of the reasoning and the directions of this Court, therefore,
leave no manner of doubt that the industrial establishment was
not exculpated of its liability for environmental violations. The High
Court has, in this backdrop, undertaken a copious analysis of the
grounds on which action adverse to the unit has been taken both
by the TNPCB and the State Government.
23. In the notes of submissions which have been tendered before this
Court, an alternative perspective on facts has been sought to be
established. We are not inclined in the exercise of the jurisdiction
under Article 136 of the Constitution to re-appreciate the findings
of facts which have been arrived at by the High Court. The High
Court, it must be noted, was exercising its jurisdiction under Article
226 of the Constitution to judicially review the findings of statutory
authorities and bodies entrusted with requisite powers under the
Water (Prevention and Control of Pollution Act) 1974 and the Air
(Prevention and Control of Pollution) Act 1981. Apart from the exercise
of jurisdiction by the statutory authorities, the proceedings before this
Court had been preceded by an evaluation by the High Court which
is not shown to suffer from error that would warrant the invocation
of the jurisdiction under Article 136 of the Constitution. No special
circumstances exist which justify the exercise of discretion by this
Court nor is the conscience of the Court shocked by the judgment
of the High Court.
24. The closure of the industry is undoubtedly not a matter of first
choice. The nature of the violations and the repeated nature of the
breaches coupled with the severity of the breach of environmental
norms would in the ultimate analysis have left neither the statutory

7 Sterlite Industries (supra).

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Vedanta Limited v. The State of Tamil Nadu & Ors

authorities nor the High Court with the option to take any other
view unless they were to be oblivious of their plain duty. We are
conscious of the fact that the unit, as this Court observed in its
decision in 2013, has been contributing to the productive assets
of the nation and providing employment and revenue in the area.
While these aspects have undoubted relevance, the Court has to
be mindful of other well-settled principles including the principles of
sustainable development, the polluter pays principle, and the public
trust doctrine. The polluter pays principle, a widely accepted norm
in international and domestic environmental law, asserts that those
who pollute or degrade the environment should bear the costs of
mitigation and restoration. This principle serves as a reminder that
economic activities should not come at the expense of environmental
degradation or the health of the population.
25. In addition, the public trust doctrine, recognized in various jurisdictions,
including India, establishes that the state holds natural resources
in trust for the benefit of the public. It reinforces the idea that the
State must act as a steward of the environment, ensuring that the
common resources necessary for the well-being of the populace
are protected against exploitation or degradation. These principles
underscore the importance of balancing economic interests with
environmental and public welfare concerns. While the industry has
played a role in economic growth, the health and welfare of the
residents of the area is a matter of utmost concern. In the ultimate
analysis, the State Government is responsible for preserving and
protecting their concerns.
26. As consistently held in numerous decisions of this Court, the
unequivocal right to a clean environment is an indispensable
entitlement extended to all persons.8 Air, which is polluted beyond
the permissible limit, not only has a detrimental impact on all life
forms including humans, but also triggers a cascade of ecological
ramifications. The same is true for polluted water, where the pervasive
contamination poses a profound threat to the delicate balance of
ecosystems. The impact of environmental pollution and degradation
is far reaching : it is often not only severe but also persists over

8 Subhash Kumar v. State of Bihar, [1991] 1 SCR 5 : (1991) 1 SCC 598; Vellore Citizens’ Welfare Forum
v. Union of India, [1996] Suppl. 5 SCR 241 : (1996) 5 SCC 647.
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the long term. While some adverse effects may be immediately

evident, the intensity of other kinds of harm reveals itself over time.
Persons who live in surrounding areas may develop diseases which
not only result in financial burdens but also impact the quality of
life. The development and growth of children in these communities
may become stunted, creating a tragic legacy of compromised
potential. Basic necessities, such as access to potable water, may
not be met, exacerbating the challenges faced by these already
vulnerable populations. Undoubtedly, such adverse effects are felt
more deeply by marginalised and poor communities, for whom it
becomes increasingly difficult to escape the cycle of poverty.
27. This Court is also alive to the concept of intergenerational equity,9
which suggests that “present residents of the earth hold the earth
in trust for future generations and at the same time the present
generation is entitled to reap benefits from it.”10 The planet and
its invaluable resources must be conscientiously conserved and
responsibly managed for the use and enjoyment of future generations,
emphasising the enduring obligation to safeguard the environmental
heritage for the well-being of all.
28. It is an undeniable and fundamental truth that all persons have
the right to breathe clean air, drink clean water, live a life free from
disease and sickness, and for those who till the earth, have access
to uncontaminated soil. These rights are not only recognized as
essential components of human rights but are also enshrined in
various international treaties and agreements, such as the Universal
Declaration of Human Rights, the Convention on Biological Diversity,
and the Paris Agreement. As such, they must be protected and upheld
by governments and institutions worldwide, even as we generate
employment and industry. The ultimate aim of all our endeavours is for
all people to be able to live ‘the good life.’ Without these basic rights,
increased revenue and employment cease to have any real meaning.
It is not merely about economic growth but about ensuring the well-
being and dignity of every individual. As we pursue development, we

9 This Court has previously recognized the importance of this principle including in G. Sundarrajan v.
Union of India, [2013] 8 SCR 631 : (2013) 6 SCC 620 and D. Swamy v. Karnataka State Pollution
Control Board, [2022] 15 SCR 547 : 2022 SCC OnLine SC 1278.
10 Werner Scholtz, ‘Equity’ in (Lavanya Rajamani and Jaqueline Peel, eds.) The Oxford Handbook of
International Environmental Law (2nd edn., 2021).
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Vedanta Limited v. The State of Tamil Nadu & Ors

must prioritize the protection of these rights, recognizing that they

are essential for sustainable progress. Only by safeguarding these
fundamental rights can we truly create a world where everyone has
the opportunity to thrive and prosper.
29. We have heard these proceedings for several days and after a
careful evaluation of the factual and legal material, we have come
to the conclusion that the Special Leave Petitions do not warrant
interference under Article 136 of the Constitution.
30. For the above reasons, the Special Leave Petitions shall stand
dismissed.
31. Pending applications, if any, stand disposed of.
B. Civil Appeal Nos. 276-285 of 2021
32. TNPCB is aggrieved by the observations contained in the impugned
judgment of the High Court dated 18 August 2020 about its failure to
exercise its regulatory functions in a timely and conscientious manner
and has preferred appeals in this regard. We are of the view that
the High Court was justified in making the observations in regard
to the lack of alacrity on the part of the Pollution Control Board in
discharging its duties. The observations of the High Court do not
call to be either expunged or obliterated from the record.
33. The Civil Appeals are accordingly dismissed.
34. Pending applications, if any, stand disposed of.

Headnotes prepared by: Nidhi Jain Result of the case:

Special Leave Petitions and
Civil Appeals dismissed.
 [2024] 2 S.C.R. 1136 : 2024 INSC 192

Dr Kavita Kamboj
v.
High Court of Punjab and Haryana & Ors
(Civil Appeal Nos 2179-2180 of 2024)
13 February 2024
[Dr. Dhananjaya Y Chandrachud,* CJI, J B Pardiwala
and Manoj Misra, JJ]

Issue for Consideration

The issue for consideration was a challenge to a decision of the High
Court of Punjab & Haryana directing the State of Haryana to take
positive action to accept its recommendation vide communication
dated 23.02.2023, whereby the names of thirteen in-service judicial
officers were recommended for appointment by way of promotion
as Additional District and Sessions Judge.
The challenge before the High Court was inter alia to a decision
of the State of Haryana vide Letter dated 12.03.2023, whereby
the State had decided not to accept the aforesaid High Court
recommendation dated 23.02.2023, on the ground that the “settled
procedure” under Article 233 read with Article 309 of the Constitution
of India and the Haryana Superior Judicial Service Rules 2007
had not been followed.

Headnotes
Service Law – Promotion – Eligibility Criteria – Haryana
Superior Judicial Service Rules 2007 – Rule 6(1)(a) r/w. Rule
8 – Recommendation of the High Court that for a candidate
seeking promotion on the basis of merit-cum-seniority, an
aggregate of 50% marks for both, i.e. in the written test and in
the viva voce, would be required so as to render a candidate
eligible for promotion – Challenge to:
Held: The High Court was correct in prescribing that recruitment by
promotion to the Higher Judicial Service should have a minimum of
50% both in the written test as well as in the viva voce independently,
for those in-service candidates who were drawn for promotion in
the 65% promotion quota – This is because the candidate should
not just demonstrate the ability to reproduce their knowledge by
answering questions in the suitability test, but must also demonstrate

* Author
[2024] 2 S.C.R.  1137

Dr Kavita Kamboj v. High Court of Punjab and Haryana & Ors

both practical knowledge and the application of the substantive

law in the course of the interview – In-service candidates seeking
recruitment through promotions cannot be considered at par with
candidates seeking direct recruitment or with candidates seeking
accelerated promotion through a limited competitive test – The
three modes of recruitment have been reasonably classified and
different requirements have been prescribed for each – As such,
what may or may not have been held in respect of the viva voce
in direct recruitments may not necessarily apply to the viva voce
requirement in recruitments through promotions [Paras 65, 37, 41]
Eligibility criteria for Higher Judicial Services:
Held: The Higher Judicial Services require the selection of judicial
officers of mature personality and requisite professional experience
– In-service judicial officers are expected to have a greater familiarity
with the law and the procedure based on their experience as judicial
officers – While an objective written examination can be the best
gauge of the legal knowledge of a candidate, the viva voce offers
the best mode of assessing the overall personality of a candidate
– The purpose of the interview for officers in that class is to assess
the officer in terms of the ability to meet the duties required for
performing the role of an Additional District and Sessions Judge –
Consequently, there would be a reasonable and valid basis, if the
High Court were to do so, to impose a requirement of a minimum
eligibility or cut-off both in the written test and in the viva voce
separately. [Paras 42, 44]
Administrative directions can fill up the gaps and supplement
the Rules, when they are silent on a particular point:
Held: When the Rules under Article 309 hold the field, these Rules
have to be implemented – Where specific provisions are made in
the Rules framed under Article 309, it would not be open to the
High Court to issue administrative directions either in the form of
the Full Court Resolution or otherwise, that are at inconsistent with
the mandate of the Rules – On the other hand, in cases such as
the one at hand, where the Rules were silent, it is open to the
High Court to issue a Full Court Resolution – The Rules being
silent, it was clearly open to the High Court to prescribe such a
criterion as it did in 2013, when the 50% cut-off was prescribed
on aggregate scores and also, in 2021, when the 50% cut-off was
prescribed on the written test scores and the viva voce separately.
[Paras 50, 52 and 65]
1138 [2024] 2 S.C.R.

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Constitution of India - Articles 233, 234 and 235 – Appointments

to the District Judiciary to be in consultation with the High
Court and any other exercise de hors such consultation would
not be in accordance with the scheme of the Constitution:
Held: In matters of appointment of judicial officers, the opinion of
the High Court is not a mere formality because the High Court is
in the best position to know about the suitability of the candidates
to the post of District Judge – The Constitution, therefore, expects
the Governor to engage in constructive constitutional dialogue with
the High Court before appointing persons to the post of District
Judges under Article 233. [Para 62]
The State Government travelled beyond the remit of the consultation
with the High Court by referring the matter to the Union Government.
Any issue between the High Court and the State Government
should have been ironed out in the course of the consultative
process within the two entities – The State Government was bound
to consult only the High Court – Any other exercise de hors such
consultation would not be in accordance with the scheme of the
Constitution. [Para 66]
Doctrines – Doctrine of Legitimate Expectation – Twin Test:
Held: An individual who claims the benefit or entitlement based
on the doctrine of legitimate expectation has to establish: (i) the
legitimacy of the expectation; and (ii) that the denial of the legitimate
expectation led to a violation of Article 14. [Para 58]

Case Law Cited

All India Judges’ Association v. Union of India, [2002]
2 SCR 712 : (2002) 4 SCC 247; All India Judges’
Association v. Union of India, (2010) 15 SCC 170;
Dheeraj Mor v. High Court of Delhi, [2020] 2 SCR 161 :
(2020) 7 SCC 401; Lila Dhar v. State of Rajasthan,
[1982] 1 SCR 320 : (1981) 4 SCC 159; Taniya Malik
v. Registrar General of the High Court of Delhi, [2018]
10 SCR 348 : (2018) 14 SCC 129 ; B V Sivaiah v.
K. Addanki Babu, [1998] 3 SCR 782 : (1998) 6 SCC
720 ; P K Ramachandra Iyer v. Union of India, [1984]
2 SCR 200 : (1984) 2 SCC 141; Sant Ram Sharma
v. State of Rajasthan, [1968] 1 SCR 111 : 1967 SCC
OnLine SC 16; State of Gujarat v Akhilesh C Bhargav,
[2024] 2 S.C.R.  1139

Dr Kavita Kamboj v. High Court of Punjab and Haryana & Ors

[1987] 3 SCR 1091 : (1987) 4 SCC 482; State of Uttar

Pradesh v. Chandra Mohan Nigam, [1978] 1 SCR 521 :
(1977) 4 SCC 345; K H Siraj v. High Court of Kerala,
[2006] Supp. 2 SCR 790 : (2006) 6 SCC 395; Chandra
Mohan v. State of Uttar Pradesh, [1967] 1 SCR 77;
Chandramouleshwar Prasad v. Patna High Court, [1970]
2 SCR 666 : (1969) 3 SCC 56; State of Haryana v Inder
Prakash Anand HCS, [1976] Supp. 1 SCR 603 : (1976)
2 SCC 977; State of Bihar v Bal Mukund Sah, [2000]
2 SCR 299 : (2000) 4 SCC 640 – relied on.
Sivanandan C T v High Court of Kerala, [2023] 11 SCR
674, 2023 SCC Online SC 994 – distinguished.
State of West Bengal v. Nripendra Nath Bagchi, [1966]
1 SCR 771 : 1965 SCC OnLine SC 22; High Court of
Punjab and Haryana v. State of Haryana, [1975] 3 SCR
365 : (1975) 1 SCC 843; High Court of Judicature for
Rajasthan v. PP Singh, [2003] 1 SCR 593 : (2003) 4
SCC 239 – referred to.

Books and Periodicals Cited

First National Judicial Pay Commission, 1999 (Shetty
Commission Report)

List of Acts
Haryana Superior Judicial Service Rules 2007; Constitution of India

List of Keywords
Promotion; Eligibility Criteria; Service Rules, Recruitment; District
Judiciary.

Case Arising From

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.2179-2180 of
2024
With
Civil Appeal Nos.2181-82, 2183, 2184-85 and 2186 of 2024
From the Judgment and Order dated 20.12.2023 of the High Court
of Punjab & Haryana at Chandigarh in CWP Nos.19775 and 26217
of 2023
1140 [2024] 2 S.C.R.

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Appearances for Parties

Tushar Mehta, Solicitor General, Vikramjit Banerjee, A.S.G., Lokesh
Sinhal, Sr. A.A.G., B.K. Satija, A.A.G., Ms. Shristi Jain Goyal, D.A.G.,
P S Patwalia, Shyam Divan, Gopal Sankaranarayanan, Sr. Advs,,
Samar Vijay Singh, Kanu Agrawal, Siddhartha Sinha, Bharat Sood,
Ms. Sabarni Som, Nikunj Gupta, Udayaditya Arpith, Ms. Trisha
Chandran, Nishant Singh, Udayaditya Banerjee, Arpith Jacob
Varaprasad, Advs. for the Appellant.
Nidhesh Gupta, Rameshwar Singh Malik, Sr. Advs., Sidhant Awasthy,
Mrs. Eliza Bar, Siddhant Saroha, Manav Bhalla, Abhimanyu Tewari,
Jaspreet Singh Rai, Rohit Nagpal, Jitesh Malik, Jasdeep Singh
Dhillon, Mrs. Sukhdeep Kaur Rai, Mrs. Vasudha Gupta, Mrs. Vasudha
Nagpal, Linoy Varghese, Ravi Kumar, Ankur Singh, Shwetabh Kumar,
Shyamal Kumar, Advs. for the Respondents.
Judgment / Order of the Supreme Court

Judgment
Dr Dhananjaya Y Chandrachud, CJI
Table of Contents*
A. Background of the present dispute ............................... 6
B. Submissions ..................................................................... 13
C. Analysis ............................................................................. 22
i. All India Judges’ Association ................................. 22
ii. The Rules can be supplemented to fill in gaps .... 33
iii. Sivanandan C T ........................................................ 37
iv. Articles 233, 234 and 235 of the Constitution
of India ....................................................................... 41
D. Conclusion ........................................................................ 48
1. Permission to file the Special Leave Petitions granted.
2. Leave granted.
3. This batch of appeals has arisen from a judgment delivered by a
Division Bench of the High Court of Punjab and Haryana on 20

* Ed Note : Pagination as per original judgment.

[2024] 2 S.C.R.  1141

Dr Kavita Kamboj v. High Court of Punjab and Haryana & Ors

December 2023. The controversy that arises before this Court pertains
to the recommendations made by the High Court on its administrative
side for the appointment of thirteen in-service candidates as Additional
District and Sessions Judges. These candidates are seeking
recruitment to the post through promotions from the post of Senior
Civil Judges against the 65% promotional quota under the Haryana
Superior Judicial Service Rules 2007.1
4. The Rules came into force on 10 January 2007 and regulate
recruitment and service conditions of persons for appointment to the
Haryana Superior Judicial Service. Part III of the Rules provides for
the method of recruitment. Rule 2(b) defines “direct recruit” to mean
a person who is appointed to the Service from the Bar. Likewise,
“promoted officer” is defined under Rule 2(i) to mean a person who
is appointed to the service by promotion from Haryana Civil Service
(Judicial Branch). Rule 5 provides that recruitment to the Service
shall be made by the Governor by:
(i) promotion from amongst officers of the Haryana Civil Service
(Judicial Branch) in consultation with the High Court; and
(ii) direct recruitment from amongst eligible advocates on the
recommendations of the High Court on the basis of a written
and viva voce test conducted by the High Court.
5. In terms of Rule 62, recruitment to the service is to be made from
three sources:

1 “Rules”
2 “6 (1) Recruitment to the Service shall be made,-
(a) 65 percent by promotion from amongst the Civil Judges (Senior Division)/Chief Judicial Magistrates/
Additional Civil Judges (Senior Division) on the basis of principle of merit-cum-seniority and passing a
suitability test;
Provided that no person shall be promoted to the Service who is less than thirty- five years of age;
(b) 10 percent by promotion strictly on the basis of merit through limited competitive examination of
Civil Judges (Senior Division) having not less than five years qualifying service as Civil Judges (Senior
Division)/Chief Judicial Magistrates/Additional Civil Judges (Senior Division); and who are not less than
thirty five years of age on the last date fixed for submission of applications for taking up the limited
competitive examinations:
Provided that if candidates are not available for 10 percent seats, or are not able to qualify in the exami-
nation then vacant posts shall to be filled up by regular promotion in accordance with clause (a); and
(c) 25 percent of the posts shall be filled by direct recruitment from amongst the eligible advocates on
the basis of the written and viva voce test, conducted by the High Court.
(2) The first and second post would go to category (a) (by promotion on the basis of merit-cum-senior-
ity), third post would go to category (c) (direct recruitment from the bar), and fourth post would go to
category (b) (by limited competitive examination) of rule 6, and so on.”
1142 [2024] 2 S.C.R.

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(i) 65% by promotion from amongst the Civil Judges (Senior

Division)/Chief Judicial Magistrates/Additional Civil Judges
(Senior Division) “on the basis of principle of merit-cum-seniority
and passing a suitability test”;
(ii) 10% by promotion “strictly on the basis of merit” through a
limited competitive examination from amongst persons holding
the feeder posts; and
(iii) 25% on the basis of direct recruitment from amongst eligible
advocates on the basis of a written and viva voce test conducted
by the High Court.
6. Rule 7 prescribes the procedure for conducting direct recruitment.
Rule 8 provides for the procedure for promotion for assessing and
testing the merit and suitability of the judicial officers. Rule 9 provides
for a limited competitive examination for the promotion of members
of the Haryana Civil Service (Judicial Branch) pursuant to Rule 6(b).
Rules 7, 8 and 9 are set out below:
“Procedure for direct recruitment.
7. The High Court shall before making recommendations
to the Governor invite applications by advertisement and
may require the applicants to give such particulars as
it may specify and may further hold written examination
and viva voce test for recruitment in terms of rule 6(c)
above and the maximum marks shall be in the following
manner:-
(i) Written Test 750 marks
(ii) Viva Voce 250 marks
Procedure for promotion.
8. Procedure for promotion for assessing and testing the
merit and the suitability of a member of the Haryana Civil
Service (Judicial Branch) for promotion under clause (a)
of sub-rule (1) of rule 6, the High Court may-
(i) hold a written objective test of 75 marks and viva
voce of 25 marks in order to ascertain and examine
the legal knowledge and efficiency in legal field;
[2024] 2 S.C.R.  1143

Dr Kavita Kamboj v. High Court of Punjab and Haryana & Ors

(ii) take into consideration Annual Confidential Reports

of the preceding five years of the officer concerned:
Provided that any officer having grading as C (integrity
doubtful) in any year shall not be eligible to be considered
for promotion.
Limited competitive examination.
9. The High Court shall hold a limited written competitive
examination for promotion of members of the Haryana
Civil Service (Judicial Branch) as per rule 6(b) and the
maximum marks shall be in the following manner:
(i) Written Examination 600 marks
(ii) Assessment of Record 150 marks
(iii) Viva Voce 250 marks
Provided that the High Court shall in addition to the above
competitive examination take into consideration any of the
criteria as specified in rule 8 above:
Provided further that any officer having grading as C
(integrity doubtful) in any year, shall not be eligible to
appear in the limited competitive examination.”
7. In terms of Rule 8, the High Court is required to hold a written
objective test comprising 75 marks and a viva voce comprising 25
marks to ascertain and examine the legal knowledge and efficiency
of the candidates in the legal field. In addition, the High Court is
required to take into consideration the Annual Confidential Reports3
of the preceding five years of each officer under consideration.
A. Background of the present dispute
8. On 29 January 2013, the High Court, on its administrative side,
resolved that an aggregate of 50% marks in the written test and in
the viva voce would be required so as to render a candidate eligible
for promotion. The relevant part of the resolution is extracted below:
“i) In terms of Rule 8(a) of the Haryana Superior Judicial
Service Rules, 2007, the suitability test shall consist

3 “ACRs”
1144 [2024] 2 S.C.R.

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of written objective test of 75 marks and viva voce of

25 marks so as to assess legal knowledge and the
efficiency in legal field for discharging higher duties and
responsibilities. Obtaining of 50% marks in aggregate of
the written test and in viva voce would make a candidate
eligible for promotion.”
9. On 11 November 2021, a meeting of the Recruitment and Promotion
Committee4 overseeing the Superior Judicial Service was held. The
Minutes of the Meeting adverted to Rules 6 and 8 of the Rules and
a corresponding provision contained in the Punjab Superior Judicial
Service Rules 2007. Both sets of Rules were amended by the States
of Haryana and Punjab in order to bring uniformity in promotions
to the Superior Judicial Service. In both the States, the Committee,
inter alia, resolved that:
“ii. In terms of Rule 7(3)(a) of the Punjab Superior Judicial
Service Rules, 2007 and Rule 6(1)(a) of Haryana Superior
Judicial Service Rules, 2007, the suitability test shall consist
of written objective test of 75 marks and viva voce of 25
marks so as to assess legal knowledge and efficiency in
legal field for discharging higher duties and responsibilities.
Securing, 50% marks in the written test and 50% marks
in Viva voce individually would make a candidate eligible
for promotion.”
10. As a result of the above Resolution, the Committee decided that
in order to be eligible for promotion, a candidate must secure 50%
marks in the written test and 50% marks in the viva voce. In other
words, while under the earlier Resolution of the Full Court dated
29 January 2013, a candidate was required to obtain at least 50%
marks in the written test and viva voce combined, the proposal of
the Recruitment and Promotion Committee of 11 November 2021
stipulated that a candidate must obtain at least 50% marks in the
written test and at least 50% in the viva voce. This Resolution of
the Committee was approved by the Full Court at a meeting which
was held on 30 November 2021.
11. At the same time, it must also be noted that the Committee had
proposed certain modifications in the benchmark for assessing the

4 “Committee”
[2024] 2 S.C.R.  1145

Dr Kavita Kamboj v. High Court of Punjab and Haryana & Ors

ACRs of candidates under Rule 8. The Full Court, while deliberating

on the recommendations of the Committee, resolved that:
“...the report dated 11.11.2021 of Hon’ble Recruitment
and Promotion Committee (Superior Judicial Service) be
accepted with modification in para No. iii of the “Benchmark
of the ACRs as per Rule 8”. After modification, the said
para be read as under:-
“(iii)(a) A candidate should have obtained at least four
“B+Good” or above grading in the Annual Confidential
Reports in the preceding five years and
(b) The candidate should not be having grading as C
(integrity doubtful) in any year.
Provided that for the purpose of assessing the benchmark,
the ACRs of a candidate, yet to be approved by the Hon’ble
Full court, would also be considered but his result would
be kept in a sealed cover, subject to the final decision of
the Hon’ble Full Court.”
12. The Full Court also resolved that in order to settle the issue in a
comprehensive manner the necessity, if any, to amend the Rules
should be examined by the Committee overseeing the Superior
Judicial Service and the Rule Committee.
13. Following the above resolution, the two committees convened on 11
February 2022. The Minutes of the Meeting of the two committees
reflect the following decision:
“Re:- Consideration of matter qua amendment in Rule 8 of
Punjab Superior Judicial Service Rules, 2007 and Rule 8
of Haryana Superior Judicial Service Rules, 2007 in view
of the report dated 11.11.2021 of the Hon’ble Recruitment
and Promotion Committee (Superior Judicial Service) as
well as modification in para no. (iii) of the ‘Benchmark of
the ACRs as per Rule 8’, by the Hon’ble Full Court.
Meeting note perused. After deliberating upon the matter at
length, this Committee recommends that the word ‘and’ be
inserted at the end of sub-rule (I) and before sub-rule (ii) of
Rule 8 of Haryana Superior Judicial Service Rules 2007.
This Committee also recommends that existing proviso
1146 [2024] 2 S.C.R.

