Digital Supreme Court Reports

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2024 | Volume 9 1 |
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Contents
1. Ishwar (Since Deceased) Thr. Lrs & Ors. v.
Bhim Singh & Anr. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

2. Vaibhav Jain v. Hindustan Motors Pvt. Ltd ............................................. 16

3. Nitya Nand v. State of U.P. & Anr ........................................................... 37
4. Baccarose Perfumes and Beauty Products Pvt. Ltd v. Central Bureau of
Investigation & Anr ...................................................................................... 54
5. Somprabha Rana & Ors. v. The State of Madhya Pradesh & Ors ......... 64
6. Andhra Pradesh State Road Transport Corporation & Ors. v. V.V. Brahma
Reddy & Anr ................................................................................................ 75
7. Mandakini Diwan and Anr. v. The High Court of Chhattisgarh & Ors.... 86
8. Dharmendra Sharma v. Agra Development Authority ............................. 97
9. Abhishek Banerjee & Anr. v. Directorate of Enforcement ...................... 110
10. Anantdeep Singh v. The High Court of Punjab and Haryana at
Chandigarh & Anr ...................................................................................... 135
11. Chirag Bhanu Singh & Anr. v. High Court of Himachal Pradesh & Ors
................................................................................................................... 150
12. Seetharama Shetty v. Monappa Shetty .............................................. 166
13. Union of India & Ors. v. Lt. Col. Rahul Arora ....................................... 186
14. Ashok Kumar Sharma & Ors v. Union of India .................................... 194
15. Cox & Kings Ltd. v. Sap India Pvt. Ltd. & Anr ..................................... 199
16. Manilal v. The State of Rajasthan & Ors ............................................. 218
17. Choudappa & Anr. v. Choudappa since Deceased by Lrs. & Ors ....... 229
18. Chalasani Udaya Shankar and others v. ..................................................
M/s. Lexus Technologies Pvt. Ltd. and others .................................. 235

19. Dhanraj Aswani v. Amar S. Mulchandani & Anr .................................. 257

 [2024] 9 S.C.R. 1 : 2024 INSC 651

Ishwar (Since Deceased) Thr. Lrs & Ors.

v.
Bhim Singh & Anr.
Civil Appeal No. 10193 of 2024
03 September 2024
[J.B. Pardiwala and Manoj Misra,* JJ.]

Issue for Consideration

Issue arose as to whether the execution court had jurisdiction to
deal with the application for rescission of contract and extension
of time to deposit the balance sale consideration; and if execution
court had the jurisdiction, whether those applications ought to
have been decided as one in the suit on original side, if yes, then,
whether, in the facts of the case, on that ground alone, the
impugned order warrants interference in exercise of jurisdiction Art
136 of the Constitution.

Headnotes†

Specific Relief Act, 1963 – s. 28 – Rescission in certain

circumstances of contracts for the sale or lease of immovable
property, the specific performance of which has been
decreed – Application for rescission of contract and
extension of time to deposit the balance sale consideration –
Jurisdiction of the execution court:
Held: Bare reading of s. 28 gives an impression that the power to
extend time to deposit, or to rescind the contract on failure of
deposit vests in the Court which passed the decree – Expression
“may apply in the same suit in which the decree is made” as used
in u/s. 28 must be accorded an expansive meaning so as to
include the court of first instance even though the decree under
execution is passed by the appellate court, because the decree is
in the same suit – Thus, an application u/s. 28, either for rescission
of contract or for extension of time, can be entertained and
decided by the execution court, provided it is the court which
passed the decree in terms of s. 37 CPC – On facts, the Court of
first instance, (where the civil suit was instituted) and the execution
application was filed before the Court of Additional Civil Judge
* Author
2 [2024] 9 S.C.R.

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(Senior Division) – Application u/s 28 was disposed of by the Court

of Civil Judge (Senior Division) – Thus, by virtue of s. 37 CPC, the
execution court being the Court of first instance with reference to
the suit in which the decree was passed had jurisdiction to deal
with the application u/s. 28 of the Act – Thus, the objection as
regards the jurisdiction of the execution court to deal with the
application for extension of time/rescission of the court u/s. 28(1)
is rejected. [Paras 15, 18, 19]
Specific Relief Act, 1963 – s. 28 – Rescission in certain
circumstances of contracts for the sale or lease of immovable
property, the specific performance of which has been
decreed – Execution court to decide the application u/s. 28 as
an application on the original side (as an application in the
suit) or on the execution side (as an application in the
execution proceedings):
Held: Application seeking rescission of contract, or extension of
time, u/s. 28 (1), must be decided as an application in the original
suit wherein the decree was passed even though the suit has been
disposed of – Thus, even if the execution court is the Court of first
instance with reference to the suit wherein the decree under
execution was passed, it must transfer the application filed u/s. 28
to the file of the suit before dealing with it. [Para 22]
Constitution of India – Art. 136 – Jurisdiction under – Exercise
of – Suit for specific performance of agreement by
respondents against appellants, partly decreed, directing the
appellants to refund the earnest money – Appeal
thereagainst, allowed by the appellate court, directing the
appellants to execute the sale deed in favour of the
respondent on payment of balance sale consideration within
the stipulated period, failing which the respondents could get
the sale deed executed through the court – Application for
execution of the decree and deposit of balance sale price by
the respondents – During pendency, appellants filed second
appeal which was dismissed – Respondent’s then filed
application before the execution court seeking permission to
deposit the balance consideration in the court, whereas the
appellant filed application u/s. 28 to rescind the contract –
However, the execution court rejected the appellant’s
application and permitted the respondents to deposit the
[2024] 9 S.C.R. 3

Ishwar (Since Deceased) Thr. Lrs & Ors. v. Bhim Singh & Anr.

balance consideration – Aggrieved appellant, then filed

revision which was dismissed – Interference with:
Held: Not called for – Court does not exercise its jurisdiction u/Art.
136 only because it is lawful to do so – For the purpose of doing
complete justice to the parties, the Court may not interfere with the
order even if it suffers from some legal error – Court may deny
relief to a party having regard to its conduct and may, in a given
situation, mould the relief to do complete justice to the parties –
On facts, the respondents had all throughout shown their intention
to pay the balance consideration for execution of the sale deed
whereas the appellants appeared interested only in challenging
the decree before higher Courts – Execution court justifiably
exercised its discretion in favour of the decree holder by allowing
them to deposit the balance consideration – Thus, substantial
justice has been done to the parties and if the impugned order is
interfered with only on the technical ground that the application
was not dealt with as one on the original side, grave injustice would
be caused to the decree holder – More so, when the judgment-
debtor themselves applied to the execution court for rescinding the
contract, and raised no such jurisdictional issue either before the
Execution Court or the High Court – Furthermore, the plea that
there was no proper prayer for condonation of delay in making the
deposit of the balance consideration, or that there was no proper
application for extension of time to make deposit cannot be
accepted because, in the execution application itself, which was
promptly filed after expiry of 60 days from the date of the appellate
court decree, the decree holder had sought permission to make
deposit; and the application filed after dismissal of second appeal
also sought permission to make deposit – Prayer to extend the
time to make deposit was thus implicit in the prayer to permit the
decree holder to make deposit of the balance consideration.
[Paras 24, 27-30]

Case Law Cited

Ramankutty Guptan v. Avara [1994] 1 SCR 542 : (1994) 2 SCC
642; V.S. Palanichamy Chettiar Firm v. C. Alagappan and Anr
[1999] 1 SCR 349 : (1999) 4 SCC 702; Sanjay Shivshankar
Chitkote v. Bhanudas Dadarao Bokade (Died) through [Link] Civil
Appeal No. 8022 of 2023 @ SLP (C) No. 24720 of 2023 decided
on 08.12.2023; Chanda v. Rattni [2007] 4 SCR 402 : (2007) 14
4 [2024] 9 S.C.R.

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SCC 26; Lajpat Rai Mehta v. Govt. of Punjab (Deptt. of Irrigation

& Power) [2008] 17 SCR 657 : (2009) 3 SCC 260 – referred to.
List of Acts
Specific Relief Act, 1963; Constitution of India.

List of Keywords
Execution court; Application for rescission of contract; Application
for extension of time to deposit the balance sale consideration;
Suit on original side; Jurisdiction of the execution court; Court of
first instance; Suit for specific performance of agreement; Refund
the earnest money; Payment of balance sale consideration;
Discretionary jurisdiction; Condonation of delay.

Case Arising From

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10193 of 2024
From the Judgment and Order dated 11.01.2017 of the High Court
of Punjab & Haryana at Chandigarh in CR No. 8105 of 2016
Appearances for Parties
B. S Bedi, Ms. Simar Bedi, Dinesh Verma, Subhasish Bhowmick,
Advs. for the Appellants.
Sanchar Anand, Devendra Singh, Anant K Vatsya, Dr. Ravinder
Kumar Anand, Aman Kumar Thakur, Arjun Rana, Mrs. Rita Vasisth,
Advs. for the Respondents.
Judgment / Order of the Supreme Court

Judgment
Manoj Misra, J.
1. Leave granted.
2. This appeal impugns an order of the High Court of Punjab and
Haryana at Chandigarh 1 dated 11.01.2017 passed in Civil Revision
No. 8105 of 2016, whereby the revision preferred by the appellant(s)

1
High Court
[2024] 9 S.C.R. 5

Ishwar (Since Deceased) Thr. Lrs & Ors. v. Bhim Singh & Anr.

against the order of the Civil Judge (Senior Division), Kaithal 2 dated
03.11.2016 was dismissed.
FACTUAL MATRIX
3. A suit for specific performance was instituted by the respondents
against the appellant(s) (which would include their predecessor in
interest) for enforcement of an agreement to sell dated 18.05.2005.
In the plaint, inter alia, it was alleged that the appellant(s) had agreed
to sell the property in dispute at a total consideration of Rs.18 lacs,
out of which Rs. 9.77 lacs was paid in advance, yet, despite service
of notice requesting execution of sale deed, the appellants failed to
execute the same.
4. The trial court (i.e., the Court of Additional Civil Judge (Senior
Division), Kaithal), vide judgment and decree dated 28.02.2011,
decreed the suit in part whereunder the appellant(s) were directed
to refund the earnest money with interest, etc.
5. Aggrieved by rejection of the prayer for specific performance of the
agreement, the respondents went in appeal. The appellate court
(i.e., the Court of Additional District Judge, Kaithal (for short ADJ))
allowed the appeal vide judgment and decree dated 12.01.2012 and
accepted the prayer for specific performance of the agreement.
While doing so, it directed the appellants herein to execute the sale
deed in favour of the respondents herein on payment of balance sale
consideration within a period of two months from the date of the
decree, failing which, liberty was given to the decree holder(s) to get
the sale deed executed through Court.
6. On 20.03.2012, the respondents (i.e. decree holders) filed an
execution application before the Court of first instance (i.e., the trial
court) praying thus:
“It is therefore, prayed that the sale deed as per the
decree passed in Civil Appeal No. 53 of 2011 may kindly
be got executed and registered in favour of the decree
holders by the appointment of the local commissioner and
possession may kindly be got delivered to the decree
holder and the balance sale price may kindly be got

2
Execution Court
6 [2024] 9 S.C.R.

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deposited in the Court for payment to the [Link] and cost

for the suit and the appeal and this execution may also be
got recovered from the [Link].”
7. While the application for execution of the decree was pending, the
appellant(s) (i.e., the judgment debtor(s)) challenged the appellate
court decree by filing Second Appeal No. 3730 of 2012 before the
High Court, which came to be dismissed on 07.11.2013.
8. Upon dismissal of the Second Appeal, the respondents (i.e.,
decreeholders) filed an application before the Execution Court on
24.03.2014 seeking permission to deposit the balance consideration
in Court. Opposing this prayer of the decree holder, in the execution
proceeding itself, the appellant(s) (i.e. the judgment-debtors)
submitted an application under Section 28 3 of the Specific Relief
Act, 1963 (in short “the 1963 Act”) to rescind the contract on the
ground that decree-holder(s) had failed to make deposit within two
months, as directed by the first appellate court.
9. The Execution Court, however, rejected the application of the
judgment-debtor(s) for rescission of the contract vide order dated
03.11.2016 and, simultaneously, permitted the decree-holder(s) to
make deposit of the balance consideration.
10. Aggrieved by the aforesaid order of the Execution Court, the
appellant(s) (i.e., the judgment-debtors) filed a Civil Revision before
the High Court, which came to be dismissed by the impugned order.

3 28. Rescission in certain circumstances of contracts for the sale or lease of immovable property,
the specific performance of which has been decreed.—
(1) Where in any suit a decree for specific performance of a contract for the sale or lease of immovable
property has been made and the purchaser or lessee does not, within the period allowed by the
decree or such further period as the court may allow, pay the purchase money or other sum which
the court has ordered him to pay, the vendor or lessor may apply in the same suit in which the
decree is made, to have the contract rescinded and on such application the court may, by order,
rescind the contract either so far as regards the party in default or altogether, as the justice of the
case may require.
(2) Where a contract is rescinded under sub-section (1), the court—
(a) shall direct the purchaser or the lessee, if he has obtained possession of the property under
the contract, to restore such possession to the vendor or lessor, and
(b) may direct payment to the vendor or lessor of all the rents and profits which have accrued in
respect of the property from the date on which possession was so obtained by the purchaser
or lessee until restoration of possession to the vendor or lessor, and, if the justice of the case
[2024] 9 S.C.R. 7

Ishwar (Since Deceased) Thr. Lrs & Ors. v. Bhim Singh & Anr.

so requires, the refund of any sum paid by the vendee or the lessee as earnest money or
deposit in connection with the contract.
(3) If the purchase or lessee pays the purchase money or other sum which he is ordered to pay under
the decree within the period referred to in sub-section (1), the court may, on application made in
the same suit, award the purchaser or lessee such further relief as he may be entitled to, including
in appropriate cases all or any of the following reliefs, namely:—
(a) the execution of a proper conveyance or lease by the vendor or lessor;
(b) the delivery of possession, or partition and separate possession, of the property on the
execution of such conveyance or lease.
(4) No separate suit in respect of any relief which may be claimed under this section shall lie at the
instance of a vendor, purchaser, lessor or lessee, as the case may be.
(5) The costs of any proceedings under this section shall be in the discretion of the court.
11. We have heard Shri Subhasish Bhowmick for the appellant(s); Mr.
Devendra Singh for the respondents; and have perused the
materials on record.
SUBMISSIONS ON BEHALF OF THE APPELLANT(S)
12. The learned counsel for the appellants submitted:
(i) The Execution Court held no jurisdiction to extend the time for
depositing the balance consideration as the decree under
execution was passed by the appellate court.
(ii) The decree was executable on payment of balance sale
consideration within two months. No application for extension
of time to make deposit was made within the aforesaid period,
therefore the Court had no power to extend the time for deposit.
(iii) The Execution Court committed grave error in extending the
time to make deposit of the balance amount after four years of
the appellate court’s decree, when, otherwise, it was to be paid
within two months from the date of the decree.
SUBMISSIONS ON BEHALF OF RESPONDENTS
13. Per contra, the learned counsel for the respondents submitted:
(i) The execution application was filed in the same Court where
the original suit was instituted, therefore, the Court had
jurisdiction to extend the time to make deposit;
(ii) The decree under execution did not specifically fix the mode of
payment and there was no direction to deposit the balance
consideration in Court, therefore, except to file for execution of
the decree and seek permission of the Court to deposit the
balance consideration, there was no other method by which
decree holder could have paid the balance amount, more so,
8 [2024] 9 S.C.R.

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when the judgment debtor was not interested in abiding by the

decree;
(iii) The judgment – debtor(s) were offered balance consideration
within time, and the execution application was also filed within
time, but, instead of executing the sale deed, the judgment–
debtor(s) chose to prefer a second appeal before the High
Court. Not only that, after the second appeal was dismissed,
the judgment-debtor(s) preferred a Special Leave Petition (in
short
SLP) before this Court, which, too, was dismissed on
07.11.2016. Thus, it is clear that the decree-holders were
throughout ready and willing to perform their part under the
contract / decree whereas the judgment-debtor(s) avoided
execution of the sale deed. In these circumstances and having
regard to the facts of the case, the Execution Court was justified
in allowing the application for extension of time and rejecting
the application for rescission of the contract.
ISSUES
14. Having noticed the rival contentions, in our view, the following issues
arise for our consideration:
(i) Whether the Execution Court had jurisdiction to deal with the
application(s) for (a) recission of contract and (b) extension of
time to deposit the balance sale consideration?
(ii) If Execution Court had the jurisdiction, whether those
applications ought to have been decided as one in the suit (i.e.,
original side)? If yes, then, whether, in the facts of the case, on
that ground alone, the impugned order warrants interference in
exercise of jurisdiction under Article 136 of the Constitution of
India?
ANALYSIS
A. The Execution Court had jurisdiction
15. A bare reading of Section 28(1) of the 1963 Act gives an impression
that the power to extend time to deposit, or to rescind the contract
on failure of deposit, vests in the Court which passed the decree in
as much as the words used in Section 28 (1) are:
[2024] 9 S.C.R. 9

Ishwar (Since Deceased) Thr. Lrs & Ors. v. Bhim Singh & Anr.

“The vendor or lessor may apply in the same suit in which

the decree is made, to have the contract rescinded and
on such application the court may, by order, rescind the
contract either so far as regards the party in default or
altogether, as the justice of the case may require.”
16. In Ramankutty Guptan Vs. Avara, 3 this Court answered two
questions. One, whether an application under Section 28 of the 1963
Act is maintainable in the Court of first instance when the decree has
been passed by the appellate court. Second, whether the Execution
Court in which the original suit was filed can entertain an application
under Section 28 of the 1963 Act. After taking note of the provisions
of Section 37 5 of the CPC, this Court held:
“8. …………..Therefore, it is clear that the decree of the
appellate court would be construed to be the decree
passed by the court of first instance. It is settled law that
an appeal is a continuation of the suit. Therefore, when a
decree for specific performance has been dismissed by
the trial court, but decreed by the appellate court, it should
be construed to be in the same suit. When the decree
specifies the time for performance of the conditions of the
decree, on its failure to deposit the money, Section 28(1)
itself gives power to the court to extend the time on such
terms as the Court may allow to pay the purchase money
or other sum which the court has ordered him to pay. In K.
Kalpana Saraswathi Vs. P.S.S. Somasundaram Chettiar,6
this Court held that on an oral prayer made by the counsel
for the plaintiff for permission to deposit the entire amount
as directed by the trial court this Court directed the
appellant to deposit the amount within six months from
that date together with interest and other conditions
mentioned therein. An application for extension of time for
payment of balance consideration may be filed even in the
court of first instance or in the appellate court in the same
suit as the decree of the trial court stands merged with that
of the appellate court which decree is under execution. It

3
[1994] 1 SCR 542 : (1994) 2 SCC 642
10 [2024] 9 S.C.R.

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is to be seen that the procedure is the handmaid for justice

and unless the procedure touches upon jurisdictional
issue, it should be moulded to subserve substantial
justice. Therefore, technicalities would not stand in the
way to subserve substantive justice. Take a

5 37. Definition of the court which passed a decree – The expression “Court which passed a decree”,
or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant
in the subject or context, be deemed to include-
(a) Where the decree to be executed has been passed in the exercise of appellate jurisdiction,
the Court of first instance, and
(b) Where the court of first instance has ceased to exist or to have jurisdiction to execute it, the
Court which, if the suit wherein the decree was passed was instituted at the time of making
the application for the execution of the decree, would have jurisdiction to try such suit.
6 [1980] 2 SCR 293 : (1980) 1 SCC 630
case where the decree is transferred for execution to a
transferee executing court, then certainly the transferee
court is not the original court and execution court is not the
“same court” within the meaning of Section 28 of the Act.
But when an application has been made in the court in
which the original suit was filed and the execution is being
proceeded with, then certainly an application under
Section 28 is maintainable in the same Court.”
(Emphasis supplied)
17. Following the view taken in Ramankutty Guptan (Supra), in V.S.
Palanichamy Chettiar Firm Vs. C. Alagappan and Anr.4 this Court
held:
“16. In view of the decision of this Court in Ramankutty
Guptan case when the trial court and the executing court
are the same, the executing court can entertain the
application for extension of time though the application is
to be treated as one filed in the same suit. On the same
analogy, the vendor judgment-debtor can also seek
rescission of the contract of sale or take up this plea in
defence to bar the execution of the decree. ………….”
(Emphasis supplied)

4
[1999] 1 SCR 349 : (1999) 4 SCC 702
[2024] 9 S.C.R. 11

Ishwar (Since Deceased) Thr. Lrs & Ors. v. Bhim Singh & Anr.

18. Having regard to the aforesaid decisions, in our view, the expression
“may apply in the same suit in which the decree is made” as used in
Section 28 of the 1963 Act must be accorded an expansive meaning
so as to include the court of first instance even though the decree
under execution is passed by the appellate court. This is so, because
the decree is in the same suit and, according to Section 37 of the
CPC, the expression “the court which passed a decree”, or words to
that effect, in relation to the execution of decrees, unless there is
anything repugnant in the subject or context, would include:
(a) the court of first instance even though the decree to be
executed has been passed in the exercise of appellate
jurisdiction; and
(b) where the court of first instance has ceased to exist, or to have
jurisdiction to execute it, the Court which, if the suit wherein
the decree was passed was instituted at the time of making the
application for the execution of the decree, would have
jurisdiction to try such suit.
Thus, an application under Section 28 of the 1963 Act, either for
recission of contract or for extension of time, can be entertained and
decided by the Execution Court provided it is the Court which passed
the decree in terms of Section 37 of the CPC.
19. In the instant case, the Court of first instance (i.e., where the civil suit
was instituted) was the Court of Additional Civil Judge (Senior
Division), Kaithal, as would appear from the decree-sheet placed on
record as Annexure P-1. The execution application was also filed
before the Court of Additional Civil Judge (Senior Division), Kaithal,
as would appear from Annexure P-2. Paragraph No.1 of the
impugned order indicates that the order dated 03.11.2016 by which
the application under Section 28 was disposed of was passed by the
Court of Civil Judge (Senior Division), Kaithal. Thus, by virtue of
Section 37 of the CPC, the Execution Court being the Court of first
instance with reference to the suit in which the decree was passed
had jurisdiction to deal with the application under Section 28 of the
1963 Act. We, therefore, reject the objection as regards jurisdiction
of the Execution Court to deal with the application for extension of
time / rescission of the contract under Section 28 (1) of the 1963 Act.
Issue (i) is decided in the aforesaid terms.
12 [2024] 9 S.C.R.

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B. Execution Court ought to have decided the Application

under Section 28 of the 1963 Act as an application in the
Suit
20. The next question which falls for our consideration is whether the
application under Section 28 of the 1963 Act ought to have been
dealt with as an application on the original side (i.e., as an
application in the suit) or on the execution side (i.e., as an application
in the execution proceedings). This issue is no longer res integra as
it has been answered by this Court in Ramankutty Guptan (Supra)
in the following terms:
“9. The question then emerges is whether it should be on
the original side or execution side. Section indicates that
it should be “in the same suit”. It would obviously mean in
the suit itself and not in the execution proceedings. It is
equally settled law that after passing the decree for
specific performance, the Court does not cease to have
any jurisdiction. The Court retains control over the decree
even after the decree has been passed. It was open to the
Court to exercise the power under Section 28(1) of the Act
either for extension of time or for rescinding the contract
as claimed for. Since the execution application has been
filed in the same court in which the original suit was filed,
namely, the court of first instance, instead of treating the
application on the execution side, it should have as well
been numbered as an interlocutory application on the
original side and disposed of according to law. In this view,
we feel that the judgment of the Bombay High Court laid
down the law correctly and that of the Andhra Pradesh
High Court is not correct. The High Court, therefore, is not
right in dismissing the application treating it to be on
execution side, instead of transferring it on the original
side for dealing with it according to law.”
(Emphasis supplied)
21. The above view was followed in Sanjay Shivshankar Chitkote Vs.
Bhanudas Dadarao Bokade (Died) through [Link].5 wherein, upon

5
Civil Appeal No.8022 of 2023 @ SLP (C) No.24720 of 2023 decided on 08.12.2023
[2024] 9 S.C.R. 13

Ishwar (Since Deceased) Thr. Lrs & Ors. v. Bhim Singh & Anr.

finding that the applications under Section 28 were dealt with on the
execution side, this Court set aside the order of the execution court
and directed that the applications shall be transferred to the file of
the civil suit so that they could be numbered as an application in the
suit.
22. The law is, therefore, settled that an application seeking rescission
of contract, or extension of time, under Section 28 (1) of the 1963
Act, must be decided as an application in the original suit wherein
the decree was passed even though the suit has been disposed of.
As a sequitur, even if the Execution Court is the Court of first instance
with reference to the suit wherein the decree under execution was
passed, it must transfer the application filed under Section 28 to the
file of the suit before dealing with it. Issue (ii) is partly decided in the
aforesaid terms.
C. Not a Fit Case for Interference Under Article 136 of the
Constitution
23. Now, the question which survives for our consideration is whether,
in the facts of the case, the order impugned is liable to be interfered
with only because the Court which passed the order dealt with the
application on the execution side and not on the original side (i.e.,
as an application in the suit).
24. Before we examine facts relevant to the issue, we must reiterate that
the jurisdiction of this Court under Article 136 of the Constitution is a
discretionary jurisdiction to advance the cause of justice. The Court
does not exercise its jurisdiction under Article 136 only because it is
lawful to do so.6 For the purpose of doing complete justice to the
parties, the Court may not interfere with the order even if it suffers
from some legal error. Not only that, the Court may deny relief to a
party having regard to its conduct and may, in a given situation,
mould the relief to do complete justice to the parties. 7
25. In Chanda v. Rattni,8 this Court held that the power to rescind the
contract under Section 28 of the 1963 Act is discretionary in nature
and is to do complete justice to the parties. The Court does not cease

6
See C.K. Prahalada v. State of Karnataka (2008) 15 SCC 577
7
See Lajpat Rai Mehta v. Govt. of Punjab (Deptt. of Irrigation & Power) (2009) 3 SCC 260
8
[2007] 4 SCR 402 : (2007) 14 SCC 26
14 [2024] 9 S.C.R.

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to have the power to extend the time even though the decree may
have directed that payment of balance price is to be made by a
certain date. While exercising discretion in this regard, the Court is
required to take into account facts of the case so as to ascertain
whether the default was intentional or not. If there is a bona fide
reason for the delay/ default, such as where there appears no fault
on the part of the decree holder, the Court may refuse to rescind the
contract and may extend the time for deposit of the defaulted
amount.
26. We shall now consider whether the impugned order does substantial
justice to the parties. For this end, it would be apposite to have a
close look at the facts of the case as it would help us in determining
whether discretion to extend the time for depositing the balance
consideration was justifiably exercised in favour of the decree holder.
27. In the instant case, the agreement, of which specific performance
was sought, is of the year 2005. The suit for specific performance
was filed in the year 2006. The trial court partly decreed the suit, inter
alia, for refund of the earnest money in the year 2011. The plaintiff(s)
(respondents herein) being aggrieved by rejection of their prayer for
specific performance of the agreement, filed an appeal before the
appellate court. The appellate court allowed the appeal on 12.1.2012
and directed the defendants (appellants herein) to execute the sale
deed on payment of balance consideration within two months from
the date of the appellate court order, failing which the plaintiff(s) were
entitled to get the sale deed executed through Court. Notably, the
mode of payment of the balance consideration was not specified in
the decree and there was no direction upon the plaintiff(s) to deposit
the balance consideration in Court. Further, the decree did not spell
out consequences of non-payment within the stipulated period.
Rather, right was given to the decree holder to get the sale deed
executed through Court if it was not executed upon payment within
two months. As the mode of payment was not specified in the
decree, what course the decree holder could have adopted in case
the judgment-debtor refused to abide by the decree becomes a
relevant consideration for the purposes of exercise of discretion in
one way or the other.
[2024] 9 S.C.R. 15

Ishwar (Since Deceased) Thr. Lrs & Ors. v. Bhim Singh & Anr.

28. In the instant case, admittedly, the decree attained finality upon
dismissal of second appeal on 7.11.2013, and, finally, SLP on
7.11.2016. In between, pursuant to the order of the Execution Court
dated 3.11.2016, as claimed by the respondents in their written
submission, the balance sale consideration was deposited on
13.11.2016. Before that, the decree-holder(s) had promptly filed for
execution of the decree immediately after expiry of 60 days from the
date of the appellate court decree. Not only that, as no specific mode
for payment/ deposit of the balance consideration was provided for
in the decree, the decree holder(s) sought a direction from the Court
to permit them to deposit the amount in Court so as to get the decree
executed through its intervention. This application, however,
remained pending as challenge to the decree was being considered
by higher courts. In the meantime, as soon as the Second Appeal
was dismissed, the decree-holder(s) applied for fresh permission to
deposit the balance consideration. Ultimately, when permission was
granted by the Execution Court, the deposit was made, as noted
above. In these circumstances, the decree holder(s) had all
throughout displayed their intention to pay the balance consideration
and there appears no intentional or deliberate fault on their part so
as to deprive them of the fruits of the decree.
29. The contention of the learned counsel for the appellant(s) that there
was no proper prayer for condonation of delay in making the deposit
of the balance consideration, or that there was no proper application
for extension of time to make deposit, is unworthy of acceptance.
Because, in the execution application itself, which was promptly filed
after expiry of 60 days from the date of the appellate court decree,
the decree holder had sought permission to make deposit. Not only
that, the application filed after dismissal of second appeal also
sought permission to make deposit. The prayer to extend the time to
make deposit was therefore implicit in the prayer to permit the
decree holder to make deposit of the balance consideration. In this
view of the matter, we reject the submission of the appellants that as
there was no proper application for extension of time to make
deposit, the Court held no jurisdiction to extend the same.
30. In light of the discussion above and on an overall assessment of the
facts, we are of the considered view that the respondents had all
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throughout shown their intention to pay the balance consideration for

execution of the sale deed whereas the appellants appeared
interested only in challenging the decree before higher Courts. In
these circumstances, taking note of all the events, the Execution
Court justifiably exercised its discretion in favour of the decree-
holder(s) by allowing them to deposit the balance consideration. In
our view, therefore, substantial justice has been done to the parties
and if we interfere with the impugned order only on the technical
ground that the application was not dealt with as one on the original
side, grave injustice would be caused to the decree holder(s). More
so, when the judgment-debtor(s) themselves applied to the
Execution Court for rescinding the contract under Section 28(1) of
the 1963 Act, and raised no such jurisdictional issue either before
the Execution Court or the High Court. Therefore, in our view, no
interference with the impugned order is called for in exercise of our
discretionary jurisdiction under Article 136 of the Constitution.
31. For the reasons above, the appeal is dismissed. Interim order, if any,
stands discharged. Parties to bear their own costs.
32. Pending application(s), if any, stands disposed of.

Result of the Case: Appeal dismissed.

Headnotes prepared by: Nidhi Jain

†
 [2024] 9 S.C.R. 16 : 2024 INSC 652

Vaibhav Jain
v.
Hindustan Motors Pvt. Ltd.
Civil Appeal No. 10192/2024
03 September 2024
[J.B. Pardiwala and Manoj Misra,* JJ.]

Issue for Consideration

Whether as a mere dealer of M/s Hindustan Motors, the appellant
could be considered owner of the vehicle and as such liable, jointly
and severally with M/s Hindustan Motors, to pay the compensation
as directed by the Tribunal/High Court; whether clauses 3 (b) and
4 of the Dealership Agreement absolved M/s Hindustan Motors of
its liability to pay compensation as an owner; whether M/s
Hindustan Motors, even without preferring an appeal against the
award of the Tribunal, could question its liability under the award
by relying on the provisions of Order 41, Rule 33 of the CPC.

Headnotes†

Motor Vehicles Act, 1988 – Compensation – Liability of the

dealer, if any – “ownership/owner” of the vehicle – Dealership
Agreement between M/s Vaibhav Motors-appellant, the dealer
and M/s Hindustan Motors, manufacturer of the vehicle –
Accidental death when the vehicle was taken out for a test-
drive by the employees of M/s Hindustan Motors from the
dealership of the appellant – Prior to the accident, if M/s
Hindustan Motors had sold the offending vehicle to the
appellant – If not, whether the dealer would be liable for the
compensation, jointly and severally with M/s Hindustan
Motors:
Held: ‘owner’ of a vehicle is not limited to the categories specified
in s. 2(30) of the 1988 Act – If the context so requires, even a
person at whose command or control the vehicle is, could be
treated as its owner for the purposes of fixing tortious liability for
payment of compensation – There is no evidence that the vehicle
was sold to the appellant-dealer – At the time of accident only two
persons were present in the vehicle (the driver and the deceased)
18 [2024] 9 S.C.R.

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both of whom were employees of M/s Hindustan Motors and had
taken the vehicle from the appellant-dealer for the test drive –

* Author
Dealer had no authority to deny them the permission to take the
vehicle for the test drive more so, when they were representatives
of the owner of the vehicle, i.e. M/s Hindustan Motors – At the time
of accident the vehicle was not only under the ownership of M/s
Hindustan Motors but also under its control and command through
its employees – Therefore, the appellant, being just a dealer of M/s
Hindustan Motors was not liable for compensation as an owner of
the vehicle – At the time of accident, the vehicle was being driven
by an employee of M/s Hindustan Motors, thus, apart from the
driver, M/s Hindustan Motors alone was liable for the
compensation awarded. [Paras 19, 20, 23]
Motor Vehicles Act, 1988 – Compensation – Dealership
Agreement between M/s Vaibhav Motors-appellant, the dealer
and M/s Hindustan Motors, manufacturer of the vehicle – M/s
Hindustan Motors was held jointly and severally liable to pay
compensation – It contended that Clauses 3 (b) and 4 the
Agreement shifted the tortious liability to the appellant-dealer
and it was not liable for payment of compensation:
Held: Rejected – Clauses 3(b) and 4 in the Agreement limited the
company’s liability in respect of any defect in the motor vehicle to
the company’s obligations under the warranty clause – The use of
the words “and the company will have no other liability and all
liabilities other than one under warranty as aforesaid shall be to
the account of the Dealer”, in absence of specific exclusion of
tortious liability arising from use of such vehicle, cannot absolve
the owner of the motor vehicle of its liability under the Motor
Vehicles Act and shift it on to the dealer when the vehicle at the
time of accident was under the control and command of the owner
i.e. M/s Hindustan Motors through its own employees. [Para 27]
Code of Civil Procedure, 1908 – Order 41, Rule 33 – Tribunal
held M/s Hindustan Motors jointly and severally liable to pay
the compensation – However, no appeal was filed by M/s
Hindustan Motors against the award of the Tribunal – It relied
upon Order 41, Rule 33 to challenge that portion of the award
which made it jointly and severally liable:
Held: For exercise of the power under Rule 33 of Order 41 the
overriding consideration is achieving the ends of justice – One of
[2024] 9 S.C.R. 19

Vaibhav Jain v. Hindustan Motors Pvt. Ltd.

the limitations on exercise of the power is that part of the decree
which essentially ought to have been appealed against, or
objected to, by a party and which that party has permitted to
achieve a finality cannot be reversed to the advantage of such
party – In the instant case, the Tribunal returned a finding on that
M/s Hindustan Motors had provided no evidence to show that the
vehicle manufactured and owned by it was sold by it to the dealer
– Admittedly, its own employees/officers were in control of the
vehicle at the time of accident and, therefore, M/s Hindustan
Motors was held jointly and severally liable for the compensation
awarded – This part of the award operated against it and was
backed by a finding of ownership – M/s Hindustan Motors allowed
it to attain finality by not challenging the same through an appeal
or cross-objection – Therefore, it cannot be allowed to question the
same now. [Para 32]

Case Law Cited

M/s Tata Motors Limited v. Antonio Paulo Vaz and Anr. [2021] 1
SCR 625 : (2021) 18 SCC 545; Bihar Supply Syndicate v. Asiatic
Navigation & Ors. [1993] 2 SCR 425 : (1993) 2 SCC 639; Sri
Chandre Prabhuji Jain Temple & Ors. v. Harikrishna & Anr. [1974]
1 SCR 442 : (1973) 2 SCC 665 – referred to.
Rajasthan State Road Transport Corporation v. Kailash Nath
Kothari & Ors. [1997] Suppl. 3 SCR 724 : (1997) 7 SCC 481;
Godavari Finance Company v. Degala Satyanarayanamma & Ors.
[2008] 6 SCR 231 : (2008) 5 SCC 107; National Insurance Co.
Ltd. v. Deepa Devi & Ors. [2007] 13 SCR 134 : (2008) 1 SCC 414;
Guru Govekar v. Filomena F. Lobo [1988] Suppl. 1 SCR 170 :
(1988)
3 SCC 1; Ramesh Mehta v. Sanwal Chand Singhvi & Ors. [2004]
Suppl. 1 SCR 418 : (2004) 5 SCC 409; Banarasi & Ors. v. Ram
Phal [2003] 2 SCR 22 : (2003) 9 SCC 606 – relied on.

List of Acts
Motor Vehicles Act, 1988; Code of Civil Procedure, 1908.

List of Keywords
Accidental death; Offending vehicle; Compensation; Liability to
pay compensation; Liability of the dealer; Jointly and severally
liable to pay compensation; “owner” of the vehicle; At the time of
accident; Dealership Agreement; Dealer; Dealership;
Manufacturer of the vehicle; Test-drive; Death during test-drive; In
control or command of the vehicle; In constructive possession of
20 [2024] 9 S.C.R.

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the vehicle; Employees of owner of the vehicle; Tortious liability;
Finding achieved finality; Appeal; Cross-objection.

Case Arising From

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10192 of 2024
From the Judgment and Order dated 15.11.2017 of the High Court
of Chhattisgarh at Bilaspur in MA No. 1306 of 2007
Appearances for Parties
Arup Banerjee, Amit Poddar, Priyanshu Raj, R. K. Dey, Rajiv
Agnihotri, Sanjeev Sharma, Advs. for the Appellant.
Ms. Purti Gupta, Ms. Henna George, Advs. for the Respondent.
Judgment / Order of the Supreme Court

Judgment
Manoj Misra, J.
1. Leave granted.
2. This appeal impugns the judgment and order of the High Court of
Chhattisgarh at Bilaspur 9 dated 15.11.2017, whereby Miscellaneous
Appeal (Civil) No. 1306 of 2007 filed by the appellant was dismissed
and Miscellaneous Appeal (Civil) No. 1147/2017 filed by the
claimant(s) was allowed thereby enhancing the compensation
already awarded to them.
3. At the outset, we would like to put on record that the Special Leave
Petition (SLP) against the impugned order was filed by impleading
six respondents. Respondents 1 to 4 (R-1 to R-4) were heirs and
legal representatives of the deceased Pranay Kumar Goswami on
whose accidental death the claim arose. Respondent no. 5 (R-5),
namely, Shubhashish Pal, was the person who drove the vehicle at
the time of accident; and Respondent no.6 (R-6), namely, M/s
Hindustan Motors, was the manufacturer of the vehicle. However, on
23.10.2018, this Court issued notice only to the manufacturer (R6)
(i.e., M/s Hindustan Motors) and the SLP was dismissed qua R-1 to
R-5 by observing that the question raised in the matter is about the
liability of the dealer (i.e., the appellant). Therefore, in our view, the
impugned award has attained finality insofar as the rights of the

9
High Court
[2024] 9 S.C.R. 21

Vaibhav Jain v. Hindustan Motors Pvt. Ltd.

claimant-respondents are concerned. In consequence, it appears,
the Registry has shown M/s Hindustan Motors as the sole
respondent though, initially, there were six respondents. Be that as
it may to have a clear understanding of the matter, we shall describe
the parties as they were described in the SLP at the time of its
presentation.
FACTUAL MATRIX
4. A claim petition for death compensation was filed before the Tribunal
by claimant-respondents (R-1 to R-4) (i.e., legal heirs of the
deceased who died in the accident), under Section 166 of the Motor
Vehicles Act, 1988, 10 against driver of the offending vehicle (R- 5);
M/s. Hindustan Motors Private Limited (R-6) (i.e., manufacturer of
the vehicle); and Vaibhav Jain (i.e., Proprietor of M/s Vaibhav Motors
- the dealer of R-6) (the appellant herein). The deceased was R-6’s
Territory Manager whereas the driver of the vehicle was R-6’s
Service Engineer. Thus, the driver and the deceased were
employees of R-6 (i.e., M/s Hindustan Motors). The accident took
place when the vehicle was taken out for a test drive from the
dealership of the appellant.
5. On the pleadings of the parties, five issues were framed by the
Tribunal. Out of those five, the issue relevant for the purposes of this
appeal is:
Whether prior to the accident M/s. Hindustan Motors had sold
the offending vehicle to M/s. Vaibhav Motors (i.e., the dealer)?
If not, whether the dealer can be held liable for the
compensation, jointly and severally, with M/s. Hindustan
Motors?
6. As regards issue of ownership of the vehicle, the Tribunal held that
on the day of accident, M/s. Hindustan Motors was the owner of the
vehicle though Vaibhav Motors was in possession of the vehicle as
its dealer. Based on that, the Tribunal held M/s. Hindustan Motors as
well as M/s. Vaibhav Motors (the appellant) jointly and severally
liable for the compensation awarded.
7. Aggrieved by quantum of the compensation awarded, the claimants
(R-1 to R-4) preferred Miscellaneous Appeal (Civil) No. 1147/2017
before the High Court; whereas vide Miscellaneous Appeal (Civil)

10
M.V. Act
22 [2024] 9 S.C.R.

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No. 1306/2007, the dealer (i.e., the appellant herein) questioned the
award to the extent it made him jointly and severally liable for
payment of the compensation.
8. Both the aforesaid appeals were heard simultaneously and disposed
of by the impugned order. The claimants’ appeal was allowed, and
the compensation was enhanced. However, the appellant’s appeal
was dismissed.
9. We have heard Shri Arup Banerjee for the appellant and Ms. Purti
Gupta for M/s Hindustan Motors; and have also perused the
materials on record.
Submissions on behalf of the appellant
10. The learned counsel for the appellant submitted:
(i) On the date of accident, the owner of the offending vehicle was
its manufacturer M/s. Hindustan Motors (R-6) in whose name
the vehicle was temporarily registered and there was no
evidence that the vehicle was transferred to the appellant.
(ii) The driver of the vehicle and the deceased were both
employees of M/s Hindustan Motors and they took the vehicle
from the dealership for a test drive, therefore, the vehicle, at the
time of accident, was in the control and possession of M/s
Hindustan Motors through its employees.
(iii) The liability for compensation is of the owner of the vehicle
including the driver. Section 2(30) of the M.V. Act defines the
“owner” as a person in whose name a motor vehicle stands
registered, and where such person is a minor, the guardian of
such minor, and in relation to a motor vehicle which is the
subject of a hire-purchase agreement, or an agreement of
lease or an agreement of hypothecation, the person in
possession of the vehicle under that agreement.
(iv) The Dealership Agreement between the appellant and M/s.
Hindustan Motors is neither an agreement of hire-purchase nor
of lease or hypothecation, therefore, even if the dealer is taken
to be in constructive possession of the vehicle, the dealer would
not be its owner within the meaning of Section 2(30) of the M.V.
Act.
(v) Clauses 3 (b) and 4 of the Dealership Agreement, relied to
fasten liability on the appellant, are in respect of defects in the
[2024] 9 S.C.R. 23