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to Rule 8 of Punjab Superior Judicial Service Rules 2007

as well as to Rule 8 of Haryana Superior Judicial Service
Rules 2007 be substituted as under:-
“Provided that an officer with an entry of integrity doubtful
in any year shall not be eligible to be considered for
promotion.”
This Committee has also perused Rule 9 of Punjab Superior
Judicial Service Rules 2007 and Rule 9 of Haryana Superior
Judicial Service Rules 2007 and recommends that existing
second proviso to Rule 9 of Punjab Superior Judicial
Service Rules 2007 and to Rule 9 of Haryana Superior
Judicial Services Rules 2007 be substituted as under:-
“Provided further that an officer with an entry of Integrity
doubtful in any year shall not be eligible to appear in the
said examination.’’
The matter be referred to the Hon’ble Full Court for approval.”
14. On 24 August 2022, the process of filling up vacancies for the post
of Additional District and Sessions Judges from amongst Civil Judges
(Senior Division)/Chief Judicial Magistrates/Additional Civil Judges
(Senior Division) was initiated and a communication was accordingly
addressed to thirty-nine candidates. The High Court conducted a
written test which was followed by a viva voce. On 23 February
2023, the Registrar (Judicial) addressed a communication to the
State Government recommending the names of thirteen judicial
officers for appointment by way of promotion as Additional District
and Sessions Judges.
15. On 2 March 2023, a communication was addressed by the Chief
Secretary to the Government of Haryana to the Registrar (Judicial)
seeking a “justification/clarification” in regard to certain judicial officers
of the 2007, 2009 and 2010 batches on the ground that they appeared
to be senior than the last of the thirteen recommended officers. The
communication noted that in spite of seniority, these judicial officers
were not recommended for promotions. The High Court was also
called upon to clarify “the criteria of merit and suitability test, on the
basis of which principle of merit-cum-seniority has been affected (sic)
and names of officers senior to the recommended officers have not
been recommended”.
[2024] 2 S.C.R.  1147

Dr Kavita Kamboj v. High Court of Punjab and Haryana & Ors

16. The High Court of Punjab and Haryana responded to the

communication of the State Government on 22 March 2023, indicating
that the appointment to the thirteen posts of Additional District and
Sessions Judges which was initiated by way of promotion was
sought to be made strictly in terms of Rule 6(1)(a) of the Rules which
prescribes merit-cum-seniority read with the criteria laid down by the
High Court for assessing the suitability of a candidate for appointment.
The High Court further stated that all appointments and promotions
concerning the judiciary fall under the control and supervision of the
High Court and since the recommendations have been approved by
the Full Court, they were binding on the State Government under
Article 235 of the Constitution.
17. On 29 March 2023, an advocate by the name of Mr Prem Pal
submitted a representation to the Chief Secretary of Haryana seeking
the intervention of the State Government in order to either reject the
recommendations of the High Court or to initiate a fresh process of
consultation. The representation stated that the recommendations of
the High Court were not binding since the requirement of obtaining
50% marks in the viva voce had not been communicated to the
candidates and no minimum cut-off in the viva voce had been
prescribed. It is also stated that no criteria had been adopted for
conducting the suitability test.
18. Following the receipt of this representation, the State Government
sought the opinion of the Union Ministry of Law and Justice. The
Union Ministry of Law and Justice tendered its opinion on 26 July
2023, stating that Article 233 of the Constitution which deals with
appointments, postings and promotions of District Judges envisages
consultation between the State Government and the High Court.
The opinion of the Union Ministry was that the modification of the
suitability criteria in terms of the Resolution dated 30 November 2021
of the High Court lacked the element of consultation with the State
Government and, therefore, did not have a binding effect.
19. A writ petition under Articles 226 and 227 was filed by certain
candidates working as Civil Judges (Senior Division) and Chief
Judicial Magistrates in the State of Haryana for seeking a mandamus
to the State Government to conclude the process of selection and to
notify the appointments by way of promotion of candidates selected
to the posts of Additional District and Sessions Judge.
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20. The State of Haryana addressed a communication on 12 September

2023 to the Registrar General of the High Court stating that the
State Government had decided not to accept the recommendations
for promoting thirteen judicial officers on the ground that the “settled
procedure” under Article 233 read with Article 309 and the Rules of
2007 had not been followed. The State of Haryana sought to support
its decision on the basis of the legal opinion which was tendered on
26 July 2023 by the Union Ministry of Law and Justice. The relevant
extract of the communication reads as follows:
“Therefore, keeping in view the position explained above,
the State Government has decided not to accept the present
recommendation for promotion of 13 Haryana Civil Service
(Judicial Branch) Officers to the post of Additional District
and Sessions Judges (ADSJ), as the State Government
as well as the Central Government (Ministry of Law and
Justice) have observed that the settled procedure under
Article 233 read with Article 309 of the Constitution of India,
i.e., Haryana Superior Judicial Service Rules, 2007 has not
been followed while sending names to the Government
for promotion. Hence, you are requested to send revised
recommendations by following set procedures as per law.”
21. The petition before the High Court was amended so as to challenge
the letter dated 12 September 2023. Other writ petitions were filed
before the High Court by unsuccessful candidates, inter alia, seeking
an order restraining the State from accepting the recommendations
made by the High Court and for quashing the Resolution of 30
November 2021, along with the recommendations for promotion of
the petitioners. These candidates who had not been selected also
sought a direction to the High Court, on its administrative side, to
recommend candidates for promotion to the post of the District
and Sessions Judges under Rule 6(1)(a) without observing the
requirement of obtaining 50% marks each in the written examination
and in the viva voce. The High Court, by its impugned judgment
dated 20 December 2023, disposed of the batch of petitions. The
High Court directed the State of Haryana to take positive action to
accept its recommendations which were made on 23 February 2023.
22. In the batch of appeals which have arisen before this Court, we
have heard Mr P S Patwalia, Mr Shyan Divan and Mr Gopal
[2024] 2 S.C.R.  1149

Dr Kavita Kamboj v. High Court of Punjab and Haryana & Ors

Sankaranarayanan, senior counsel, who have appeared on behalf of

the candidates who have not been recommended for appointment by
the High Court. Mr Tushar Mehta, Solicitor General, has appeared on
behalf of the State of Haryana in urging that the State Government
was justified in rejecting the recommendations of the High Court. Mr
Nidhesh Gupta, senior counsel, appears on behalf of the High Court.
Mr Rameshwar Singh Malik, senior counsel, has supported the plea
of the High Court, while appearing on behalf of the candidates who
have been recommended for appointment.
B. Submissions
23. Mr P S Patwalia, senior counsel, has basically urged the following
submissions:
(i) In terms of the judgment of this Court in All India Judges’
Association v. Union of India5, the suitability of candidates for
promotion as District Judges from amongst in-service candidates
is required to be adjudged. Apart from the requirement of
conducting a suitability test and a viva voce, Rule 6(1)(b) read
with Rule 8 requires the ACRs of the preceding five years to be
taken into consideration. The proforma of the ACRs contains an
exhaustive elaboration of the criteria which are to be borne in
mind while assessing a candidate. In other words, the suitability
of a candidate has to be assessed on the basis of the track
record, as reflected in the ACRs;
(ii) In the above backdrop, the Resolution of the Full Court dated 30
November 2021 which prescribed the requirement of obtaining
50% as a condition of eligibility in the suitability test and in the
viva voce separately, is an evident act of discrimination against
candidates seeking promotions in the 65% quota, compared to
those seeking in-service promotions in the 10% quota. There is
no requirement of obtaining the minimum cut-off individually in
the suitability test and in the viva voce when appointments are
made of inservice candidates through the limited competitive
examination. There is no rational justification for the High
Court to lay down a minimum cut-off of the nature which has
been prescribed by the resolution dated 30 November 2021

5 [2002] 2 SCR 712 : (2002) 4 SCC 247

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only for candidates seeking promotion in the 65% quota while

there is no such requirement in the 10% quota for the limited
competitive examination;
(iii) The element of discrimination is evident from the fact that
no such cut-off as a condition of eligibility is prescribed for
candidates who seek direct recruitment as Additional District
and Sessions Judges; and
(iv) The imposition of a cut-off as a condition of eligibility prescribing
a minimum of 50% of marks in the viva voce was disclosed,
for the first time, in a response to a query under the Right
to Information Act 2005 on 28 March 2023. Consequently,
candidates were completely in the dark about the imposition
of such a requirement as a condition of eligibility before the
disclosure. Consequently, the High Court has acted with
arbitrariness in recommending the appointments.
24. Mr Shyam Divan, senior counsel, submitted that:
(i) Candidates drawn for promotion in the 65% promotion quota
and 10% from the in-service candidates appearing for a limited
competitive examination are from the same pool. Consequently,
a minimum cut-off cannot be logically justified for the 65%
promotion quota when there is no such norm for the 10%, which
is filled up on the basis of the limited competitive examination;
(ii) Rule 19 empowers the State Government to make regulations
not inconsistent with the Rules to provide for all matters for which
provision is necessary or expedient for the purpose of giving
effect to the Rules. In the present case, there was a longstanding
practice, following the earlier resolution of the Full Court dated 29
January 2013 of requiring a cut-off of 50% overall on the basis
of the combined marks which were obtained in the written test
and in the interview. A departure from a practice which had held
the field for such a long period of time could have only been
made either by amending the Rules or by the exercise of power
under Rule 19 by the State Government to make regulations;
(iii) The principles of fairness and good governance which have
been laid down in the judgment of the Constitution Bench of
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Dr Kavita Kamboj v. High Court of Punjab and Haryana & Ors

this Court in Sivanandan C T v High Court of Kerala6 apply

independent of prejudice. Where a breach of the principles of
natural justice is alleged for a failure to provide a hearing, an
additional layer has been provided in decisions of this Court to
the effect that such a breach will not necessarily invalidate the
action in the absence of prejudice to the candidates. While a
violation of the principles of natural justice may not be fatal in
the absence of prejudice, in the present case, the candidates
who have failed to be selected rely on an independent principle
of administrative law which requires fairness in governance;
(iv) In any event, this Court may scrutinize the marksheets, for the
purpose of analyzing the marks which were awarded in the
course of the viva voce to determine as to whether there is an
element of prejudice in the award of marks; and
(v) Based on the longstanding practice in the present case,
all candidates were under a legitimate expectation of the
continuance of the norms which were prescribed in the
Resolution of the Full Court dated 29 January 2013 and any
alteration of the position without due notice to the candidates
has resulted in substantial injustice.
25. Mr Gopal Sankaranarayanan, senior counsel urged that:
(i) The absence of notice to candidates about the alteration in the
criteria of eligibility results in a failure to satisfy the norms of
consistency and predictability;
(ii) The requirement of obtaining minimum qualifying marks in the
viva voce was introduced for the first time by the Resolution
dated 30 November 2021 of which candidates had no notice;
(iii) In paragraph 10.97 of its recommendations, the Shetty
Commission had stated that in matters of direct recruitment,
it was not inclined to impose a minimum cut-off in the viva
voce in order to obviate arbitrariness in the process. Though
the recommendation deals with direct recruitment, there is no
rational reason to exclude it in respect of the process which
is followed in promoting in-service candidates in the 65%
promotion quota; and

6 [2023] 11 SCR 674 : 2023 SCC Online SC 994

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(iv) On 28 February 2023, this Court was informed of there being

38 vacancies in the Superior Judicial Service in Haryana.
The High Court has made recommendations for appointing
13 candidates. This indicates the existence of a substantial
number of vacancies. Consequently, public interest would not
necessarily be subserved by affirming the view which has been
taken by the High Court, both on its administrative side and
on the judicial side.
26. Mr Tushar Mehta, Solicitor General submitted that:
(i) Bearing in mind the principles which are incorporated in Articles
233, 234 and 235 of the Constitution, the criteria for selection
of District Judges should be fixed in consultation with the State
Government;
(ii) A collaborative exercise must be followed by the two organs of
the State - the Judiciary and the Executive;
(iii) There is an element of subjectivity and arbitrariness implicit in
laying down minimum marks for the interview process since
a candidate who has otherwise obtained high marks in the
suitability test may be excluded for failure to meet the cut-off
in the viva voce;
(iv) Article 233 would encompass the criteria for selection, whether
by a rule or by a resolution. Hence, the High Court, while making
a modification to its own Resolution, ought to have consulted
the State Government; and
(v) The Government was not informed by the High Court of the
change in the criteria requiring a minimum of 50% marks in
both the suitability test and in the viva voce. On the other hand,
where an amendment of the Rules was sought to be effected,
the High Court has moved the State Government.
27. Mr Nidhesh Gupta, senior counsel appearing on behalf of the High
Court, in support of the decision which was taken on the administrative
side and ultimately as affirmed in the impugned judgment of the
Division Bench, submitted:
(i) Properly construed, Rule 8 of the Rules provides the modalities
for testing the merit and suitability of the members of the Judicial
Branch for promotion under clause (a) of Rule 6(1). The purpose
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Dr Kavita Kamboj v. High Court of Punjab and Haryana & Ors

of conducting the written test and the viva voce is to ascertain

and examine the knowledge and efficiency of the officer under
consideration in law;
(ii) Where the Rules are silent in regard to the details in the
implementation process, it is a settled principle of law that they
can be supplemented by administrative instructions;
(iii) The Rules, in the present case, being silent on the minimum
qualifying marks required to be obtained in the written test and
the viva voce, the administrative instructions which were issued
by the High Court do not involve any amendment of a rule;
(iv) As a matter of fact, the Full Court Resolution dated 29 January
2013 was issued in terms of the administrative power which is
vested in the High Court in regard to the appointment of District
Judges under Article 233 and in relation to the control of the
High Court over the District Judiciary under Article 235 and the
High Court has invoked the very same power while modifying
the terms of the earlier resolution on 30 November 2021;
(v) The plea of discrimination as between the requirements for
direct recruits, the in-service candidates in a limited departmental
examination and the promotional quota for in-service candidates
has no valid basis in law. All three categories are distinct and
constitute valid classifications;
(vi) The decision of this Court in All India Judges’ Association (supra)
distinguishes between all the three categories for appointment to
the Higher Judicial Service. This distinction is exemplified by the
Rules in question. For the promotional quota of 65%, the written
test consists only of multiplechoice questions totaling to 75 marks,
each candidate being given four options for every question. In the
matter of direct recruitment, the written test consists of five papers
totaling 750 marks comprising of three papers in law, each of 200
marks, a language paper of 100 marks and a general knowledge
paper of 50 marks. In the limited competitive examination, the
written examination has a weightage of 600 marks. As opposed
to the detailed examination which is expected of candidates for
direct recruitment and in the limited competitive examination,
the in-service candidates who avail of the promotional quota of
65% have to appear for a suitability test of a different nature and
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character. Consequently, all the three avenues for appointment

to the Higher Judicial service are distinct and the High court was
justified in imposing a minimum eligibility requirement of 50% in
the written test and the viva voce independently;
(vii) Interviews in the present case were conducted by six of the
senior-most Judges of the High Court, including the Chief
Justice and there is no allegation of mala fides or an attribution
of illegality to the interview. Marks in the written examination
were disclosed only after the final results were declared. A
candidate cannot contend that they were casual in the course
of the interview only because they expected to do well in the
written examination;
(viii) In consequence, no prejudice has been caused to any candidate
by the High Court not having disclosed the minimum eligibility
cut-off of 50% prior to the date of the interview. No prejudice
is caused to any candidate because it cannot be contended
that a candidate would have prepared differently if they were
made aware of the eligibility requirement;
(ix) On the aspect of consultation with the State Government within
the ambit of Articles 233 and 235, the High Court has relied on
settled precedent, including the decisions of the Constitution
Benches of this Court which emphasize that in matters of
appointments to the District Judiciary, the High Court remains
the sole repository of power;
(x) The consistent view of this Court has been that the requirement
of minimum marks for interviews in the appointments of District
Judges is necessary since the selection has to be made on the
basis of merit-cum-seniority;
(xi) In the present case, the appellants have sought a mandamus
before the High Court for the enforcement of the Resolution of
the Full Court of 2013. That being the position, it is not open
to them to challenge the ability of the High Court to frame a
resolution for modifying the terms of the earlier Resolution dated
29 January 2013; and
(xii) As regards the conduct of the State of Haryana, it is apparent
that initially the only objection of the State Government was in
regard to the non-recommendation of more senior persons in
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Dr Kavita Kamboj v. High Court of Punjab and Haryana & Ors

the Service. It is thereafter when an objection was raised by

an advocate in a representation to the effect that the cut-off of
50% had not been communicated to the candidates, that this
issue has been raised by the State Government.
28. Mr Rameshwar Singh Malik, senior counsel, has urged that:
(i) The Rules being silent, the High Court had the power to fill in
the gap by the issuance of administrative directions;
(ii) Since no amendment of the Rules was being brought about,
there was no requirement of consultation with the State
Government; and
(iii) The criterion which was fixed by the Resolution of the Full Court
dated 29 January 2013 is not under challenge and, in fact,
the relief which was sought before the High Court was for the
restoration of the criteria under the Resolution. Consequently,
where the same power has been used by the High Court to
make a selection subsequently in 2021, such an alteration is
beyond the purview of judicial review.
29. The rival submissions would now need to be analyzed.
C. Analysis
i. All India Judges’ Association
30. The genesis of the recruitment to the judicial service, particularly,
in the context of the controversy before this Court, traces back to
the judgment in the All India Judges’ Association (supra). In
the course of the judgment, this Court noted that at the time, the
recruitment to the Higher Judicial Service was being made from
two sources: first, by promotion from amongst the members of the
Subordinate Judicial Service; and second, by direct recruitment.
The decision was preceded by the recommendations of the Shetty
Commission,7 particularly regarding the revision of the pay scales
and conditions of service of the District Judiciary. While accepting
the recommendations of the Shetty Commission, which resulted in a
favourable modification of the pay scales of the District Judiciary, this
Court underscored the need to ensure certain minimum standards,

7 First National Judicial Pay Commission, 1999 (Shetty Commission Report)

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objectively assessed or fulfilled, by judicial officers who enter the

Higher Judicial Service. This Court accepted the recommendation
of the Shetty Commission that direct recruitment to the cadre of
District Judges from amongst advocates should be 25%, by way
of a competitive examination consisting of a written test and a viva
voce. The decision enunciated that in-service judicial officers must
be provided with the incentive to compete with each other in the
process of obtaining expedited promotions. The object of doing so
was to improve the caliber of persons recruited to the Higher Judicial
Service. Consequently, as regards appointment by promotion, this
Court held that 50% of the total posts in the Higher Judicial Service
should be filled up by promotion based on merit-cum-seniority, while
the remaining 25% of the posts in the Service should be filled up
strictly based on merit through a limited departmental competitive
examination with a stipulated qualifying service in the cadre of Civil
Judge (Senior Division). The conclusions of this Court were formulated
in the following terms:
“28. As a result of the aforesaid, to recapitulate, we direct
that recruitment to the Higher Judicial Service i.e. the cadre
of District Judges will be:
(1)(a) 50 per cent by promotion from amongst the Civil
Judges (Senior Division) on the basis of principle of merit-
cum-seniority and passing a suitability test;
(b) 25 per cent by promotion strictly on the basis of merit
through limited competitive examination of Civil Judges
(Senior Division) having not less than five years’ qualifying
service; and
(c) 25 per cent of the posts shall be filled by direct
recruitment from amongst the eligible advocates on the
basis of the written and viva voce test conducted by
respective High Courts.
(2) Appropriate rules shall be framed as above by the High
Courts as early as possible.”
31. Following the decision in All India Judges’ Association (supra),
rules were framed in various States to comply with the directions.
Subsequently, many High Courts found it difficult to fill up 25 percent
posts through the limited departmental competitive examination.
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Dr Kavita Kamboj v. High Court of Punjab and Haryana & Ors

Therefore, in All India Judges’ Association v. Union of India,8 this

Court reduced the quota of judicial officers from the limited competitive
examination from 25 percent to 10 percent. As a consequence,
three sources of recruitment to the Higher Judicial Service have
come into being:
(i) 65% of seats by promotion from the cadre of Civil Judges (Senior
Division) on the basis of the principle of merit-cum-seniority;
(ii) 10% by promotion on the basis of merit through a limited
competitive examination for Civil Judges (Senior Division)
fulfilling stipulated qualifying service; and
(iii) 25% seats by direct recruitment from amongst advocates who
fulfill the eligibility requirements.
32. It has been argued that since the Shetty Commission held that no
minimum cutoffs should be fixed for the viva voce for the route of
direct appointments (under Rule 6(1)(c)), and the findings of the
Shetty Commission were upheld by the Court in All India Judges’
Association (supra), it would be unreasonable to prescribe minimum
cutoffs for viva voce for another method of recruitment to the same
post.
33. The Rules under consideration preserve the three sources of
recruitment, in the ratio of 65% by promotion based on merit-cum-
seniority, 10% strictly on the basis of merit by a limited competitive
examination; and 25% by direct recruitment from amongst eligible
candidates based on the written and viva voce test. Each of the
three sources of recruitment is distinct in itself. Recruitment by
promotion under Rule 6(1)(a) is based on the principle of merit-
cum-seniority and passing of a suitability test, while recruitment by
promotion under Rule 6(1)(b) is strictly based on merit through a
limited competitive examination and 5 years of minimum qualifying
service as Civil Judges. The purpose of three sources of recruitment
is similarly distinct. Advocates with the requisite experience are
permitted to compete for direct recruitment to the Superior Judicial
Service. In-service judicial officers have two avenues for entering
the Superior Judicial Service: they can either appear for a limited
competitive examination where selection would be strictly based on

8 (2010) 15 SCC 170

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merit or they can seek a promotion through the normal channel of

promotion based on the merit-cum-seniority criterion.
34. In order to appreciate the classification between the three categories
of recruitment to the Higher Judicial Service, it would be necessary
to dwell on the modalities or the procedure for recruitment. Direct
recruitment, for which a 25% quota is set apart by Rule 6(1)(c), is
made on the basis of a written examination consisting of 750 marks
and a viva voce of 250 marks. While recording the submissions of
Mr Nidhesh Gupta, senior counsel appearing on behalf of the High
Court, we have already adverted to the manner in which the written
test comprising of 750 marks is conducted, comprising of three law
papers, a language paper and a paper in general knowledge. The
procedure for direct recruitment is spelt out in Rule 7. The procedure
for regular promotion, on the other hand, is provided in Rule 8 which
contemplates the assessment and testing of the merit and suitability
of a member of the Judicial Branch in Rule 6(1)(a). The purpose of
the objective test of 75 marks and the viva voce carrying 25 marks
is to ascertain and examine legal knowledge and efficiency in the
legal field. Besides this, the ACRs of the preceding five years of
the officer are taken into reckoning. Since the candidates who are
evaluated for promotion under Rule 6(1)(a) read with Rule 8 are in-
service candidates, the selection is based on a test (comprising of
the written and the viva voce) and due consideration of the service
records as borne out by the ACRs.
35. Recruitment by promotion under Rule 6(1)(b) is “strictly on the basis
of merit through the limited competitive examination” and a 5-year
qualifying service requirement. Under Rule 6(1)(b), the limited
competitive exam is of a competitive nature where members of
the Service compete inter se, as opposed to the direct recruitment
exam, which is open in nature. The limited competitive exam under
Rule 6(1)(b), according to Rule 9, comprises of a 600-mark written
examination. In addition, 150 marks are assigned to the assessment
of the records and 250 marks are assigned to the viva voce. The
proviso to Rule 9 indicates that the High Court shall, in addition to the
competitive examination, take into account any of the criteria specified
in Rule 8 which apply to the normal procedure for promotion. The
limited competitive examination under Rule 6(1)(b) read with Rule 9
cannot be equated with the procedure for promotion for assessing
merit and suitability under Rule 6(1)(a) read with Rule 8.
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Dr Kavita Kamboj v. High Court of Punjab and Haryana & Ors