Vaibhav Jain v. Hindustan Motors Pvt. Ltd.

vehicle and not in respect of any claim for compensation arising
from an accident involving the vehicle. The concept of
possessory owner as obtaining under section 2(19) 11 of the
Motor Vehicles Act, 1939 is no longer available under the M.V.
Act, 1988 since the definition of owner has undergone a sea
change.
(vi) The judgment of this Court in “Rajasthan State Road
Transport Corporation vs. Kailash Nath Kothari & Ors.” 12
was based on the definition of owner as obtaining under the old
Act hence it would not be of any help to decide ownership of a
vehicle under the new M.V. Act, 1988.
(vii) Once it is established that appellant is neither owner nor driver
of the vehicle, it cannot be made liable for the compensation.
Submissions on behalf of M/s Hindustan Motors (R-6)
11. Per contra, learned counsel for M/s Hindustan Motors submitted:
(i) M/s. Hindustan Motors had sold the vehicle to the appellant
vide challan cum invoice No. 20302564 for an amount of Rs.
7,73,475/. Pursuant thereto, the car bearing temporary
registration No. CG04RPRTC-0478 was delivered to the
appellant on principal-to-principal basis. As the sale stood
complete in all respects, the appellant was owner of the vehicle
on the date of accident. (To buttress the above submission,
reliance was placed on a decision of this Court in “M/s. Tata
Motors Limited vs. Antonio Paulo Vaz and Anr.” 13)
(ii) Assuming that the deceased as well the driver was an
employee of M/s Hindustan Motors, once the vehicle was sold
and delivered to the dealer, the driver and the dealer alone
would be liable for compensation. More so, because clause
3(b) of the Dealership Agreement absolved M/s Hindustan
Motors of its liability by providing as follows:
“3(b) After the motor vehicles are dispatched /delivered
the Company’s liability in respect of any defect in the
motor vehicle will be limited to the Company’s obligations

11
“owner” means, where the person, in possession of a motor vehicle is a minor, the guardian of such minor,
and in relation to a motor vehicle which is the subject of a hire purchase agreement, the person in
possession of the vehicle under that agreement.
12
[1997] Suppl. 3 SCR 724 : (1997) 7 SCC 481
13
[2021] 1 SCR 625 : (2021) 18 SCC 545
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under the warranty clause and the Company will have no
other liability and all liability other than the one under
warranty as aforesaid shall be to the account of the
Dealer.”
(Emphasis supplied)
(iii) The dealer being the possessory owner was rightly held liable
in the light of the decision of this Court in Rajasthan State
Road Transport Corporation (supra).
(iv) Even if M/s. Hindustan Motors did not file an appeal against the
impugned award, this Court can absolve M/s. Hindustan Motors
of its liability by modifying the award in exercise of its power
under Order 41 Rule 33 of the Civil Procedure Code, 1908 (for
short CPC) as expounded by this Court in “Bihar Supply
Syndicate vs. Asiatic Navigation & Ors.”14 and “Sri Chandre
Prabhuji Jain Temple & Ors. vs. Harikrishna & Anr.15

ISSUES
12. Having noticed the rival submissions, in our view, following issues fall
for our consideration: -
(i) Whether, as a mere dealer of M/s Hindustan Motors, the
appellant could be considered owner of the vehicle and as such
liable, jointly and severally with M/s Hindustan Motors, to pay
the compensation as directed by the Tribunal/ High Court?
(ii) Whether clauses 3(b) and 4 of the Dealership Agreement
absolved M/s Hindustan Motors of its liability to pay
compensation as an owner?
(iii) Whether M/s Hindustan Motors, even without preferring an
appeal against the award of the Tribunal, could question its
liability under the award by relying on the provisions of Order
41 Rule 33 of the CPC?
Issue No.(i)
13. Before we delve into the afore-stated issues, we must have a look at
the concept of ‘ownership’ of a vehicle as obtaining under the M.V.
Act for fixing liability in respect of compensation. Section 166 8 of the
M.V. Act enumerates the persons who may file an application for

14
[1993] 2 SCR 425 : (1993) 2 SCC 639
15
[1974] 1 SCR 442 : (1973) 2 SCC 665
[2024] 9 S.C.R. 25

Vaibhav Jain v. Hindustan Motors Pvt. Ltd.

compensation before the Claims Tribunal whereas Section 168(1) 9
of the M.V. Act speaks about the award of the Tribunal. Interestingly,
Section 166, though specifies the persons who may file an
application for compensation, omits to specify person(s) against
whom the application is to be filed. However, sub-section (1) of
Section 168 by providing that the Claims Tribunal shall specify the
amount which shall be paid by the insurer or owner or driver of the
vehicle involved in the accident, gives sufficient indication on whom
the liability for compensation would fall.

8 Section 166. Application for compensation. – (1) An application for compensation arising out of an
accident of the nature specified in sub-section (1) of section 165 may be made – (a) by the person who
has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the
deceased; or
(d) by any agent duly authorized by the person injured or all or any of the legal representatives
of the deceased, as the case may be,
Provided that where all the legal representatives of the deceased have not joined in any such
application for compensation, the application shall be made on behalf of or for the benefit of all the
legal representatives of the deceased and the legal representatives who have not so joined, shall
be impleaded as respondents to the application.
Provided further that where a person accepts compensation under section 164 in accordance with
the procedure provided under section 149, his claims petition before the claims tribunal shall lapse.
(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 contains such particulars
as may be prescribed.
(3) No application for compensation shall be entertained unless it is made within six months of the
occurrence of the accident.
(4) The claims tribunal shall treat any report of accident forwarded to it under section 159 as an
application for compensation under this Act.
(5) Notwithstanding anything in this Act or any other law for the time being in force, the right of a person
to claim compensation for injury in an accident shall, upon the death of the person injured, survive to his
legal representatives, irrespective of whether the cause of death is relatable to or had any nexus with
the injury or not.
9 Section 168.- Award of the Claims Tribunal. – (1) On receipt of an application for compensation made
under section 166, the claims tribunal shall, after giving notice of the application to the insurer and after
giving the parties including the insurer an opportunity of being heard, hold and inquiry into the claim or,
as the case may be, each of the claims and, subject to the provisions of section 162 may make an award
determining the amount of compensation which appears to it be just and specifying the person or persons
to whom compensation shall be paid and in making the award the claims tribunal shall specify the amount
which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or
any of them, as the case may be:..
14. In Godavari Finance Company v. Degala
Satyanarayanamma & Ors. a question arose whether a
16

financier would be an owner of a motor vehicle within the

16
[2008] 6 SCR 231 : (2008) 5 SCC 107
26 [2024] 9 S.C.R.

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meaning of Section 2(30) 17 of the M. V. Act, 1988. In that
case, the accident took place on 29.5.1995 and, admittedly,
the vehicle was not in control of the financier though its name
was entered in the registration book of the vehicle. The
extract of the registration book, however, revealed that the
vehicle was registered in the name of fourth respondent
therein (i.e., not the financier) and that the hire-purchase
agreement with the financier had also been cancelled on
10.11.1995. In that context, while holding that financier was
not liable, interpreting the definition of ‘owner’, as provided
in Section 2(30), this Court observed:
“12. Section 2 of the Act provides for interpretation of
various terms enumerated therein. It starts with the
phrase unless the context otherwise requires. The
definition of owner is a comprehensive one. The
interpretation clause itself states that the vehicle which is
the subject matter of a hire purchase agreement, the
person in possession of vehicle under that agreement
shall be the owner. Thus, the name of financier in the
registration certificate would not be decisive for
determination as to who was the owner of the vehicle. We
are not unmindful of the fact that ordinarily the person in
whose name the registration certificate stands should be
presumed to be the owner, but such a presumption can
be drawn only in the absence of any other material
brought on record or unless the context otherwise
requires.
13. In case of a motor vehicle which is subjected to a hire
purchase agreement, the financier cannot ordinarily be
treated to be the owner. The person who is in possession
of the vehicle, and not the financier being the owner would
be liable to pay damages for the motor accident.
15. An application for payment of compensation is filed before
the Tribunal constituted under Section 165 of the Act for
adjudicating upon the claim for compensation in respect of

17
Section 2. – In this Act, unless the context otherwise requires, --
(30) “owner” means the person in whose name a motor vehicle stands registered, and while such person
is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire
purchase agreement, or an agreement of lease or an agreement of hypothecation, the person in
possession of the vehicle under that agreement.
[2024] 9 S.C.R. 27

Vaibhav Jain v. Hindustan Motors Pvt. Ltd.

accident 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. Use of the motor
vehicle is a sine qua non for entertaining a claim for
compensation. Ordinarily if driver of the vehicle would use
the same, he remains in possession or control thereof.
Owner of the vehicle, although may not have anything to do
with the use of vehicle at the time of the accident, actually he
may be held to be constructively liable as the employer of
the driver. What is, therefore, essential for passing an award
is to find out the liabilities of the persons who are involved in
the use of the vehicle or the persons who are vicariously
liable. The insurance company becomes a necessary party
to such claims as in the event the owner of the vehicle is
found to be liable, it would have to reimburse the owner in as
much as a vehicle is compulsorily insurable so far as the third
party is concerned, as contemplated under section 147
thereof. Therefore, there cannot be any doubt whatsoever
that the possession or control of a vehicle plays a vital role.”
(Emphasis supplied)
15. In Rajasthan State Road Transport Corporation (in short
RSRTC) (supra), the vehicle along with services of the driver were
hired by RSRTC from its registered owner. The issue which arose
for consideration by this Court was whether RSRTC, which had hired
the vehicle along with services of the driver from the registered
owner of the vehicle, could be held vicariously liable for the accident
caused by use of that vehicle. Answering the question in the
affirmative, this Court, on the principle of vicarious liability of RSRTC
for the tort committed by a person under its control and command,
held:
“17. ….. The general proposition of law and the
presumption arising therefrom that an employer, that is the
person who has the right to hire and fire the employee, is
generally responsible vicariously for the tort committed by
the employee concerned during the course of his
employment and within the scope of his authority, is a
rebuttable presumption. If the original employer is able to
establish that when the servant was lent, the effective
control over him was also transferred to the hirer, the
original owner can avoid his liability and the temporary
28 [2024] 9 S.C.R.

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employer or the hirer, as the case may be, must be held
vicariously liable for the tort committed by the employee
concerned in the course of his employment while under
the command and control of the hirer notwithstanding the
fact that the driver would continue to be on the payroll of
the original owner………..”
16. In that backdrop, this Court while construing the definition of “owner”,
as provided in Section 2(19) of the old Motor Vehicles Act, 1939, 18
held that (a) the definition of “owner” under section 2 (19) of the Act
is not exhaustive; (b) it has to be construed in a wider sense based
on the facts and circumstances of a given case; and (c) it must
include, in a given case, the person who has the actual possession
and control of the vehicle and under whose direction and command
the driver is obliged to operate the same. It was also observed that
to confine the meaning of owner to the registered owner only would
not be proper where the vehicle is in the actual possession and
control of the hirer at the time of the accident.
17. In National Insurance Co. Ltd. v. Deepa Devi & Ors.19 the question
was as to who would be liable to pay compensation if the offending
vehicle at the time of accident is under requisition for election. From
the claimant’s side, by relying on the decision of this Court in Guru
Govekar v. Filomena F. Lobo,20 it was argued that regardless of the
vehicle being in possession of some other person, the owner would
be liable. Negativing this argument, this Court held that when a
vehicle is requisitioned for State duty, the owner of the vehicle has
no other alternative but to hand over the possession to the statutory
authority and, therefore, the case would be distinguishable from the
one where the owner gives the vehicle to someone else on his own
free will. Holding so, it was observed:
“10. …. While the vehicle remains under requisition, the
owner does not exercise any control there over. The driver
may still be the employee of the owner of the vehicle but
he has to drive it as per the direction of the officer of the
State, who is put in charge thereof. Save and except for
legal ownership, for all intent and purport, the registered
owner of the vehicle loses entire control thereover. He has

18
See Footnote 3
19
[2007] 13 SCR 134 : (2008) 1 SCC 414
20
[1988] Suppl. 1 SCR 170 : (1988) 3 SCC 1
[2024] 9 S.C.R. 29

Vaibhav Jain v. Hindustan Motors Pvt. Ltd.

no say as to whether the vehicle should be driven at a
given point of time or not. He cannot ask the driver not to
drive a vehicle on a bad road. He or the driver could not
possibly say that the vehicle would not be driven in the
night. The purpose of requisition is to use the vehicle. For
the period the vehicle remains under the control of the
State and /or its officers, the owner is only entitled to
payment of compensation therefor in terms of the Act, but
he cannot exercise any control thereupon. In a situation
of this nature, this court must proceed on the presumption
that Parliament while enacting the 1988 Act did not
envisage such a situation. If in a given situation, the
statutory definitions contained in the 1988 Act cannot be
given effect to in letter and spirit, the same should be
understood from the common sense point of view.”
(Emphasis supplied)
18. While observing as above, this Court noticed that the clause defining
“owner” is prefaced with the expression “unless the context
otherwise requires” and, therefore, in the light of an earlier decision
of this Court in Ramesh Mehta v. Sanwal Chand Singhvi & Ors., 21
it was held that where the context makes the definition given in the
interpretation clause inapplicable, the same meaning cannot be
assigned.
19. What is clear from the decisions noticed above, is that ‘owner’ of a
vehicle is not limited to the categories specified in Section 2(30) of
the M.V. Act. If the context so requires, even a person at whose
command or control the vehicle is, could be treated as its owner for
the purposes of fixing tortious liability for payment of compensation.
In this light, we shall now examine whether at the time of accident
the vehicle in question was under the command and control of the
appellant (i.e., the dealer).
20. According to the Tribunal, M/s. Hindustan Motors was admittedly the
manufacturer of the vehicle and there was no evidence that the
vehicle was sold to the dealer. The finding is that no sale letter was
produced from its side to show that the car was sold to M/s. Vaibhav
Motors. At the time of accident only two persons were present in the
vehicle, and they were none other than employees of M/s. Hindustan

21
[2004] Suppl. 1 SCR 418 : (2004) 5 SCC 409, paragraph 27
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Motors, namely, Pranav Kumar Goswami (the deceased) and
Shubhashish Pal (the driver). Based on that, the Tribunal observed:
“………therefore, it is inferred that Hindustan Motors had
given the Lancer car to Vaibhav Motors for the purpose of
selling it. And the entire supervision was that of Pranav
Kumar and Shubhashish Pal of Hindustan Motors. It is not
proved that Hindustan Motors had sold the said Lancer
car to Vaibhav Motors. Accordingly, the issue no.3 is held
to be not proved.”
21. However, the Tribunal held all non-applicants, namely, Shubhashish
Pal (i.e., driver of the vehicle); M/s. Hindustan Motors (owner of the
vehicle); and M/s. Vaibhav Motors (the dealer), jointly and severally
liable for the compensation.
22. Against the award, the appellant (i.e., the dealer) filed an appeal but
no appeal was preferred by M/s. Hindustan Motors even though a
categorical finding was returned by the Tribunal that no evidence of
sale of the vehicle to the dealer was produced by M/s Hindustan
Motors. In view thereof, it does not lie in the mouth of M/s. Hindustan
Motors to canvass that it was not the owner of the vehicle. We have,
therefore, to consider whether M/s. Vaibhav Motors (the appellant),
being in constructive possession of the vehicle as a dealer, could be
held liable, particularly when M/s. Hindustan Motors was its owner
and, at the time of accident, the vehicle was being driven by an
employee of M/s Hindustan Motors.
23. As per the finding of the Tribunal, which remained undisturbed, the
aforesaid two employees of M/s. Hindustan Motors took the vehicle
from M/s Vaibhav Motors (the appellant) for a test drive. None of the
employees of the dealer was present in the vehicle. Rather, at
the time of accident, the driver and the co-passenger of that vehicle
were employees of M/s. Hindustan Motors. There is nothing on
record to suggest that the dealer had the authority to deny those two
persons permission to take the vehicle for a test drive. More so,
when they were representatives of the owner of the vehicle. In these
circumstances, we can safely conclude that at the time of accident
the vehicle was not only under the ownership of M/s. Hindustan
Motors but also under its control and command through its
employees. Therefore, in our view, the appellant, being just a dealer
of M/s Hindustan Motors, was not liable for compensation as an
owner of the vehicle.
[2024] 9 S.C.R. 31

Vaibhav Jain v. Hindustan Motors Pvt. Ltd.

24. The issue no.(i) is decided in the aforesaid terms.
Issue No. (ii)
25. Now, we shall consider whether by virtue of clauses 3 (b) and 4 of
the Dealership Agreement, M/s Hindustan Motors was absolved of
its tortious liability, that is, whether the tortious liability shifted to the
dealer (i.e., the appellant).
26. Clauses 3 (b) and 4 of the Dealership Agreement have been
extracted in paragraph 14 of the judgment of the High Court. They
read as under:
“3 (b) After the motor vehicles are dispatched/ delivered
the Company’s liability in respect of any defect in the
motor vehicle will be limited to the Company’s obligations
under the warranty clause and the Company will have no
other liability and all liabilities other than the one under
warranty as aforesaid shall be to the account of the
Dealer.
4. After the motor vehicles are delivered, the Company’s
liability in respect of any defect in the motor vehicle will be
limited to the Company’s obligation under the warranty
clause and the Company will have no other liability. All
liabilities other than the one under warranty as aforesaid
shall be to the account of the Dealer.”
27. A careful reading of the aforesaid clauses would indicate that they
deal with company’s (M/s. Hindustan Motors’) liability in respect of
any defect in the motor vehicle. They limit the company’s liability in
respect of any defect in the motor vehicle to the company’s
obligations under the warranty clause. The use of the words “and the
company will have no other liability and all liabilities other than one
under warranty as aforesaid shall be to the account of the Dealer”,
in absence of specific exclusion of tortious liability arising from use
of such vehicle, cannot absolve the owner of the motor vehicle of its
liability under the Motor Vehicles Act and shift it on to the dealer when
the vehicle at the time of accident was under the control and
command of the owner (i.e., M/s Hindustan Motors) through its own
employees as found above. We, therefore, reject the submission of
the learned counsel for M/s. Hindustan Motors that it cannot be
saddled with liability for payment of compensation in view of clauses
3 (b) and 4 of the Dealership Agreement.
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28. Issue no.(ii) is decided in the aforesaid terms. Issue No.(iii)
29. The issue as to whether M/s Hindustan Motors, without filing a
separate appeal, or cross-objection, could take recourse to the
provisions of Order 41 Rule 33 of the Code of Civil Procedure, 1908 22
to challenge that portion of the award which made it liable, jointly and
severally, for the compensation awarded is rendered academic in
view of our findings on issues (i) and (ii). However, we propose to
address the said issue.
30. In Banarasi & Ors. V. Ram Phal23 this Court dealt with the scope of
Order 41 Rule 2224 CPC (post 1976 amendment) and the power
of an appellate court under Order 41 Rule 33 CPC. While dealing
with the scope of Rule 22 of Order 41, the Court observed:
“10. …. There may be three situations:
(i) The impugned decree is partly in favour of the appellant
and partly in favour of the respondent.
(ii) The decree is entirely in favour of the respondent
though an issue has been decided against the
respondent.
(iii) The decree is entirely in favour of the respondent and
all the issues have also been answered in favour of the
respondent but there is a finding in the judgment which
goes against the respondent.
11. In the type of case (i) it was necessary for the
respondent to file an appeal or take cross-objection

22
Order 41 Rule 33. CPC. – Power of Court of Appeal -- The appellate court shall have power to pass any
decree and make any order which ought to have been passed or made and to pass or make such further
or other decree or order as the case may require, and this power may be exercised by the Court
notwithstanding that the appeal is as to part only of the decree and may be exercised in favor of all or
any of the respondents or parties, although such respondents or parties may not have filed any appeal
or objection and may, where there have been decrees in cross-suits or where two or more decrease are
passed in one suit, be exercised in respect of all or any of the decrees, although any appeal may not
have been filed against such decrees:
Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any
objection on which the Court from whose decree the appeal is preferred has omitted or refused to make
such order. Illustration
A claims a sum of money as due to him from X or Y, and in a suit against both obtains a decree against
X. X, appeals and A & Y are respondents. The appellate court decides in favor of X. It has power to pass
a decree against Y.
23
[2003] 2 SCR 22 : (2003) 9 SCC 606
24
Order 41 Rule 22 CPC. – Upon hearing respondent may object to decree as if he had preferred a
separate appeal..—
(1) Any respondent, though he may not have appealed from any part of the decree, may not only
[2024] 9 S.C.R. 33

Vaibhav Jain v. Hindustan Motors Pvt. Ltd.

against that part of the decree which is against him if he
seeks to get rid of the same though that part of the decree
which is in his favor he is entitled to support without taking
any cross-objection. The law remains so post amendment
too. In the type of cases (ii) and (iii) pre-amendment CPC
did not entitle nor permit the respondent to take any cross-
objection as he was not the person aggrieved by the
decree. Under the amended CPC, read in the light of the
explanation, though it is still not necessary for the
respondent to take any cross- objection laying challenge

support the decree but may also state that the finding against him in the court below in respect of
any issue ought to have been in his favour; and may also take any cross-objection to the decree
which he could have taken by way of appeal provided he has filed such objection in the appellate
court within one month from the date of service on him or his pleader of notice of the day fix for
hearing the appeal, or within such further time as the appellate court may deem fit to allow.
Explanation.-- A respondent aggrieved by a finding of the court in the judgment on which the decree
appealed against is based may, under this rule, file cross objection in respect of the decree insofar
as it is based on that finding, notwithstanding that by reason of the decision of the court on any
other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favor
of that respondent.
(2) Form of objection and provisions applicable thereto. --- Such cross objection shall be in the
form of a memorandum, and the provisions of rule 1, so far as they relate to the form and contents
of the memorandum of appeal, shall apply thereto.
(3) Omitted (by Act 46 of 1999, w.e.f. 1.7.2002)
(4) Where, in any case in which any respondent has under this rule filed a memorandum of objection,
the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless
be heard and determined after such notice to the other parties as the Court thinks fit.
(5) The provisions relating to appeals by indigent persons shall, so far as they can be made applicable,
apply to an objection under this rule.
to any finding adverse to him as the decree is entirely in
his favor and he may support the decree without his cross
objection; the amendment made in the text of sub-rule (1),
read with the explanation newly inserted, gives him a right
to take cross-objection to a finding recorded against him
either while answering an issue or while dealing with an
issue. The advantage of preferring such cross-objection is
spelled out by sub-rule (4). In spite of the original appeal
having been withdrawn or dismissed for default the cross
objection taken to any finding by the respondent shall still
be available to be adjudicated upon on merits which
remedy was not available to the respondent under the
unamended CPC. In the pre- amendment era, the
withdrawal or dismissal for default of the original appeal
disabled the respondent to question the correctness or
otherwise of any finding recorded against the respondent.
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12. The fact remains that to the extent to which the decree
is against the respondent and he wishes to get rid of it he
should have either filed an appeal of his own or taken
cross objection failing which the decree to that extent
cannot be insisted on by the respondent for being
interfered, set aside or modified to his advantage……”
In respect of the power of an appellate court under Order
41 Rule 33 CPC, the Court, after observing that the true
scope of the power could be best understood when read
along with Rule 425. of Order 41, held:

“15. Rule 4 seeks to achieve one of the several objects

sought to be achieved by Rule 33, that is, avoiding a
situation of conflicting decrees coming into existence in
the same suit. The above said provisions confer power of
the widest amplitude on the appellate court so as to do
complete justice between the parties and such power is
unfettered by consideration of facts like what is the subject
matter of the appeal, who has filed the appeal and
whether the appeal is being dismissed, allowed or
disposed of by modifying the judgment appealed against.
While dismissing an appeal and though confirming the
impugned decree, the appellate court may still direct
passing of such decree or making of such order which
ought to have been passed or made by the court below in
accordance with the findings of fact and law arrived at by
the court below and which it would have done had it been
conscious of the error committed by it and noticed by the
appellate court. While allowing the appeal or otherwise
interfering with the decree or order appealed against, the
appellate court may pass or make such further or other,
decree or order, as the case would require being done,
consistent with the findings arrived at by the appellate
court. The object sought to be achieved by conferment of
such power on the appellate court is to avoid
inconsistency, inequity, inequality in reliefs granted to

25
Order 41 Rule 4 CPC. – One of several plaintiffs or defendants may obtain reversal of whole decree
where it proceeds on ground common to all. -- Where there are more plaintiffs or more defendants
than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or
to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole degree,
and thereupon the appellate court may reverse or vary the decree in favor of all the plaintiffs or
defendants, as the case may be.
[2024] 9 S.C.R. 35

Vaibhav Jain v. Hindustan Motors Pvt. Ltd.

similarly placed parties and unworkable decree or order
coming into existence. The overriding consideration is
achieving the ends of justice. Wider the power, higher the
need for caution and care while exercising the power.
Usually, the power under Rule 33 is exercised when the
portion of the decree appealed against or the portion of
the decree held liable to be set aside or interfered by the
appellate court is so inseparably connected with the
portion not appealed against or left untouched that for the
reason of the latter portion being left untouched either
injustice would result or inconsistent decrees would follow.
The power is subject to at least three limitations: first, the
power cannot be exercised to the prejudice or
disadvantage of a person not a party before the court;
secondly, a claim given up or lost cannot be revived; and
thirdly, such part of the decree which essentially ought to
have been appealed against or objected to by a party and
which that party has permitted to achieve a finality cannot
be reversed to the advantage of such party. A case where
there are two relief prayed for and one is refused while the
other one is granted and the former is not inseparably
connected with or necessarily depending on the other, in
an appeal against the latter, the former relief cannot be
granted in favor of the respondent by the appellate court
exercising power under Rule 33 of Order 41.”
(Emphasis supplied)
31. From the decision above, which has been consistently followed, it is
clear that for exercise of the power under Rule 33 of Order 41 CPC
the overriding consideration is achieving the ends of justice; and one
of the limitations on exercise of the power is that that part of the
decree which essentially ought to have been appealed against, or
objected to, by a party and which that party has permitted to achieve
a finality cannot be reversed to the advantage of such party.
32. In the instant case, the Tribunal had returned a finding on issue no.3
that M/s. Hindustan Motors had provided no evidence to show that
the vehicle manufactured and owned by it was sold by it to the
dealer. Admittedly, its own employees /officers were in control of the
vehicle at the time of accident and, therefore, M/s. Hindustan Motors
was held jointly and severally liable for the compensation awarded.
This part of the award operated against it and was backed by a
36 [2024] 9 S.C.R.

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finding of ownership. By not challenging the same, through an
appeal or cross-objection, M/s Hindustan Motors has allowed it to
attain finality. Therefore, in our view, M/s Hindustan Motors cannot
be allowed to question the same now. Issue no. (iii) is decided in the
aforesaid terms.
CONCLUSION
33. In view of our conclusion that the appellant was neither the owner nor
in control/ command of the vehicle at the time of accident, and the
vehicle was being driven by an employee of M/s. Hindustan Motors,
we are of the view that apart from the driver, M/s. Hindustan Motors
alone was liable for the compensation awarded. Thus, the appellant
should not have been burdened with liability to pay compensation.
RELIEF
34. However, as vide order dated 23.10.2018 the SLP was dismissed
qua the claimant-respondents, we are unable to set aside the award
to the extent it enables the claimant-respondents to recover the
awarded compensation, jointly or severally, from the owner, dealer
and driver
of the vehicle. But we make it clear that if the awarded amount, or
any part thereof, has been paid, or is paid, by the appellant, the
appellant shall be entitled to recover the same from M/s. Hindustan
Motors along with interest at the rate of 6% p.a., with effect from the
date of payment till the date of recovery.
35. The appeal is allowed to the extent above.
36. Pending application(s), if any, shall stand disposed of.

Result of the case: Appeal allowed.

Headnotes prepared by: Divya Pandey

†
 [2024] 9 S.C.R. 37 : 2024 INSC 655

Nitya Nand
v.
State of U.P. & Anr.
(Criminal Appeal No. 1348 of 2014)
04 September 2024
[Abhay S. Oka and Ujjal Bhuyan,* JJ.]

Issue for Consideration

Whether the prosecution could prove the charges against the
appellant under Sections 148 and 302/149 IPC beyond reasonable
doubt. Whether the appellant was a part of the unlawful assembly
and if he actually took part in the crime or not.

Headnotes†

Penal Code, 1860 – ss.149, 148 – Appellant alongwith others

was convicted for the murder of his Uncle – Whether the
appellant was a part of the unlawful assembly – Plea of the
appellant that both the courts below erred in convicting him
as the allegation against him was that he was carrying a
country- made pistol, however, neither were there any firearm
injuries nor recovery of any country-made pistol or empty
cartridge:
Held: Appellant was roped in by virtue of ss.148 and 149 – PW-1
and PW-2 (sons of the deceased) were eyewitnesses – Appellant
was carrying a country-made pistol in his hand – Neither PW-1 nor
PW-2 stated that the appellant had fired at them or at the deceased
– The role attributed to the appellant was helping the other
accused persons and himself flee from the crime scene by
frightening the people including PW-1 and PW-2 when they were
about to reach the crime scene, by firing from his country-made
pistol into the air – Factum of causing injury or not causing injury
would not be relevant when an accused is roped in with the aid of
s.149 – Further, though, neither any country-made pistol nor any
cartridge, empty or otherwise, was recovered however, as the
appellant was roped in with the aid of s.149 IPC, no overt act is
required to be imputed to a particular person when the charge is
u/s.149; the presence of the accused as part of the
38 [2024] 9 S.C.R.

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* Author
unlawful assembly is sufficient for conviction – Appellant was a part
of the unlawful assembly which had the common object of
eliminating the deceased by criminal force – Therefore, being a
member of the unlawful assembly, he was also guilty of the murder
committed in prosecution of the common object – Charges against
the appellant u/ss.148 and 302/149 proved beyond reasonable
doubt. [Paras 22, 24, 25, 30.1, 32]
Penal Code, 1860 – s.149 – Liability under – Discussed.

Case Law Cited

Krishnappa v. State of Karnataka [2012] 6 SCR 1068 : (2012) 11
SCC 237; Vinubhai Ranchhodbhai Patel v. Rajivbhai Dudabhai
Patel [2018] 6 SCR 1050 : (2018) 7 SCC 743; Yunis alias Kariya
Vs. State of M.P. (2003) 1 SCC 425 – relied on.

List of Acts
Penal Code, 1860.

List of Keywords
Unlawful assembly; Part of the unlawful assembly; Member of the
unlawful assembly; Common object; In prosecution of the common
object; Murder; Charges proved beyond reasonable doubt;
Firearm injuries; Country-made pistol; Cartridge, Empty cartridge;
Lacunae in the prosecution; Scribe not examined; Non-recovery
of country- made pistol; Overt act; Property dispute; Old enmity.

Case Arising From

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1348

of 2014
From the Judgment and Order dated 27.09.2012 of the High Court
of Judicature at Allahabad in CRLA No. 340 of 1997

Appearances for Parties

P. K. Jain, Saurabh Jain, S.P. Singh Rathore, P.K. Goswami,

Jagannath Jha, Arunansh Bharti Goswami, Advs. for the Appellant.
Goutham Shivhankar, Ms. Ruchira Goel, Adit Jayeshbhai Shah,
Sharanya Sinha, Ms. Manju Jetley, Advs. for the Respondents.
Judgment / Order of the Supreme Court
[2024] 9 S.C.R. 39

Nitya Nand v. State of U.P. & Anr.

Judgment
Ujjal Bhuyan, J.

This appeal is directed against the judgment and order dated

27.09.2012 passed by the Allahabad High Court upholding the
conviction of the appellant alongwith others under Sections 148 and
302/149 of the Indian Penal Code, 1860 (IPC).
2. It may be mentioned that learned Sessions Judge, Etah vide the
judgment and order dated 20.01.1997 passed in Sessions Trial No.
17 of 1993 convicted the appellant alongwith three others under
Sections 148 and 302/149 IPC and sentenced each of them to
undergo rigorous imprisonment (RI) for two years and to pay fine of
Rs. 2,000.00 for the conviction under Section 148 IPC with a default
stipulation and further sentenced to undergo imprisonment for life
under Section 302/149 IPC. Another accused Shree Dev was
convicted for the offences punishable under Sections 147 and
302/149 IPC. He was sentenced to undergo RI for two years and to
pay fine of Rs. 2,000.00 with a default stipulation for the offence
committed under Section 147 IPC and to suffer imprisonment for life
under Section 302/149 IPC.
3. Being aggrieved by the aforesaid conviction and sentence, all the
five accused persons including the appellant herein preferred
criminal appeal under Section 374 of the Code of Criminal
Procedure, 1973 (Cr.P.C.) before the Allahabad High Court (High
Court) which was registered as Criminal Appeal No. 340 of 1997. By
the judgment and order dated 27.09.2012, a division bench of the
High Court affirmed the conviction and sentence of all the accused
persons including that of the appellant and dismissed the criminal
appeal.
4. The appellant then preferred petition for special leave to appeal
before this Court being SLP(Criminal) No. 750/2013. This Court vide
the order dated 04.02.2013 had issued notice on the special leave
petition as well as on the application for bail. On 30.06.2014, this
Court granted leave but rejected the prayer for bail. It was thereafter
that Criminal Appeal No. 1348 of 2014 came to be registered.
5. We have heard learned counsel for the parties.
6. Prosecution case in brief is that informant Sarwan Kumar, son of late
Satya Narain, had lodged a written report (First Information Report)
i.e. FIR before Police Station Soron, District Etah on 08.09.1992 at
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05:10 PM. He stated that on 08.09.1992 at about 04:30 PM, he and
his father Satya Narain as well as his uncle Laxmi Narain as per their
daily routine, came to Ganga ghat near Ambhagarh Akhada, after
easing themselves, for taking bath. At around the same time, from
the side of Dhimaro Ka Mohalla, Bhola Shankar and Kuldeep Kumar
Tiwari came. He and his uncle proceeded ahead while talking with
Bhola Shankar and Kuldeep Kumar Tiwari. This way they had
reached the temple of Govardhan Nath Ji. In the meantime, from the
southern side of Tulsi Park, Shree Dev and his four sons, viz., Munna
Lal, Raju, Nitya Nand and Uchchav @ Pappu, resident of Mohalla
Tiraha, Chodah Pore, P.S. Soron, armed with kanta, knives and
country-made pistol confronted his father Satya Narain. All the
accused persons caught hold of his father and started assaulting him
with kanta and knives. On hearing the cries of his father, informant
Sarwan Kumar and others dashed towards Satya Narain to save
him. It was then that appellant Nitya Nand fired from his
countrymade pistol whereafter all the accused persons made good
their escape from the south-western side. When the informant and
others reached the spot, his father Satya Narain had already
succumbed to the multiple injuries which he had suffered on his
body.
6.1. A written report of the incident scribed by Kuldeep Kumar
Tiwari i.e., the FIR was submitted by Sarwan Kumar at 05:10
PM on the same day at P.S. Soron.
6.2. It was mentioned that Shree Dev, deceased Satya Narain, and
Laxmi Narain were the three brothers. Laxmi Narain, who was
the youngest of the three, had no issue; so he had executed a
will in favour of Satya Narain’s sons. Shree Dev and his sons
including the appellant Nitya Nand were enraged by this
disposition of property by Laxmi Narain. This led to filing of
several cases between them. Due to such litigation, there was
an old enmity and for that reason, the accused persons had
fatally assaulted Satya Narain on that fateful day.
7. On the basis of the FIR, Crime No. 237/1992 was registered at P.S.
Soron under Sections 147, 148, 149 and 302 IPC. The investigating
officer had carried out investigation of the case. The post-mortem
report indicated multiple ante-mortem injuries on the person of the
deceased. On completion of the investigation, charges under
Sections 148 and 302/149 IPC were framed against the accused
Munna, Raju, Uchchav @ Pappu and Nitya Nand. Similarly, charges
[2024] 9 S.C.R. 41

Nitya Nand v. State of U.P. & Anr.

under Sections 147 and 302/149 IPC were framed against the
accused Shree Dev.
8. The accused persons denied the charges and claimed to be tried.
9. To prove its case, the prosecution examined a total of five witnesses.
After closure of the prosecution evidence, statements of the accused
persons were recorded under Section 313 Cr.P.C.
10. The trial court on an appreciation of the evidence adduced and
considering the materials on record, convicted the accused Shree
Dev under Sections 147 and 302/149 IPC and also convicted the
appellant and the other sons of Shree Dev i.e. Munna Lal, Raju and
Uchchav @ Pappu under Sections 148 and 302/149 IPC. All the
accused were thereafter sentenced as indicated above.
11. In appeal, the High Court observed that the eyewitness account of
the incident stood fully corroborated by the medical evidence.
Prosecution had proved its case beyond all reasonable doubt
against each of the accused. Therefore, while upholding the
conviction and sentence, the High Court dismissed the appeal.
12. Learned counsel for the appellant submits that both the trial court
and the High Court committed a manifest error in convicting the
appellant under Sections 148 and 302/149 IPC. He submits that
allegation against the appellant was that he was carrying a
countrymade pistol. As the informant and others tried to rush towards
Satya Narain on hearing his cries as he was being assaulted by the
other accused persons, appellant Nitya Nand fired from his country-
made pistol thereby threatening the informant and the others who
tried to rescue Satya Narain. As the appellant fired from his country-
made pistol, all the accused persons made good their escape from
the crime scene. However, neither were there any firearm injuries on
the person of the deceased nor on anyone else. That apart, there
was no recovery of any country-made pistol or empty cartridge from
the crime scene or from anywhere else. In the absence thereof, both
the courts below were not justified in so convicting the appellant.
12.1. Learned counsel for the appellant further submits that Laxmi
Narain, who was with the deceased and who had walked
ahead
along with the informant while talking with Bhola Shankar and
Kuldeep Kumar Tiwari, was not examined by the prosecution
as a witness. This is a crucial omission as because only due
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to gifting of the property by Laxmi Narain to the sons of the
deceased Satya Narain which led to such bad blood between
the brothers leading to the fatal incident. Learned counsel also
emphasized that another crucial omission on the part of the
prosecution is that Kuldeep Kumar Tiwari was not examined
as a witness. Such glaring omission has cast uncertain
shadows over the prosecution case. Omission to examine
Kuldeep Kumar Tiwari as a prosecution witness has
completely punctured the prosecution case because it was he
who had written the FIR lodged by the informant besides being
an eyewitness.
12.2. Learned counsel for the appellant finally submits that appellant
has been convicted solely on the basis of suspicion. In a
criminal trial, the conviction must be based on hard evidence
and not on mere suspicion. Even if there is an iota of doubt as
to the culpability of an accused, as in the present case, he has
to be given the benefit of the doubt. That being the position,
the impugned conviction and sentence of the appellant should
be interfered with by this Court.
13. Learned counsel for respondent No. 1, State of U.P., has vehemently
argued that conviction and sentence of the appellant is fully justified.
There is no reason to interfere with the same.
13.1. He submits that there was a clear motive for the accused
persons, including the appellant, to have caused the murder
of Satya Narain. According to him, the accused Shree Dev,
deceased Satya Narain, and Laxmi Narain were the three
brothers, Laxmi Narain being the youngest of the three. Since
Laxmi Narayan had no issue, he executed a will in favour of
the sons of Satya Narain. Shree Dev and his sons, including
the appellant, were unable to come to terms with this
development. They were highly agitated which led to filing of
several cases by and between them. This was the real
intention behind the plot to kill Satya Narain.
13.2. Learned counsel for respondent No. 1 submits that the
appellant was very much a part of the unlawful assembly as
one of the persons at the place of occurrence which was
mentioned in
the FIR itself. That apart, in their evidence, PW-1 and PW-2,
categorically stated that appellant was carrying a country-
[2024] 9 S.C.R. 43

Nitya Nand v. State of U.P. & Anr.

made pistol from which he fired in the air with the intent to
frighten the informant and others who tried to come to the
rescue of the deceased. Taking advantage of the situation, the
accused persons escaped from the crime scene.
13.3. The evidence of PW-1 and PW-2 in this regard is unflinching.
Therefore, non-recovery of the country-made pistol or any
cartridge fired therefrom cannot be fatal to the prosecution
case.
13.4. The very act of the appellant in firing from his country-made
pistol to enable the accused persons to escape is clearly an
overt act whereby he became part of the unlawful assembly
with a common object to cause the death of the deceased. The
evidence on record clearly provides that appellant was part of
the unlawful assembly having the common object to kill the
deceased.
13.5. Learned counsel for respondent No. 1 State submits that it is
a case of direct evidence which clearly establish the
involvement of the appellant in the killing of Satya Narain. The
ocular evidence is fully supported by the medical evidence.
That apart, the post incident conduct of the appellant is also a
significant factor. Laxmi Narain, who could have been an
important eyewitness, was killed on 25.10.1993. In that case,
appellant herein along with others were named as accused.
Therefore, it was not possible for the prosecution to present
Laxmi Narain as a prosecution witness.
13.6. He, therefore, submits that there is no merit in the criminal
appeal which should be dismissed.
14. Submissions made by learned counsel for the parties have received
the due consideration of the Court.
15. Question for consideration is whether the prosecution could
establish the culpability of the appellant in the murder of Satya
Narain beyond any reasonable doubt? In other words, whether the
prosecution could prove the charges against the appellant under
Sections 148 and 302/149 IPC beyond any reasonable doubt?
16. To answer the aforesaid question it is necessary to briefly analyse
the evidence on record. PW-1 is Shri Sarwan Kumar S/o Late Satya
Narain. He is the informant in the case. In his examination in chief,
PW-1 stated that his father Late Satya Narain was one of the three
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brothers, Shree Dev being the eldest and Laxmi Narain alias Daroga
being the younger. Shree Dev had four sons viz. Munna Lal, Raju,
Nitya Nand (appellant) and Uchchav alias Pappu. His uncle Laxmi
Narain was issueless and was residing with Satya Narain. Laxmi
Narain gifted all his property to the informant and his brothers i.e. to
the sons of Satya Narain. This was not to the liking of the accused
persons which resulted in litigation and enmity.
16.1. He further stated that on the fateful day at about 04:30 PM his
father Satya Narain, uncle Laxmi Narain and himself after
easing themselves at about 04:30 PM, had reached
Ambhagarh Akhada, Har Ki Pauri. At the same time from the
side of Dhimaro Ka Mohalla, Shri Kuldeep S/o Ram Prakash
and Bhola Shankar S/o Siaram came. Informant and his uncle
Laxmi Narain started a conversation with the above two
persons and while talking with the two persons went ahead
and reached the temple of Goverdhan Nath Ji. Father of PW-
1 Satya Narain had got down from the stairs for bathing in the
Ganga at Har Ki Pauri. In the meanwhile, from the southern
side of Tulsi Park, the accused persons came. While Shree
Dev was armed with a danda, Munna Lal was armed with
kanta. Raju and Uchchav were armed with knives. Appellant
Nitya Nand was carrying a country-made pistol in his hand. As
they confronted Satya Narain, Shree Dev exhorted the other
accused persons to kill him. Thereafter, the accused persons
caught hold of his father and started assaulting him with knives
and kanta. As Satya Narain cried for help, Bhola Shankar,
Kuldeep, Laxmi Narain and PW-1 rushed to help him. They
had reached the Bharoji temple when appellant Nitya Nand
fired a shot in the air from his country-made pistol to frighten
PW-1 and the others. Taking advantage of the situation, the
accused persons made good their escape from the crime
scene through the south-western side.
16.2. As PW-1 went near his father, he found that his father had
received multiple injuries inflicted by knives and kanta on his
head, cheek, neck, back and ribs. His father Satya Narain had
died on the spot with half of his body inside the water. While
blood was splattered on the spot, sandal of his father
was lying on the stairs with stick in the water. PW-1 stated that
he had dictated a report of the incident on the spot to Kuldeep
Kumar Tiwari S/o Ram Prakash who had scribed the same.
[2024] 9 S.C.R. 45

Nitya Nand v. State of U.P. & Anr.