36. The scope of recruitment through regular promotion under Rule 6(1)
(a) read with Rule 8 is different from recruitment through promotion
based on limited competitive examination under Rule 6(1)(b) read
with Rule 9. As we have already noted, the purpose of a limited
competitive examination, as set out in the judgment of this Court in
All India Judges’ Association (supra), was to provide an avenue
for in-service officers to compete inter se for accelerated promotion
on fulfilling a higher benchmark of competition based on merit.
Moreover, this Court also recognised that the criteria and method of
testing the suitability of judicial officers should be different:
“27. [...] Furthermore, there should also be an incentive
amongst the relatively junior and other officers to improve
and to compete with each other so as to excel and get
quicker promotion. In this way, we expect that the calibre
of the members of the Higher Judicial Service will further
improve. In order to achieve this, while the ratio of 75 per
cent appointment by promotion and 25 per cent by direct
recruitment to the Higher Judicial Service is maintained,
we are, however, of the opinion that there should be
two methods as far as appointment by promotion
is concerned : 50 per cent of the total posts in the
Higher Judicial Service must be filled by promotion
on the basis of principle of merit-cum-seniority. For
this purpose, the High Courts should devise and
evolve a test in order to ascertain and examine the
legal knowledge of those candidates and to assess
their continued efficiency with adequate knowledge
of case-law. The remaining 25 per cent of the posts
in the service shall be filled by promotion strictly on
the basis of merit through the limited departmental
competitive examination for which the qualifying
service as a Civil Judge (Senior Division) should be
not less than five years. The High Courts will have to
frame a rule in this regard.”
(emphasis supplied)
37. The submission of the unsuccessful officers, that there is no valid
basis in law to impose a minimum eligibility cut-off of obtaining
50% marks individually in the written test and the viva voce, when
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such a requirement is not imposed either for direct recruitment or

for the limited competitive examination cannot hold substance. This
argument is premised on the fact that the three different modes of
recruitment are meant for the same post. It is argued that since the
purpose of all the three sources is to recruit persons for the same
post, a different requirement such as the 50% cut-off requirement
for the viva voce in one of the three modes, is arbitrary. Though the
recruitment is meant to fill vacancies in the same post in the higher
judicial service, the candidates taking the three routes to reach that
post are placed differently and thus must be tested differently. In-
service candidates seeking recruitment through promotions cannot
be considered on par with the candidates seeking direct recruitment
or for that matter with candidates seeking accelerated promotion
through a limited competitive test.9
38. Even among the candidates seeking promotion, there is a clear
distinction between those who are recruited under Rule 6(1)(a)
based on merit-cum-seniority and those who are recruited under
Rule 6(1)(b) based strictly on merit, in order to avail of a quicker
promotion. This Court in All India Judges’ Association (supra)
clearly noted that the rationale for accelerated promotions was to
afford an incentive to those who were relatively junior but desirous
of promotion.10 Similarly, in Dheeraj Mor v. High Court of Delhi,11 a
three-Judge Bench of this Court held that the purpose of promotion
through a limited competitive examination is to ensure that in-service
candidates are able to “take march to hold the post of District Judges
on the basis of their merit.”
39. The Rules prescribe different criteria for assessing the in-service
judicial officers eligible for promotion - while one is based on merit-
cum-seniority,12 the other is based strictly on merit de hors seniority.13
This difference justifies the distinct methods of evaluation prescribed
under Rules 8 and 9. A comparison of Rules 8 and 9 would show that
the written examination under Rule 9 carries 600 marks and is much
more elaborate and rigorous, as opposed to the 75 marks’ objective

9 Dheeraj Mor v. High Court of Delhi, [2020] 2 SCR 161 : (2020) 7 SCC 401
10 All India Judges’ Association (supra), [27].
11 [2020] 2 SCR 161 : (2020) 7 SCC 401
12 Rule 6(1)(a)
13 Rule 6(1)(b)
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test under Rule 8. The first proviso to Rule 914 mandates that the
High Court shall, in addition to competitive examination mentioned in
Rule 9, consider any criteria as specified under Rule 8. As we shall
advert to later in this judgment, the ultimate discretion vests with the
High Court regarding how they conduct the examinations under the
Rules. The proviso while recognising the power of the High Court
to import “any of the criteria” specified in Rule 8 to Rule 9, retains
the other differences about the manner in which the two processes
of promotion under Rule 8 and Rule 9 would operate. Thus, even
though candidates seeking promotions under Rules 6(1)(a) and 6(1)(b)
are drawn from in-service judicial officers, there is a rational basis of
treating them differently - while some candidates among the in-service
officers can seek regular promotions based on their seniority, those
relatively junior have an incentive to opt for accelerated promotion
by taking a limited competitive examination by demonstrating their
merit. Bearing in mind the distinct nature of the test under Rule 8, it
cannot be gainsaid that there is a valid basis for imposing a distinct
requirement, in this case, of an eligibility cut-off both in the written
test and the viva voce independently. The fundamental point is that
each of the three avenues for appointment to the Higher Judicial
Service are distinct and are based on classifications having a nexus
to the object and purpose sought to be achieved. Whether such a
requirement is violative of Articles 233 and 235 of the Constitution is
a separate matter which would have to be adjudicated independently,
which we will do in the subsequent part of this judgment.
40. It is true, as has been submitted on behalf of the unsuccessful
candidates, that the Shetty Commission had declined to impose a
minimum cut-off in the viva voce conducted for appointments to the
Service by direct recruitment. The Shetty Commission appears to
have been impelled to do so to avoid an element of subjectivity.15
Based on this, the unsuccessful candidates sought to urge that the
same rationale must apply to the viva voce which was held in the
normal process of promotion.
41. Now, it is true that certain recommendations of the Shetty Commission
in regard to the improvement of the pay scales of the judicial officers

14 “Provided that the High Court shall in addition to the above competitive examination take into consider-
ation any of the criteria as specified in Rule 8 above..”
15 Shetty Commission Report, [10.97]
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were accepted by this Court in the decision of this Court in All India
Judges’ Association (supra). However, there was no specific finding
in paragraphs 27 and 28 of the All India Judges’ Association (supra)
in regard to whether a cut-off should be imposed for recruitment
by way of regular promotion. The Court had merely remarked that
“there should be an objective method of testing the suitability of the
subordinate judiciary”16, without making any observation about the
desirability or otherwise of minimum cutoffs for viva voce generally.
We do not read the decision of this Court in All India Judges’
Association (supra) as precluding the High Court from doing so
based on the exigencies of the Service in the State. In any case,
based on the discussion above, the three modes of recruitment have
been reasonably classified and different requirements have been
prescribed for each. As such, what may or may not have been held
in respect of the viva voce in direct recruitments may not necessarily
apply to the viva voce requirement in recruitments through promotions.
42. It is important to bear in mind that the Higher Judicial Services require
the selection of judicial officers of mature personality and requisite
professional experience. In-service judicial officers are expected
to have a greater familiarity with the law and the procedure based
on their experience as judicial officers. While an objective written
examination can be the best gauge of the legal knowledge of a
candidate, the viva voce offers the best mode of assessing the overall
personality of a candidate. In Lila Dhar v. State of Rajasthan,17 this
Court noted the importance of giving necessary weightage to the
interview test in the following words:
“6. Thus, the written examination assesses the man’s
intellect and the interview test the man himself and “the
twain shall meet” for a proper selection. If both written
examination and interview test are to be essential features
of proper selection, the question may arise as to the
weight to be attached respectively to them. In the case of
admission to a college, for instance, where the candidate’s
personality is yet to develop and it is too early to identify
the personal qualities for which greater importance may

16 All India Judges’ Association (supra), [27].

17 [1982] 1 SCR 320 : (1981) 4 SCC 159
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have to be attached in later life, greater weight has per

force to be given to performance in the written examination.
The importance to be attached to the interview-test must
be minimal. That was what was decided by this Court in
Periakaruppan v. State of Tamil Nadu [(1971) 1 SCC 38 :
(1971) 2 SCR 430] , Ajay Hasia v. Khalid Mujib Sehravardi
[(1981) 1 SCC 722; 1981 SCC (L&S) 258 : AIR 1981 SC
487] and other cases. On the other hand, in the case
of services to which recruitment has necessarily
to be made from persons of mature personality,
interview test may be the only way, subject to basic
and essential academic and professional requirements
being satisfied. To subject such persons to a written
examination may yield unfruitful and negative results,
apart from its being an act of cruelty to those persons.
There are, of course, many services to which recruitment
is made from younger candidates whose personalities are
on the threshold of development and who show signs of
great promise, and the discerning may in an interview-
test, catch a glimpse of the future personality. In the case
of such services, where sound selection must combine
academic ability with personality promise, some weight
has to be given, though not much too great a weight,
to the interview-test. There cannot be any rule of thumb
regarding the precise weight to be given. It must vary from
service to service according to the requirements of the
service, the minimum qualifications prescribed, the age
group from which the selection is to be made, the body
to which the task of holding the interview-test is proposed
to be entrusted and a host of other factors. It is a matter
for determination by experts. It is a matter for research. It
is not for courts to pronounce upon it unless exaggerated
weight has been given with proven or obvious oblique
motives. The Kothari Committee also suggested that in
view of the obvious importance of the subject, it may be
examined in detail by the Research Unit of the Union
Public Service Commission.”
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43. In Taniya Malik v. Registrar General of the High Court of Delhi,18

the petitioners challenged the prescription of minimum cut-off marks
for the viva voce during the selection process of the Delhi Judicial
Service Examination 2015. A two-Judge Bench of this Court declined
to accept the challenge of the petitioners on the ground that “it is
desirable to have the interview and it is necessary to prescribe
minimum passing marks for the same when the appointment in the
higher judiciary to the post of District Judge is involved.” The court
further observed that the interview is the best method of judging “the
performance, overall personality and the actual working knowledge
and capacity to perform otherwise the standard of judiciary is likely
to be compromised.”
44. In the present case, the High Court has come to the conclusion that
apart from seeking proficiency in the substantive knowledge of law,
based on the written test, in-service judicial officers must possess
communication and other skills which would emerge in the course
of an interview. We must be mindful of the fact that the interview in
such cases is not being held at the very threshold of the service, while
making recruitments at the junior-most level. Rather, the interview is
being held to fill up a senior position in the District Judiciary, that of
an Additional District and Sessions Judge. Such officers, based on
their prior experience, must be expected to demonstrate a proficiency
in judicial work borne from their long years of service. The purpose
of the interview for officers in that class is to assess the officer in
terms of the ability to meet the duties required for performing the role
of an Additional District and Sessions Judge. Consequently, there
would be a reasonable and valid basis, if the High Court were to do
so, to impose a requirement of a minimum eligibility or cut-off both
in the written test and in the viva voce separately.
ii. The Rules can be supplemented to fill in gaps
45. That leads us to the analysis of the provisions of Rule 6, on the
one hand, and Rule 8, on the other. As we have already noticed,
Rule 6(1)(a) provides for promotion to 65% of the posts to the
Higher Judicial Service on the basis of the principle of merit- cum-
seniority and the passing of a suitability test. The principle of merit-
cum- seniority is an approved method of selection where merit

18 [2018] 10 SCR 348 : (2018) 14 SCC 129

[2024] 2 S.C.R.  1165

Dr Kavita Kamboj v. High Court of Punjab and Haryana & Ors

is the determinative factor and seniority plays a less significant

role.19 Where the principle of ‘merit-cum- seniority’ is the basis,
the emphasis is primarily on the comparative merit of the judicial
officers being considered for promotion. Resultantly, even a junior
officer who demonstrates greater merit than a senior officer will be
considered for promotion.
46. Through their letter dated 02 March 2023, the State Government
raised an objection to the recommendations made by the High
Court. The State requested the High Court to “clarify the non-
recommendation” of certain officers who were higher in seniority to
the officers recommended by the High Court. While as an abstract
proposition, promotion of judicial officers on the basis of seniority
alone may impart objectivity to the entire process, this Court has
also cautioned against using seniority as the sole criterion for
promotion in such cases. The Higher or Superior Judicial Service is
a gateway to eventual appointments to the High Court. Steps may
legitimately be taken by the High Court to ensure that appointments
to the higher echelons of the judiciary does not become a parade
of mediocrity.
47. In Sant Ram Sharma v. State of Rajasthan,20 a Constitution Bench
of this Court held that consideration of merit along with seniority in
the procedure of promotion is not violative of Article 14 and 16 of
the Constitution. It was also observed:
“9. [...] The question of proper promotion policy depends
on various conflicting factors. It is obvious that the only
method in which absolute objectivity can be ensured is for
all promotions to be made entirely on grounds of seniority.
That means that if a post falls vacant it is filled by the
person who has served longest in the post immediately
below. But the trouble with the seniority system is that
it is so objective that it fails to take any account of
personal merit. As a system it is fair to every official
except the best ones; an official has nothing to win or
lose provided he does not actually become so inefficient
that the disciplinary action has to be taken against him.

19 B V Sivaiah v. K. Addanki Babu, [1998] 3 SCR 782 : (1998) 6 SCC 720

20 [1968] 1 SCR 111 : 1967 SCC OnLine SC 16
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But, though the system is fair to the officials concerns, it

is a heavy burden on the public and a great strain on the
efficient handling of public business. [.]”
(emphasis supplied)
48. According to Rule 6(1)(a), the inter-se merit of the judicial officers
plays a greater role in making promotions. The passing of a suitability
test is a measure of assessment of the merit of the judicial officers
under consideration for promotion. The passing of a suitability test,
in other words, is complemented by the requirement of observing
the principle of merit-cum-seniority. Rule 8 particularly provides for
the procedure for promotion for “assessing and testing the merit and
suitability” of the judicial officers. It states that the High Court “may”
hold a written objective test of 75 marks and viva voce of 25 marks
in order to ascertain and examine the legal knowledge and efficiency
in the legal field of the judicial officers. It is important to note that
the use of the word “may” in Rule 8 confers discretion on the High
Court with respect to the conduct of the written objective test and
viva voce. In comparison, Rule 9, which lays down the procedure
for a limited competitive examination while implementing Rule 6(1)
(b), uses the word “shall” in a mandatory sense. The use of the word
“may” in Rule 8 indicates that the High Court has certain discretion
in terms of the conduct of the written objective test and viva voce
for promotion of judicial officers in terms of Rule 6(1)(a).
49. Moreover, the Rules in the present case are entirely silent in regard
to the prescription of a minimum eligibility for clearing a competitive
test, on the one hand, and the viva voce, on the other hand. If the
Rules were to specifically provide in a given case that the criterion
for eligibility would be on the combined marks of both the written test
and the viva voce, the matter would have been entirely different.21
Rule 6(1)(a) and Rule 8 being silent as regards the manner in which
merit and suitability would be determined, administrative instructions
can supplement the Rules in that regard. This is not a case where
the Rules have made a specific provision in which event the
administrative instructions cannot transgress a rule which is being
made in pursuance of the power conferred under Article 309 of the
Constitution. For instance, if the Rules were to provide that there

21 P K Ramachandra Iyer v. Union of India, [1984] 2 SCR 200 : (1984) 2 SCC 141, [44]
[2024] 2 S.C.R.  1167

Dr Kavita Kamboj v. High Court of Punjab and Haryana & Ors

would be a minimum eligibility requirement only in the written test,

conceivably, it may not be open to prescribe a minimum eligibility
requirement in the viva voce by an administrative instruction. Similarly,
if the Rules were to provide that the eligibility cut-off would be taken
on the basis of the overall marks which are obtained in both the
written test and the viva voce, conceivably, it would not be open to
the administrative instructions to modify the terms.
50. The appropriate authority cannot amend or supersede statutory rules
by administrative actions. However, it is open to it to issue instructions
to fill up the gaps and supplement the rules where they are silent
on any particular point.22 Such instructions have a binding force
provided they are subservient to the statutory provisions and have
been issued to fill up the gaps between the statutory provisions.23
51. In K H Siraj v. High Court of Kerala,24 this Court was called upon
to determine the validity of the decision of the High Court of Kerala
in prescribing minimum marks for the oral examination as a condition
of eligibility for selection as Munsif Magistrate. The relevant provision,
that is, Rule 7 of the Kerala Judicial Service Rules 1991, mandated
the High Court to hold written and oral examinations and prepare a
list of candidates considered suitable for appointment to Category
2 posts. This Court held that even though Rule 7 was silent on the
question of minimum marks for oral examination, it was open to the
High Court to supplement the Rule:
“62. Thus it is seen that apart from the amplitude of the
power under Rule 7 it is clearly open for the High Court
to prescribe benchmarks for the written test and oral
test in order to achieve the purpose of getting the best
available talent. There is nothing in the Rules barring such
a procedure from being adopted. It may also be mentioned
that executive instructions can always supplement the
Rules which may not deal with every aspect of a matter.
Even assuming that Rule 7 did not prescribe any particular
minimum, it was open to the High Court to supplement the

22 Sant Ram Sharma v. State of Rajasthan, [1968] 1 SCR 111 : 1967 SCC OnLine SC 16 [7]; State of
Gujarat v Akhilesh C Bhargav, [1987] 3 SCR 1091 : (1987) 4 SCC 482, [7]
23 State of Uttar Pradesh v. Chandra Mohan Nigam, [1978] 1 SCR 521 : (1977) 4 SCC 345 [26];
24 [2006] Supp. 2 SCR 790 : (2006) 6 SCC 395
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rule with a view to implement them by prescribing relevant

standards in the advertisement for selection.”
52. In the present case, the Rules are silent in regard to the manner
in which the merit or suitability would be determined. In view of the
silence of the Rules, it is open to the High Court in the exercise of
its administrative authority to provide the modalities in which merit
or suitability would be determined.
iii. Sivanandan C T
53. Next, it would become necessary to dwell on a recent decision of
the Constitution Bench of this Court in Sivanandan C T (supra).
The issue in that case pertained to the validity of the selection
process to the Higher Judicial Services through direct recruitment
conducted by the High Court of Kerala. The Kerala State Higher
Judicial Services Rules 1961 stipulated that the direct recruitment
from the Bar shall be “on the basis of aggregate marks/grade
obtained in a competitive examination and viva voce conducted
by the High Court.” Thereafter in 2012, the High Court of Kerala
published its Scheme for the examination for recruitment of
members of the Bar to the Kerala Higher Judicial Service. The
Scheme specifically provided that there shall be no cut-off of
marks in the viva voce. Following this, the High Court issued a
notification in 2015 inviting applications from qualified candidates for
appointment as District and Sessions Judges by direct recruitment
from bar. The notification of the High Court indicated that candidates
who secured a minimum of 50% marks in the written test (relaxed
to 40% for SC/ST candidates) would qualify for the viva voce.
The notification also specified that the aggregate of marks in the
written examination and the viva voce would form the basis of
the ultimate merit list. In view of the notification, the High Court
conducted the written examination and viva voce of the qualified
candidates. When the process of selection had commenced, all
candidates were put on notice of the fact that:
(i) The merit list would be drawn up on the basis of the aggregate
marks obtained in the written examination and viva voce;
(ii) Candidates whose marks were at least at the prescribed
minimum in the written examination would qualify for the viva
voce; and
[2024] 2 S.C.R.  1169

Dr Kavita Kamboj v. High Court of Punjab and Haryana & Ors

(iii) No cut-off was applicable in respect of the marks to be obtained

in the viva voce while drawing up the merit list in the aggregate.
54. After the conduct of the viva voce, the High Court decided to
apply a minimum cut-off in the viva voce as a qualifying criterion.
Subsequently, the final merit list of successful candidates was
published. The decision of the High Court to prescribe a minimum
cut-off for the viva voce was challenged for being contrary to the
statutory rules which prescribed that the merit list shall be drawn
up on the basis of the aggregate marks obtained in the written
examination and viva voce.
55. In the backdrop of these facts, this Court held:
“14. The decision of the High Court to prescribe a cut-off for
the viva-voce examination was taken by the Administrative
Committee on 27 February 2017 after the viva-voce was
conducted between 16 and 24 January 2017. The process
which has been adopted by the High Court suffers from
several infirmities. Firstly, the decision of the High Court was
contrary to Rule 2(c)(iii) which stipulated that the merit list
would be drawn up on the basis of the marks obtained in
the aggregate in the written examination and the viva-voce;
secondly, the scheme which was notified by the High Court
on 13 December 2012 clearly specified that there would be no
cut off marks in respect of the viva-voce; thirdly, the notification
of the High Court dated 30 September 2015 clarified that the
process of short listing which would be carried out would be
only on the basis of the length of practice of the members of
the Bar, should the number of candidates be unduly large;
and fourthly, the decision to prescribe cut off marks for the
viva-voce was taken much after the viva-voce tests were
conducted in the month of January 2017.”
56. Moreover, this Court took note of the fact that subsequently the
rules in the State of Kerala were amended in 2017 to prescribe a
cut-off of 35% marks in the viva voce examination which was not
the prevailing legal position when the process of selection was
initiated in that case. The above extract from the decision of this
Court in Sivanandan C T (supra) reveals that it was a cumulative
set of factors set out in paragraph 14 which have led to the ultimate
determination. The statutory rules had indicated in that case that the
1170 [2024] 2 S.C.R.

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merit list would be prepared on the basis of the aggregate marks in

the written examination and the viva voce. The Scheme of the High
Court had specified that there would be no separate cut-off for the
viva voce. Moreover, the process of shortlisting, as prescribed, was
to be on the basis of the length of the service. Finally, the decision
to prescribe a cut-off in the viva voce was taken much after the test
was conducted.
57. The facts as they stand in the present case are clearly in contrast
to those contained in Sivanandan C T (supra). As opposed to the
Rules having made a specific provision, the Rules were clearly silent
in the present case. It is in this backdrop, in the face of the silence
of the statutory rules that the High Court had, in its initial Full Court
Resolution dated 29 January 2013, prescribed an overall cut-off of
50% of combined marks in the written test and in the viva voce. The
High Court, while amending the text of its Full Court Resolution of 29
January 2013, had done so in the exercise of the same administrative
capacity which it had wielded while formulating the original Resolution.
Hence, the Resolution of the High Court dated 30 November 2021
cannot be faulted in that regard.
58. The unsuccessful candidates in the present case have further relied
on Sivanandan C T (supra) to contend that the absence of notice to
the candidates about the imposition of the minimum cut-off marks for
the viva voce contravenes their legitimate expectation. In Sivanandan
C T (supra), this Court held that an individual who claims a benefit
or entitlement based on the doctrine of legitimate expectation has
to establish: (i) the legitimacy of the expectation; and (ii) that the
denial of the legitimate expectation led to a violation of Article 14.
In Sivanandan C T (supra), the statutory rules coupled with the
Scheme of the High Court generated a legitimate expectation that
(i) the merit list would be drawn based on the aggregate of the total
marks received in the written examination and viva voce; and (ii)
there would be no minimum cut-off marks for the viva voce. However,
in the present case neither the statutory Rules, nor the High Court
committed that there would be no cut-off marks for the viva voce
so as to give rise to such a legitimate expectation on behalf of the
petitioners. Furthermore, the decision of the High Court to apply the
minimum cut-off marks for the viva voce is grounded in legality, and
therefore, cannot be faulted for contravening the established practice.
[2024] 2 S.C.R.  1171

Dr Kavita Kamboj v. High Court of Punjab and Haryana & Ors

iv. Articles 233, 234 and 235 of the Constitution of India

59. That leads us to the analysis of the provisions of Articles 233, 234
and 235 of the Constitution. Clause (1) of Article 233 stipulates that
appointment of persons to be District Judges in the State and their
posting and promotion shall be made by the Governor in consultation
with the High Court exercising jurisdiction in the State. According to
Article 234, appointments of persons other than District Judges to
the Judicial Service of a State are to be made by the Governor in
accordance with the rules made in that behalf after consulting the
State Public Service Commission and the High Court exercising
jurisdiction in relation to the State. Control over the “Subordinate
Courts” under Article 235 is vested in the High Court. Article 235
provides that:
“The control over district courts and courts subordinate
thereto including the posting and promotion of, and the
grant of leave to, persons belonging to the judicial service
of a State and holding any post inferior to the post of district
judge shall be vested in the High Court, but nothing in this
article shall be construed as taking away from any such
person any right of appeal which he may under the law
regulating the conditions of his service or as authorising the
High Court to deal with him otherwise than in accordance
with the conditions of his service prescribed under such
law.”
60. These provisions have been dealt with in several decisions of this
Court, including in decisions of Constitution Benches. In the course
of its judgment, the High Court has elaborately dealt with several
of these judgments.
61. In Chandra Mohan v. State of Uttar Pradesh25, a Constitution
Bench of this Court, speaking through Chief Justice K Subba Rao,
held that the constitutional mandate under Article 233 is that the
exercise of the power of appointment by the Governor is conditioned
by consultation with the High Court. The object of consultation is
that the High Court is expected to know better than the Governor
the suitability of a person belonging either to the Judicial Service or

25 [1967] 1 SCR 77 : (1967) 1 SCR 77

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to the Bar for appointment as a District Judge. The Court held that
the mandate would stand disobeyed if the Governor either did not
consult the High Court at all or if it were to consult the High Court
or any other person in a manner not contemplated. The Court held
that in case the Governor consults an authority other than the High
Court, it would amount to indirect infringement of the mandate of the
Constitution. In situations where the Constitution sought to provide for
more than one consultant, it did so (for e.g. Articles 124 (2), 217(1)).
Impliedly, this Court held that the duty of consultation is intertwined
with the exercise of power itself, and such power can be exercised
only in consultation with the person or persons designated under the
relevant provisions of the Constitution. Hence, it was held that if the
Rules empowered the Governor to appoint a person as District Judge
in consultation with a person or authority other than the High Court,
the appointment would not be in accordance with the provisions of
Article 233. The Court observed as follows:
“We are assuming for the purpose of these appeals that
the “Governor” under Art. 233 shall act on the advice
of the Ministers. So, the expression “Governor” used in
the judgment means Governor acting on the advice of
the Ministers. The constitutional mandate is clear. The
exercise of the power of appointment by the Governor is
conditioned by his consultation with the High Court, that is
to say, he can only appoint a person to the post of district
judge in consultation with the High Court. The object of
consultation is apparent the High Court is expected to
know better than the Governor in regard to the suitability
or otherwise of a person, belonging either to the “judicial
service” or to the Bar, to be appointed as a district judge.
Therefore, a duty is enjoined on the Governor to make
the appointment in consultation with a body which is the
appropriate authority to give advice to him. This mandate
can be disobeyed by the Governor in two ways, namely,
(i) by not consulting the High Court at all, and (ii) by
consulting the High Court and also other persons. In one
case he directly infringes the mandate of the Constitution
and in the other he indirectly does so, for his mind may
be influenced by other persons not entitled to advise him.
That this constitutional mandate has both a negative and
[2024] 2 S.C.R.  1173

Dr Kavita Kamboj v. High Court of Punjab and Haryana & Ors

positive significance is made clear by the other provisions

of the Constitution. Wherever the Constitution intended
to provide more than one consultant, it has said so:
see Arts. 124(2) and 217(1). Wherever the Constitution
provided for consultation of a single body or individual
it said so: see Art. 222. Art. 124(2) goes further and
makes a distinction between persons who shall
be consulted and persons who may be consulted.
These provisions indicate that the duty to consult
is so integrated with the exercise of the power that
the power can be exercised only in consultation with
the person or persons designated therein. To state it
differently, if A is empowered to appoint B in consultation
with C, he will not be exercising the power in the manner
prescribed if he appoints B in consultation with C and D.”
(emphasis added)
62. In matters of appointment of judicial officers, the opinion of the High
Court is not a mere formality because the High Court is in the best
position to know about the suitability of candidates to the post of
District Judge.26 The Constitution therefore expects the Governor to
engage in constructive constitutional dialogue with the High Court
before appointing persons to the post of District Judges under
Article 233. In State of Haryana v Inder Prakash Anand HCS27, a
Constitution Bench of this Court speaking through Chief Justice AN
Ray observed that the High Court is acquainted with the capacity of
work of the members already in service. Underlining the significance
of the High Court’s ‘control’ over the appointments under Article 235,
it was held that the High Court’s opinion will have a binding effect
on the Governor according to the constitutional scheme. This Court
noted as follows:
“18. The control vested in the High Court is that if the High
Court is of opinion that a particular judicial officer is not fit
to be retained in service, the High Court will communicate
that to the Governor because the Governor is the authority
to dismiss, remove, reduce in rank or terminate the

26 Chandramouleshwar Prasad v. Patna High Court, [1970] 2 SCR 666 : (1969) 3 SCC 56
27 [1976] Supp. 1 SCR 603 : (1976) 2 SCC 977
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appointment. In such cases it is the contemplation in

the Constitution that the Governor as the head of the
State will act in harmony with the recommendation of
the High Court. If the recommendation of the High Court
is not held to be binding on the State consequences
will be unfortunate. It is in public interest that the State will
accept the recommendation of the High Court. The vesting
of complete control over the subordinate Judiciary in
the High Court leads to this that the decision of the
High Court in matters within its jurisdiction will bind the
State. “The Government will act on the recommendation
of the High Court. That is the broad basis of Article 235.””
(emphasis added)
63. In State of Bihar v Bal Mukund Sah28, another Constitution Bench
held that the constitutional scheme guaranteeing the independence
of the Judiciary and the separation of power between the Executive
and the Judiciary as basic features of the Constitution must be
borne in mind. It was held that while Article 309 of the Constitution
creates a permissible field of regulation by the Legislature, regarding
conditions of service of already recruited judicial officers, it does not
mean that the High Court’s opinion can be overlooked. The process
of appointments to the District Judiciary was held to be insulated from
interference by way of the ‘complete code’ for the purpose laid down
under Articles 233 and 234. This intention to insulate the process,
the Court observed, is clear from the fact that these provisions
are not subject to any other law enacted by the Legislature.29 The
Constitution intended to create a complete and insulated scheme
of recruitment to the District Judiciary. Speaking in the context of
the rules under Articles 234, 235 and 309 specifically, this Court
observed that consultation with the High Court was indispensable.
64. The Court observed:
“58... It is now time for us to take stock of the situation.
In the light of the constitutional scheme guaranteeing
independence of the Judiciary and separation of powers

28 [2000] 2 SCR. 299 : (2000) 4 SCC 640

29 ibid at para 35.
[2024] 2 S.C.R.  1175

Dr Kavita Kamboj v. High Court of Punjab and Haryana & Ors

between the Executive and the Judiciary, the Constitution-

makers have taken care to see by enacting relevant
provisions for the recruitment of eligible persons to
discharge judicial functions from the grass-root level of
the Judiciary up to the apex level of the District Judiciary,
that rules made by the Governor in consultation with
the High Court in case of recruitment at grass-root
level and the recommendation of the High Court for
appointments at the apex level of the District Judiciary
under Article 233, remain the sole repository of power
to effect such recruitments and appointments. ...For
judicial appointments the real and efficacious advice
contemplated to be given to the Governor while framing
rules under Article 234 or for making appointments on
the recommendations of the High Court under Article
233 emanates only from the High Court which forms the
bedrock and very soul of these exercises. It is axiomatic
that the High Court, which is the real expert body in the
field in which vests the control over the Subordinate
Judiciary, has a pivotal role to play in the recruitments
of judicial officers whose working has to be thereafter
controlled by it under Article 235 once they join the
Judicial Service after undergoing filtering process at
the relevant entry points. It is easy to visualise that
when control over the District Judiciary under Article
235 is solely vested in the High Court, then the High
Court must have a say as to what type of material
should be made available to it both at the grass-root
level of the District Judiciary as well as the apex level
thereof so as to effectively ensure the dispensation of
justice through such agencies with the ultimate object
of securing efficient administration of justice for the
suffering litigating humanity. Under these circumstances,
it is impossible to countenance bypassing of the High Court
either at the level of appointment at the grass-root level or
at the apex level of the District Judiciary. The rules framed
by the Governor as per Article 234 after following
due procedure and the appointments to be made by
him under Article 233 by way of direct recruitment
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to the District Judiciary solely on the basis of the

recommendation of the High Court clearly project a
complete and insulated scheme of recruitment to the
Subordinate Judiciary. This completely insulated scheme
as envisaged by the Founders of the Constitution cannot be
tinkered with by any outside agency dehors the permissible
exercise envisaged by the twin Articles 233 and 234.
(emphasis added)
65. In numerous decisions, this Court has emphasized the importance
of the control which is wielded by the High Courts over the District
Judiciary.30 Undoubtedly, it is equally well-settled that when the
Rules under Article 309 hold the field, these Rules have to be
implemented. Where specific provisions are made in the Rules framed
under Article 309, it would not be open to the High Court to issue
administrative directions either in the form of the Full Court Resolution
or otherwise, that are at inconsistent with the mandate of the Rules.
On the other hand, in cases such as the one at hand, where the
Rules were silent, it is open to the High Court to issue a Full Court
Resolution. The High Court did so initially on 29 January 2013, but
modified the Resolution on 30 November 2021 by prescribing that
candidates for appointment to the Higher Judicial Service should
have a minimum of 50% both in the written test as well as in the
viva voce independently. The wisdom of the prescription is clear. A
candidate should not just demonstrate the ability to reproduce their
knowledge by answering questions in the suitability test, but must
also demonstrate both practical knowledge and the application of the
substantive law in the course of the interview. The Rules being silent,
it was clearly open to the High Court to prescribe such a criterion
as it did in 2013, when the 50% cutoff was prescribed on aggregate
scores and also, in 2021, when the 50% cutoff was prescribed on
the written test scores and the viva voce separately.
66. We are in agreement with the High Court that the State Government
travelled beyond the remit of the consultation with the High Court by
referring the matter to the Union Government. Any issue between
the High Court and the State Government should have been ironed

30 State of West Bengal v. Nripendra Nath Bagchi, [1966] 1 SCR 771 : 1965 SCC OnLine SC 22; High
Court of Punjab and Haryana v. State of Haryana, [1975] 3 SCR. 365 : (1975) 1 SCC 843, High Court
of Judicature for Rajasthan v. PP Singh, [2003] 1 SCR 593 : (2003) 4 SCC 239.
[2024] 2 S.C.R.  1177

Dr Kavita Kamboj v. High Court of Punjab and Haryana & Ors

out in the course of the consultative process within the two entities.
The State Government was bound to consult only the High Court
in the manner elaborated by the abovementioned judgements. Any
other exercise de hors such consultation would not be in accordance
with the scheme of the Constitution.
D. Conclusion
67. We have, therefore, come to the conclusion that the State Government
was plainly in error in finding fault with the process which is being
followed by the High Court and in concluding that the decision of
the High Court amounted to an arbitrary exercise of power. Though
the Solicitor General pointed out that the expressions “arbitrary”
and “betrayal of trust” were used in the communication of the State
Government placing reliance on an earlier judgment of this Court,
we would leave the matter at that while affirming the conclusion of
the High Court.
68. For the above reasons, we hold that the impugned judgment and
order of the High Court dated 20 December 2023 does not suffer
from any legal or other infirmity. The appeals shall accordingly stand
dismissed.
69. Pending applications, if any, stand disposed of.

Headnotes prepared by:  Result of the case:

Prastut Mahesh Dalvi, Hony. Associate Editor Appeals dismissed.
(Verified by: Liz Mathew, Sr. Adv.)
 [2024] 2 S.C.R. 1178 : 2024 INSC 198

Thakore Umedsing Nathusing

v.
State of Gujarat
(Criminal Appeal No. 250 of 2016)
22 February 2024
[B.R. Gavai and Sandeep Mehta,* JJ.]

Issue for Consideration

Scope of interference by High Court in an appeal challenging
acquittal of the accused by the trial Court; standard of proof required
to bring home charges in a case based purely on circumstantial
evidence.

Headnotes
Code of Criminal Procedure, 1973 – s.378(1)(b) – Appeal in
case of acquittal – Interference by High Court – Scope –
Prosecution’s case that the accused persons took the jeep
of the victim-deceased on hire and thereafter they murdered
the victim and looted the jeep – Appellants-accused were
convicted and sentenced for offence punishable u/s.392, IPC
however, were acquitted u/s.302 r/w s.34 and ss.396 and 397,
IPC – High Court reversed the acquittal and convicted them
for offences punishable u/ss.302, 396, IPC and sentenced
accordingly – Correctness:
Held: No direct evidence was led to bring home the charges
against the accused and the entire case of prosecution was based
on circumstantial evidence – Prosecution miserably failed to lead
reliable, tangible and convincing links forming a complete chain
of incriminating circumstances so as to bring home the guilt of the
accused for the charge of murder punishable u/s.302 – Further,
while reversing the acquittal of the accused recorded by the trial
Court for the charges u/s.302 r/w s.34 and ss.396, 397, the High
Court did not record any such finding that the view taken by the
trial Court based on appreciation of evidence was either perverse
or it was not one of the permissible views favouring the acquittal
of the accused – Thus, the impugned judgment falls short of the
satisfaction mandatorily required to be recorded for reversing
a judgment of acquittal and converting it to one of conviction –

* Author
[2024] 2 S.C.R.  1179

Thakore Umedsing Nathusing v. State of Gujarat

Judgment of the High Court is based on conjectures and surmises

rather than on any substantive or reliable circumstantial evidence
pointing exclusively to the guilt of the accused – Judgment of the
trial Court, convicting and sentencing the accused for offence
u/s.392 is also based on the same set of inadmissible and unreliable
links of circumstantial evidence, and the impugned judgment of
the High Court are quashed and set aside – Appellants acquitted.
[Paras 22, 37, 38-41]
Evidence – Circumstantial evidence – Standard of proof –
Prosecution case that the accused persons had taken the jeep
of the victim-deceased on hire and thereafter they murdered
the victim and looted the jeep – Case of prosecution based
entirely on circumstantial evidence:
Held: Prosecution relied upon the circumstantial evidence
comprising of disclosures, recoveries and discoveries for bringing
home the guilt of the accused – The most important recovery was
allegedly of the jeep – The said recovery was attributed to A1,
who was allegedly apprehended by PSI (PW-22) – He forwarded
a report/communication (Exhibit-96) to the officer in-charge of
the Sardarnagar Police Station wherein, the confession made by
A1 implicating himself and the other accused was recorded – So
called disclosure statement made by A1 (Exhibit-96) on which
the prosecution banked upon and the High Court relied upon by
treating it to be an incriminating circumstance against the accused
persons was inadmissible, unworthy of reliance and doubtful and
cannot be read in evidence against the other accused i.e. A2, A3
and A5 – Exhibit-­96 being hit by s.25, Evidence Act cannot be
read in evidence for any purpose whatsoever – The prosecution
pinned the identity of A2, A3, and A5 as the assailants on the
basis of the disclosure statement (Exhibit­-96) of A1 – They were
primarily convicted on the basis of the recoveries of knives and
clothes – These so called incriminating articles allegedly recovered
at the instance of the accused were never sent to the Serology
expert for comparison of the blood groups existing thereupon with
the blood group of the deceased – Evidence of the concerned
police officials associated with the recoveries and their testimonies
were highly doubtful – The knife which was recovered at the
instance of A3 was found from a nala which is a place open and
accessible to all – The knife attributed to A4 cannot be linked
to him – Recoveries were highly doubtful and tainted – These
1180 [2024] 2 S.C.R.

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recoveries in no manner can be treated to be incriminating in

nature – Even if it is assumed that such recoveries were effected,
the same did not lead to any conclusive circumstance in form of
Serological report establishing the presence of the same blood
group as that of the deceased and hence they do not further the
cause of prosecution – Prosecution failed to lead the link evidence
mandatorily required to establish the factum of safe keeping of the
muddamal articles and hence, the recoveries became irrelevant.
[Paras 26-28, 30, 34-36]
Evidence – Confession of one co-­accused against the other
– Evidentiary value – Such statement not a substantive piece
of evidence. [Para 36]

Case Law Cited

Sharad Birdhichand Sarda v. State of Maharashtra,
[1985] 1 SCR 88 : (1984) 4 SCC 116; H.D. Sundara
and Others v. State of Karnataka, [2023] 14 SCR 47 :
(2023) 9 SCC 581; Mustkeem alias Sirajudeen v. State
of Rajasthan, [2011] 9 SCR 101 : (2011) 11 SCC 724;
Haricharan Kurmi v. State of Bihar, [1964] 6 SCR 623 :
AIR 1964 SC 1184 – relied on.

List of Acts
Code of Criminal Procedure, 1973; Evidence Act, 1872; Penal
Code, 1860.

List of Keywords
Appeal against acquittal; Circumstantial evidence; Disclosure
statement; Confession of co-­accused; Confession of an accused
in custody; Recoveries doubtful; Recoveries not incriminating.

Case Arising From

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.250
of 2016
With
Criminal Appeal Nos. 218-219 of 2016 and Criminal Appeal No. 1102
of 2024
From the Judgment and Order dated 11.12.2015 of the High Court of
Gujarat at Ahmedabad in CRLA No. 1012 of 1993
[2024] 2 S.C.R.  1181

Thakore Umedsing Nathusing v. State of Gujarat

Appearances for Parties

Rauf Rahim, Sr. Adv., Nachiketa Joshi, Mohd. Asad Khan, Ms.
Sucheta Joshi, Himadri Haksar, Narayan Dev Parashar, Ali Asghar
Rahim, Shekhar Kumar, Advs. for the Appellant.
Ms. Archana Pathak Dave, Sr. Adv., Ms. Swati Ghildiyal, Ms. Devyani
Bhatt, Advs. for the Respondent.
Judgment / Order of the Supreme Court

Judgment
Mehta, J.
1. These appeals take exception to the common judgment dated 11th
December, 2015 passed by the High Court of Gujarat at Ahmedabad
in Criminal Appeal Nos. 949 of 1994 and 1012 of 1993.
2. The appellants being the original accused Nos. 1, 2, 3 and 5 namely
Thakore Laxmansing Halsing (hereinafter being referred to as A1),
Thakore Pravinsing Rajsing(hereinafter being referred to as A2),
Thakore Umedsing Nathusing (hereinafter being referred to as
A3), Thakore Khemsing Halsing(hereinafter being referred to as
A5) alongwith original accused No.4, namely, Thakore Prabhatsing
Kapursing(hereinafter being referred to as A4), were tried in Sessions
Case Nos. 107 and 143 of 1990 respectively by the learned Additional
Sessions Judge, District Banaskantha at Palanpur (hereinafter being
referred to as ‘trial Court’). The accused appellants were convicted
by the trial Court for the offence punishable under Section 392 of
the Indian Penal Code, 1860 (for short ‘IPC’) and were sentenced
to undergo 10 years’ rigorous imprisonment with fine of Rs. 5,000/-
and in default, to undergo further three months simple imprisonment.
The learned trial Court acquitted accused appellants of the charges
under Sections 302 read with Section 34 and Sections 396 and 397
IPC vide the judgment and final order dated 21st August, 1993. The
original accused No.4 was acquitted of all the charges.
3. Being aggrieved, the accused appellants preferred Criminal Appeal
No. 1012 of 1993 against the judgment and order dated 21st August,
1993 and craving acquittal whereas, the State preferred Criminal
Appeal No. 949 of 1994 seeking to assail the acquittal of the accused
appellants for the charged offences, i.e. Sections 302 read with
Section 34 and Sections 396 and 397 of IPC.
1182 [2024] 2 S.C.R.

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Brief Case of Prosecution:-

4. One Vithalbhai Kachrabhai Barot PW-1 lodged a complaint dated 1st
March, 1990 [Exhibit-21] at Gadh Police Station, Taluka Palanpur,
Gujarat alleging inter alia that his son Bharatbhai (deceased) who
used to drive a Jeep bearing registration No.GJ-08-114 had been
murdered and his dead body was found lying in the field of one
Nizamkhan at village Dangiya on Dantiwada Road. Based on the
said complaint, Criminal Case (FIR) No. 2914 of 1990 came to be
registered at Gadh Police Station, Taluka Palanpur, Gujarat and the
investigation was commenced.
5. In the early hours of 2nd March, 1990, PSI J.N. Chaudhary (PW-22)
of Sardarnagar Police Station saw a jeep being rapidly driven near
Charannagar, Ahmedabad. The PSI tried to stop the jeep which was
being driven away at a high speed and the same was stopped at
some distance. Four persons alighted from the jeep and tried to run
away. One of these persons was chased down and was apprehended
and he divulged his name to be Laxmansing(A1).
6. It is alleged that A1, upon interrogation by the police disclosed the
names of four co-accused (A2, A3, A4 and A5) and stated that they
were the ones who were travelling with him in the jeep.
7. During interrogation, A1 also confessed to the murder of the owner
of the jeep and also that the vehicle was looted in the course of the
said transaction. He also stated that the persons who had escaped
from the spot were also privy to the murder. Since the jeep bore
blood stains, it was seized and A1 was taken into custody.
8. The usual investigation was conducted; panchnama was prepared;
the remaining four accused were apprehended. At the instance of
A2, a blood stained knife was recovered which was alleged to be the
weapon of offence. This recovery was alleged to be from a nala. A3
and A4 were arrested. Blood stained clothes of A3 were recovered.
A4 was arrested on 4th April, 1990 and a knife was produced on
his information by one Shobhnaben wife of Kanji Chhara. The
Investigating Officer concluded that the accused persons had taken
the jeep taxi of Bharatbhai (deceased) on hire and thereafter they
murdered the victim and looted the jeep.
[2024] 2 S.C.R.  1183

Thakore Umedsing Nathusing v. State of Gujarat

9. Two separate charge-sheets came to be filed against the accused in

the Court of Judicial Magistrate Ist Class (JMFC) concerned for the
offences punishable under Sections 302 read with Section 34 and
Sections 396 and 397 of the IPC. The offences being exclusively
triable by the Court of Sessions, both sets of charge-sheeted accused
were committed to the Sessions Court, Banaskantha, at Palanpur
from where the cases were made over to the Court of Additional
Sessions Judge, Banaskantha at Palanpur for trial. Charges were
framed against A1, A2, A3 and A4 in Sessions Case No. 107 of 1990
for the offences punishable under Section 302 read with Section 34
of the IPC and Sections 396 and 397 of the IPC. Identical charges
came to be framed against A5 in Sessions Case No. 143 of 1990.
The accused pleaded not guilty and claimed to be tried. Though
charges were framed separately, the trial of both sets of accused
was conducted jointly.
10. Twenty five (25) witnesses were examined and twenty three(23)
documents were exhibited by the prosecution in order to prove its
case. Upon being questioned under Section 313 of Code of Criminal
Procedure, 1973 (hereinafter being referred to as ‘CrPC’) and when
confronted with the circumstances portrayed by the prosecution
against the accused, they denied the same and claimed to be innocent.
11. After hearing the arguments advanced by the learned Public
Prosecutor and the defence counsel and upon appreciating the
evidence available on record, the learned trial Court, proceeded to
acquit accused No. 4 in entirety. While recording acquittal of A1,
A2, A3 and A5 from the charges for the offences punishable under
Section 302 read with Section 34 and Sections 396 and 397 of the
IPC, they were held guilty and convicted for the offence punishable
under Section 392 of the IPC and were sentenced to undergo 10
years’ rigorous imprisonment and a fine of Rs. 5,000/-, in default to
further undergo 3 months simple imprisonment. Being aggrieved by
their conviction, the accused A1, A2, A3 and A5 preferred Criminal
Appeal No. 1012 of 1993 whereas the State preferred Criminal
Appeal No. 949 of 1994 for assailing acquittal of A1, A2, A3 and A5
before the Gujarat High Court.
12. The appeal preferred by the State being Criminal Appeal No. 949
of 1994 was allowed by the Division Bench of the High Court of
Gujarat vide judgment dated 11th December, 2015 whereas the appeal
1184 [2024] 2 S.C.R.

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preferred by the accused appellants was dismissed. The High Court

reversed the acquittal of the accused and convicted them for the
offences punishable under Sections 302 and 396 IPC and sentenced
them to undergo life imprisonment and the fine and default sentence
imposed by learned trial Court was maintained.
13. The aforesaid judgment dated 11th December, 2015 is assailed in
these appeals preferred on behalf of the accused appellants.
Submissions on behalf of accused appellants:-
14. Learned counsel for the accused appellants contended that the
prosecution did not prove any document whatsoever to establish
that the jeep bearing registration No.GJ-08-114 was owned by
or was in possession of the deceased. The incriminating articles
allegedly recovered at the instance of the accused were never
got examined through the Forensic Sciences Laboratories (FSL).
Only the blood samples of two accused were sent to the FSL for
serological examination.
15. The prosecution miserably failed to prove the fact that A1 was found
present in the Jeep bearing registration No.GJ-08-114, when the same
was stopped by the PSI J.N. Chaudhary (PW-22) of the Kubernagar
Police Station. In this regard, attention of the Court was drawn to
the communication i.e. Exhibit-96 forwarded by PSI J.N. Chaudhary
(PW-22) to the officer in-charge of the Sardarnagar Police Station
wherein the registration number of the jeep is not mentioned. Learned
counsel urged that this omission is fatal to the prosecution case.
16. It was thus urged that there is no reliable and tangible evidence
establishing guilt of the accused beyond reasonable doubt so as
to justify conviction of the accused-appellants as directed by the
Division Bench of the Gujarat High Court while reversing the findings
of acquittal recorded by the trial Court.
17. It was further contended that A2, A3 and A5 have been convicted
solely on the basis of the confessional statement of A1 recorded by
the Police Inspector PW-22. Learned counsel submitted that the said
disclosure being in the form of a confession recorded by the Police
Officer, is totally inadmissible in evidence as being hit by Sections 25
and 26 of the Indian Evidence Act, 1872(hereinafter being referred
to as ‘Evidence Act’).
[2024] 2 S.C.R.  1185

Thakore Umedsing Nathusing v. State of Gujarat

18. It was further submitted that the High Court, while reversing the
acquittal of the accused as recorded by the trial Court, has not
recorded any such finding that the view taken by the trial Court was
perverse or two views i.e. one favouring the accused and the other
favouring the prosecution were not possible from the evidence as
available on record. It was contended that the findings recorded
by the High Court in the impugned judgments are not based on
any tangible evidence and are drawn sheerly on conjectures and
surmises. They, therefore, submitted that the accused are entitled to
an acquittal and the impugned judgment deserves to be set aside.
Submissions on behalf of Respondent-State:-
19. Per contra, Ms. Archana Pathak Dave, learned senior counsel
appearing for the respondent-State vehemently opposed the
submissions advanced by the learned counsel representing the
accused-appellants. She submitted that the High Court, after
thorough and apropos appreciation of the substantial and convincing
circumstantial evidence led by the prosecution has recorded
unimpeachable findings holding the accused guilty of the offences.
She thus implored the Court to dismiss the appeals and affirm the
judgment of the High Court.
Discussion:-
20. We have given our thoughtful consideration to the submissions
advanced at bar and thoroughly perused the impugned judgment
minutely and the evidence available on record.
21. Two fundamental issues are presented for adjudication in these
appeals:-
(i) The scope of interference by High Court in an appeal challenging
acquittal of the accused by the trial Court;
(ii) The standard of proof required to bring home charges in a case
based purely on circumstantial evidence.
22. It is not in dispute that the prosecution did not lead any direct evidence
so as to bring home the charges against the accused and the entire
case of prosecution is based on circumstantial evidence.
1186 [2024] 2 S.C.R.