After he had completed writing down what was dictated, scribe
Kuldeep Kumar Tiwari read over the same to PW-1 and
thereafter took his signature. PW-1 stated that he along with
his uncle Laxmi Narain went to the police station in a tricycle
(rickshaw) and handed over the report to the incharge of the
police station who registered a case and handed over a copy
of the same to PW-1.
17. In his cross-examination PW-1 stated that after hearing the cries of
his father, he had rushed back to the spot. About five-six nearby
people had also gathered there but he could not remember their
names. Regarding Bhola Shankar, PW-1 stated that he came after
the incident.
17.1. When PW-1 tried to go near his father, appellant Nitya Nand
had fired in the air to stop him and thereafter he ran away. No
fire was shot for causing injury either to PW-1 or to the
deceased. People did not find any cartridge or empty cartridge
on the spot.
17.2. He admitted that because of his uncle Laxmi Narain gifting all
his property to the sons of Satya Narain including himself there
was enmity between the two sides.
17.3. Regarding the deceased, PW-1 stated that he had taken his
last meal between 02.00 to 02.30 PM when he had taken dal
and roti. His father’s daily routine was to go to Har ki Pauri for
taking a bath in the Ganga. On the fateful day, his father went
to ease himself first and then went for bathing.
17.4. PW-1 stated that his uncle Shree Dev had exhorted the other
accused persons to kill his father. This fact however is not
mentioned in the FIR.
17.5. PW-1 stated that he was at the crime scene for about half an
hour. During this period, about 100-200 people had gathered.
After intimation was sent to home about the incident, people
from home had also arrived. After getting the report written,
PW-1 proceeded to the police station in a rickshaw and
submitted the same.
17.6. PW-1 denied the suggestion that the incident as reported in
the FIR had not happened at the time mentioned therein and
that the accused persons were falsely implicated due to
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previous enmity. He also denied the suggestion that the FIR
(Ex.1) was not written in the handwriting of Kuldeep.
18. Bhola Shankar, son of Satya Narain, deposed as PW-2. While
reiterating what was stated by PW-1 leading to the incident, he
further stated that Satya Narain had cried out for help to save him
when he was being assaulted by the accused persons. He stated
that he alongwith other people rushed to the spot when appellant
Nitya Nand fired from his country-made pistol. He asserted that he
alongwith the other people had seen the accused assaulting Satya
Narain. After the accused persons escaped towards the south-
western side, they came to the spot where Satya Narain was lying.
By that time, he was already dead with half of his body inside the
water.
18.1. In his cross-examination, PW-2 stated that he had seen the
incident with his own eyes. FIR was written by Kuldeep Kumar
and his statement was also recorded by the police. He further
stated that he had seen Satya Narain falling down the stairs
and crying for help. At that time, PW-1 was also near him and
he had also witnessed the assault.
18.2. He denied the suggestion that he was not present at the time
of the incident and that he was not witness to the writing and
lodging of the FIR. He further denied the suggestion that he
was deposing falsely due to his friendship with the informant.
19. Dr. Satya Mitra, who was serving in the District Hospital, Etah,
deposed as PW-3. He had carried out the post-mortem examination
on the dead body of Satya Narain on 09.09.1992, following which he
found the following ante-mortem injuries on the body of the
deceased:
1. Incised wound 10 cm x 1 cm x brain matter deep over
right side and back of head at left of back of upper and
of right external ear. Skin muscle (scalp) bone
meninges and brain cut.
2. Multiple incised wound in an area 10 cm x 7 cm on the
right side cheek and upper part of neck measuring
1 cm x 0.3 cm muscle deep to 3 cm x 0.7 cm x bone deep.
Mandible on right side fractured.
3. Stab wound 3 cm x 1 cm x thoracic cavity deep over
right side lateral side of chest 8 cm below axillary
[2024] 9 S.C.R. 47

Nitya Nand v. State of U.P. & Anr.

crease. On discussion subcostal muscle underlying
rib, pleura right side, lung right side, cut direction
right to left transverse.
4. Stab wound 3.5 cm x 1 cm x thoracic cavity deep on
left side chest 6 cm below left nipple. Skin, muscle
underlying the 8th rib, left pleura, left lung and
pericardium part are cut. Direction left to right and
slightly upwards.
5. Multiple incised wound in an area 10 cm x 5 cm on
the left side chest above nipple measuring 2 cm x 0.3
cm x skin deep to 3 cm x 0.5 cm x muscle and rib
deep.
6. Multiple incised wound over back of chest in an area
20 cm x 20 from base of neck above measuring 2 cm
x 0.2 cm. Muscle deep to 3 cm x 0.5 cm x thoracic
cavity deep. Right scapula cut. Right pleura and right
lung cut at places.
7. Multiple incise wound in an area 10 cm x 6 cm over
front and external aspect of left upper arm 3 cm
below the left shoulder joint.
19.1. He opined that death was possibly caused due to shock and
haemorrhage as a result of the injuries. The injuries were
caused by sharp-edged weapons like kanta, knives etc.
19.2. PW-3 proved the post-mortem report which was in his
handwriting as well as his signature thereon.
20. At the relevant point of time, Ramesh Chandra Sharma served as
Inspector at Soron Police Station. He deposed as PW-4. He has
stated that investigation of the case was started by Shri Devi Dayal
Prajapati from whom he had taken over the investigation on
23.09.1992. On completion of investigation, he had submitted the
chargesheet on 13.10.1992.
20.1. In his cross-examination, he has stated that he did not record
the statement of any of the witnesses. On the basis of the
statements recorded by his predecessor Shri Devi Dayal
Prajapati, and after perusal of other documents, the
chargesheet was submitted against the accused persons.
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21. Shri Devi Dayal Prajapati deposed as PW-5. He has stated that on
the date of receipt of the first information, he had recorded the
statements of Laxmi Narain, Bhola Shankar, Kuldeep Kumar and the
witnesses of the panchnama. Despite search, the accused persons
were not found and, therefore, they could not be arrested.
Thereafter, investigation was taken over by PW-4.
21.1. In his cross-examination, he admitted that though he had
taken blood sample from the stairs where the dead body of
Satya Narain was found, he did not send the sampled blood
for chemical examination. Though he had recorded the
statement of the informant, the latter did not mention in his
statement that his uncle Shree Dev had exhorted the other
accused persons to kill his father and that he should not be
spared as he had grabbed the property of his younger brother.
Again, he did not mention in the case diary that Bhola Shankar
was present on the spot. That apart, Bhola Shankar did not
mention the names of any assailant.
22. From the evidence tendered on behalf of the prosecution, it is clear
that PW-1 and PW-2 are the eyewitnesses. When PW-1 Satya
Narain and Laxmi Narain had reached Har Ki Pauri at Ambhagarh
Akhada, they were joined by Kuldeep and Bhola Shankar (PW-2).
PW-1 and Laxmi Narain went ahead talking with Kuldeep and PW2.
Satya Narain was walking down the steps for a dip in the river. At
that time, the accused persons arrived at the scene from the
southern side of Tulsi Park. Both PW-1 and PW-2 were categorical
in their evidence that Shree Dev was armed with a danda, Munna
Lal was armed with kanta and Raju and Uchchav were armed with
knives. Appellant Nitya Nand was carrying a country-made pistol in
his hand. Though the appellant did not assault Satya Narain, the
other accused persons actively participated in the assault. Hearing
the cries of Satya Narain, PW-1, PW-2, Kuldeep and Laxmi Narain
rushed back. When they had reached near the crime scene,
appellant Nitya Nand fired a shot in the air from his country-made
pistol to frighten PW-1 and the others. As the appellant fired in the
air, all the accused persons escaped from the crime scene.
23. At this stage, we may mention that PW-2 was categorical in his
cross-examination that he had seen the incident with his own eyes
and that PW-1 was also with him then.
[2024] 9 S.C.R. 49

Nitya Nand v. State of U.P. & Anr.

24. Neither PW-1 nor PW-2 has stated that appellant had fired at them
nor he had fired at the deceased. The role attributed to the appellant
was helping the other accused persons and himself flee from the
scene of crime by frightening the people including PW-1 and PW-2
when they were about to reach the crime scene by firing from his
country-made pistol into the air. The fact that the death of Satya
Narain was homicidal has been fully established by the post-mortem
report as well as by the evidence of PW-3 i.e. the doctor. The ocular
evidence supported by the medical evidence clearly establish that it
was a case of murder of the deceased by the other accused persons
under Section 302 IPC.
25. Appellant has been roped in by virtue of Sections 148 and 149 IPC.
Appellant was a part of the unlawful assembly which had the
common object of eliminating Satya Narain by means of criminal
force and, therefore, being a member of the unlawful assembly, he
was also guilty of the offence committed in prosecution of the
common object i.e. the offence under Section 302 IPC.
26. At this juncture, we may briefly survey the relevant legal provisions.
27. Section 141 IPC defines unlawful assembly. It says an assembly of
five or more persons is designated as unlawful assembly if the
common object of the persons composing that assembly is to
commit an illegal act by means of criminal force.
28. As per Section 148 IPC which deals with rioting armed with deadly
weapon, whoever is guilty of rioting, being armed with a deadly
weapon or with anything which, used as weapon of offence, is likely
to cause death, shall be punished with imprisonment of either
description for a term which may extend to three years, or with fine,
or with both. Rioting is defined in Section 146 IPC. As per the said
definition, whenever force or violence is used by an unlawful
assembly, or by any member thereof, in prosecution of the common
object of such assembly, every member of such assembly is guilty
of the offence of rioting.
29. This brings us to the pivotal section which is Section 149 IPC.
Section 149 IPC says that every member of an unlawful assembly
shall be guilty of the offence committed in prosecution of the
common object. Section 149 IPC is quite categorical. It says that if
an offence is committed by any member of an unlawful assembly in
prosecution of the common object of that assembly, or such as the
members of that assembly knew to be likely to be committed in
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prosecution of that object, every person who, at the time of
committing of that offence, is a member of the said assembly; is
guilty of that offence. Thus, if it is a case of murder under Section
302 IPC, each member of the unlawful assembly would be guilty of
committing the offence under Section 302 IPC.
30. In Krishnappa Vs. State of Karnataka, 26 this Court while examining
Section 149 IPC held as follows:-
20. It is now well-settled law that the provisions of
Section 149 IPC will be attracted whenever any offence
committed by any member of an unlawful assembly in
prosecution of the common object of that assembly, or
when the members of that assembly knew that offence is
likely to be committed in prosecution of that object, so
that every person, who, at the time of committing of that
offence is a member, will be also vicariously held liable
and guilty of that offence. Section 149 IPC creates a
constructive or vicarious liability of the members of the
unlawful assembly for the unlawful acts committed
pursuant to the common object by any other member of
that assembly. This principle ropes in every member of
the assembly to be guilty of an offence where that offence
is committed by any member of that assembly in
prosecution of common object of that assembly, or such
members or assembly knew that offence is likely to be
committed in prosecution of that object.
21. The factum of causing injury or not causing injury
would not be relevant, where the accused is sought to be
roped in with the aid of Section 149 IPC. The relevant
question to be examined by the court is whether the
accused was a member of an unlawful assembly and not
whether he actually took active part in the crime or not.
30.1. Thus, this Court held that Section 149 IPC creates a
constructive or vicarious liability of the members of the
unlawful assembly for the unlawful acts committed pursuant to
the common object
by any other member of that assembly. By application of this
principle, every member of an unlawful assembly is roped in

26
[2012] 6 SCR 1068 : (2012) 11 SCC 237
[2024] 9 S.C.R. 51

Nitya Nand v. State of U.P. & Anr.

to be held guilty of the offence committed by any member of
that assembly in prosecution of the common object of that
assembly. The factum of causing injury or not causing injury
would not be relevant when an accused is roped in with the
aid of Section 149 IPC. The question which is relevant and
which is required to be answered by the court is whether the
accused was a member of an unlawful assembly and not
whether he actually took part in the crime or not.
31. As a matter of fact, this Court in Vinubhai Ranchhodbhai Patel Vs.
Rajivbhai Dudabhai Patel 27 has reiterated the position that Section
149 IPC does not create a separate offence but only declares
vicarious liability of all members of the unlawful assembly for acts
done in common object. This Court has held:
20. In cases where a large number of accused constituting
an “unlawful assembly” are alleged to have attacked and
killed one or more persons, it is not necessary that each
of the accused should inflict fatal injuries or any injury at
all. Invocation of Section 149 is essential in such cases for
punishing the members of such unlawful assemblies on
the ground of vicarious liability even though they are not
accused of having inflicted fatal injuries in appropriate
cases if the evidence on record justifies. The mere
presence of an accused in such an “unlawful assembly” is
sufficient to render him vicariously liable under Section
149 IPC for causing the death of the victim of the attack
provided that the accused are told that they have to face
a charge rendering them vicariously liable under Section
149 IPC for the offence punishable under Section 302
IPC. Failure to appropriately invoke and apply Section 149
enables large number of offenders to get away with the
crime.
*****
22. When a large number of people gather together
(assemble) and commit an offence, it is possible that only
some of the members of the assembly commit the crucial
act which renders the transaction an offence and the
remaining members do not take part in that “crucial act”

27
[2018] 6 SCR 1050 : (2018) 7 SCC 743
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— for example in a case of murder, the infliction of the
fatal injury. It is in those situations, the legislature thought
it fit as a matter of legislative policy to press into service
the concept of vicarious liability for the crime. Section 149
IPC is one such provision. It is a provision conceived in
the larger public interest to maintain the tranquility of the
society and prevent wrongdoers (who actively collaborate
or assist the commission of offences) claiming impunity on
the ground that their activity as members of the unlawful
assembly is limited.
*****
34. For mulcting liability on the members of an unlawful
assembly under Section 149, it is not necessary that every
member of the unlawful assembly should commit the
offence in prosecution of the common object of the
assembly. Mere knowledge of the likelihood of
commission of such an offence by the members of the
assembly is sufficient. For example, if five or more
members carrying AK 47 rifles collectively attack a victim
and cause his death by gunshot injuries, the fact that one
or two of the members of the assembly did not in fact fire
their weapons does not mean that they did not have the
knowledge of the fact that the offence of murder is likely
to be committed.
32. It is true that there are certain lacunae in the prosecution. The scribe
Kuldeep was not examined. Similarly, the younger brother Laxmi
Narain was not examined though it has come on record that Laxmi
Narain was killed in the year 1993 and in that case one of the
accused is the appellant himself. It is also true that neither any
country-made pistol was recovered nor any cartridge, empty or
otherwise, recovered. However, the appellant has been roped in with
the aid of Section 149 IPC. Therefore, as held by this Court in Yunis
alias Kariya Vs. State of M.P.,28 no overt act is required to be imputed
to a particular person when the charge is under Section 149 IPC; the
presence of the accused as part of the unlawful assembly
is sufficient for conviction. It is clear from the evidence of PW-1 and
PW-2 that the appellant was part of the unlawful assembly which

28
(2003) 1 SCC 425
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Nitya Nand v. State of U.P. & Anr.

committed the murder. Though they were extensively cross-
examined, their testimony in this regard could not be shaken.
33. In view of what we have discussed above, we have no doubt in our
mind that the trial court had rightly convicted the appellant under
Section 148 IPC read with Section 302/149 IPC and that the High
Court was justified in confirming the same. The question framed in
paragraph 15 above is therefore answered in the affirmative.
34. Thus, we see no merit in the appeal which is accordingly dismissed.

Result of the case: Appeal dismissed.

Headnotes prepared by: Divya Pandey

†
 [2024] 9 S.C.R. 54 : 2024 INSC 662

Baccarose Perfumes and Beauty Products Pvt. Ltd

v.
Central Bureau of Investigation & Anr.
(Criminal Appeal No. 3216 of 2024)
06 September 2024
[Abhay S. Oka and Augustine George Masih,* JJ.]

Issue for Consideration

Whether the High Court was justified in dismissing the Revision
Application against the rejection of the discharge application
moved by the appellant-Company.

Headnotes†

Companies Act, 1956 – Central Excise Act, 1944 – Code of

Criminal Procedure, 1973 – Immunity from the prosecution –
Grant of – Allegations against the appellant-Company that it
cleared its goods into the Indian Market on payment of
Countervailing Duty-CVD on the invoice value of the
concerned goods, rather than the payment of the CVD on the
Maximum Retail Price of the said goods, thereby caused a
wrongful gain to themselves and a corresponding wrongful
loss to the Government exchequer – Show Cause Notice
issued to the company under Customs Act, CE Act and CA
Act – Pursuant thereto, registration of FIR under IPC and PC
Act – Thereafter, the appellant granted immunity from the
prosecution, however, order passed by the trial court taking
cognizance – Discharge application by the appellant –
Rejected by the Special Judge – High Court upheld the same
– Justification:
Held: Both the provisions-section 127H of the CA Act and section
32 K of the CE Act, provide for an explicit bar from prosecution on
grant of immunity in cases where the proceedings for any offence
have been instituted subsequent to the date of receipt of the
application seeking such immunity under the relevant law –
Furthermore, mere registration of FIR cannot be interpreted to
mean that it constitutes the initiation of such proceedings –
Registration of FIR necessitates an investigation by a competent
[2024] 9 S.C.R. 55

Baccarose Perfumes and Beauty Products Pvt. Ltd v.

Central Bureau of Investigation & Anr.

* Author
officer – It is only after a Final Report/Challan/Chargesheet is
submitted as per the compliance of s. 173(2) CrPC, cognizance for
the offence is taken – However, the court is not bound by the said
report – On facts, on remand to the Assessing Authority for
decision afresh on the liability, it had observed that the
appellantCompany was entitled to a refund of INR 1.39 Crores out
of the INR 1.51 crores paid by it to the Revenue Authorities as per
the demand made earlier for the purpose of clearance of the
concerned goods – Said Order attained finality – Furthermore, the
appellantCompany had successfully claimed immunity from
prosecution under the CA 1962, CE Act 1944, and IPC – As such,
there was no fiscal liability on the appellant-Company, and
accordingly, the order passed by Special Judge, taking cognizance
against the appellant-Company, ought not to have sustained – As
the very basis of the allegation of offence against the appellant-
Company was found to be non-existent, it would have amounted
to misuse rather abuse of the process of law – In view thereof,
application for discharge ought to have been accepted by the
Special Judge – Thus, the proceedings against the appellant-
Company quashed by setting aside the impugned order passed by
the High Court and the order passed by the Special Judge –
Customs Tariff Act, 1975 – Customs Act, 1962 – Prevention of
Corruption Act, 1998 –
Penal Code, 1860. [Paras 18, 19, 21-23]

Case Law Cited

General Officer Commanding, Rashtriya Rifles v. CBI and Another
[2012] 5 SCR 599 : (2012) 6 SCC 228; Jamuna Singh and Others
v. Bhadai Shah [1964] 5 SCR 37 : 1963 SCC OnLine SC 263;
Devarapalli Lakshminarayana Reddy and Others v. V. Narayana
Reddy and Others [1976] Supp. 1 SCR 524 : (1976) 3 SCC 252;
H.N. Rishbud v. State [1955] 1 SCR 1150 : (1954) 2 SCC 934;
Abhinandan Jha and Others v. Dinesh Mishra [1967] 3 SCR 668 :
1967 SCC OnLine SC 107; State of Orissa v. Habibullah Khan,
2003 SCC OnLine SC 141; Hira Lal Hari Lal Bhagwati v. CBI, New
Delhi [2003] 3 SCR 1118 : (2003) 5 SCC 257– referred to.