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23. The principles required to bring home the charges in a case based
purely on circumstantial evidence have been crystalized by this Court
in the case of Sharad Birdhichand Sarda v. State of Maharashtra,
(1984) 4 SCC 116. The following five golden rules were laid down
in the above judgment: -
“(1) the circumstances from which the conclusion of guilt
is to be drawn must or should be and not merely
“may be”, fully established.
(2) the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is
to say, they should not be explainable on any other
hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature
and tendency,
(4) they should exclude every possible hypothesis except
the one to be proved, and
(5) there must be a chain of evidence so complete as not
to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and
must show that in all human probability the act must
have been done by the accused.”
24. The principles that govern the scope of interference by the High
Court in exercise of appellate jurisdiction while dealing with an appeal
against acquittal under Section 378(1)(b) CrPC were reiterated by
this Court recently in the case of H.D. Sundara and Others v. State
of Karnataka, (2023) 9 SCC 581 as follows:
“(a) The acquittal of the accused further strengthens the
presumption of innocence;
(b) The appellate Court, while hearing an appeal against
acquittal, is entitled to re-appreciate the oral and
documentary evidence;
(c) The appellate Court, while deciding an appeal
against acquittal, after re-appreciating the evidence,
is required to consider whether the view taken by
the Trial Court is a possible view which could have
been taken on the basis of the evidence on record;
[2024] 2 S.C.R.  1187

Thakore Umedsing Nathusing v. State of Gujarat

(d) If the view taken is a possible view, the appellate

Court cannot overturn the order of acquittal on the
ground that another view was also possible; and
(e) The appellate Court can interfere with the order of
acquittal only if it comes to a finding that the only
conclusion which can be recorded on the basis of the
evidence on record was that the guilt of the accused
was proved beyond a reasonable doubt and no other
conclusion was possible.”
25. Viewed in the light of these well settled legal principles, we now
proceed to evaluate the impugned judgment whereby the conviction of
the accused has been recorded reversing the acquittal by trial Court.
Relevant findings from the impugned judgment dated 11th December
2015 are reproduced hereinbelow for the sake of ready reference: -
“[6.1]. At the outset it is required to be noted and it is not
in dispute that the dead body of the deceased Bharatbhai
was found on 01.03.1990 in the agricultural field of
one Nizamkhan at village Dangiya on Dantiwada road
within the jurisdiction of the Gadh Police Station, Taluka
Palanpur. It is not in dispute that that original accused
No. 1 Laxmansingh was apprehended by the PSI Shri.
Chaudhary of Sardarnagar Police Station on 02.03.1990
in the early morning. That on 02.03.1990, in early morning
at Ahmedabad near Chharanagar, PSI of Sardarnagar
Police station saw one jeep (muddamal jeep) coming in
speed and he tried to stop the same. That four persons
other than the original accused No. 1 were successful in
running away from jeep, however the original accused
No. 1 was arrested and interrogated. That the original
accused No. 1 tried to explain his presence in the jeep in
his further statement recorded under section 313 of the
CrPC. According to original accused No. 1, as he wanted
to go to Palanpur from Gitamandir Bus stand and one
jeep was taking passengers to Palanpur, he was offered
to sit in the same on payment of charges and therefore,
he along with other passengers sat in the jeep and on
the road near Sardarnagar Police tried to stop the jeep
which was stopped at some distance and therefore, the
1188 [2024] 2 S.C.R.

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passengers and the driver ran away and when he alighted

from the jeep, the police arrested him. However, by giving
cogent reasons the learned trial Court has not accepted
the defence of the original accused No. 1. It is required
to be noted that to go to Palanpur from Gitamandir Bus
stand, Chharanagar from where the original accused No.
1 was apprehended from jeep, was not the route at all. To
got to Palanpur from Gitamandir Bus stand, one was not
required to go to Chharanagar/Sardarnagar at all. Under
the circumstances, as such the original accused No. 1
gave the false explanation/defence in his further statement
recorded under section 313 of the CrPC. At this stage it is
required to be noted that the design of the tyres of the jeep
tallies with the tyre marks found at the place of incident
from where the dead body of the deceased Bharatbhai
was found. Even the design of the slippers of the original
accused No. 1 tallies with the design of slipper found at
the place of incident.
[6.2] In the present case there is recovery of the knife
used in committing the offence, at the instance of original
accused No. 2 Pravinsingh which was recovered from the
place which could have been known to the said accused
alone i.e. from Nala near Palanpur-Siddhpur Highway
road. The recovery of the knife at the instance of the
original accused No. 2 has been established and proved
by examining the panch witnesses.
[6.3] In the present case even there is a recovery of the
knife at the instance of the original accused Nos. 3 and 5
and the knife used in committing the offence was recovered
from the place which was known to the said accused
alone. Even the trousers/pant of the original accused Nos.
3 and 5 were recovered at their instance from the house
of one Kanjibhai - friend of the said accused. The said
pants were having blood stains. The original accused Nos.
3 and 5 have failed to explain the blood stains on their
trousers. The recovery of the trouser/pants and the knife
at the instance of original accused Nos. 3 and 5 have
been established and proved by examining Kanjibhai at
Exh.77 and his wife Shobhnaben.
[2024] 2 S.C.R.  1189

Thakore Umedsing Nathusing v. State of Gujarat

[6.4]. It is further submitted that therefore when there are

recoveries of the weapons used in committing the offence
and even recovery of trousers/pants of original accused
Nos. 3 and 5 having blood stains, at the instance of the
original accused Nos. 2, 3 and 5 and when original accused
No. 1 was as such found/apprehended/arrested with the
muddamal jeep and his defence/explanation is found to
be false and when the prosecution has been successful in
establishing and/or proving the complete chain of events
with respect to the involvement of the jeep which was
driven by the original accused No. 1, it cannot be said
that the trial Court has committed any error in convicting
the accused Nos. 1, 2, 3 and 5 for the offence punishable
under section 392 of the IPC. It is required to be noted
that even the blood stains were found on the hood of the
jeep and even on the knife.
[6.5]. Now, that takes us to the appeal preferred by the
State against the impugned judgment and order of acquittal
passed by the learned trial Court acquitting the original
accused for the offences punishable under sections 302
and 396 of the IPC.
So far as the impugned judgment and order of acquittal
passed by the learned trial Court acquitting the accused
for the offence punishable under section 396 of the IPC is
concerned, it appears that by the impugned judgment and
order, the learned trial Court has acquitted the accused
for the offence punishable under section 306 of the IPC
on the ground that as original accused No. 4 has been
acquitted and the number of remaining convicted accused
would be only four, the learned trial Court has acquitted
the remaining accused for the offence punishable under
section 396 of the IPC. However, it is required to be noted
that from the very beginning there were allegations of
involvement of five persons in committing the offence.
It is true that out of five accused, original accused No.
4 has been acquitted for want of sufficient evidence.
However, on that ground alone the remaining accused
could not have been acquitted for the offence punishable
under section 396 of the IPC. As observed by the Hon’ble
1190 [2024] 2 S.C.R.

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Supreme Court in the case of Manoj Giri (Supra), in a

given case it may happen that there can be five or more
persons and the factum of five or more persons either
is not disputed or is clearly established, but the Court
may not be able to record a finding as to identity of all
the persons said to have committed dacoity and may
not be able to convict them and order their acquittal,
observing that thereafter identity is not established, or
that otherwise there is insufficient evidence to convict
them, in such case there can be a conviction of less
than five persons or even one for dacoity. Similar is the
view taken by the Hon’ble Supreme Court in the case
of Saktu (Supra). Under the circumstances and in the
facts and circumstances of the case, learned trial Court
has materially erred in acquitting the remaining original
accused Nos. 1, 2, 3 and 5 for the offences punishable
under section 396 of the IPC.
[6.6] Similarly, the learned trial Court has committed grave
error in acquitting the original accused for the offence
punishable under section 302 of the IPC. From the findings
recorded by the learned trial Court as such the learned
trial Court has specifically observed and given a finding
that original accused Nos. 1, 2, 3 and 5 have committed
the murder/loot and dacoity and there is ample material /
evidence against them connecting them with respect to the
murder of the deceased Bharatbhai. Therefore, as such
the learned trial Court has already convicted the accused
for the offence punishable under section 392 of the IPC.
As observed hereinabove, original accused Nos. 1, 2, 3
and 5 are also held to be guilty for the offence punishable
under section 396 of the IPC. Once the accused are
convicted for the offence punishable under section 396
of the IPC i.e. dacoity with murder and the death of the
deceased Bharatbhai was homicidal death, the learned trial
Court ought to have convicted the accused for the offence
punishable under section 302 of the IPC also. As observed
hereinabove, the prosecution has been successful in
proving and establishing the complete chain of events by
leading cogent evidence and therefore, accused persons
[2024] 2 S.C.R.  1191

Thakore Umedsing Nathusing v. State of Gujarat

were liable to be convicted for the offence punishable

under section 302 of the IPC.
[6.7]. Now, so far as the reliance placed upon the decisions
of the Hon’ble Supreme Court in the cases of Rakesh
(Supra); Vijay Kumar (Supra) and Kanhaiyalal (Supra)
relied upon by the learned advocate appearing on behalf
of the original accused is concerned, it is required to be
noted that on facts and the findings recorded by this Court,
none of the aforesaid decisions shall be applicable and/
or of any assistance to the accused.
[6.8]. Now, so far as the reliance placed upon the decision
of the Hon’ble Supreme Court in the case of Rakesh
(Supra) by the learned advocate appearing on behalf of the
accused is concerned, it is required to be noted that in the
present case there is recovery of knife/s at the instance of
original accused No. 2 and original accused Nos. 3 and 5
and that there is discovery of clothes of original accused
Nos. 3 and 4 with blood stains which are not explained
by the original accused Nos. 2, 3 and 5. Similarly, in the
case before the Hon’ble Supreme Court in the case of
Kanhaiyalal (Supra), except last seen together, there was
no other evidence connecting the accused. Under the
circumstances, none of the aforesaid decisions shall be
applicable to the facts of the case on hand and/or shall
be of any assistance to the accused.
[7.0]. In view of the above and for the reasons stated above,
Criminal Appeal No. 1012/1993 preferred by the original
accused against their conviction for the offence punishable
under section 392 of the IPC is hereby dismissed.”
26. On going through the record, we find that the prosecution relied upon
the circumstantial evidence comprising of disclosures, recoveries and
discoveries for bringing home the guilt of the accused.
27. The most important recovery is alleged to be of the jeep bearing
registration No.GJ-08-114.
28. We may note that the said recovery is attributed to A1, who was
allegedly apprehended by PSI J.N. Chaudhary (PW-22) on 02nd
March, 1990. He forwarded a report/communication (Exhibit-96)
1192 [2024] 2 S.C.R.

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dated 2nd March, 1990 to the officer in-charge of the Sardarnagar

Police Station wherein, the confession made by the A1 implicating
himself and the other accused is recorded.
29. It is trite that confession of an accused in custody recorded by a
police officer is inadmissible in evidence as the same would be hit
by Section 25 of the Evidence Act. Thus, that part of the statement
of A1 as recorded in the report/communication (Exhibit-96), wherein
he allegedly confessed to the crime of murder of the jeep driver and
looting the jeep and named the other accused persons as particeps
criminis is totally inadmissible and cannot be read in evidence except
to the extent provided under Section 27 of the Evidence Act.
30. After A1 had been apprehended, PSI J.N. Chaudhary (PW-22)
prepared two panchnamas i.e. Exhibit-88 and Exhibit-89. The
panchnama (Exhibit-89) was prepared at 08:30 hours on 2nd March,
1990 wherein, there is no mention that A1 had disclosed the names
of the other accused. This omission is very striking and goes to the
root of the matter. It creates a grave doubt on the truthfulness of the
evidence of PSI J.N. Choudhary (PW-22). As a consequence, the
so called disclosure statement made by A1(Exhibit-96) on which the
prosecution banked upon and the High Court relied upon by treating
it to be an incriminating circumstance against the accused persons
is totally inadmissible and unworthy of reliance.
31. One of the panch witnesses Pratap Tolaram Makhija was examined as
PW-21 and in his deposition, he did not utter a single word regarding
the accused having made any confessional/disclosure statement to
PSI J.N. Choudhary(PW-22) when the memos (Exhibits-88 and 89)
were prepared.
32. When PSI J.N. Chaudhary (PW-22) was examined, the prosecution
did not even make an attempt to prove the confessional part of the
communication (Exhibit-96) and rightly so in our opinion.
33. Even if it is assumed for the sake of arguments that A1 was present
in the jeep owned by Bharatbhai (deceased), this fact in isolation
cannot lead to an inference about culpability of the said accused
for the offences of murder and dacoity. As per the admitted case
of the prosecution, more than one person was present in the jeep,
when the same was flagged down by PSI J.N. Chaudhary (PW-22).
Thus, the possibility of the A1 (Laxmansing) travelling in the jeep as
[2024] 2 S.C.R.  1193

Thakore Umedsing Nathusing v. State of Gujarat

an innocent passenger cannot be ruled out. No other circumstance

except for presence in the jeep was portrayed in the prosecution
case so as to bring home the guilt of A1.
34. The prosecution pinned the identity of A2, A3, and A5 as the
assailants on the basis of the disclosure statement (Exhibit-96) of
A1. They were primarily convicted on the basis of the recoveries
of knives and clothes. On going through the entire record, we find
that these so called incriminating articles allegedly recovered at the
instance of the accused were never sent to the Serology expert for
comparison of the blood groups existing thereupon with the blood
group of the deceased.
35. We have gone through the evidence of the concerned police officials
associated with the recoveries and find their testimonies to be highly
doubtful. The knife which was recovered at the instance of A3 was
found from a nala which is a place open and accessible to all. The
knife attributed to A4 was presented by one Shobhnaben wife of Kanji
Chhara and thus it cannot be linked to A4. Thus, these recoveries in
no manner can be treated to be incriminating in nature. In the case
of Mustkeem alias Sirajudeen v. State of Rajasthan, reported in
(2011) 11 SCC 724, this Court held that the solitary circumstance
of recovery of blood-stained weapons cannot constitute such
evidence which can be considered sufficient to convict an accused
for the charge of murder. We thus find the recoveries to be highly
doubtful and tainted. Even if it is assumed for a moment that such
recoveries were effected, the same did not lead to any conclusive
circumstance in form of Serological report establishing the presence
of the same blood group as that of the deceased and hence they do
not further the cause of prosecution. In addition thereto, we find that
the prosecution failed to lead the link evidence mandatorily required
to establish the factum of safe keeping of the muddamal articles and
hence, the recoveries became irrelevant.
36. At the cost of repetition, it may be noted that the veracity of disclosure
statement of A1 as recorded by PW-22 has already been doubted
by us. In addition thereto, it is manifest that the disclosure statement
of A1 cannot be read in evidence against the other accused i.e.
A2, A3 and A5. The evidentiary value of the confession of one co-
accused against the other was considered by this Court in the case
of Haricharan Kurmi v. State of Bihar reported in AIR 1964 SC
1194 [2024] 2 S.C.R.

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1184 and it was held that such statement is not a substantive piece
of evidence. The said case dealt with a judicial confession made by
an accused and it was held that even such confession cannot be
treated as a substantive evidence against other co-accused persons.
In the case at hand, the situation is even worse because the High
Court has relied upon the interrogation note of A1 (Exhibit-96) so as
to hold A2, A3 and A5 guilty of the offence. The interrogation note
of A1 being hit by Section 25 of the Evidence Act cannot be read in
evidence for any purpose whatsoever.
37. From a thorough appreciation of the evidence available on record,
we find that the prosecution miserably failed to lead reliable, tangible
and convincing links forming a complete chain of incriminating
circumstances so as to bring home the guilt of the accused for the
charge of murder punishable under Section 302 IPC.
38. We may note from the quoted portions of the impugned judgment
that while reversing the acquittal of the accused recorded by the trial
Court for the charges under Sections 302 read with Section 34 and
Sections 396 and 397 IPC, the High Court did not record any such
finding that the view taken by the trial Court, based on appreciation
of evidence was either perverse or it was not one of the permissible
views favouring the acquittal of the accused. In this background,
the impugned judgment rendered by the High Court falls short of
the satisfaction mandatorily required to be recorded for reversing a
judgment of acquittal and converting it to one of conviction.
39. We are rather compelled to hold that the judgment of the High Court
is based sheerly on conjectures and surmises rather than being
based on any substantive or reliable circumstantial evidence pointing
exclusively to the guilt of the accused. Insofar as the conviction of
the accused as recorded by the trial Court for the offence under
Section 392 is concerned, the same is also based on the same set
of inadmissible and unreliable links of circumstantial evidence which
we have discarded in the preceding discussion.
Conclusion: -
40. As a consequence of the above discussion, the impugned judgment
dated 11th December, 2015 passed by the High Court of Gujarat
at Ahmedabad in Criminal Appeal No. 1012 of 1993 and Criminal
Appeal No. 949 of 1994 does not stand to scrutiny and is hereby
[2024] 2 S.C.R.  1195

Thakore Umedsing Nathusing v. State of Gujarat

quashed and set aside. Further, the judgment dated 21st August, 1993
passed by the trial Court convicting and sentencing the accused for
the offences punishable under Section 392 IPC is also unsustainable
on the face of the record. Both the judgments are thus, quashed
and set aside.
41. Resultantly, the appeals are allowed. The appellants are acquitted
of the charges and are directed to be set at liberty forthwith, if not
required in any other case.
42. Pending application(s), if any, stand disposed of.

Headnotes prepared by: Divya Pandey  Result of the case:

Appeals allowed.
 [2024] 2 S.C.R. 1196 : 2024 INSC 188

Anil Kishore Pandit

v.
The State of Bihar and Others
(Civil Appeal No. 1566 of 2024)
02 February 2024
[Hima Kohli and Ahsanuddin Amanullah, JJ.]

Issue for Consideration

Matter pertains to permissibility of an employer to change the
qualifications prescribed in the advertisement midstream, during
the course of the ongoing selection process.

Headnotes
Service law – Appointment to the post – Change in the
qualifications prescribed in the advertisement midstream,
during the course of the ongoing selection process –
Permissibility:
Held: Employer cannot change the qualifications prescribed in
the advertisement midstream, during the course of the ongoing
selection process – Any such action would be arbitrary as it
would tantamount to denial of an opportunity to those candidates
who are eligible in terms of the advertisement but would stand
disqualified on the basis of a change in the eligibility criteria
after the same is announced by the employer – Having applied
for appointment in accordance with the terms prescribed in the
advertisement, a candidate acquires a vested right to be considered
in accordance with the said advertisement – This consideration
may not necessarily fructify into an appointment but certainly
entitles the candidate to be considered for selection in accordance
with the rules as they existed on the date of the advertisement
– Any subsequent amendment to the advertisement during the
course of the selection process unless retrospective, cannot be
a ground to disqualify a candidate from consideration – Division
Bench erred in setting aside the order of the Single Judge of the
High Court and cancelling appellant’s appointment to the post of
Amin on the ground of his being overage on basis of the change
in criteria/qualification in the selection process during midstream
– Impugned judgement quashed and set aside – Earlier order
[2024] 2 S.C.R.  1197

Anil Kishore Pandit v. The State of Bihar and Others

passed by respondents appointing the appellant to the post by

reckoning the age of the candidate in EBC category as 40 years,
as on 01.01.2011 upheld. [Paras 8, 12, 13]

Case Law Cited

N.T. Devin Katti and Others v. Karnataka Public Service
Commission and Others, (1990) 3 SCC 157; Mohd.
Sohrab Khan v. Aligarh Muslim University and Others,
[2009] 2 SCR 907 : (2009) 4 SCC 555; Zonal Manager,
Bank of India, Zonal Office, Kochi and Others v. Aarya
K. Babu and Another, [2019] 11 SCR 627 : (2019) 8
SCC 587 – referred to.

List of Keywords
Change the qualifications prescribed in the advertisement
midstream; Selection process; Appointment; Arbitrariness; Change
in the eligibility criteria/qualification; Right of candidate.

Case Arising From

CIVIL APPELLATE JURISDICTION : Civil Appeal No.1566 of 2024
From the Judgment and Order dated 24.01.2017 of the High Court
of Judicature at Patna in LPA No.1892 of 2015
Appearances for Parties
Subhro Sanyal, Sagar Roy, Sandeep Lamba, Amber Shehbaz Ansari,
Dr. Nilakshi Choudhury, Kaushal Kishore, Mr./Ms. Avni Singh, Sanjay
Kumar, Ms. Aakanksa Tiwari, Advs. for the Appellant.
Samir Ali Khan, Pranjal Sharma, Kashif Irshad Khan, Neeraj Shekhar,
Kartik Kumar, Mrs. Kshama Sharma, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Order
1. Leave granted.
2. The appellant is aggrieved by an order dated 24th January, 2017,
passed by the Division Bench of the High Court of Judicature at
Patna whereunder, an intra-Court Appeal1 filed by the respondent

1 LPA No. 1892 of 2015

1198 [2024] 2 S.C.R.

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no.8 herein against an order dated 07th March, 2013, passed by

the learned Single Judge in a writ petition2 filed by the appellant
herein was allowed and as a result thereof, the order passed by
the respondent no.1-State Government in compliance of the order
passed by the learned Single Judge to appoint the appellant, if his
date of birth was found to be within the permissible range as on 01st
January, 2011, was set aside.
3. A reference to the brief facts of the case is considered necessary.
Vide memo dated 13th October, 2011, the District Employment
Officer, West Champaran, Bettiah published an advertisement
inviting applications from suitable candidates for appointment to
the post of Amins on contractual basis. The cut off date of the age
as per the District level vacancy was fixed as 40 years as on 01st
January, 2011, for the Economic Backward Class3 category, both
males and females. The appellant applied for selection to the said
post pursuant to the advertisement dated 13th October, 2011. It is
not in dispute that as on 01st January, 2011, the appellant’s age
was 39 years 11 months and 27 days. In other words, the appellant
qualified the age criteria in terms of the subject advertisement. The
records reveal that in pursuance to a letter4 subsequently issued by
the Principal Secretary Revenue and L.R. Department, Government
of Bihar, another notice was displayed on the Notice Board of the
Collectorate, West Champaran on 15th November, 2011, stating that
interested parties could apply till 30th November, 2011.
4. The appellant appeared for the written examination on 22nd January,
2012. Thereafter, a merit list was prepared for counselling in which his
name was placed at Serial No.2. The District establishment prepared
a selection list on 04th December, 2012, where his name was placed
at Serial No.9, whereas that of the respondent No.8 was at Serial
No.11. The remarks column noted that the appellant’s candidature
was cancelled on the ground of his being overage.
5. Aggrieved by the aforesaid, the appellant submitted a representation
before the District Magistrate for rectification of the results, but to no
avail. The appellant then filed a writ petition before the High Court on

2 CWJC No. 15685 of 2012

3 For short the ‘EBC’
4 No. 446(4)/Revenue (dated 04th November, 2011)
[2024] 2 S.C.R.  1199

Anil Kishore Pandit v. The State of Bihar and Others

28th August, 2012, which was disposed of vide order dated 07th March,
2013, with a direction issued to the Collector, West Champaran to
examine his grievance and pass necessary orders of appointment, in
the event the date of birth of the appellant was found to be correct,
i.e. 05th January, 1971, in terms of his Matriculation Certificate. On
27th June, 2015, the appellant was appointed to the post of Amin by
the District Magistrate West Champaran, Bettiah.
6. Aggrieved by the said appointment, the respondent no.8 filed an
intra-Court appeal before the Division Bench stating inter alia that
he was not made a party by the appellant in the writ petition and
assailing his appointment on the ground that the appellant was
overaged in terms of the press communication dated 01st November,
2011. Agreeing with the stand of the respondent No.8, the Division
Bench has passed the impugned judgement. The Division Bench
was of the opinion that the entire selection process had been carried
out on the basis of treating the cut off date as 01st November, 2011.
It was observed that though the advertisement at the District level
did officially fix the cut off date as 01st January, 2011, it was not
considered sacrosanct since uniformity was required to be maintained
across the State with regard to the cut off date fixed.
7. Learned counsel for the appellant assails the impugned order on
the ground that the Division Bench erred in ignoring the date of the
public advertisement that mentioned the cut off date as 01st January,
2011, for reckoning the age of a candidate, which in the case of the
appellant herein who belongs to the extremely backward category,
was 40 years. He states that the subsequent communication issued
by the respondents changing the cut off date from 01st January, 2011
to 01st November, 2011, was not placed in public domain through any
advertisement, as had been done earlier. Instead, it was displayed
only on the Notice Board in the office of the Collectorate, which
was not the correct procedure to be adopted and could not have
been treated as overwriting the initial advertisement issued on 01st
January, 2011.
8. It is settled law that it is not open for an employer to change the
qualifications prescribed in the advertisement midstream, during
the course of the ongoing selection process. Any such action would
be hit by the vice of arbitrariness as it would tantamount to denial
of an opportunity to those candidates who are eligible in terms of
1200 [2024] 2 S.C.R.

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the advertisement but would stand disqualified on the basis of a

change in the eligibility criteria after the same is announced by the
employer. Having applied for appointment in accordance with the
terms prescribed in the advertisement, a candidate acquires a vested
right to be considered in accordance with the said advertisement.
This consideration may not necessarily fructify into an appointment
but certainly entitles the candidate to be considered for selection
in accordance with the rules as they existed on the date of the
advertisement. To put it differently, the right of a candidate for being
considered in terms of the advertisement stands crystalized on
the date of the publication of the advertisement. Any subsequent
amendment to the advertisement during the course of the selection
process unless retrospective, cannot be a ground to disqualify a
candidate from the zone of consideration.
9. In the above context, this Court in N.T. Devin Katti and Others v.
Karnataka Public Service Commission and Others5 has held as
under :
“11. ….. Lest there be any confusion, we would like to
make it clear that a candidate on making application for
a post pursuant to an advertisement does not acquire
any vested right of selection, but if he is eligible and is
otherwise qualified in accordance with the relevant rules
and the terms contained in the advertisement, he does
acquire a vested right of being considered for selection
is accordance with the rules as they existed on the date
of advertisement. He cannot be deprived of that limited
right on the amendment of rules during the pendency of
selection unless the amended rules are retrospective in
nature”.
10. A similar view has been expressed in Mohd. Sohrab Khan v. Aligarh
Muslim University and Others6, where this Court did not approve
the change of the criteria/qualification in the selection process by
the Selection Committee constituted for filling up the post Lecturer
in Chemistry in the respondent-University and observed as follows :

5 (1990) 3 SCC 157

6 [2009] 2 SCR 907 : (2009) 4 SCC 555
[2024] 2 S.C.R.  1201

Anil Kishore Pandit v. The State of Bihar and Others

“25. We are not disputing the fact that in the matter of

selection of candidates, opinion of the Selection Committee
should be final, but at the same time, the Selection
Committee cannot act arbitrarily and cannot change the
criteria/qualification in the selection process during its
midstream. Merajuddin Ahmad did not possess a degree
in Pure Chemistry and therefore, it was rightly held by
the High Court that he did not possess the minimum
qualification required for filling up the post of Lecturer in
Chemistry, for Pure Chemistry and Industrial Chemistry
are two different subjects.
xxx xxx xxx
27. The Selection Committee during the stage of selection,
which is midway could not have changed the essential
qualification laid down in the advertisement and at that
stage held that a Master’s degree-holder in Industrial
Chemistry would be better suited for manning the said
post without there being any specific advertisement in that
regard. The very fact that the University is now manning
the said post by having a person from the discipline of
Pure Chemistry also leads to the conclusion that the said
post at that stage when it was advertised was meant to be
filled up by a person belonging to Pure Chemistry stream.
11. Quoting the aforesaid decision in Zonal Manager, Bank of India,
Zonal Office, Kochi and Others v. Aarya K. Babu and Another7,
this Court made the following pertinent observations :
“14. If the above decision in Mohd. Sohrab Khan case
[Mohd. Sohrab Khan v. Aligarh Muslim University], is
kept in perspective it is clear that while examining the
correctness of the action of the employer what would be
sacrosanct will be the qualification criteria published in the
notification, since if any change made to the qualification
criteria midstream is accepted by the Court so as to benefit
only the petitioners before it, without making it open to

7 [2019] 11 SCR 627 : (2019) 8 SCC 587

1202 [2024] 2 S.C.R.

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all the qualified persons, it would amount to causing

injustice to the others who possess such qualification but
had not applied being honest to themselves as knowingly
they did not possess the qualification sought for in the
notification though they otherwise held another degree.
Therefore, if there is any change in qualification/criteria
after the notification is issued but before the completion
of the selection process and the employer/recruiting
agency seeks to adopt the change it will be incumbent
on the employer to issue a corrigendum incorporating the
changes to the notification and invite applications from
those qualified as per the changed criteria and consider
the same along with the applications received in response
to the initial notification. The same principle will hold good
when a consideration is made by the Court.”
12. Coming back to the case at hand, we are inclined to agree with the
submissions made by learned counsel for the appellant. In the first
instance, the respondents ought not to have issued a subsequent
communication after having issued a public advertisement fixing the
cut off date for reckoning the age of candidates, as on 01st January,
2011. The initial decision taken by the respondents was sought to
be overturned later on, merely on the basis of an internal discussion
within the department and it was decided that a fresh notice be
issued changing the date that was initially fixed as 01st January,
2011 to 1st November, 2011. This was done without following the due
process as prescribed, of issuing a pubic advertisement, etc. Nor
was the earlier advertisement recalled. In the meantime, going by the
earlier advertisement issued by the respondent, the appellant had
already applied. As per the said advertisement, his age was within
the permissible range. Not only that, he was high up in the selection
list and was even appointed to the post of Amin on 27th June, 2015.
13. Having regard to the aforesaid facts and circumstances of the case,
the impugned judgement is quashed and set aside. It is deemed
appropriate to set the clock back and uphold the earlier order passed
by the respondents appointing the appellant to the post of Amin
by reckoning the age of the candidates in the EBC category as 40
years, as on 01st January, 2011.
[2024] 2 S.C.R.  1203

Anil Kishore Pandit v. The State of Bihar and Others

14. The appointment of the appellant to the post of Amin is restored

w.e.f 27th June, 2015, the date of his initial appointment, without any
break in service. The appellant would be entitled to all the notional
benefits except for the actual wages, having not discharged his
duties on the said post in all these years. A letter reappointing the
appellant to the subject post shall be issued by the respondents on
the above terms within two weeks from today. The appointment of
the respondent No.8 cannot be sustained and stands revoked in the
light of the aforesaid orders.
15. The present appeal is allowed on the above terms.

Headnotes prepared by: Nidhi Jain Result of the case:

Appeal allowed.
 [2024] 2 S.C.R. 1204 : 2024 INSC 361

Balveer Batra
v.
The New India Assurance Company & Anr.
(Civil Appeal No. 1842 of 2024)
08 February 2024
[C.T. Ravikumar* and Rajesh Bindal, JJ.]

Issue for Consideration

The question of territorial jurisdiction was decided by the Tribunal
after about 4 years since the filing of the claim petition and the
appeal filed in 2010 was dismissed, confirming the dismissal of
the claim petition after about 6 years.

Headnotes
Motor Vehicles Act, 1988 – Code of Civil Procedure, 1908 –
Victim (son of appellant) died in an motor vehicle accident
– Appellant filed an application u/s. 166 of the MV before the
tribunal – Issues framed – Both sides examined witnesses –
Tribunal held that the mere fact that the insurance company
got an office within the jurisdictional limits of the Tribunal
could not confer jurisdiction on it – Based on negative finding
on question of territorial jurisdiction, Tribunal decided all the
other six issues against the claimant and in favour of the
opposite parties – Claim petition was dismissed – High Court
confirmed the view of the tribunal – Correctness:
Held: The words ‘at the option of the claimant’ employed in s.166(2)
assumes relevance – Indubitably, the statute indicates that option
lies with the claimant – Merely because the claimant made the
application for compensation not to the Claims Tribunal having
jurisdiction over the area in which the accident occurred or not
to the Claims Tribunal within the local limits of whose jurisdiction
he resides or carries on business, is no reason to dismiss the
application provided it is filed before a Claims Tribunal where it is
otherwise maintainable – The branch of the insurance company lied
within the limits of the Tribunal where the subject claim petition was
filed – Further, for the purpose of deciding the issue of territorial
jurisdiction, the Tribunal permitted the parties to adduce evidence
for it – In terms of Or. XIV, Rule 2 CPC, the issues regarding
territorial jurisdiction ought to be tried as primary issues but when
* Author
[2024] 2 S.C.R.  1205

Balveer Batra v. The New India Assurance Company & Anr.

it is evident that the issue could not be decided solely based on

the pleadings in the plaint (here claim petition) and when parties
are permitted to adduce evidence upon finding that it is a mixed
question of law and facts there was absolutely no justification for
not pronouncing an award on all the issues framed besides the
one pertaining to its territorial jurisdiction – In the case on hand a
great illegality or error was committed by the Tribunal even after
observing that it got no occasion to examine the other six issues
but then deciding those six issues against the claimant and in
favour of the opposite parties – The said other six issues were
examined without going into the merits – The very purpose of the
benevolent legislation providing for grant of compensation under
Section 166 of the M.V. Act was defeated – The claim petition
was kept for 4 years and it was dismissed only on the ground
of lack of jurisdiction – The High Court has fallen in error in not
picking up the illegalities resulting in failure of justice and to resolve
them appropriately – Considering the circumstances, the matter
remanded back to the Tribunal, to proceed further and to decide
the claim petition on merits. [Paras 17, 26, 28, 32]
Code of Civil Procedure, 1908 – s.21 – Objection as to lack
of territorial jurisdiction would not make a judgment/decree
nullity:
Held: A bare perusal of Section 21, CPC would reveal that objection
as to the place of suing is not to be entertained by any Appellate
or Revisional Court if it was not taken in the Court of first instance
at the earliest possible opportunity and unless there has been a
consequent failure of justice – While looking into the object and
reasons for the aforesaid provision it is very clear as to why lack
of territorial jurisdiction by itself was not recognized under it as a
reason to make a judgment/decree a nullity – It is to be noted that
it is quite different and distinct from inherent lack of jurisdiction
which would strike at the very authority of the Court to try a case
and pass a judgment/decree and would make it a nullity – On a
careful consideration of the provisions under Section 21, CPC, it
would make it clear though taking of an objection as to the lack of
territorial jurisdiction before the Court of first instance at the earliest
opportunity is a condition required to raise that objection before
an appellate or revisional Court satisfaction of such condition by
itself would not make an award granting compensation a nullity
inasmuch as in such cases there would not be inherent lack of
1206 [2024] 2 S.C.R.

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jurisdiction in Court in regard to the subject matter – Therefore,

in such cases, correction by a Court is open, only if it occasions
in failure of justice – The provision thus, reflects the legislative
intention that all possible care should be taken to ensure that
the time, energy and labour spent by a Court did not go in vain
unless there has been a consequent failure of justice. [Para 13]

Case Law Cited

Malati Sardar v. National Insurance Company Ltd. [2016]
1 SCR 601 : (2016) 3 SCC 43; Kiran Singh v. Chaman
Paswan [1955] 1 SCR 117 : AIR 1954 SC 340; Mantoo
Sarkar v. Oriental Insurance Company Ltd. [2008] 17
SCR 753 : (2009) 2 SCC 244; United India Insurance
Co. Ltd. v. Shila Datta [2011] 14 SCR 763 : (2011) 10
SCC 509; Sharanamma and Others v. M.D., Divisional
Contr. Nekrtc (2013) 11 SCC 517; Morgan Securities
& Credit (P) Ltd. v. Modi Rubber Ltd. [2006] Supp. 10
SCR 1022 : (2006) 12 SCC 642 – referred to.

List of Acts
Motor Vehicles Act, 1988; Code of Civil Procedure, 1908.

List of Keywords
Motor Vehicle Accident; Claim; Settlement of issues; Examination
of witnesses; Jurisdiction; Lack of territorial jurisdiction; Inherent
lack of jurisdiction; Non-examination of other issues after deciding
issue of lack of territorial jurisdiction; Section 166 of the Motor
Vehicles Act, 1988; Section 21 of Code of Civil Procedure, 1908;
Or. XIV, Rule 2 of Code Civil Procedure, 1908; Failure of Justice.

Case Arising From

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1842 of 2024
From the Judgment and Order dated 28.11.2016 of the High Court of
Uttarakhand at Nainital in AFO No. 414 of 2010
Appearances for Parties
Ravindra S. Garia, Shashank Singh, Madan Chandra Karnataka,
Advs. for the Appellant.
J.P.N. Shahi, Rameshwar Prasad Goyal, Advs. for the Respondents.
[2024] 2 S.C.R.  1207

Balveer Batra v. The New India Assurance Company & Anr.

Judgment / Order of the Supreme Court

Judgment
C.T. Ravikumar, J.
Leave granted.
1. This appeal by Special Leave is directed against the judgment and
order dated 28.11.2016 passed by the High Court of Uttarakhand
at Nainital in Appeal from Order No. 414 of 2010.
2. The appellant is the father of the victim of a motor vehicle accident.
His son, the victim, met with the unfortunate accident causing his
death while underway on his motorcycle from Dineshpur to Gadarpur
and stopped it in the midway to urinate. A tractor bearing number
UP-02A-2213 being driven recklessly and negligently by the first
respondent hit him and his motorcycle and he died instantaneously.
The incident occurred on 07.03.2006 at about 07.30 pm. The appellant
filed an application under Section 166 of the Motor Vehicles Act, 1988
(for short ‘MV Act’ only) for compensation before the Motor Accident
Claims Tribunal at Nainital as MACP No.137/2006. The Tribunal
dismissed the application for lack of territorial jurisdiction. Aggrieved
by the same, the appellant herein preferred an appeal before the High
Court and the same also met with the same fate. Hence, this appeal.
3. Heard learned counsel appearing for the appellant and the counsel
appearing for the respondent-insurance company.
4. A brief reference to the facts which led to the concurrent, adverse
decisions, as mentioned above, is required for an appropriate
disposal of this appeal. As a matter of fact, respondent Nos. 2 and
3 herein / opposite parties 1 and 2 in the claim petition, filed a joint
written statement, inter alia, raising the question of maintainability on
the ground of lack of territorial jurisdiction. The averments therein,
taken note of the Claims Tribunal in its award, would reveal that
even while raising such objection they would admit the death of the
appellant’s son in the accident involving the aforementioned tractor
though they disputed the nature of its occurrence. In paragraph 3
of the award of the Tribunal such averments are noted down thus:-
“that on the day of alleged accident, the driver of Tractor
was being driven the tractor in its side, but deceased
himself hit by driving motorcycle rash and negligently,
1208 [2024] 2 S.C.R.

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consequently he received injuries; that on the day of

accident, they opposite party No.1 was driving the tractor
with valid driving licence; that the Tractor in question is
insured with O.P. No.3, the New India Insurance Company.”
5. The first-respondent viz., the opposite party No.3 too, raised the
objection of lack of territorial jurisdiction to adjudicate the claim
petition and over and above in the written statement respondent
No.1 herein stated thus, as can be seen from paragraph 4 of the
award of the Tribunal:-
“that the sole cause of accident is rash and negligent driving
of the motor vehicle bearing registration No. UA06(A)-9229,
which was also involved in the accident, that in case of
involvement of two motor vehicles in the alleged accident,
the tribunal has to determine the composite/contributory
negligence of each driver thereof and its effects; that the
answering party has not been given any information as
provided under Section 158 (6) of the Motor Vehicle Act
and the petition is bad for non-joinder of the party.”
6. It is based on such pleadings that the Tribunal had framed seven
issues as hereunder:-
"1. Whether on 07.03.2006 at around 7.30 when deceased
Rohit Batra on his Motorcycle No.UA06A9229 was
going from Dineshpur to Gadarpur then near Village
Varkheda, PS Gadarpur, District Udham Singh Nagar,
Tractor No. UP2A-2213, being driven recklessly
and negligently by the driver hit his motorcycle from
behind, due to which the deceased suffered serious
injuries and his death was caused due to such injuries,
as has been stated in the claim petition?
2. Whether the said accident was caused by the
deceased himself driving his motorcycle No.UA6A
9229 recklessly and negligently, as has been stated by
the Defendant No.1, 2 & 3 in their Written Statements?
3. Whether the said accident was caused due to
contributory negligence of both the drivers as
has been stated by Defendant No.3 in his written
statement?
[2024] 2 S.C.R.  1209

Balveer Batra v. The New India Assurance Company & Anr.

4. Whether the claim is effective due to not making

insurance company of the motorcycle No.UA06A-9229,
which is a necessary party, a party in the case?
5. Whether this Tribunal does not have the territorial
jurisdiction to entertain the claim as has been
stated by the Defendant No.1, 2 & 3 in their written
statement?
6. Whether the tractor in question at the time of accident
was insured with the defendant No.3, insurance
company and whether it was being run in accordance
with the terms and condition of the insurance policy?
7. Whether the claimants are entitled to any compensation
and if yes, then how much and who is liable to be
paid?”
7. After framing issues as above, the Tribunal firstly considered issue
No.5, pertaining to the territorial jurisdiction, assigning the reason that
the rest of the issues are dependent on the decision on issue No.5.
Nonetheless, the indisputable position is that by that time four years,
since filing of the claim petition, had lapsed and in the meanwhile
both sides had also examined witnesses. While being examined as
PW-1, the appellant deposed that at the time of accident in question
he was a resident of Haldwani, District Nainital, and the accident
had occurred within the limits of the adjoining district of Udham
Singh Nagar. True that at the time of filing the claim petition he was
not residing in Haldwani. The Tribunal, based on the said factual
position of evidence, came to the conclusion that the claimant is not
residing within its territorial jurisdiction. It also took note of the fact
that the opposite party Nos. 1 and 2 are also not residing within its
jurisdiction and proceeded to consider its territorial jurisdiction. In
that regard, the Tribunal has also held that the mere fact that the
insurance company got an office within the jurisdictional limits of the
Tribunal could not confer jurisdiction on it. Based on such conclusions
and findings, answered issue No.5 to the effect that it lacks territorial
jurisdiction. Thereupon, as relates the other issues it was held thus:-
“21. ISSUES NO.1, 2, 3, 4, 6 & 7:
At the main issue (issue no.5) for territorial jurisdiction of
this tribunal has been decided against the claimants, hence
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there is no occasion to examine the other issues on merits. In

view of above issue No.1, 2, 3, 4, 6 and 7 are also decided
against the claimants and in favour of the opposite parties.”
(Underline supplied)
8. After answering the issues as above, the claim petition was
dismissed. As noted above, the High Court confirmed the judgment/
award solely considering the question of territorial jurisdiction of
the Tribunal.
9. The core contention of the appellant revolves around the decision of
this Court in Malati Sardar v. National Insurance Company Ltd.1
Though the same was relied on by the Appellant before the High
Court, it distinguished the decision on facts and held it inapplicable.
A bare perusal of the said decision would reveal the very question
formulated and answered by this Court in Malati Sardar’s case
(supra). The same assumes relevance in the context of the rival
contentions and it reads as follows:-
“The question raised in this appeal is whether the High
Court was justified in setting aside the award of the Motor
Accident Claims Tribunal, Kolkata only on the ground
that the Tribunal did not have the territorial jurisdiction”.
10. Paragraph 10 of the decision in Malati Sardar’s case is also relevant
for the purpose of knowing the factual position under which such
a question was formulated and answered. It reads thus-
“The question for consideration thus is whether the
Tribunal at Kolkata had the jurisdiction to decide the
claim application under Section 166 of the Act when the
accident took place outside Kolkata jurisdiction and the
claimant also resided outside Kolkata jurisdiction, but the
respondent being a juristic person carried on business
at Kolkata. Further the question is whether in absence
of failure of justice, the High Court could set aside the
award of the Tribunal on the ground of lack of territorial
jurisdiction.”
(underline supplied)

1 [2016] 1 SCR 601 : (2016) 3 SCC 43

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Balveer Batra v. The New India Assurance Company & Anr.

11. Noticeably, in that case the Tribunal entertained the claim petition
and awarded compensation and the High Court, at the instance of
the insurance company, considered and reversed the decision on
the question of territorial jurisdiction. Consequently, the appeal of
the insurance company was allowed and the party was directed
to refund of the amount deposited / paid, if any, to the appellant
insurance company. After framing the said question in the above
factual backdrop, it was answered in Malati Sardar’s case by
placing reliance on the earlier decision of this Court in Kiran Singh
v. Chaman Paswan2. This Court held that the provision in question is
a benevolent provision for the victims of accidents of negligent driving
and in such circumstances, it has to be interpreted with the object
of facilitating remedies for the victims of accidents. Furthermore, it
was held in paragraph 16 thereof, thus:-
“……Hyper technical approach in such matters can hardly
be appreciated. There is no bar to a claim petition being
filed at a place where the insurance company, which is
the main contesting party in such cases, has its business.
In such cases, there is no prejudice to any party. There
is no failure of justice”.
(underline supplied)
12. Malati Sardar’s case was decided after referring to the decisions
in Mantoo Sarkar v. Oriental Insurance Company Ltd.3 and in
Kiran Singh’s case (supra), as mentioned above. A bare perusal
of the decisions in Mantoo Sarkar’s case (supra), Kiran Singh’s
case (supra) and Malati Sardar’s case (supra) would reveal that in
all those decisions the objection regarding territorial jurisdiction was
overruled by the Tribunal concerned and thereafter compensation
was awarded. It is only at the appellate stage that the respondents’
objection as to the territorial jurisdiction was upheld and the award
was upturned. Evidently, in all those cases this Court referred to
Section 21 of the Code of Civil Procedure (for short the ‘CPC’ only)
and it reads thus:-
“21. Objections to jurisdiction.— [(1)] No objection as to
the place of suing shall be allowed by any Appellate or

2 [1955] 1 SCR 117 : AIR 1954 SC 340

3 [2008] 17 SCR 753 : (2009) 2 SCC 244
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Revisional Court unless such objection was taken in the

Court of first instance at the earliest possible opportunity
and in all cases where issues are settled at or before
such settlement, and unless there has been a consequent
failure of justice.”
13. A bare perusal of Section 21, CPC would reveal that objection as
to the place of suing is not to be entertained by any Appellate or
Revisional Court if it was not taken in the Court of first instance
at the earliest possible opportunity and unless there has been a
consequent failure of justice. While looking into the object and
reasons for the aforesaid provision it is very clear as to why lack
of territorial jurisdiction by itself was not recognized under it as a
reason to make a judgment/decree a nullity. It is to be noted that it
is quite different and distinct from inherent lack of jurisdiction which
would strike at the very authority of the Court to try a case and
pass a judgment/decree and would make it a nullity. On a careful
consideration of the provisions under Section 21, CPC, we are of
the considered view that the provisions would undoubtedly make
it clear though taking of an objection as to the lack of territorial
jurisdiction before the Court of first instance at the earliest opportunity
is a condition required to raise that objection before an appellate
or revisional Court satisfaction of such condition by itself would
not make an award granting compensation a nullity inasmuch as
in such cases there would not be inherent lack of jurisdiction in
Court in regard to the subject matter. Therefore, in such cases,
correction by a Court is open, only if it occasions in failure of
justice. The provision thus, reflects the legislative intention that all
possible care should be taken to ensure that the time, energy and
labour spent by a Court did not go in vain unless there has been
a consequent failure of justice.
14. In the above view of the matter the decision in Mantoo Sarkar’s
case (supra) and Malati Sardar’s case (supra) that objection of
lack of territorial jurisdiction in an appeal against an award granting
compensation could not be entertained in the absence of consequent
failure of justice, according to us, should be followed with alacrity
and promptitude.
15. The question in the instant case is, however, slightly different
inasmuch as, here the Tribunal’s decision itself is to the effect that
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Balveer Batra v. The New India Assurance Company & Anr.

it lacks territorial jurisdiction and it was that finding which obtained

conformance under the impugned judgment of the High Court. A
glance at the factual matrix is profitable for considering the moot
point involved in the case on hand. Firstly, it is to be noted that the
claim petition under Section 166 of the M.V. Act filed in the year
2006 was dismissed on the ground of lack of territorial jurisdiction
only on 06.10.2010. Thus, it is evident that the Tribunal which was
obliged to decide the question of jurisdiction at the threshold, finding
it difficult to decide the same without letting the parties to adduce
evidence permitted parties to adduce their evidence. The materials
on record would reveal that before the Tribunal, on behalf of the
claimants PW1 to PW3 were examined and on behalf of opposite
party Nos. 1 and 2 viz., respondents 2 and 3 herein, opposite Party
No. 1 Mr. Tula Singh was examined as DW1. Paragraph 7 of the
Tribunal’s judgment would further reveal that the first respondent
herein viz., the insurance company which was opposite party No. 3
therein, did not examine any witness in support of its pleadings, but
cross-examined prosecution witnesses. Add to it, it is a fact that the
first respondent-Insurance Company got its branch within the limits
of the Tribunal where the subject claim petition was filed.
16. In the context of the question emerging for consideration it is
apposite to refer to the relevant provisions prescribing the forum
for adjudication of compensation arising out of an accident of
the nature specified in sub-section (1) of Section 165 of the M.V.
Act and also the provision prescribing the options available to a
claimant in regard to place(s) for suing for such compensation viz.,
sub-section (1) of Section 165 and sub-section (2) of Section 166
of the M.V. Act. They read thus:-
“165. Claims Tribunals.—(1) A State Government may,
by notification in the Official Gazette, constitute one or
more Motor Accidents Claims Tribunals (hereafter in this
Chapter referred to as Claims Tribunal) for such area
as may be specified in the notification for the purpose
of adjudicating upon claims for compensation in respect
of accidents involving the death of, or bodily injury to,
persons arising out of the use of motor vehicles, or
damages to any property of a third party so arising, or both.
*** *** *** ***
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166. (1)........
(2) Every application under sub-section (1) shall be
made, at the option of the claimant, either to the Claims
Tribunal having jurisdiction over the area in which the
accident occurred or to the Claims Tribunal within the
local limits of whose jurisdiction the claimant resides or
carries on business or within the local limits of whose
jurisdiction the defendant resides, and shall be in such
form and contain such particulars as may be prescribed:
Provided that where no claim for compensation under
section 140 is made in such application, the application
shall contain a separate statement to that effect
immediately before the signature of the applicant.”
17. The words ‘at the option of the claimant’ employed in Section
166(2) and the options available to a claimant in regard to places
for suing for such compensation under Section 166 (2), assume
relevance for consideration of the moot question. Indubitably,
the statute indicates that option lies with the claimant to make
application for compensation either to the Claims Tribunal having
jurisdiction over the area in which the accident occurred, or to
the Claims Tribunal within the local limits of whose jurisdiction
the claimant resides or carries on business or within the local
limits of whose jurisdiction the defendant resides. There can be
no doubt with respect to the position that if more than one Court
has jurisdiction to adjudicate a dispute it will be open to the party
concerned to choose one of the competent Courts to decide his
dispute. Thus, it is obvious that merely because the claimant made
the application for compensation not to the Claims Tribunal having
jurisdiction over the area in which the accident occurred or not
to the Claims Tribunal within the local limits of whose jurisdiction
he resides or carries on business, is no reason to dismiss the
application provided it is filed before a Claims Tribunal where it
is otherwise maintainable. This aspect calls for consideration not
solely confining to strict construction of the rest of the provision
under Section 166 (2) of the M.V. Act, but by looking into various
other authorities, as well.
18. In the aforementioned context, it is not inappropriate to refer to the
decision of this Court in United India Insurance Co. Ltd. v. Shila
[2024] 2 S.C.R.  1215

Balveer Batra v. The New India Assurance Company & Anr.