List of Acts
Code of Criminal Procedure, 1973; Companies Act, 1956;
Standards of Weights and Measures Act, 1976; Customs Tariff Act,
56 [2024] 9 S.C.R.

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1975; Central Excise Act, 1944; Customs Act, 1962; Prevention of
Corruption Act, 1998; Penal Code, 1860.

List of Keywords
Revision; Discharge application; Immunity from the prosecution;
Countervailing duty on the invoice value of goods; Payment of
countervailing duty on maximum retail price of goods; Wrongful
gain; Wrongful loss; Government exchequer; Registration of FIR;
Investigation; Final Report/Challan/Chargesheet; Abuse of the
process of law.

Case Arising From

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 3216

of 2024
From the Judgment and Order dated 15.09.2023 of the High Court
of Gujarat at Ahmedabad in CRA No. 783 of 2017

Appearances for Parties

Kapil Sibal, Sr. Adv., Shamik Shirishbhai Sanjanwala, Raheel Patel,

Prabhakar Yadav, Advs. for the Appellant.
Mrs. Chitrangda Rastavara, Ms. Shagun Thakur, Shantanu Sharma,
Rajat Nair, Ms. Rajeshwari Shankar, Akshaja Singh, Mukesh Kumar
Maroria, Ms. Swati Ghildiyal, Prashant Bhagwati, Ms. Devyani Bhatt,
Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
Augustine George Masih, J.
1. The Appellant (hereinafter referred to as “Appellant-Company”) is
assailing the Order dated 15.09.2023, wherein the High Court of
Gujarat dismissed the Criminal Revision Application No. 783 of 2017
(hereinafter referred to as “CRA No. 783 of 2017”) moved under
Section 397 read with Section 401 of Code of Criminal Procedure,
1973 (hereinafter referred to as “CrPC 1973”) against the rejection
of discharge application moved by the Appellant-Company. The said
application was dismissed by the learned Special Judge (CBI) at
Ahmedabad (hereinafter referred to as “Special Judge”) vide Order
dated 19.07.2017.
[2024] 9 S.C.R. 57

Baccarose Perfumes and Beauty Products Pvt. Ltd v.

Central Bureau of Investigation & Anr.
2. It is alleged by the Central Bureau of Investigation, being
Respondent No. 01 (hereinafter referred to as “Respondent-
Agency”), that the Appellant-Company had entered into a criminal
conspiracy with Shri Yogendra Garg, Joint Development
Commissioner, Kandla Special Economic Zone, Kandla (hereinafter
referred to as “KASEZ”), and Shri V.N. Jahagirdar, Deputy
Commissioner of Customs, KASEZ, between the period from March
2001 to August 2004. It is alleged that the latter officials perverted
their official positions and allowed the Appellant-Company to clear
its goods into the Indian Market on payment of Countervailing Duty
(hereinafter referred to as “CVD”) on the invoice value of the
concerned goods, rather than the payment of the CVD on the
Maximum Retail Price (hereinafter referred to as “MRP”) of the said
goods, thereby causing a wrongful gain to themselves and a
corresponding wrongful loss to the Government exchequer to the
tune of INR 8,00,00,000/- (Rupees Eight Crores only).
3. Before pursuing the aftermath of the allegations by the
RespondentAgency, it is crucial to delve into the backdrop in which
the allegations arose against the Appellant-Company.
4. The Appellant-Company claims to be a private limited company duly
incorporated under the Companies Act, 1956, which is engaged in
manufacturing and exporting of cosmetics and toilet preparations
and having one of its units in KASEZ. As per the Appellant-Company,
its products get cleared from the KASEZ Unit into the Domestic Tariff
Area (hereinafter referred to as “DTA”) in consonance with the
necessary permissions granted to it by the appropriate authority. It is
its case that it had effected the following three kinds of clearances
from its KASEZ Unit into the DTA, being (a) Clearances of goods
weighing or containing less than 20 gram or 20 millilitre, (b) products
containing alcohol, and (c) other goods in “Wholesale Packs”.
5. From August 2004 onwards, Officers of the Kandla Customs
(hereinafter referred as “Revenue Authorities”) moved against the
Appellant-Company, alleging that they had escaped payment of CVD
on the aforementioned clearances on account of non-disclosure of
MRP as per the provisions of the Standards of Weights and
Measures Act, 1976 (hereinafter referred to as “SWM Act 1976”) as
they had declared only the invoice value of the said goods. This was
a violation of the proviso to Section 3(2) of the Customs Tariff Act,
1975 (hereinafter referred to as “CT Act 1975”) read with Section
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4A(2) of the Central Excise Act, 1944 (hereinafter referred to as
“CE Act 1944”), and on the said ground, goods being cleared by the
Appellant-Company into the DTA were intercepted. The Revenue
Authorities issued Show Cause Notices dated 03.11.2004,
10.11.2004, and 10.02.2005 (along with Corrigendum dated
11.03.2005) under Section 28 of the Customs Act, 1962 (hereinafter
referred to as “CA 1962”), under Section 11A of the CE Act 1944, and
under Section 124 of CA 1962 respectively.
6. Thereafter, pursuant to the said allegation based on source
information to Respondent-Agency, First Information Report bearing
number RC-6(A)/2005-GNR under Section 120B read with Section
420 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC
1860”) and Section 13(1)(d) of the Prevention of Corruption Act,
1998 (hereinafter referred to as “PCA 1998”) was registered on
04.04.2005 at Gandhinagar branch of Respondent-Agency
(hereinafter referred to as “the FIR”). A raid is also claimed to have
been conducted on the KASEZ Unit of the Appellant-Company by
the Respondent-Agency.
7. Eventually, Assessment Orders were passed observing the
nondeclaration of MRP on the concerned goods by the Appellant-
Company. These Assessment Orders were assailed by the
Appellant-Company before the Commissioner of Customs
(Appeals), Kandla by filing of appeals, which resulted in the passing
of Orders dated 09.05.2005 and 30.06.2005. The Commissioner of
Customs (Appeals), Kandla observed that the concerned goods
were ought to be assessed under Section 3(2) of the CT Act 1975 as
opposed to the proviso to the said provision. Furthermore,
declaration of MRP is necessary on packages intended for retail sale
and not for bigger packages for wholesale trade. The Revenue
Authorities were directed to consider the case of the concerned
goods of the Appellant-Company afresh in light of the observations
made in the said Orders.
8. In the meanwhile, a clarification was sought from the Office of the
Collector of Legal Metrology and Director of Consumer Affairs by the
Appellant-Company in the said regard and it was responded vide
Letter dated 04.01.2006 wherein, the view taken by the
AppellantCompany by placing reliance on Rule 29 of the Standards
of Weights and Measures (Packaged Commodities) Rules, 1977
[2024] 9 S.C.R. 59

Baccarose Perfumes and Beauty Products Pvt. Ltd v.

Central Bureau of Investigation & Anr.
(hereinafter referred to as “Packaged Commodities Rules 1977”)
was affirmed.
9. Placing reliance on the Letter dated 04.01.2006 and other materials
on record, the Appellant-Company moved three applications before
the Settlement Commission and immunity was granted to it under
the CE Act 1944, CA 1962, and IPC 1860 vide Common Order No.
248/Final Order/CEX/KNA/2007 dated 21.08.2007.
10. The Investigation Officer, thereafter, was pleased to move a Closure
Report dated 05.03.2008 before the learned Special Judge. The
Court, however, rejected the said Closure Report vide order dated
01.06.2010, and instead directed for registration of a Special Case
against the accused persons, including the Appellant-Company. This
case came to be registered as CBI Special Case No. 48 of 2010.
11. The Appellant-Company moved the High Court of Gujarat by filing a
Special Criminal Application challenging the above Order which was
dismissed on 12.12.2011. Aggrieved, the Appellant-Company moved
this Court through filing of Special Leave Petition (Criminal) No.
14430 of 2013. This Court was pleased to condone the delay in filing,
but while dismissing the petition vide Order dated 26.07.2013
observed that only cognizance had been taken by the learned
Special Judge and directed issuance of summons to the Appellant-
Company, and thereby, it was not an appropriate stage to interfere.
However, liberty was granted to the Appellant-Company to pursue
and plead for discharge at the time of hearing of charges.
12. In pursuance of the said liberty, the Appellant-Company moved an
application for discharge before the learned Special Judge. One of
the grounds was that the Appellant-Company had been granted
immunity under the CE Act 1944, CA 1962, and IPC 1860 through
Order dated 20.08.2007 passed by the competent authority, i.e., the
Settlement Commission and pressed into service the observations
made by this Court in General Officer Commanding, Rashtriya
Rifles v. CBI29 and Another, Jamuna Singh and Others v. Bhadai
Shah,30 and Devarapalli Lakshminarayana Reddy and Others v.
V. Narayana Reddy and Others 31 to the effect that mere filing of

29
[2012] 5 SCR 599 : (2012) 6 SCC 228
30
[1964] 5 SCR 37 : 1963 SCC OnLine SC 263
31
[1976] Supp. 1 SCR 524 : (1976) 3 SCC 252
60 [2024] 9 S.C.R.

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FIR with the police, which is subsequently forwarded to the Court,
does not amount to institution of prosecution. Furthermore, that the
Appellant-Company is not a “public servant” vis-à-vis Section 13(1)
(b) read with Section 13(2) of the PCA 1998. Besides this, the Court
had already refused to accept contentions of the Respondent-
Agency against Shri Yogendra Garg for sanction under Section 197
of the CrPC 1973, and henceforth, the Appellant-Company cannot
be prosecuted alone for the charge under Section 120B of IPC 1860,
and it finally put forth that the offences under Section 420 read with
Section 120B of IPC 1860 are not made out as against the Appellant.
13. The learned Special Judge, however, disagreed Company and
dismissed the said application vide Order dated 19.07.2017. To
substantiate its dismissal, the Court with reference to the CE Act
1944, observed that as per Section 4A(1), it transpires that the retail
price of the concerned goods is to be declared, which through
reliance on Circular dated 01.03.2001 and the concerned provisions
of law, is interpreted as declaration of MRP.
14. It is against the said Order dated 19.07.2017 that the
AppellantCompany had moved the High Court of Gujarat in CRA No.
783 of 2017 which eventually led to the passing of the Impugned
Order dated 15.09.2023. During the pendency of the CRA No. 783
of 2017, the High Court of Gujarat stayed further proceedings before
the Special Judge while issuing notice to the Respondent-Agency
vide Order dated 18.08.2017. It was brought to the attention of the
High Court that the Appellant-Company had paid a total of INR
1,51,45,378/- (Rupees One Crore Fifty One Lakhs Forty Five
Thousand Three Hundred and Seventy Eight only) during the
investigation by the
Revenue Authorities and admittedly, in light of the Orders dated
09.05.2005 and 30.06.2005, the Appellant-Company had become
entitled to a refund instead.
15. While passing the Impugned Order dated 15.09.2023, the High Court
of Gujarat disagreed with the contentions of the Appellant-Company,
and affirmed the contentions of the Respondent-Agency.
16. It is in this backdrop that the Appellant-Company moved this Court
in Special Leave Petition (Civil) No. 13422 of 2023 by reiterating its
earlier contentions. On the first date of hearing, our attention was
drawn to the Order dated 09.05.2005 of the Office of Commissioner
of Customs (Appeals) which had directed that the matter be
[2024] 9 S.C.R. 61

Baccarose Perfumes and Beauty Products Pvt. Ltd v.

Central Bureau of Investigation & Anr.
remanded to the assessing authority for fresh assessment. No
further development is there in the case of the Appellant-Company.
Accordingly, vide Order dated 16.10.2023, proceedings before the
Trial Court were stayed. The Respondent-Agency, too, filed their
contentions as part of its Counter Affidavit dated 19.04.2024.
17. Having heard the counsels for both the parties at length, it is
pertinent to consider the concerned provisions of law before we
delve into the legal and factual facet.
18. Predominantly, the argument of the Appellant-Company pertained to
having been granted immunity by Settlement Commission vide
Order dated 20.08.2007 as per Section 32K of the CE Act 1944. A
perusal of the powers of the Settlement Commission leads us to
equivalent provision under the CA 1962 through Section 127H. Both
the provisions are pari materia to each other and bear the same text.
These sections provide for an explicit bar from prosecution on grant
of immunity in cases where the proceedings for any offence have
been instituted subsequent to the date of receipt of the application
seeking such immunity under the relevant law.
19. A perusal of the scheme of the CrPC 1973 allows us to infer that
mere registration of FIR cannot be interpreted to mean that it
constitutes the initiation of such proceedings. A registration of FIR
necessitates an investigation by a competent officer as per the
detailed process outlined in Sections 155 to 176. It is only after a
Final Report (or as referred in the common parlance, a Challan or a
Chargesheet) is submitted as per the compliance of Section 173(2)
of CrPC 1973, cognizance for the offence(s) concerned is taken.
However, undoubtedly, the Court is not bound by the said report.
The cardinal principle that investigation and taking of cognizance
operate in parallel channels, without an intermingling, and in different
areas was also laid down by this Court in H.N. Rishbud v. State
(Delhi Admn.) 32 and further elaborated and reiterated in
Abhinandan Jha and Others v. Dinesh Mishra 33 and State of
Orissa v. Habibullah Khan.34

32
[1955] 1 SCR 1150 : (1954) 2 SCC 934
33
[1967] 3 SCR 668 : 1967 SCC OnLine SC 107
34
2003 SCC OnLine SC 1411
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20. In Hira Lal Hari Lal Bhagwati v. CBI, New Delhi,35 even though the
subject matter of the dispute pertained to Kar Vivad Samadhan
Scheme, 1998 (hereinafter referred to as “KVSS 1998”), the
observations of this Court came to the rescue of the Assessee-
Company therein. As per the said factual matrix, the case of the
Assessee-Company therein was settled under the KVSS 1998 on
10.02.1999 by the Designated Authority and as per the terms of the
settlement, the Assessee-Company therein withdrew the appeal
before this Court on 16.03.1999 and a certificate for full and final
settlement was issued on 19.07.1999. Despite that, on 06.01.1999, a
case was registered as against the Appellant therein in capacity as
the office bearer of the Assessee-Company. It was held by this Court
that continuation of such a prosecution would be inconsistent with
the intent and provisions of the law. The Appellant therein was also
obliged to withdraw the appeal before this Court, which might have
had also impacted the merits of the criminal proceedings as against
them.
21. The above ratio, as laid down by this Court, would be fully applicable
to the case-at-hand, especially when it is not in dispute that the
Commissioner of Customs (Appeals), Kandla returned a finding that
the Appellant-Company was not required to pay the CVD on the
basis of MRP, but as per the invoice value. This is in consonance
with the submission of the Appellant-Company.
On remand to the Assessing Authority for decision afresh on the
liability, it had observed that the Appellant-Company was entitled to
a refund of INR 1.39 Crores out of the INR 1,51,45,378/- (Rupees
One Crore Fifty One Lakhs Forty Five Thousand and Three Hundred
Seventy Eight only) paid by it to the Revenue Authorities as per the
demand made earlier for the purpose of clearance of the concerned
goods. This position is also admitted by the Respondent-Agency in
its Counter Affidavit dated 19.04.2024. Moreover, the said Order was
never challenged by the Revenue Authorities, and has, thus,
attained finality.
22. Furthermore, the Appellant-Company had successfully claimed
immunity from prosecution under the CA 1962, CE Act 1944, and
IPC 1860 vide Order dated 21.08.2007. In such a circumstance,
there was no fiscal liability on the Appellant-Company, and
accordingly, the Order dated 01.08.2010 passed by learned Special

35
[2003] 3 SCR 1118 : (2003) 5 SCC 257
[2024] 9 S.C.R. 63

Baccarose Perfumes and Beauty Products Pvt. Ltd v.

Central Bureau of Investigation & Anr.
Judge, taking cognizance against the Appellant-Company, ought not
to have sustained. As the very basis of the allegation of offence
against the Appellant-Company was found to be non-existent, it
would have amounted to misuse rather abuse of the process of law.
It may be added here that the prosecution sanction as sought against
the officials of KASEZ, who were said to have committed the
offences under PCA 1988, stood declined. In the light of this
additional fact, the application for discharge, as moved by the
Appellant-Company, ought to have been accepted by the learned
Special Judge.
23. In light of the above, the present Appeal is allowed. The proceedings
against the Appellant-Company are quashed by setting aside the
Impugned Order dated 15.09.2023 passed by the High Court of
Gujarat in CRA No. 783 of 2017 and the Order dated 01.06.2010
passed by the Special Judge in RC6(A)/2005.
24. Pending applications, if any, stand disposed of.

Result of the case: Appeal Allowed

Headnotes prepared by: Nidhi Jain

†
 [2024] 9 S.C.R. 64 : 2024 INSC 664

Somprabha Rana & Ors.

v.
The State of Madhya Pradesh & Ors.
(Criminal Appeal No. 3821 of 2023)
06 September 2024
[Abhay S. Oka* and Augustine George Masih, JJ.]

Issue for Consideration

High Court, if justified in disturbing the custody of the child, aged
one year and five months at the time of passing the order, by
handing over the custody of the child to her father and paternal
side relatives from the custody of her maternal side relatives.

Headnotes†

Constitution of India – Art. 226 – Writ of Habeas Corpus under,

seeking custody of minor – Minor child aged 11 months, in
custody of maternal side relatives after the unatural death of
her mother – Arrest of father in connection with mother’s
death, however later released on bail – Habeas Corpus
petition, wherein the High Court directed the maternal
relatives to hand over custody of the child to the father and
his family – Correctness:
Held: When the Court deals with the issue of habeas corpus
regarding a minor, the court cannot treat the child as a movable
property and transfer custody without even considering the impact
of the disturbance of the custody on the child – Such issues cannot
be decided mechanically – Court has to act based on humanitarian
considerations – Court cannot ignore the doctrine of parens
patriae – On facts, High Court did not deal with and consider the
issue of the welfare of the child – High Court disturbed the child’s
custody based only on the father’s right as a natural guardian –
Child had been in the custody of the appellants-maternal side
relatives from the tender age of 11 months after her mother’s
death, for more than one and a half years – Thus, not a case where
custody of the child could be disturbed in a petition u/Art. 226 – At
this tender age, if custody of the child is immediately transferred to
the father and grandparents, the child would become miserable as
she has not met them for a considerably long time – Moreover,
[2024] 9 S.C.R. 65

Somprabha Rana & Ors. v. The State of Madhya Pradesh & Ors.

* Author
no allegation that the child is not being looked after properly by the
appellants – Even assuming that the father is not entitled to
custody, at this stage, he is entitled to have access to meet the
child, in the child’s best interest that she knows her father and
grandparents and remains with them for some time to begin with
– Father has shown unwillingness to apply for custody, orders of
the Court regarding custody not final – Thus, it is proposed to
permit the appellants or any of them to apply for custody to the
Regular Court under the GW Act – Impugned judgment and order
set aside – Writ Petition dismissed not on merits but on the ground
that the discretion could not have been exercised u/ Art. 226 to
disturb the custody at this stage – Appellants to give access to the
father and paternal grandparents of the child to meet the child
once a fortnight – Order of access to continue for stipulated period,
thereafter, would be open to be modified by the trial court –
Guardians and Wards Act, 1890. [Paras 8-14]
Writ – Writ of Habeas Corpus – Nature of – Custody of the
minor:
Held: Writ of Habeas corpus is a prerogative writ – It is an
extraordinary and discretionary remedy – High Court always has
the discretion not to exercise the writ jurisdiction depending upon
the facts of the individual cases – Even if the High Court, in a
petition of Habeas Corpus, finds that custody of the child by the
respondents was illegal, in a given case, the High Court can
decline to exercise jurisdiction u/Art. 226 if the High Court is of the
view that at the stage at which the Habeas Corpus was sought, it
would not be in the welfare and interests of the minor to disturb
his/her custody – As regards, the custody of the minor children,
the only paramount consideration is the welfare of the minor –
Parties’ rights cannot be allowed to override the child’s welfare.
[Para 6]
Custody matters – Custody of minor – Procedings before the
Regular Civil/Family Court:
Held: Only in substantive proceedings under the GW Act can the
appropriate Court decide the issue of the child custody and
guardianship – Regular Civil/Family Court dealing with child
custody cases is in an advantageous position – Court can
frequently interact with the child – Practically, all Family Courts
have a child centre/play area – Child can be brought to the play
66 [2024] 9 S.C.R.

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centre, where the judicial officer can interact with the child –
Access can be given to the parties to meet the child at the same
place – Moreover, the Court dealing with custody matters can
record evidence – Court can appoint experts to make the
psychological assessment of the child – If an access is required to
be given to one of the parties to meet the child, the Civil Court or
Family Court is in a better position to monitor the same. [Paras 10]

Case Law Cited

Tejaswini Gaud & Ors. v. Shekhar Jagdish Prasad Tewari & Ors.
[2019] 7 SCR 335 : (2019) 7 SCC 45; Swaminathan Kunchu
Acharya v. The State of Gujarat [2022] 6 SCR 727 : (2022) 8 SCC
804; Gautam Kumar Das v. NCT of Delhi & Others [2024] 8 SCR
451 : (2024) INSC 610; Nirmala v. Kulwant Singh and Others
(2024) SCC OnLine SC 758 – referred to.

List of Acts
Constitution of India; Penal Code, 1860; Dowry Prohibition Act,
1961; Guardians and Wards Act, 1890.

List of Keywords
Custody; Custody of minor; Writ of Habeas Corpus u/Art. 226;
Habeas corpus; Humanitarian considerations; Welfare of the child;
Child custody and guardianship; Order of access to child;
Psychological assessment of the child; Prerogative writ;
Extraordinary and discretionary remedy; Doctrine of parens
patriae.

Case Arising From

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 3821

of 2023
From the Judgment and Order dated 23.06.2023 of the High Court
of M.P. at Indore in WP No. 11004 of 2023
Appearances for Parties

Gagan Gupta, Sr. Adv., Nikhil Jain, Saurabh Singh, Divyansh Singh,
Advs. for the Appellants.
P.S. Patwalia, Sr. Adv., Pashupathi Nath Razdan, Ajay Sharma,
Mirza Kayesh Begg, Ms. Maitreyee Jagat Joshi, Astik Gupta, Ms.
Akanksha Tomar, Argha Roy, Ms. Ojaswini Gupta, Ms. Ruby, Zartab
Anwar, Santosh Kumar, Rishiraj Trivedi, Madhurendra Sharma,
[2024] 9 S.C.R. 67

Somprabha Rana & Ors. v. The State of Madhya Pradesh & Ors.
Rajiv R. Mishra, Ms. Suruchi Yadav, Aditi Shivadhatri, Yadav
Narender Singh, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
Abhay S. Oka, J.

FACTUAL ASPECTS
1. This appeal arises from a very unfortunate dispute about the custody
of a female child (for short, ‘the child’) whose present age is two
years and seven months. The mother of the child unfortunately died
an unnatural death on 27th December 2022. It is alleged that the
death of the mother was by hanging. The 4th respondent is the father
of the child. The 2nd and 3rd respondents are the paternal
grandparents of the child. The 5th respondent is the sister-in-law of
the 4th respondent (his brother’s wife). The 1st to 3rd appellants are
the real sisters of the deceased mother. The 4th and 5th appellants
are the child’s maternal grandparents, who were not the parties
before the High Court. The 5th respondent is also a real sister of the
child’s mother. The 5th respondent is the wife of the 4th respondent’s
brother.
2. The 2nd to 4th respondents invoked the jurisdiction of the Madhya
Pradesh High Court by filing a petition seeking a writ of Habeas
Corpus under Article 226 of the Constitution of India. A case made
out in the petition was that the 4th respondent and the mother of the
child were residing in Indore, where the unnatural death of the
mother occurred. A First Information Report was registered against
the 2nd and 4th respondents for offences punishable under Sections
304-B and 498-A of the Indian Penal Code and Sections 3 and 4 of
the Dowry Prohibition Act, 1961. According to the case of the 2nd to
5th respondents, the 2nd and 3rd appellants came to Indore on 28th
December 2022. When the 4th respondent was busy completing the
formalities of the post-mortem, without the consent of the 4th
respondent, the 2nd and 3rd appellants took away the minor child. The
4th respondent - the father, was arrested in connection with the
offence on 19th February 2023 and was granted bail after filing the
charge sheet on 19th April 2023. The petition under Article 226 filed
by the 2nd to 5th respondents proceeded on the allegation that the
2nd and 3rd appellants illegally took over custody of the child. It must
68 [2024] 9 S.C.R.

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be noted here that on the date of death of the mother, the age of the
child was 11 months.
3. By the impugned judgment dated 23rd June 2023, the Division Bench
of the High Court of Madhya Pradesh at Indore allowed the writ
petition. It issued a writ of Habeas corpus directing the appellants to
hand over custody of the child to the 2nd to 5th respondents. On 7th
July 2023, this Court issued notice and granted a stay of the
operation of the impugned judgment. On 5th December 2023, this
Court granted leave and continued the stay. However, this Court
observed that it would be open for the husband to apply for custody
before the appropriate Court. As of this date, the husband has not
applied for custody by filing proceedings under the Guardians and
Wards Act, 1890 (for short, “the GW Act”). The appellants made such
an application under the GW Act, but it was withdrawn later. This is
the statement made by the learned counsel for the appellants. Now,
the question is whether the High Court was justified in disturbing the
custody of the child, whose age was one year and five months at the
time of passing the impugned judgment.
SUBMISSIONS
4. The learned senior counsel appearing for the appellants urged that
by the impugned judgment, without making any inquiry, the High
Court has ordered the child’s custody to be disturbed based only on
the legal rights of the child’s father and grandparents. He submitted
that in the facts of the case, the High Court ought not to have
entertained a petition for Habeas Corpus. He submitted that even if
the petition was to be entertained, it was the duty of the Court to see
what was in the best interests of the minor and custody could not
have been disturbed at such tender age without considering the
question of the welfare of the minor child.
5. Learned senior counsel appearing for the respondents extensively
relied upon decisions of this Court in the cases of Tejaswini Gaud
& Ors. v. Shekhar Jagdish Prasad Tewari & Ors.,36 Swaminathan
Kunchu Acharya v. The State of Gujarat 37 and Gautam Kumar
Das v. NCT of Delhi & Others.38 Learned senior counsel would urge

36
[2019] 7 SCR 335 : (2019) 7 SCC 45
37
[2022] 6 SCR 727 : (2022) 8 SCC 804
38
[2024] 8 SCR 451 : (2024) INSC 610
[2024] 9 S.C.R. 69

Somprabha Rana & Ors. v. The State of Madhya Pradesh & Ors.
that the case of Gautam Kumar Das3 is identical on facts where the
High Court had declined to entertain the petition for Habeas corpus
by expressing a view that statutory remedy should be adopted for
seeking custody. However, this Court interfered and granted the
father custody of the minor child. He submitted that the father and
his parents reside together and, therefore, are in a position to take
the best possible care of the child. He submitted that the appellants
have not allowed the father to see even the face of the child. The
learned senior counsel appearing for the appellants relied upon a
decision of this Court in the case of Nirmala v. Kulwant Singh and
Others.39
CONSIDERATION OF SUBMISSIONS
6. After having perused various decisions of this Court, the broad
propositions of settled law on the point can be summarised as
follows:
a. Writ of Habeas corpus is a prerogative writ. It is an
extraordinary remedy. It is a discretionary remedy;
b. The High Court always has the discretion not to exercise the
writ jurisdiction depending upon the facts of the case. It all
depends on the facts of individual cases;
c. Even if the High Court, in a petition of Habeas Corpus, finds
that custody of the child by the respondents was illegal, in a
given case, the High Court can decline to exercise jurisdiction
under Article 226 of the Constitution of India if the High Court is
of the view that at the stage at which the Habeas Corpus was
sought, it will not be in the welfare and interests of the minor to
disturb his/her custody; and
d. As far as the decision regarding custody of the minor children
is concerned, the only paramount consideration is the welfare
of the minor. The parties’ rights cannot be allowed to override
the child’s welfare. This principle also applies to a petition
seeking Habeas Corpus concerning a minor.
7. Now, we come to the impugned judgment. The reasons given by the
Division Bench are found only in two paragraphs, namely,
paragraphs nos. 10 and 11, which read thus:

39
(2024) SCC OnLine SC 758
70 [2024] 9 S.C.R.

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“10. From perusal of the Tejaswini Gaud & Ors. (supra), the
Habeas Corpus proceeding is not to justify or examine the
legality of the custody. In the present case, the only thing
which is required to be considered is whether the detention of
the minor child by the parents or others was illegal and without
any authority of law. It is the settled proposition of law that the
Writ of Habeas Corpus is maintainable only if the person is
able to prove that the
Corpus is in illegal custody or is kept in illegal
confinement. In the present case, admittedly the
petitioners would have precedence over the
respondent Nos. 3 and 4 who are the relatives from
the maternal side whereas the petitioner No. 3 is the
biological father of the Corpus, therefore, the writ of
Habeas Corpus is maintainable as well as the
petitioners would have precedence for custody of the
minor child qua the respondent Nos. 3 and 4.
11. The writ of the Habeas Corpus for seeking custody of
minor child is maintainable only if the Corpus is in illegal
custody. In the present case, the custody/detention of
a minor child by the respondent Nos. 3 and 4 who are
not the natural guardian of the Corpus, are not
entitled to her legal custody. Accordingly, the
respondent Nos.3 and 4 are directed to hand over the
custody of the minor child namely XXXX to the petitioners
within 15 days from the date of receipt of certified copy of
the order.”
(emphasis added)
8. It is apparent that the High Court has not dealt with and considered
the issue of the welfare of the child. The High Court has disturbed
the child’s custody based only on the father’s right as a natural
guardian.
9. The High Court was dealing with the custody of the child, whose age
at that time was one year and five months. The child had been in the
custody of the appellants from the tender age of 11 months after her
mother died. The child, at present, has been in the custody of the
appellants for more than one and a half years. When the Court deals
with the issue of Habeas Corpus regarding a minor, the Court cannot
treat the child as a movable property and transfer custody without
[2024] 9 S.C.R. 71

Somprabha Rana & Ors. v. The State of Madhya Pradesh & Ors.
even considering the impact of the disturbance of the custody on the
child. Such issues cannot be decided mechanically. The Court has
to act based on humanitarian considerations. After all, the Court
cannot ignore the doctrine of parens patriae. Learned senior counsel
appearing for the 2nd to 5th respondents submitted that if the Court is
of the view that there is no proper consideration by the High Court,
the order of remand may be passed to the High Court.
10. We believe that considering the peculiar facts of the case and the
child’s tender age, this is not a case where custody of the child can
be disturbed in a petition under Article 226 of the Constitution of
India. Only in substantive proceedings under the GW Act can the
appropriate Court decide the issue of the child custody and
guardianship. Regular Civil/Family Court dealing with child custody
cases is in an advantageous position. The Court can frequently
interact with the child. Practically, all Family Courts have a child
centre/play area. A child can be brought to the play centre, where
the judicial officer can interact with the child. Access can be given to
the parties to meet the child at the same place. Moreover, the Court
dealing with custody matters can record evidence. The Court can
appoint experts to make the psychological assessment of the child.
If an access is required to be given to one of the parties to meet the
child, the Civil Court or Family Court is in a better position to monitor
the same.
11. Coming to the facts of the case, at this stage, it will be very difficult
to decide whether the welfare of the minor child requires custody of
the maternal aunts to be disturbed. The child has not seen the father
and grandparents for over a year. At the tender age of two years and
seven months, if custody of the child is immediately transferred to
the father and grandparents, the child will become miserable as the
child has not met them for a considerably long time. Moreover, even
the contesting respondents have not alleged that the child is not
being looked after properly by the appellants. Whether the father is
entitled to custody or not is a matter to be decided by a competent
court, but surely, even assuming that the father is not entitled to
custody, at this stage, he is entitled to have access to meet the child.
It is in the child’s best interest that she knows her father and
grandparents and remains with them for some time to begin with.
12. We repeatedly asked the learned senior counsel representing the
husband whether the husband was willing to apply for custody.
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However, he has shown unwillingness to apply for custody. The
husband is a member of the Bar practising at the Indore Bench of
the Madhya Pradesh High Court. Even he was personally present
during the hearing. However, the learned senior counsel appearing
for the appellants stated that the appellants or any of them would
apply for claiming declaration as a guardian and retaining the
custody. The earlier application filed by the appellants has been
withdrawn. However, orders of the Court regarding custody are
never final. Therefore, we propose to permit the appellants or any of
them to apply for custody to the Regular Court under the GW Act.
Even in the petition filed by the appellants, the competent Court can
permit the father to take over the custody if it is satisfied that the
welfare of the minor requires custody to be granted to the father.
13. We propose to direct the appellants to give access to the father and
paternal grandparents of the child to meet the child once a fortnight.
To begin with, access can be provided in the office of the secretary
of the District Legal Service Authority so that the secretary can
supervise the access. We propose to direct the secretary of the
District Legal Service Authority to take assistance from a child
psychologist or a psychiatrist (preferably female) attached to a local
public hospital. If no such expert is available with the local public
hospital, such an expert can be appointed at the appellants’ cost.
The expert will ensure that the child responds to the father and
grandparents and interacts with them. The order of access shall
continue for four months. After that, it will be open for the concerned
Trial Court to modify this order of access in all respects. When the
child becomes comfortable with his father and grandparents, the
Court can also consider granting overnight access to the father and
the grandparents.
14. Hence, we pass the following order:
a. Impugned judgment and order dated 23rd June, 2023 is set
aside, and Writ Petition No. 11004 of 2023 is hereby dismissed.
We make it clear that the Writ Petition is dismissed not on
merits but on the ground that on facts, the discretion could not
have been exercised under Article 226 of the Constitution of
India to disturb the custody of the appellants at this stage;
b. On every 1st, 3rd and 5th Saturdays starting from 21st September
2024, the appellants shall take the child to the office of the
secretary of the District Legal Service Authority at district Panna
[2024] 9 S.C.R. 73

Somprabha Rana & Ors. v. The State of Madhya Pradesh & Ors.
in the State of Madhya Pradesh at 03.00 p.m. Under the
supervision of the secretary of the District Legal Service
Authority, the father and grandparents of the child shall be
permitted to meet the child till 05.00 p.m.;
c. The secretary of the District Legal Service Authority shall take
the assistance of a child psychologist or a psychiatrist
(preferably female) working in any local public hospital. If such
experts are unavailable, the secretary shall privately engage
one such expert at the appellants’ cost. The appellants will pay
necessary charges as and when called upon by the secretary.
The payment will be subject to the outcome of the proceedings
for grant of custody;
d. The expert so appointed shall remain present at the time of
access. The expert’s duty will be to persuade the child to
interact with her father and grandparents. As regards the mode
and manner of allowing the father and grandparents to meet
the child, the parties and the secretary of the District Legal
Service
Authority shall be guided by the opinion of the expert;
e. As assured to the Court, the appellants or some of them shall
file a petition seeking a declaration of guardianship and
permanent custody of the child under the provisions of the GW
Act before the competent Court within a maximum period of two
months from today;
f. The concerned Court in which the application will be filed shall
pass further orders regarding the grant of access and/or
overnight custody to the husband and the grandparents.
Further interim directions regarding access, overnight access,
etc., shall be issued by the competent Court in which the
appellants apply for custody. To enable the said court to pass
an appropriate interim order, we direct that the interim
arrangement made as above for the grant of access to the
father and the grandparents will continue to operate for four
months from today. Thereafter, the competent Court will deal
with the prayer for interim relief on its own merits. Needless to
add, in the event the husband and/or grandparents apply for
custody, the application filed by them and the application filed
by the appellants shall be heard together, and
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g. In the event of failure of both parties to apply to the competent
Court, the parties will be free to apply to this Court for
appropriate directions.
15. The appeal is, accordingly, partly allowed on the above terms.
16. We direct the registry to immediately forward a copy of this judgment
to the secretary of the District Legal Service Authority at District
Panna, State of Madhya Pradesh, who shall act upon the copy of the
judgment provided by the registry of this Court. If the secretary of the
District Legal Service Authority needs any further directions from this
Court, it will be open for him to submit a report to the Registrar
(Judicial) of this Court, who shall immediately place the same before
this Bench and/or the appropriate Bench.
17. There will be no orders as to costs. Result of the case: Appeal partly

allowed

Headnotes prepared by: Nidhi Jain

†
 [2024] 9 S.C.R. 75 : 2024 INSC 663

Andhra Pradesh State Road Transport Corporation & Ors.

v.
V.V. Brahma Reddy & Anr.
(Civil Appeal No. 5267 of 2024)
06 September 2024
[Pamidighantam Sri Narasimha* and Pankaj Mithal, JJ.]

Issue for Consideration

The appellant issued a notification dated 08.06.2017 repatriating
employees who were on deputation, including the present
respondents, to their parent cadres in TSRTC, i.e., to the zones in
which they were initially appointed. The respondents challenged
the notification. In writ appeals, taking note of the guidelines for
allocation formulated by both Corporations (APSRTC and
TSRTC), the High Court passed an interim order dated 18.04.2018
suspending the order of the Single judge of the High Court and
directing the respondents to report in their parent zones under the
TSRTC, where they were initially appointed, as the guidelines for
allocation of employees were jointly finalised by APSRTC and
TSRTC. In continuation of the said order, this time the High Court
took a different view of the matter and directed permanent
allocation of the respondents in their deputational posts falling in
the State of Andhra Pradesh.

Headnotes†

Andhra Pradesh Reorganisation Act, 2014 – s.77 and s.82 –

Whether the High Court’s reliance on Section 77 is correct as
it applies to state government employees, and whether it is
Section 82 that governs the services of the respondents as it
relates to employees of Public Sector Undertakings:
Held: From the text of the provisions, it is evident that Section 77
applies to state government employees – Section 82 clearly states
that the Corporations shall determine the modalities for distributing
their employees between the successor states – Pursuant to this,
the Board prepared the Agenda Note dated 16.08.2017 that sets
out the allocation of various kinds of employees between APSRTC
and TSRTC – Upon going through the Agenda Note, it is found
76 [2024] 9 S.C.R.

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* Author
that the Board had decided that Class III and Class IV employees,
who are appointed at the regional level, are to be allocated to the
Corporation in which the region falls after bifurcation – There is no
dispute about the fact that the respondents were recruited at the
regional level and belong to the successor state Corporation in
which the region falls – In this view of the matter, following the
statutory mandate of Section 82 read with the Agenda Note dated
16.08.2017, the respondents will continue their employment in the
same region, which is under the present TSRTC – The High Court
has incorrectly relied on Section 77 of the Act and has in fact failed
to notice Section 82 and the follow-up action taken thereunder –
The High Court also ignored the correct enunciation of the
applicable law in the order dated 18.04.2018, whereunder the
respondents were directed to report at their parental zones as per
the guidelines – There is no dispute about the applicability of
Section 82 – The division bench of the High Court failed to note
that the respondents who were on deputation were not absorbed
in the deputed posts – In fact, their seniority is continued in their
parental zones – The High Court also did not consider the
subsequent development when the respondents were in fact
repatriated to their parent cadre as a consequence of the order
passed by the division bench on 18.04.2018 – It is for this reason
that this Court had, at the stage of admission, stayed the judgment
of the division bench on 05.10.2020, which stay is continuing till
date – The consequence is that the respondents have returned to
this parent cadre in the State of Telangana – For the reasons
stated, the judgment of the Division Bench of the High Court is
unsustainable. [Paras 11, 12, 13, 14, 15, 16]

List of Acts
Andhra Pradesh Reorganisation Act, 2014; Constitution of India.

List of Keywords
Section 77 of Andhra Pradesh Reorganisation Act, 2014; Section
82 of Andhra Pradesh Reorganisation Act, 2014; Bifurcation of
State; Andhra Pradesh State Road Transport Corporation
(APSRC); Telangana State Road Transport Corporation (TSRTC);
Class III and Class IV employees; Validity of repatriation orders;
Zones of initial appointment; Repatriating employees; Allocation of
employees; Parent zone.
[2024] 9 S.C.R. 77

Andhra Pradesh State Road Transport Corporation & Ors. v. V.V.

Brahma Reddy & Anr.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5267 of 2024
From the Judgment and Order dated 21.11.2019 of the High Court
of Andhra Pradesh at Amravati in WA No. 260 of 2018
With
Civil Appeal Nos. 5268, 5269 5270, 5271, 5272, 5273, 5274, 5275,
5276, 5277, 5278, 5279, 5280, 5281, 5282, 5283, 5284, 5285, 5286,
5287, 5288, 5289, 5290 and 5291 of 2024
Appearances for Parties
Gourab Banerji, Sr. Adv., Ashish Kumar Tiwari, Anurag Tiwari, Sahib
Patel, Advs. for the Appellants.
Vivek Sharma, GVR Choudary, Peram Ravi Teja, Vivek Sharma,
Manoj Tomar, Sri Ruma Sarasani, Krishna Kumar Singh, Advs. for
the Respondents.
Judgment / Order of the Supreme Court
Judgment
Pamidighantam Sri Narasimha, J.
1. These appeals are against the common judgment of the High Court
of Andhra Pradesh dated 21.11.2019 dismissing the writ appeals
filed by the appellant herein and upholding the order of the single
judge of the High Court allowing the respondents’ writ petitions and
quashing orders repatriating them to their parental zones. Relevant
and necessary facts are as follows.
2. The State of Telangana was formed under Section 3 of the Andhra
Pradesh Reorganisation Act, 2014 40 comprises of territories
mentioned therein, and by virtue of Section 4, remaining the
territories constituted the State of Andhra Pradesh. The bifurcation
of states came into effect on 02.06.2014 and this is declared to be
the appointed date under the Act.
2.1 Prior to bifurcation of the erstwhile State of Andhra Pradesh,
the Andhra Pradesh State Road Transport Corporation
(APSRC)41 functioned in the unified State of Andhra Pradesh.