Datta4, wherein it was held that an award by Tribunal could not

be seen as adversarial adjudication between litigating parties to a
dispute and in troth, it is a statutory determination of compensation
on the occurrence of an accident, after due enquiry.
19. In the decision in Mantoo Sarkar’s case (supra) after extracting
sub-section (2) of Section 166, M.V. Act, in paragraph 11 thereof, this
Court held that M.V. Act is a special statute and the jurisdiction of
the Claims Tribunal having regard to the terminologies used therein
must be held to be wider than the civil Court.
20. In the contextual situation it is relevant to note that in Mantoo Sarkar’s
case (supra) while considering predominantly the scope of appellate
interference in view of Section 21, CPC, even after referring to
Section 166 (2) of the M.V. Act, this Court made certain observations
which could be, rather, should be attuned to the situation obtained in
the case on hand. This Court held that a distinction must be made
between the jurisdiction with regard to the subject matter of the suit
and that of territorial and pecuniary jurisdiction and further that in
the case falling within the former category the judgement would be
in nullity and in the latter category it would not be. In paragraph 18
thereof, this Court held thus:-
“18. The Tribunal is a court subordinate to the High Court.
An appeal against the Tribunal lies before the High Court.
The High Court, while exercising its appellate power,
would follow the provisions contained in the Code of Civil
Procedure or akin thereto. In view of sub-section (1) of
Section 21 of the Code of Civil Procedure, it was, therefore,
obligatory on the part of the appellate court to pose unto
itself the right question viz. whether the first respondent
has been able to show sufferance of any prejudice. If it
has not suffered any prejudice or otherwise no failure
of justice had occurred, the High Court should not have
entertained the appeal on that ground alone.”
21. Section 173 of the M.V. Act provides for filing appeal by any person
aggrieved by an award by a Claims Tribunal. In the decision in
Sharanamma and Others v. M.D., Divisional Contr. Nekrtc5, this

4 [2011] 14 SCR 763 : (2011) 10 SCC 509

5 (2013) 11 SCC 517
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Court held that a bare reading of Section 173 shows that there is
no curtailment or limitations on the powers of the appellate court to
consider the entire case on facts and law. When that be the position,
indubitably, it could be said that consideration of the question of
sufferance or prejudice in regard to a finding on territorial jurisdiction
besides its correctness is required in appeals against awards declining
compensation upholding the objection on territorial jurisdiction of
the opposite parties. Since the provisions for grant of compensation
under Section 166 is one of benevolence if an illegality resulting in
failure of justice is discernable from the materials on record, even if
in respect of which no specific pleading is taken, the Court is bound
to take it into consideration.
22. The further support of the above view can be taken from paragraph
16 of the decision in Malati Sardar’s case (supra), extracted
hereinbefore, wherein this Court held that provision under Section
166 for grant of compensation in respect of an accident of the nature
specified in Sub-section (1) of Section 165 being a benevolent
provision for the victims of accidents of negligent driving, the provision
for territorial jurisdiction has to be interpreted consistent with the object
of facilitating remedies for the victims of accident. Furthermore, it
was held in the said decision that hyper technical approach in such
matters could hardly be appreciated and there would be no bar to a
claim petition being filed at a place where the insurance company,
which is the main contesting party in such cases, has its business.
23. In the aforementioned context, it is worthwhile to note the prejudice
rather, failure of justice caused to the applicant in the case on hand, is
evident from the very award of the Claims Tribunal though it escaped
the attention of the High Court. The claim petition filed in the year
2006 was dismissed on the ground of lack of territorial jurisdiction
not at the threshold, but only on 06.10.2010. Dismissal, simpliciter of
a claim petition on the ground of lack of territorial jurisdiction would
not and could not disable the claimant concerned to initiate another
proceeding before the Claims Tribunal of competence. However,
a bare perusal of the award passed by the Tribunal, to be precise
paragraph 21 would reveal that after returning an adverse finding
on the question of territorial jurisdiction against the claimant, the
Tribunal proceeded further and decided all other issues framed for the
consideration viz., issues No.1 to 4, 6 and 7 (extracted hereinbefore)
against the claimant and in favour of the opposite parties, that too,
[2024] 2 S.C.R.  1217

Balveer Batra v. The New India Assurance Company & Anr.

after making it clear that it had no occasion to examine such issues

on merits. Paragraph 21 of the award reads thus:-
“21. ISSUES NO.1, 2, 3, 4, 6 & 7:
At the main issue (issue no.5) for territorial jurisdiction
of this tribunal has been decided against the claimants,
hence there is no occasion to examine the other issues
on merits. In view of above issue No.1, 2, 3, 4, 6 and 7
are also decided against the claimants and in favour of
the opposite parties.”
24. There cannot be any dispute with respect to the fact that when such
a finding is entered in respect of those issues framed, may be after
making an observation that the Tribunal got no occasion to examine
such issues on merits, the claimant would not be in a position to
initiate another proceeding before another Claims Tribunal having
territorial jurisdiction. In this regard it is to be noted that lacking
territorial jurisdiction cannot be a reason, in view of Section 165 (1),
M.V. Act, to say that Claims Tribunal was not having competence
to adjudicate the subject-matter of the claim petition. Since issues
were framed and decided against the claimant and in favour of the
opposite parties, whether or not such findings were returned after
examining such issues on merits it would cause legal trammel in view
of the principle of res judicata. We have already found that a decree
dismissing a suit on the ground of lack of territorial jurisdiction is not
a nullity. Though Section 168, M.V. Act, carrying the caption ‘Award
of the Claims Tribunal’ on perusal, at the first blush may appear to
mean only a decision of the Claims Tribunal granting compensation
to the claimant concerned. However, that certainly is not the correct
construction of the said provision. Section 169(2), M.V. Act, clothes
a Claims Tribunal with all the powers of a Civil Court. In the decision
in Morgan Securities & Credit (P) Ltd. v. Modi Rubber Ltd.6 this
Court observed and held that the expression ‘award’ has a distinct
connotation and it envisages a binding decision of a judicial or a
quasi-judicial authority. That apart, Section 173, M.V. Act, provides
an appeal against an award of a Claims Tribunal to the High Court
subject to sub-Section (2) thereof, and it entitles any person aggrieved
by an award of a Claims Tribunal to prefer it to the High Court.

6 [2006] Supp. 10 SCR 1022 : (2006) 12 SCC 642

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25. We have already referred to the error, rather an illegality committed

by the Claims Tribunal in deciding issues 1 to 4, 6 and 7 against the
claimant and in favour of the opposite parties viz., the respondents
herein even after making it clear it had no occasion to examine
them on merits and solely because it returned a negative finding
on the question of its territorial jurisdiction to maintain the subject
claim petition. This error or mistake that resulted in great prejudice
escaped the attention of the High Court while exercising the power
under Section 173, M.V. Act, in the appeal filed by an appellant
herein against the award of the Tribunal.
26. In this context, it is to be noted that the materials on record and the
discussions of the evidence by the Claims Tribunal would reveal that
there was no serious dispute regarding the occurrence of accident in
question in which the appellant’s son lost his life and also of the fact
that in the said accident involving the vehicle insured with the first
respondent-the insurance company. It is true that respondent Nos.
1 and 2 have disputed the nature of its occurrence. There seems
to be no dispute regarding the fact that the deceased sustained
injuries and succumbed to it instantaneously. We have already noted
that it was after keeping the claim petition filed in 2006 for about 4
years i.e. only on 06.10.2010 that it was dismissed on the ground
of lacking territorial jurisdiction and that the appeal filed against
the same in the year 2010 was dismissed, confirming the award
passed by the Tribunal, after about 6 years viz. on 28.11.2016. We
have no hesitation to hold that in the totality of the circumstances,
revealed from the indisputable factual position there was absolutely
no justification for the High Court to confine its consideration only on
the question of correctness of the finding on territorial jurisdiction and
at the same time, to hold all the other issues against the claimant(s)
and in favour of the opposite parties.
27. In the above context, it is to be noted that for the purpose of deciding
the issue of territorial jurisdiction, the Tribunal permitted the parties to
adduce evidence before it. The position obtained in the case would
reveal that the Tribunal had actually proceeded with the claim petition
despite holding the view that it got no territorial jurisdiction. In such
indisputable position, it is only apposite to refer to Order XIV, Rule
2 of CPC which mandates a Court to pronounce a judgment on all
the issues. The said provision reads thus:-
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Balveer Batra v. The New India Assurance Company & Anr.

“2. Court to pronounce judgment on all issues.—(1)

Notwithstanding that a case may be disposed of on a
preliminary issue, the Court shall, subject to the provisions
of sub-rule (2), pronounce judgment on all issues.
(2) Where issues both of law and of fact arise in the same
suit, and the Court is of opinion that the case or any part
thereof may be disposed of on an issue of law only, it may
try that issue first if the issue relates to—
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time
being in force, and for that purpose may, if it thinks
fit, postpone the settlement of the other issues until
after that issue has been determined, and may deal
with the suit in accordance with the decision on that
issue.”
28. True that in terms of the said provision, the issues regarding territorial
jurisdiction ought to be tried as primary issues but when it is evident
that the issue could not be decided solely based on the pleadings
in the plaint (here claim petition) and when parties are permitted
to adduce evidence upon finding that it is a mixed question of law
and facts there was absolutely no justification for not pronouncing
an award on all the issues framed besides the one pertaining to its
territorial jurisdiction. There cannot be any doubt with respect to the
fact that when evidence was permitted to be let in, may be for such
issues the possibility of re-appreciation and consequent reversal of
finding(s) of the Tribunal cannot be ruled out. But then, if the award
was pronounced not at threshold, but after a very long lapse of time
and confining consideration only on the issue of territorial jurisdiction
and then, answering the other issues as well against the claimant
without examining them on their own merits, but solely because of the
negative finding on the issue of territorial jurisdiction, as occurred in
the case on hand, it would defeat the very purpose of the benevolent
legislation providing for grant of compensation under Section 166
of the M.V. Act. As noticed hereinbefore in this case, the question
of territorial jurisdiction was decided by the Tribunal after about 4
years since the filing of the claim petition and the appeal filed in
2010 was dismissed, confirming the dismissal of the claim petition
after about 6 years. We have also already noted that in the case on
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hand a great illegality or error has been committed by the Tribunal

even after observing that it got no occasion to examine the other six
issues but then deciding those six issues against the claimant and
in favour of the opposite parties. Since a Claims Tribunal constituted
under Section 165, M.V. Act even when lacking territorial jurisdiction
cannot be said to be lacking jurisdiction on the subject matter in a
claim petition and the award would not be a nullity and therefore,
the findings on other issues would be binding on the parties. Hence,
in the first instance, failure of justice occurred as the award of the
Tribunal virtually rendered the claimant remediless. In cases of this
nature, sometimes a remand may also be a futility as passage of
such long period may make witnesses unavailable for examination or
re-examination for various reasons. Such reasons may also include
death of the witness(s). Since the present imbroglio is created because
of a mistake or error on the part of the Tribunal, either in proceeding
further after returning a negative finding on the question of territorial
jurisdiction or in not pronouncing award on all issues, we are of the
considered view that the said mistake not entering on merits and
into a findings on issues No.1 to 4, 6 and 7 at paragraph 21 against
the claimant and in favour of the opposite parties without examining
them on merits and hence, they are liable to be set aside in the light
of the salutary maxim ‘Actus Curiae neminem gravabit’, as no party
shall be put to suffer for the mistake of a Court.
29. We have already referred to the provision under Order XIV, Rule 2,
CPC, observed and held while in certain circumstances it would be
inevitable to pronounce judgment/award on all issues as mandated
thereunder. We are not oblivious of the provision under Section
169 of the M.V. Act. In this regard, it is apt to refer to paragraph 15
of the decision in Mantoo Sarkar’s case (supra) where this Court
held as under:-
“15. No doubt the Tribunal must exercise jurisdiction having
regard to the ingredients laid down under sub-section (2)
of Section 166 of the Act. We are not unmindful of the
fact that in terms of Section 169 of the Act, the Tribunal,
subject to any rules, may follow a summary procedure
and the provisions of the Code of Civil Procedure under
the Act have a limited application but in terms of the
rules “save and except” any specific provision made in
that behalf, the provisions of the Code of Civil Procedure
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Balveer Batra v. The New India Assurance Company & Anr.

would apply. Even otherwise the principles laid down in

the Code of Civil Procedure may be held to be applicable
in a case of this nature.”
30. Since, there is no specific provision to deal with a situation akin to
the situation in the case on hand, the said observation in Mantoo
Sarkar’s case (supra) would apply to the case on hand with all its
force.
31. In view of the nature of this case, as observed in Mantoo Sarkar’s
case (supra), we would have even exercised our extraordinary
jurisdiction under Article 142 of the Constitution of India to do
complete justice between the parties by determining the question of
compensation as the accident in question occurred on 07.03.2006.
Despite the death of the son of the appellant in the said accident the
fact is that the claimant did not get compensation despite the passage
of more than 18 years. We have already noted that all relevant
issues were framed by the Tribunal for the purpose of determination
of compensation. However, even after deciding to permit the parties
to adduce evidence the Tribunal in the instant case, appears to have
confined it for the purpose of deciding the only question of territorial
jurisdiction and therefore, in the absence of evidence on necessary
ingredients for determination of compensation payable, we are not
in a position to determine the compensation as in view of the factual
position obtained in the instant case sufficient to apply the decisions
in Mantoo Sarkar’s case (supra) as also Malati Sardar’s case
(supra) to reverse the finding on territorial jurisdiction. The High
Court has fallen in error in not picking up the illegalities resulting in
failure of justice and to resolve them appropriately. For the purpose
of determining the compensation in respect of a case of this nature
the relevant factors and dates necessary for computing ultimately
the quantum of compensation, are not available on record, before
us. Though, we are pained and peeved, we have no option, but to
remand the matter after a long period of 18 years, which could have
been avoided had the Tribunal followed Order XIV, Rule 2, CPC.
Taking note of such circumstances and the prejudice already caused
to the claimant(s) and further that directing the Motor Accident Claims
Tribunal at Nainital to restore MACP No.137/2006 and fix a date
for the appearance of the parties and then proceed to consider the
question of grant of compensation, ignoring its finding on territorial
jurisdiction would have no prejudice to the parties as they had already
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examined witnesses before the Claims Tribunal, we are inclined to

remand the matter to the Motor Accident Claims Tribunal at Nainital.
We hold that it would not cause any prejudice to the opposite parties
as they have already filed the written statements before the Tribunal
despite objecting to the territorial jurisdiction and even thereafter
have chosen to adduce oral evidence before the Tribunal, to some
extent. It is also a fact that the first respondent-insurance company
got its office in Nainital or in other words it is conducting its business
within the limits of Motor Accident Claims Tribunal at Nainital and
the fact is that cross-examination of witnesses were done on its
behalf as well. There cannot be any doubt with respect to the fact
that the subject matter of claim is within jurisdiction of the Claims
Tribunal, at Nainital.
32. For all these reasons, we set aside the impugned judgment and
order dated 28.11.2016 passed by the High Court of Uttarakhand
at Nainital in appeal from order No.414 of 2010 arising from the
Award in MACP No.137/2006 and also the award dated 06.10.2010
passed by the Motor Accident Claims Tribunal at Nainital. To enable
the Tribunal to proceed further and to decide the claim petition on
merits, MACP No.137/2006 is restored into its file and in view of the
long lapse of time there will be a further direction that the Tribunal
shall conclude the entire exercise after permitting parties to adduce
further evidence, if any, within a period of six months from the date
of receipt of a copy of this judgment.
33. The parties shall appear before the Tribunal either in person or
through counsel on 20.05.2024 and thereupon, the Tribunal shall
conclude the proceedings within the above stipulated time. In the
peculiar circumstances to comply with the direction, the Registry
shall forward copies of this judgment to all the parties. The appeal
is disposed of as above.

Headnotes prepared by: Ankit Gyan Result of the case:

Appeal disposed of.
 [2024] 2 S.C.R. 1223 : 2024 INSC 261

Vikas Chandra
v.
State of Uttar Pradesh & Anr.
(Criminal Appeal No. 1101 of 2024)
22 February 2024
[C.T. Ravikumar* and Rajesh Bindal, JJ.]

Issue for Consideration

Respondent No.2 was summoned to face the trial for the offence
under Section 306 of the Penal Code, 1860. High Court whether
justified in quashing the summons.

Headnotes
Penal Code, 1860 – ss.306, 107 – Abetment of suicide – When not
– Code of Criminal Procedure, 1973 – ss.482, 204 – Case of the
appellant was that his father committed suicide by consuming
poison in the office of Sub-Mandi, Alhaganj where he was
working, leaving a suicide note attributing responsibility for
the same on respondent No.2 – Deceased was earlier working
in Mandi Samiti, Puwaya as Security Guard and the respondent
No.2 was the then Secretary of the Mandi Samiti – Complaint
stated that the salary of the deceased for few months was
unpaid and when he requested for its release on 12.10.2004,
respondent No.2 uttered instigative words abetting him to
commit suicide – High Court quashed the summons issued to
respondent No.2 to face the trial u/s.306, IPC – Correctness:
Held: There was no explicit or implicit reference in the so-
called suicide note dated 23.10.2004 about any occurrence on
12.10.2004 involving the deceased and the respondent No.2 as
alleged by the complainant – There was no proximity between the
alleged occurrence of utterance of the so-called instigative words
on 12.10.2004 and the commission of suicide by the deceased
inasmuch as it was committed only on 23.10.2004 – It is also
undisputed that at the time of the commission of suicide, the
deceased was not working in the office of Mandi Samiti, Puwaya
where the respondent No.2 was working as Secretary and when
the former committed the suicide he was attached to the office
of the Mandi Samiti, Jalalabad and was working in Sub-Mandi,
Alhaganj – High Court rightly held that the so-called suicide note
* Author
1224 [2024] 2 S.C.R.

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did not reveal and reflect that the victim was disturbed on account
of non-receipt of salary and for that reason, he was bent upon to
commit suicide – Though it stated that the respondent No.2 was
responsible for his suicide however, there was absolute absence of
any material or even a case in the complaint and in the so-called
suicide note that the respondent No.2 abetted the late deceased
in a manner that will attract the provisions u/s.107, IPC – There
is absolute absence of any allegation of continued course of
conduct on the part of the respondent No.2 with a view to create
circumstances leaving the deceased with no other option except
to commit suicide – In such circumstances, the mere statement in
suicide note dated 23.10.2004, that respondent No.2, Secretary,
Mandi Samiti, Puwaya will be responsible for his suicide would not
be a ground at all to issue summons to the respondent No.2 to
face the trial for the offence u/s.306, IPC – Issuance of summons
is a serious matter and shall not be done mechanically – It shall be
done only upon satisfaction on the ground for proceeding further
in the matter against a person concerned based on the materials
collected during the inquiry – Impugned judgment of High Court
does not suffer from any legal infirmity, illegality or perversity,
warranting any interference. [Paras 13, 21, 24, 25, 29 and 30]
Code of Criminal Procedure, 1973 – ss.482, 204 – Summons
issued by Magistrate, interference with in exercise of power
u/s.482:
Held: Sine qua non for exercise of the power u/s.204, to issue
process is the subjective satisfaction regarding the existence of
sufficient ground for proceeding – Issuance of summons is a serious
matter and, therefore, shall not be done mechanically – It shall be
done only upon satisfaction on the ground for proceeding further
in the matter against a person concerned based on the materials
collected during the inquiry – A petition filed u/s.482, for quashing
an order summoning the accused is maintainable – Once it is held
that sine qua non for exercise of the power to issue summons is
the subjective satisfaction “on the ground for proceeding further”
while exercising the power to consider the legality of a summons
issued by a Magistrate, it is the duty of the Court to look into the
question as to whether the Magistrate applied his mind to form
an opinion as to the existence of sufficient ground for proceeding
further and in that regard to issue summons to face the trial for
the offence concerned. [Paras 10, 13 and 14]
[2024] 2 S.C.R.  1225

Vikas Chandra v. State of Uttar Pradesh & Anr.

Code of Criminal Procedure, 1973 – ss.173(2), 204 – FIR

was registered u/s.306, IPC based on the orders of the High
Court – Closure report was filed u/s.173(2) – Magistrate did
not accept the closure report – In the protest petition filed
by the appellant, Magistrate made an inquiry u/s.202, CrPC,
and issued summons to respondent No.2 – Plea on behalf of
respondent No.2 that though the Magistrate has the power
to issue summons despite the fact that the Final Report filed
u/s.173 (2) is a closure report in the case on hand, it was
issued against respondent No.2 without satisfying the ground
for proceeding further in the manner required under law:
Held: Magistrate is not duty bound to accept the Final Report filed
u/s.173 (2) and is jurisdictionally competent to take cognizance and
issue summons despite the receipt of closure report following the
prescribed procedure – Further, while conducting an inquiry, the
Magistrate could go into the merits of the evidence collected by
the investigating agency to determine whether there are sufficient
grounds for proceeding. [Paras 8-10]

Case Law Cited

Union of India v. Prakash P. Hinduja & Anr. [2003]
Suppl. 1 SCR 307 : (2003) 6 SCC 195; Bhagwant
Singh v. Commissioner of Police & Anr. [1985] 3 SCR
942 : (1985) 2 SCC 537; M/s Pepsi Foods Ltd. & Anr. v.
Special Judicial Magistrate & Ors. [1997] Suppl. 5 SCR
12 : (1998) 5 SCC 749; D.N. Bhattacharjee & Ors. v.
State of West Bengal & Anr. [1972] 3 SCR 973 : (1972)
3 SCC 414; Mehmood Ul Rehman & Ors. v. Khazir
Mohammad Tunda and Ors. [2015] 4 SCR 841 : (2015)
12 SCC 420; Bhushan Kumar & Anr. v. State (NCT of
Delhi) & Anr. [2012] 2 SCR 696 : (2012) 5 SCC 424;
Sunil Bharti Mittal v. C.B.I. [2015] 1 SCR 377 : (2015) 4
SCC 609; S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla
& Anr. [2005] Suppl. 3 SCR 371 : (2005) 8 SCC 89;
Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi
& Ors. [1976] Suppl. SCR 123 : (1976) 3 SCC 736;
M. Vijayakumar v. State of Tamil Nadu [2024] 2 SCR
1054 : 2024 SCC OnLine SC 238; M. Mohan v. State
represented by the Deputy Superintendent of Police
[2011] 3 SCR 437 : (2011) 3 SCC 626; Madan Mohan
Singh v. State of Gujarat & Anr. [2010] 10 SCR 351 :
1226 [2024] 2 S.C.R.

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(2010) 8 SCC 628; Chitresh Kumar Chopra v. State

(Govt. of NCT of Delhi) [2009] 13 SCR 230 : (2009) 16
SCC 605; Ramesh Kumar v. State of Chhattisgarh [2001]
Suppl. 4 SCR 247 : (2001) 9 SCC 618; Netai Dutta v.
State of West Bengal (2005) 2 SCC 659 – relied on.

List of Acts
Penal Code, 1860; Code of Criminal Procedure, 1973.

List of Keywords
Section 306 of Penal Code, 1860; Section 482 of Code of Criminal
Procedure, 1973; Suicide; Abetment of suicide; Suicide note;
Summoning order; Quashing; Instigative words; Commission of
suicide; Leaving deceased with no other option except to commit
suicide; Mere statement in suicide note; Closure report; Protest
petition; Issuance of summons; Application of mind by Magistrate;
Legality of a summons issued by Magistrate; Sufficient ground for
proceeding further.

Case Arising From

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1101
of 2024
From the Judgment and Order dated 10.10.2017 of the High Court
of Judicature at Allahabad in AN No. 5961 of 2013
Appearances for Parties
Raj Kamal, Maheen Pradhan, Aseem Atwal, Kartavya Batra, Anurag
Chandra, Ms. Nupur Kaushik, Ms. Aprajita Tyagi, Ms. Muskan Sidana,
Advs. for the Appellant.
Ms. Sakshi Kakkar, Ajay Singh, R Karthik, Praveen Chaturvedi,
Shashidhar Tripathi, Advs. for the Respondents.
Judgment / Order of the Supreme Court

Judgment
C. T. Ravikumar, J.
Leave granted.
1. The captioned appeal is directed against the judgment and order
dated 10.10.2017 passed by the High Court of Judicature at Allahabad
[2024] 2 S.C.R.  1227

Vikas Chandra v. State of Uttar Pradesh & Anr.

in Application under Section 482 No.5961 of 2013. As per the

impugned order, in invocation of the power under Section 482 of the
Code of Criminal Procedure, 1973 (for short “the Cr.PC”), the High
Court quashed the order dated 05.04.2012 passed by the Court of
Chief Judicial Magistrate, Shahjahanpur in Criminal Case No.1478
of 2012, summoning the respondent No. 2 herein in the appeal to
face the trial for the offence under Section 306 of the Indian Penal
Code, 1860 (for short “the IPC”).
2. Heard learned counsel appearing for the appellant, learned counsel
appearing for the respondent No.1–State of Uttar Pradesh and the
learned counsel appearing for respondent No.2.
3. It is a matter where, initially, the complainant approached the Court
of jurisdictional Magistrate with a complaint and on being refused to
forward the complaint for investigation under Section 156 (3), Cr.PC,
the matter was taken up in revision and upon its dismissal before the
High Court in Criminal Miscellaneous Writ Petition No.9134/2005.
Consequently, based on the orders of the High Court thereon, F.I.R.
No.107/2005 was registered at Alhaganj Police Station under Section
306, IPC. The final report filed under Section 173(2), Cr.PC, would
reveal that after the investigation, virtually, a closure report was filed
by the investigating agency. The learned Magistrate did not accept the
closure report. In the protest petition filed by the appellant herein the
learned Magistrate made an inquiry as contemplated under Section
202, Cr.PC, and based on all the materials collected issued summons
to respondent No.2 herein as per order dated 05.04.2012 and it is the
challenge against the same that culminated in the impugned order.
4. Compendiously stated, the case of the appellant is that respondent
No.2 committed abetment of suicide inasmuch as his father Shri
Brijesh Chandra, committed suicide, by consuming poison, in the
office of Sub-Mandi, Alhaganj, where he was working, after leaving
a suicide note attributing responsibility for the same on respondent
No.2. The appellant’s father was earlier working in Mandi Samiti,
Puwaya as Security Guard and the respondent No.2 was the then
Secretary of the Mandi Samiti. The complaint is to the effect that
the salary of the deceased from March, 2004 to August, 2004 and
September, 2004 onwards was not paid by Mandi Samiti, Jalalabad
and on 12.10.2004, when he requested for its release, respondent
No.2 told: -
1228 [2024] 2 S.C.R.

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“I will see that how will you get your salary and who will
help you in getting your salary, I will bring out your military-
man-ship and either you die or your children, but I do not
care, get out of here, why you do not take poison”.
5. According to the appellant, the deceased was a retired military man
and subsequent to the events on 12.10.2004 he returned home in
moony mood and on 23.10.2004 at around 10.00 a.m. went to attend
duty at Sub-Mandi, Alhaganj from Warikhas and committed suicide
thereafter leaving a suicide note noting down such incident as well.
6. We have given our anxious consideration to the rival contentions
and also have gone through the detailed discussion made by the
High Court to come to the conclusion to invoke the power under
Section 482, Cr.PC, to quash the order dated 05.04.2012. The
bifold contentions of the appellant raised, based on law, against the
impugned judgment are as under :-
(i) The High Court has committed grave error in law in quashing
the summons issued against respondent No.2;
(ii) The High Court has stepped beyond the settled guidelines
and parameters ordained by this Court in catena of decisions
with respect to exercise of power under Section 482, Cr.PC,
and in view of such guidelines and parameters, the High Court
was not justified in interfering with the summons issued by the
Trial Court.
7. Per contra, the learned counsel appearing for respondent No.2
would submit that though the Magistrate is having the power to
issue summons despite the fact that the Final Report filed under
Section 173 (2), Cr.PC, is a closure report in the case on hand, it
was issued against the respondent No.2 without satisfying on the
ground for proceeding further in the manner required under law. At
any rate, the summoning order did not reflect application of mind to
form the opinion regarding sufficient basis for proceeding against
him. The learned counsel for the State, the first respondent, would
submit that there occurred no legal error in the matter of exercise
of power by the High Court and hence, the order of the High Court
did not suffer from any infirmity requiring interference.
8. There cannot be any doubt with respect to the power of the Magistrate
to issue summons even after filing of a negative report by the police.
[2024] 2 S.C.R.  1229

Vikas Chandra v. State of Uttar Pradesh & Anr.

In other words, the Magistrate is not duty bound to accept the Final
Report filed under Section 173 (2), Cr.PC. The power not to accept
the Final Report and to issue summons to the accused is recognized
by this Court in the decision in Union of India v. Prakash P. Hinduja
& Anr.1. In this context, it is to be noted that this Court in the decision
in Bhagwant Singh v. Commissioner of Police & Anr.2 held that
when a Final Report under Section 173 (2), Cr.PC, is filed before the
Magistrate, which happens to be a negative report, usually called a
“closure report”, he gets the following four choices to be adopted,
taking into account the position obtained in the case concerned:
(1) to accept the report and drop the Court proceedings (2) to direct
further investigation to be made by the police (3) to investigate
himself or refer for the investigation to be made by another
Magistrate under Section 159, Cr.PC, (4) to take cognizance of
the offence under Section 200, Cr.PC, as a private complaint
when the materials are sufficient in his opinion and if the
complainant is prepared for that course.
9. Now, there can be no two views that “existence of power” and
“exercise of power” are different and distinct. Having found that
a Magistrate is jurisdictionally competent to take cognizance and
issue summons despite the receipt of closure report following the
prescribed procedure, we will have to consider the sustainability of
the exercise of such power, in view of the legal and factual position
obtained, in this case. In the decision in M/s Pepsi Foods Ltd. &
Anr. v. Special Judicial Magistrate & Ors.3, this Court laid down
the golden standard for summoning an accused after holding that
summoning an accused is a serious matter involving interference
with life and liberty of a person. Paragraph 28 therein is noteworthy
and it reads thus: -
“28. Summoning of an accused in a criminal case is a
serious matter. Criminal law cannot be set into motion as
a matter of course. it is not that the complainant has to
bring only two witnesses to support his allegations in the
complaint to have the criminal law set into motion. The

1 [2003] Supp. 1 SCR 307 : (2003) 6 SCC 195

2 [1985] 3 SCR 942 : (1985) 2 SCC 537
3 [1997] Supp. 5 SCR 12 : (1998) 5 SCC 749
1230 [2024] 2 S.C.R.

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order of the magistrate summoning the accused must reflect

that he has applied his mind to the facts of the case and
the law applicable thereto. He has to examine the nature
of allegations made in the complaint and the evidence both
oral and documentary in support thereof and would that
be sufficient for the complainant to succeed in bringing
charge home to the accused. It is not that the Magistrate
is a silent spectator at the time of recording of preliminary
evidence before summoning of the accused. Magistrate has
to carefully scrutinize the evidence brought on record and
may even himself put questions to the complainant and his
witnesses to elicit answers to find out the truthfulness of the
allegations or otherwise and then examine if any offence
is prima facie committed by all or any of the accused.”
10. In the contextual situation, it is also relevant to refer to the decision
of this Court in D.N. Bhattacharjee & Ors v. State of West Bengal
& Anr.4, wherein this Court observed that while conducting an inquiry,
the Magistrate could go into the merits of the evidence collected by
the investigating agency to determine whether there are sufficient
grounds for proceeding.
It is relevant to note, in this context, that the sine qua non for
exercise of the power under Section 204, Cr.PC, to issue process
is the subjective satisfaction regarding the existence of sufficient
ground for proceeding.
11. Paragraph 7 in D.N. Bhattacharjee’s case (supra), in so far as it is
relevant, reads thus: -
“7…… It is true that the Magistrate is not debarred, at this
stage, from going into the merits of the evidence produced
by the complainant. But, the object of such consideration
of the merits of the case, at this stage, could only be
to determine whether there are sufficient grounds for
proceeding further or not”.
12. In Mehmood Ul Rehman & Ors. v. Khazir Mohammad Tunda and
Ors.5 this Court held thus: -

4 [1972] 3 SCR 973 : (1972) 3 SCC 414

5 [2015] 4 SCR 841 : (2015) 12 SCC 420
[2024] 2 S.C.R.  1231

Vikas Chandra v. State of Uttar Pradesh & Anr.

“22…..The satisfaction on the ground for proceeding would

mean that the facts alleged in the complaint would constitute
an offence, and when considered along with the statements
recorded, would, prima facie, make the accused answerable
before the court……….In other words, the Magistrate is not
to act as a post office in taking cognizance of each and
every complaint filed before him and issue process as a
matter of course. There must be sufficient indication in the
order passed by the Magistrate that he is satisfied that
the allegations in the complaint constitute an offence and
when considered along with the statements recorded and
the result of inquiry or report of investigation under Section
202 of CrPC, if any, the accused is answerable before the
criminal court, there is ground for proceeding against the
accused under Section 204 of CrPC, by issuing process for
appearance. Application of mind is best demonstrated by
disclosure of mind on the satisfaction………..To be called
to appear before criminal court as an accused is serious
matter affecting one’s dignity, self respect and image in
society. Hence, the process of criminal court shall not be
made a weapon of harassment.”
13. A close scrutiny of the position of law revealed from the aforesaid
decisions, which are constantly and consistently being followed by
this Court, would reveal that issuance of summons is a serious matter
and, therefore, shall not be done mechanically and it shall be done
only upon satisfaction on the ground for proceeding further in the
matter against a person concerned based on the materials collected
during the inquiry.
14. In the aforesaid circumstances, the next question to be considered
is whether a summons issued by a Magistrate can be interfered with
in exercise of the power under Section 482, Cr.PC. In the decisions
in Bhushan Kumar & Anr. v. State (NCT of Delhi) & Anr.6 and M/s
Pepsi Foods Ltd.’s case (supra) this Court held that a petition filed
under Section 482, Cr.PC, for quashing an order summoning the
accused is maintainable. There cannot be any doubt that once it is
held that sine qua non for exercise of the power to issue summons is

6 [2012] 2 SCR 696 : (2012) 5 SCC 424

1232 [2024] 2 S.C.R.

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the subjective satisfaction “on the ground for proceeding further” while
exercising the power to consider the legality of a summons issued
by a Magistrate, certainly it is the duty of the Court to look into the
question as to whether the learned Magistrate had applied his mind to
form an opinion as to the existence of sufficient ground for proceeding
further and in that regard to issue summons to face the trial for the
offence concerned. In this context, we think it appropriate to state
that one should understand that ‘taking cognizance’, empowered
under Section 190, Cr.PC, and ‘issuing process’, empowered under
Section 204, Cr.PC, are different and distinct. (See the decision in
Sunil Bharti Mittal v. C.B.I.7).
15. In Sunil Bharti Mittal’s case (supra), this Court interpreted the
expression “sufficient grounds for proceeding” and held that there
should be sufficiency of materials against the accused concerned
before proceeding under Section 204, Cr.PC. It was held thus:-
“53. However, the words “sufficient ground for proceeding”
appearing in Section 204 are of immense importance. It
is these words which amply suggest that an opinion is to
be formed only after due application of mind that there is
sufficient basis for proceeding against the said accused and
formation of such an opinion is to be stated in the order
itself. The order is liable to be set aside if no reason is given
therein while coming to the conclusion that there is prima
facie case against the accused, though the order need not
contain detailed reasons. A fortiori, the order would be bad
in law if the reason given turns out to be ex facie incorrect.”
16. In the decision in S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla &
Anr.8, this Court held that the settled position for summoning of an
accused is that the Court has to see the prima facie evidence. This
Court went on to hold that the ‘prima facie evidence’ means the evidence
sufficient for summoning the accused and not the evidence sufficient
to warrant conviction. The inquiry under Section 202, Cr.PC, is limited
only to ascertain whether on the material placed by the complainant
a prima facie case was made out for summoning the accused or not.

7 [2015] 1 SCR 377 : (2015) 4 SCC 609

8 [2005] Supp. 3 SCR 371 : (2005) 8 SCC 89
[2024] 2 S.C.R.  1233

Vikas Chandra v. State of Uttar Pradesh & Anr.

17. In an earlier decision in Smt. Nagawwa v. Veeranna Shivalingappa

Konjalgi & Ors.9, this Court laid down certain conditions whereunder
a complaint can be quashed invoking the power under Section 482,
Cr.PC, thus: -
"(1) where the allegations made in the complaint or the
statements of the witnesses recorded in support of the
same taken at their face value make out absolutely
no case against the accused or the complaint does
not disclose the essential ingredients of an offence
which is alleged against the accused;
(2) where the allegations made in the complaint are
patently absurd and inherently improbable so that
no prudent person can ever reach a conclusion that
there is sufficient ground for proceeding against the
accused;
(3) where the discretion exercised by the Magistrate in
issuing process is capricious and arbitrary having
been based either on no evidence or on materials
which are wholly irrelevant or inadmissible; and
(4) where the complaint suffers from fundamental legal
defects, such as, want of sanction, or absence of a
complaint by legally competent authority and the like.”
18. Having understood the scope of interference with issuance of
summons in exercise of power under Section 482, Cr.PC, we will
move on to consider the question whether the impugned order justifies
such interference or in other words, whether impugned order invites
interference? We have briefly narrated the case revealed from the
complaint and also taken note of the fact(s) that the High Court
under the impugned judgment arrived at the finding that no material
is available, suggesting instigation by the respondent No.2 in the
suicide note and nothing indicative of occurrence of an incidence and
utterance of words as mentioned by the complainant, were vividly
stated or even alluded, therein. In view of the fact that summons
was issued to the respondent No.2 to stand the trial for the offence
under Section 306, IPC it is only apt to analyse the said Section to

9 [1976] Supp. 1 SCR 123 : (1976) 3 SCC 736

1234 [2024] 2 S.C.R.

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find out the ingredients to attract the same and also whether the
complaint and the evidence collected during the inquiry and also
during the investigation which resulted in the filing of the closure
report prima facie discloses sufficient ground for proceeding and
to issue summons to the respondent No.2 to face the trial for the
offence under Section 306, IPC.
19. In the decision in M. Vijayakumar v. State of Tamil Nadu10, this
Court considered Section 306, IPC and its co-relation with Section
107, IPC after referring to the decisions in M. Mohan v. State
represented by the Deputy Superintendent of Police11, Madan
Mohan Singh v. State of Gujarat & Anr.12, and Chitresh Kumar
Chopra v. State (Govt. of NCT of Delhi)13. After analysing the
provisions under Section 306, IPC with reference to ‘abetment’, as
defined under Section 107, IPC and the decisions in M. Mohan’s
case (supra), Madan Mohan Singh’s case (supra) and Chitresh
Kumar Chopra’s case (supra) it was held that “in order to bring
out an offence under Section 306, IPC specific abetment as
contemplated by Section 107, IPC on the part of the accused with
an intention to bring about the suicide of the person concerned as
a result of that abetment is required. The intention of the accused
to aid or to instigate or to abet the deceased to commit suicide is
a must for this particular offence under Section 306, IPC,…” Thus,
in view of the decision, it is clear that what matters in deciding the
question whether there is ground for proceeding against a particular
person and to issue summons to him to face the trial for the offence
under Section 306, IPC is whether the complaint and the materials
collected during the inquiry/investigation prima facie disclose mens
rea on the part of the accused to bring about suicide of the victim.
This position of law and condition Nos. 1 and 2 in Smt. Nagawwa’s
case (supra), extracted in paragraph 17 above, are to be borne in
mind while considering the question whether a prima facie case
of ‘abetment of suicide’ is made out against the respondent No.2.
Obviously, the High Court held it in the negative under the impugned
judgment. As per the complainant, who was examined before the

10 [2024] 2 SCR 1054 : 2024 SCC OnLine SC 238

11 [2011] 3 SCR 437 : (2011) 3 SCC 626
12 [2010] 10 SCR 351 : (2010) 8 SCC 628
13 [2009] 13 SCR 230 : (2009) 16 SCC 605
[2024] 2 S.C.R.  1235

Vikas Chandra v. State of Uttar Pradesh & Anr.

learned Magistrate in the inquiry, the respondent No.2 by uttering the

instigative words on 12.10.2004 (extracted hereinbefore) abetted his
father to commit suicide. However, the impugned judgment would
reveal that the High Court upon careful perusal of the suicide note
found conspicuous absence of any reference, either explicitly or
implicitly, in the suicide note regarding any such occurrence, as
alleged by the complainant, on 12.10.2004 or anything suggesting
that the respondent No.2 was conscious of the fact that the victim
was bent upon to commit suicide in case of non-disbursement of
salary and despite such knowledge he desisted disbursal of salary
and instigated the victim to commit suicide.
20. As per the impugned judgment the High Court went on to consider
and held thus:-
“As per mandate of this Section, there must be explicit
or implicit abetment or some overt act indicative or
suggestive of fact that some instigation was given for
committing suicide and the applicant was having an
interest in it. Nothing has surfaced, which may reflect on
the mindset of the applicant that he ever intended the
consequence that the deceased would commit suicide
and with that view in mind, he stopped payment of salary.
Had it been the actual position then obviously the suicide
note must have whispered about that particular aspect
or it would have at least alluded to that situation, but
on careful perusal of the suicide note it explicit that the
deceased himself was bent upon committing suicide in
case the salary was not drawn in his favour. But under
circumstances, there is nothing to suggest that the
applicant was conscious of that position and knowing
the same situation he insisted that he would not pay the
salary in question. The trial court, however, ignoring all
these legal aspects took cognizance of the offence by
rejecting the final report submitted by the Investigating
Officer and issued process against the applicant by way
of summoning. Resultantly, this application is allowed.
Criminal proceedings of impugned order dated 05.04.2012
passed by Chief Judicial Magistrate, Shahjahanpur in
Criminal Case No.1478 of 2012, Vikas Vs. Ram Babu,
Case Crime No.C-2 of 2005, under Section 306 IPC,
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Police Station- Alhaganj, District Shahjahanpur by which

the applicant has been summoned to face the trial is
hereby quashed.”
21. Certain relevant and indisputable aspects revealed from the material
on record are also to be noted, with reference to the relevant
decisions, as under:
(i) There is no explicit or implicit reference about any occurrence on
12.10.2004 involving the deceased and the respondent No.2, as
alleged in the complaint and as stated by the complainant in the
inquiry, is made in the so-called suicide note dated 23.10.2004;
(ii) There is no proximity between the alleged occurrence of
utterance of the so-called instigative words on 12.10.2004 and
the commission of suicide by Brijesh Chander inasmuch as it
was committed only on 23.10.2004. The so-called suicide note
did not refer to any such occurrence. If any such incident had,
in troth, occurred and if that was the reason which pushed him
to commit suicide it would have been mentioned, explicitly or
implicitly in the so-called suicide note, as rightly observed and
held by the High Court. What makes it dubious and unfit for
being formative foundation for prosecution for an offence under
Section 306, IPC, will be dealt with a little later.
22. It is to be noted that apart from the above mentioned alleged incident,
there is no allegation of continued course of conduct (against the
respondent No.2) creating circumstances compelling the victim to
or leaving the victim with no other option but to, commit suicide. In
this contextual situation from the decision of this Court in Chitresh
Kumar Chopra v. State (Govt. of NCT of Delhi)14, paragraphs 16
and 17 therein dealing with the expression ‘instigation’ are worthy
for reference and they read thus:-
“16…instigation is to goad, urge forward, provoke, incite
or encourage to do “an act”. To satisfy the requirement of
“instigation”, though it is not necessary that actual words
must be used to that effect or what constitutes “instigation”
must necessarily and specifically be suggestive of the
consequence. Yet a reasonable certainty to incite the

14 [2009] 13 SCR 230 : (2009) 16 SCC 605

[2024] 2 S.C.R.  1237

Vikas Chandra v. State of Uttar Pradesh & Anr.

consequence must be capable of being spelt out. Where

the accused had, by his acts or omission or by a continued
course of conduct, created such circumstances that the
deceased was left with no other option except to commit
suicide, in which case, an “instigation” may have to be
inferred. A word uttered in a fit of anger or emotion without
intending the consequences to actually follow, cannot be
said to be instigation.”
“17.Thus, to constitute “instigation”, a person who
instigates another has to provoke, incite, urge or
encourage the doing of an act by the other by
“goading” or “urging forward”. The dictionary meaning
of the word “goad” is “a thing that stimulates someone
into action; provoke to action or reaction” (see Concise
Oxford English Dictionary); “to keep irritating or
annoying somebody until he reacts…”
(emphasis in original)
23. In the decision in Ramesh Kumar v. State of Chhattisgarh15, this
Court held that where the accused by his acts or continued course
of conduct creates such circumstances that the deceased was left
with no other option except to commit suicide, an instigation may
be inferred.
24. Now, reverting to the so-called suicide note, we do not find any
reason to interfere with its evaluation by the High Court, for reasons
more than one. We have already noted the conspicuous absence
of any reference about the alleged incident on 12.10.2004 involving
the deceased and the respondent No.2, either explicitly or implicitly,
therein. Before looking into and applying the principles enunciated
for appreciation of a suicide note in the decisions of this Court in
Netai Dutta v. State of West Bengal16 and Madan Mohan Singh’s
case (supra), we will have a glance at the tenor of the suicide note.
As observed and held by the High Court, the so-called suicide note
would not reveal and reflect that the victim was disturbed on account
of non-receipt of salary and for that reason, he was bent upon to

15 [2001] Supp. 4 SCR 247 : [(2001) 9 SCC 618]

16 (2005) 2 SCC 659
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commit suicide. Though it is stated that the respondent No.2 is

responsible for his suicide however, there is absolute absence of any
material or even a case in the complaint and in the so-called suicide
note that the respondent No.2 has abetted late Brijesh Chandra in
a manner that will attract the provisions under Section 107, IPC.
There is absolute absence of any allegation of continued course of
conduct on the part of the respondent No.2 with a view to create
circumstances leaving the deceased with no other option except to
commit suicide. In such circumstances, the mere statement in suicide
note dated 23.10.2004, ‘Shri Ram Babu Sharma, Secretary, Mandi
Samiti, Puwaya will be responsible for his suicide’ would not be a
ground at all to issue summons to the respondent No.2 to face the
trial for the offence under Section 306, IPC. The principles enunciated
in Madan Mohan Singh’s case (supra) and Netai Dutta’s case
(supra), on application to the facts obtained in this case would also
justify the interference by the High Court with the subject summons.
25. In the case on hand, the undisputable position is that at the time
of the commission of suicide, the deceased was not working in the
office of Mandi Samiti, Puwaya where the respondent No.2 was
working as Secretary and when the former committed the suicide
he was attached to the office of the Mandi Samiti, Jalalabad and
was working in Sub-Mandi, Alhaganj.
26. In Madan Mohan Singh’s case (supra), the salary of the deceased,
who was allegedly abetted to commit suicide, for 15 days was
deducted by the accused. That apart, in that case also a suicide
note was left by the deceased, which in so far as it is relevant was
quoted in paragraph 7 of the said decision thus: -
“I am going to commit suicide due to his functioning style.
Alone M.M. Singh, DET Microwave Project is responsible
for my death. I pray humbly to the officers of the Department
that you should not cooperate as human being to defend
M.M. Singh. M.M. Singh has acted in breach of discipline
disregarding the norms of discipline. I humbly request the
enquiry officer that my wife and son may not be harassed.
My life has been ruined by M.M. Singh”.
27. Paragraph 13 and 14 of the said judgment, in so far as they are
relevant are also worthy to be extracted. They read thus: -
[2024] 2 S.C.R.  1239

Vikas Chandra v. State of Uttar Pradesh & Anr.

“13…… In fact, there is no nexus between the so-called

suicide (if at all it is one for which also there is no material
on record) and any of the alleged acts on the part of the
appellant. There is no proximity either. In the prosecution
under Section 306 IPC, much more material is required.
The courts have to be extremely careful as the main person
is not available for cross-examination by the appellant-
accused. Unless, therefore, there is specific allegation
and material of definite nature (not imaginary or inferential
one), it would be hazardous to ask the appellant-accused
to face the trial. A criminal trial is not exactly a pleasant
experience. The person like the appellant in the present
case who is serving in a responsible post would certainly
suffer great prejudice, were he to face prosecution on
absurd allegations of irrelevant nature…
14. As regards the suicide note, which is a document of
about 15 pages, all that we can say is that it is an anguish
expressed by the driver who felt that his boss (the accused)
had wronged him. The suicide note and the FIR do not
impress us at all. They cannot be depicted as expressing
anything intentional on the part of the accused that the
deceased might commit suicide. If the prosecutions are
allowed to continue on such basis, it will be difficult for
every superior officer even to work.”
28. In Netai Dutta’s case (supra) from the dead body a suicide note
was recovered and on its basis the police registered a case against
the appellant under Section 306, IPC. Paragraphs 5, in so far as it
is relevant, and 6 of the said decision read thus: -
“5. …An offence under Section 306 IPC would stand only if
there is an abetment for the commission of the crime. The
parameters of “abetment” have been stated in Section 107
of the Penal Code, 1860. Section 107 says that a person
abets the doing of a thing, who instigates any person to
do that thing; or engages with one or more other person
or persons in any conspiracy for the doing of that thing, if
an act or illegal omission takes place in pursuance of that
conspiracy, or the person should have intentionally aided
any act or illegal omission. The Explanation to Section 107
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says that any wilful misrepresentation or wilful concealment

of a material fact which he is bound to disclose, may also
come within the contours of “abetment”.
6. In the suicide note, except referring to the name of the
appellant at two places, there is no reference of any act
or incidence whereby the appellant herein is alleged to
have committed any wilful act or omission or intentionally
aided or instigated the deceased Pranab Kumar Nag in
committing the act of suicide. There is no case that the
appellant has played any part or any role in any conspiracy,
which ultimately instigated or resulted in the commission
of suicide by deceased Pranab Kumar Nag.”
29. In short, applying the principles of the decisions referred above
to the facts of the case on hand would reveal that the impugned
judgment of the High Court did not suffer from any legal infirmity,
illegality or perversity and the conclusions are arrived at after a
rightful appreciation of the complaint and the other materials on
record, within the permissible parameters.
30. Considering the facts and circumstances of the case, we do not find
anything warranting any interference by this Court. The appeal is,
therefore, dismissed.

Headnotes prepared by: Divya Pandey Result of the case:

Appeal dismissed.