40
Hereinafter “the Act”.
41
Hereinafter “APSRTC”.
78 [2024] 9 S.C.R.

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After state reorganisation, the Corporation was bifurcated and
the Telangana State Road Transport Corporation (TSRTC), 42
respondent no. 2 herein, was formed w.e.f. 02.06.2015
(appointed date for the Corporations) to function in the State of
Telangana, while APSRTC continued to function in the residual
part of State of Andhra Pradesh.
2.2 The respondents in these appeals were Class III and Class IV
employees who were working as conductors, drivers and
shramiks. They were appointed between 2014 to 2017 in
districts, and more particularly zones carved out under the
Presidential Order, read with Article 371D of the Constitution,
that formed part of Telangana, which areas now fall within the
State of Telangana. These respondents were temporarily
deputed to zones which now form part of the bifurcated State
of Andhra Pradesh. The orders of deputation were extended by
way of several notifications issued from time to time, some
deputations were made even after the bifurcation of the
Corporations, pending finalisation of guidelines for permanent
allocation of employees. We may mention at this very stage
that the issue in these appeals is about validity of the
repatriation orders that were passed by the appellant APSRTC,
relegating the respondents to the zones of their initial
appointment.
3. Returning to the chronology of facts, it needs to be noted that on
18.06.2015 the Government of India reconstituted the APSRTC
Board of Directors with members from the central government, State
of Andhra Pradesh, and State of Telangana to determine the
permanent allocation of employees between the Corporations. On
16.08.2017, the Board prepared a detailed Agenda Note, which was
approved on 24.08.2017. The Agenda Note sets out the modalities
for allocation of state cadre, zonal and regional cadre of employees
of the Corporations.
4. Before the finalisation of the Agenda Note, the appellant issued a
notification dated 08.06.2017 repatriating employees who were on
deputation, including the present respondents, to their parent cadres
in TSRTC, i.e., to the zones in which they were initially appointed.

42
Hereinafter “TSRTC”.
[2024] 9 S.C.R. 79

Andhra Pradesh State Road Transport Corporation & Ors. v. V.V.

Brahma Reddy & Anr.
The respondents challenged this notification and the consequent
repatriation orders passed by Depot Managers by filing writ petitions
before the High Court.
5. The writ petitions were heard and allowed by the Single Judge by an
order dated 10.11.2017 on the ground that, upon bifurcation of the
two Corporations the guidelines for allocation of employees between
them had not been finalised. Thus, the single judge set aside the
repatriation orders.
6. The appellant filed the writ appeals and brought the Agenda Note
dated 16.08.2017 and its approval dated 24.08.2017 to the notice of
the division bench. Taking note of the guidelines for allocation
formulated by both Corporations, the High Court passed an interim
order dated 18.04.2018 suspending the order of the single judge and
directing the respondents to report in their parent zones under the
TSRTC, where they were initially appointed, as the guidelines for
allocation of employees were jointly finalised by APSRTC and
TSRTC. The matter was listed for further hearing on the issue of
payment of salaries. The relevant portion of the order is extracted
herein:
“We are informed that the posts, with which we are
concerned in this batch of cases, are not State level posts
and the orders of repatriation, which were subjected to
challenge, merely sought to send back the employees
concerned who were on transfer in zones other than the
zones in which they were appointed. As the posts were
only zonal posts, the question of allocation of the
employees occupying such posts between the two new
States would not arise.
We are also informed that the Andhra Pradesh State Road
Transport Corporation (APSRTC) and the Telangana
State Road Transport Corporation (TSRTC) have come
out with guidelines jointly with regard to the employees of
the erstwhile APSRTC and allocation and apportionment
of such employees. In the light of the order passed by the
learned Judge setting aside the repatriation orders, the
employees, who are on transfer in Zones 1 to 4 of Andhra
Pradesh, though they were appointed either in Zone 5 or
in Zone 6 in the State of Telangana, are still working at the
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transferred location. This situation cannot be allowed to
continue in the light of the subsequent guidelines
formulated by both the Corporations.
Sri N. Praveen Reddy, learned counsel appearing for the
TSRTC, would inform this Court that his client is ready and
willing to accept the employees sought to be repatriated
by the present APSRTC.
In that view of the matter, there shall be interim
suspension as prayed for. The employees covered by the
repatriated orders, the Respondents in these appeals,
shall forthwith report in their parent zones under the
TSRTC where they were appointed. The issue of payment
of salaries to the Respondents-employees will be
considered on the next date of hearing.
Learned Advocate General for the State of Andhra
Pradesh appearing for the APSRTC undertakes to use his
good offices to see that the issue as to payment of salaries
is resolved amicably.
Post on 13.06.2018.”
7. In continuation of the above-referred order, the High Court of Andhra
Pradesh at Amaravati took up the writ appeals and passed the order
impugned before us. This time, the High Court took a different view
of the matter and directed permanent allocation of the respondents
in their deputational posts falling in the State of Andhra Pradesh. The
High Court also ruled on their seniority. In coming to this conclusion,
the High Court drew an analogy with the 3rd proviso to Section 77(2)
of the Act. It held that even though Section 77 applies to state
government employees, an analogy must be adopted by the
appellant for allocation of its own employees. Hence, local, district,
zonal, and multi-zonal cadre employees, even of corporations, will
be deemed to be allotted to the successor state where they are
serving on the appointed date. Since the respondents were posted
and serving under the appellant on 02.06.2015, it was directed that
they shall be deemed to be permanently allocated to the APSRTC in
the zones where they were working.
8. Mr. Gourab Banerji, learned senior counsel, appearing for the
appellant has submitted that the High Court’s analogy with Section
[2024] 9 S.C.R. 81

Andhra Pradesh State Road Transport Corporation & Ors. v. V.V.

Brahma Reddy & Anr.
77 is incorrect and that it has not taken note of Section 82 of the Act
or properly considered the guidelines framed by the Corporations for
allocation of Class III and Class IV employees. He has taken us
through the Agenda Note dated 16.08.2017, which provides that
Class III and Class IV employees are recruited at a regional level
and belong to the respective Corporation in which the region falls
after bifurcation. Hence, the Board found that there is no necessity
for formulating guidelines for the allotment of these employees
between the two Corporations. He submits that this decision has not
been challenged and is hence final. He has also submitted that
pursuant to the interim order dated 18.04.2018, the respondents
have already reported at their parent zones falling under TSRTC. Sri
Ruma Sarasani, learned counsel appearing for TSRTC, respondent
no. 2 supports the appellant’s case.
8.1 On the other hand, Mr. G.V.R. Choudary, learned counsel
appearing for the respondents supports the impugned order
and also submits that the approval of the Agenda Note dated
24.08.2017 is only with respect to allocation of state-cadre
employees, and does not extend to Class III and Class IV
employees. Hence, the modalities for allocation have not been
decided as required under Section 82.
9. Having heard the parties, the issue before us if whether the High
Court’s reliance on Section 77 is correct as it applies to state
government employees, and whether it is Section 82 that governs
the services of the respondents as it relates to employees of Public
Sector Undertakings.
10. In order to appreciate the rival contentions, it is necessary to
consider Section 77 as well as Section 82 of the Act. Examination of
the scope and ambit of these provisions sufficiently indicates the
correct answer to the question arising for consideration. The
provisions are extracted herein:
“Section 77. Provisions relating to other services.—
(1) Every person who immediately before the appointed
day is serving on substantive basis in connection with the
affairs of the existing State of Andhra Pradesh shall, on
and from that day provisionally continue to serve in
connection with the affairs of the State of Andhra Pradesh
unless he is required, by general or special order of the
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Central Government to serve provisionally in connection
with the affairs of the State of Telangana:
Provided that every direction under this sub-section
issued after the expiry of a period of one year from the
appointed day shall be issued with the consultation of the
Governments of the successor States.
(2) As soon as may be after the appointed day, the Central
Government shall, by general or special order, determine
the successor State to which every person referred to in
sub-section (1) shall be finally allotted for service, after
consideration of option received by seeking option from
the employees, and the date with effect from which such
allotment shall take effect or be deemed to have taken
effect:
Provided that even after the allocation has been made, the
Central Government may, in order to meet any deficiency
in the service, depute officers of other State services from
one successor State to the other:
Provided further that as far as local, district, zonal and
multi-zonal cadres are concerned, the employees shall
continue to serve, on or after the appointed day, in that
cadre:
Provided also that the employees of local, district, zonal
and multi-zonal cadres which fall entirely in one of the
successor States, shall be deemed to be allotted to that
successor State:
Provided also that if a particular zone or multi-zone falls in
both the successor States, then the employees of such
zonal or multi-zonal cadre shall be finally allotted to one
or the other successor States in terms of the provisions of
this sub-section.
(3) Every person who is finally allotted under the
provisions of sub-section (2) to a successor State shall, if
he is not already serving therein, be made available for
serving in the successor State from such date as may be
agreed upon between the Governments of the successor
States or, in default of such agreement, as may be
determined by the Central Government: Provided that the
[2024] 9 S.C.R. 83

Andhra Pradesh State Road Transport Corporation & Ors. v. V.V.

Brahma Reddy & Anr.
Central Government shall have the power to review any
of its orders issued under this section.
***
Section 82. Provision for employees of Public Sector
Undertakings, etc.—On and from the appointed day, the
employees of State Public Sector Undertakings,
corporations and other autonomous bodies shall continue
to function in such undertaking, corporation or
autonomous bodies for a period of one year and during
this period the corporate body concerned shall determine
the modalities for distributing the personnel between the
two successor States.”
(emphasis supplied)
11. From the text of these provisions, it is evident that Section 77 applies
to state government employees. Section 82 clearly states that the
Corporations shall determine the modalities for distributing their
employees between the successor states. Pursuant to this, the
Board prepared the Agenda Note dated 16.08.2017 that sets out the
allocation of various kinds of employees between APSRTC and
TSRTC. Upon going through the Agenda Note, we find that the
Board has decided that Class III and Class IV employees, who are
appointed at the regional level, are to be allocated to the Corporation
in which the region falls after bifurcation. We are extracting the
relevant portion here:
“Regional Level Recruitments: The Class III and IV cadres
like Drivers, Conductors, Mechanics, Artisans, etc., are
recruited at Regional Level i.e., Revenue District wise.
There are 12 regions in 13 revenue districts of residual AP
state since Srikakulam and Vizianagaram districts are
considered as North East Coast Region. There were 10
districts in Telangana area prior to the appointed day i.e.,
on 02.06.2014. the seniority of these posts is also
maintained at Regional level. The presidential order of
making recruitment in the ratio of 80% of the posts to local
district candidates and 20% to non (illegible) candidates is
followed in such recruitments. Since the recruitments and
seniority levels are at regional level, the distribution of
these employees between two entities i.e., in 67,868 posts
84 [2024] 9 S.C.R.

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in residual APSRTC and 61,864 to TSRTC should not be
an issue as they were recruited at Regional level (local
cadre) and belong to the respective successor
state/corporation in which the region falls after bifurcation
irrespective of their place of birth or domicile or schooling
etc.”
(emphasis supplied)
12. There is no dispute about the fact that the respondents were
recruited at the regional level and belong to the successor state
Corporation in which the region falls.
13. In this view of the matter, following the statutory mandate of Section
82 read with the Agenda Note dated 16.08.2017, the respondents
will continue their employment in the same region, which is under
the present TSRTC.
14. The High Court has incorrectly relied on Section 77 of the Act and
has in fact failed to notice Section 82 and the follow-up action taken
thereunder. The High Court also ignored the correct enunciation of
the applicable law in the order dated 18.04.2018, whereunder the
respondents were directed to report at their parental zones as per
the guidelines. As there is no dispute about the applicability of
Section 82 even at the bar, the submission of Mr. G.V.R. Choudary
that the modalities for allocation have not been decided cannot be
accepted in light of the Agenda Note dated 16.08.2017.
15. We have also gone through the prayer in the writ petition of Mr. V.V.
Brahma Reddy (respondent no. 1 in Civil Appeal No. 5267/2024),
under which there is no challenge to the Agenda Note and its
approval. The division bench of the High Court failed to note that the
respondents who were on deputation were not absorbed in the
deputed posts. In fact, their seniority is continued in their parental
zones.
16. The High Court also did not consider the subsequent development
when the respondents were in fact repatriated to their parent cadre
as a consequence of the order passed by the division bench on
18.04.2018. It is for this reason that this Court had, at the stage of
admission, stayed the judgment of the division bench on 05.10.2020,
which stay is continuing till date. The consequence is that the
respondents have returned to this parent cadre in the State of
Telangana.
[2024] 9 S.C.R. 85

Andhra Pradesh State Road Transport Corporation & Ors. v. V.V.

Brahma Reddy & Anr.
17. For the reasons as indicated hereinabove, the decision of the
division bench is unsustainable. We therefore, allow Civil Appeal
Nos. 5267, 5268, 5269, 5270, 5271, 5272, 5273, 5274, 5275, 5276,
5277, 5278,
5279, 5280, 5281, 5282, 5283, 5284, 5285, 5286, 5287, 5288, 5289,
5290 and 5291 of 2024 and set aside the judgment and order passed
by the High Court in Writ Appeal Nos. 260, 290, 291, 292, 303, 304,
306, 311, 312, 313, 318, 320, 321, 322, 323, 325, 328, 329, 354,
355, 356, 360, 386, 389 and 568 of 2018 dated 21.11.2019 and
dismiss the Writ Petition Nos. 25880, 25881, 25886, 25196, 25198,
25201, 25214, 24825, 24849, 24870, 24872, 24874, 24891, 24941,
24987, 25139, 25170, 24605, 24609, 24690, 24697, 24723, 24773,
489 and 6065 of 2017 dated 10.11.2017.
18. There shall be no order as to costs.

Result of the case: Matters disposed of.

Headnotes prepared by: Ankit Gyan

†
 [2024] 9 S.C.R. 86 : 2024 INSC 666

Mandakini Diwan and Anr.

v.
The High Court of Chhattisgarh & Ors.
(Criminal Appeal No. 3738 of 2024)
06 September, 2024
[Vikram Nath* and Prasanna Bhalachandra Varale, JJ.]

Issue for Consideration

Matter pertains to investigation as regards the suspicious death of
the wife of senior judicial officer.

Headnotes†

Constitution of India – Arts. 226, 136 – Investigation by

independent agency – Death of the wife of senior judicial
officer – Case of the appellants-mother and the brother of the
deceased that the death was suspicious and was not a case
of simple suicide, and apprehended that the husband being a
senior judicial officer had managed the post mortem in which
the cause of death was shown to be suicide by hanging –
Several complaints by appellants – Neither FIR registered nor
fair investigation carried out – Writ petition by the appellants,
remained pending for seven years, and thereafter, dismissed
holding that the appellants had adequate statutory remedy
available u/s. 156(3) CrPC – Challenge to:
Held: Power to direct CBI to conduct investigation is to be
exercised sparingly and such orders should not be passed in
routine manner – On facts, the aggrieved party raised allegations
of bias and undue influence on the police machinery of the State
– Considering the fact that the husband is a senior judicial officer
any doubt or apprehension in the minds of the appellants who
have lost their family member may be dispelled by the
investigation being carried out by CBI – This may result into doing
complete justice and enforcing the fundamental right of getting a
fair investigation – Thus, the impugned order passed by the High
Court is set aside – CBI directed to carry out complete and fair
investigation and proceed in accordance with law into the incident
and that too expeditiously considering the fact that the incident is
[2024] 9 S.C.R. 87

Mandakini Diwan and Anr. v. The High Court of Chhattisgarh & Ors.
of 2016 and submit a report to this Court – If CBI finds that FIR
needs to be registered, it may

* Author
itself do so and proceed accordingly and bring such complaint to a
logical conclusion – However, if the CBI comes to the conclusion
that there is no material which it could collect which is not sufficient
in ordinary course to submit a chargesheet, it would close the
proceedings. [Paras 12, 14, 15]

Case Law Cited

Awungshi Chirmayo vs. Government of NCT of Delhi (2022) SCC
Online SC 1452 – referred to.

List of Acts
Code of Criminal Procedure, 1973; Constitution of India.

List of Keywords
Investigation by independent agency; Suicide; Post mortem; Fair
investigation; Statutory remedy; Direct CBI to conduct
investigation.

Case Arising From

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 3738
of 2024
From the Judgment and Order dated 10.05.2023 of the High Court
of Chhattisgarh at Bilaspur in WPCR No. 197 of 2016
Appearances for Parties
Dinesh Jotwani, Dhawesh Pahuja, Bhargava Baisoya, Ms. Ekta
Gambhir, Ms. Shruti Singh, Ms. Shivalika Midha, Narendra Bahadur
Tiwari, Nilesh Sharma, Saket Gogia, Advs. for the Appellants.
Tushar Mehta, Solicitor General, Mrs. Aishwarya Bhati, A.S.G.,
Avdhesh Kumar Singh, A.A.G., Ms. Anjana Prakash, Mrs.
Swarupama Chaturvedi, Sr. Advs., Prashant Singh, Rajat Nair, Mrs.
Prerna Dhall, Piyush Yadav, Ms. Akanksha Singh, Alok Sahay,
Himanshu Shekhar, Parth Shekhar, Ms. Ambali Vedasen, Shubham
Singh, Ms. Rachna Ranjan, Ms. Sarita Kumari, Ritesh Kumar Gupta,
T.V. Surendranath, Atul Arvind, Sudip Patra, Ms. Kamlika Samadder,
Arvind Kumar Tomar, Mukesh Kumar Maroria, Ms. Ruchi Kohli, Ms.
Shagun Thakur, Ms. Ruchi Gaur Narula, Santosh Kumar, Navanjay
88 [2024] 9 S.C.R.

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Mahapatra, Apoorv Kurup, Ms. Nidhi Mittal, Ms. Gauri Goburdhun,
Ms. Aanchal, Akhil Hasija, Gurjas Singh Narula, Advs. for the
Respondents.
Judgment / Order of the Supreme Court
Judgment
Vikram Nath, J.
1. Leave granted.
2. This appeal assails the correctness of the order dated 10.05.2023
passed by the Division Bench of High Court of Chhattisgarh in
[Link]. No.197 of 2016 titled as Mandakini Diwan & Anr. vs. High
Court of Chhattisgarh and seven others whereby the writ petition
was dismissed with liberty to the petitioners therein (appellants
herein) to avail the appropriate remedy before the appropriate forum.
3. Before referring to the facts we wish to make it clear that we are not
entering into the detailed facts and submissions as advanced by the
parties because any observation made by us on such submissions
and detailed facts may result into influencing a fair investigation
which we are inclined to direct in the present case by an independent
agency.
4. The facts giving rise to the present appeal are:
4.1. The respondent no. 7 had applied in the Higher Judicial
Services of the State of Chhattisgarh against the advertisement
issued in the year 2012. Pursuant to which he was selected and
appointed in June 2013 as [Link] Judge, Geedam at
Dantewada. Respondent no. 7 got married to the deceased on
15.02.2014. However, they had known each other since 2010.
The deceased was working as Asstt. District Prosecution
Officer. At the relevant time they were posted at Dantewada.
4.2. On 12.05.2016, in the evening at about 10:30 PM the
appellants who are mother and the brother of the deceased
received a phone call that Ms. Ranjana Diwan had committed
suicide. Immediately they rushed from Bilaspur to Dantewada
and tried to figure out as to what had happened. According to
the appellants they were not provided with the post mortem
report.
4.3. It is the case of the appellants that there was something fishy
in the death of Ms. Ranjana Diwan and it was not a case of
[2024] 9 S.C.R. 89

Mandakini Diwan and Anr. v. The High Court of Chhattisgarh & Ors.
simple suicide. It was also their apprehension that respondent
no. 7 having sufficient influence being a senior judicial officer
had managed the post mortem in which the cause of death was
shown to be suicide by hanging.
4.4. The post-mortem report further indicated that the deceased
had six ante-mortem injuries on her body. The information of
suicide was given to the Dantewada Police Station, a Merg was
registered under section 174 of Code of Criminal Procedure,
1973. 43 On 13.05.2016, the police made recoveries, the copy
of which is filed as Annexure -P/2. The post-mortem was
conducted on 13.05.2016 at 06:30 PM. The cause of death was
reported to be asphyxia due to hanging. Further, six ante-
mortem injuries were reported which are as follows:
“Injuries:
1) A contusion present over back of right hand ~ 3.5 cm x
3 cm bluish.
2) A contusion present over left ring finger over proximal
phalanx palmer aspect, ~ 1.5 cm x 1 cm, bluish.
3) A contusion present over right leg~ 3 cm below knee~
4 cm x 3.5 cm, bluish.
4) A contusion present over the left foot dorsal aspect ~
1.5 cm x 1.5 cm bluish.
5) A contusion present over left thigh ~ 17 cm below groin,
~ 4 cm x 4.3 cm bluish.
6) Ligature mark: A brown parchment like hard ligature
mark present over neck above the level of thyroid
cartilage, obliquely extending upward toward chin, from
behind, grooved at places. Maximum breadth ~ 4.5 cm
on the backside. Peeling of skin evident in marks at
places. Mark is situated 1.5 cm below tip of chin, 5.5 cm
below tip of left mastoid, & 4 cm below tip of right
mastoid, 10 cm below occiput. Mark is faint for ~3 cm
on the right side. On dissection corresponding under
the surface of skin is glistering white. Hyoid bone and
thyroid cartilage intact.

43
CrPC
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All the injuries are ante mortem and are of within 06
hours of death. Injury no. 6 is sufficient to cause
instantaneous death in the ordinary course of nature.
Metallic rings in each 2nd toe.”
4.5. According to the appellants, the Police filed the closure report
treating it to be a case of suicide. The appellants repeatedly
continued to represent to the authorities for a fair investigation
after registering First Information Report. All the complaints
made by the appellants to the authorities did not result in the
registering of FIR against respondent no. 7. All the complaints
though were inquired into but were ultimately closed as a result
of the influence exerted by the respondent no. 7. Till date,
neither FIR has been registered on the several complaints
made by the appellants nor a fair investigation has been carried
out in order to find out the truth.
4.6. Left with no alternative, the appellants filed writ petition under
Article 226 of the Constitution of India registered as W.P. Crl.
No. 197 of 2016 praying for the following reliefs:
"10.1 That, this Hon’ble Court may be kind enough in
issuing a writ in the nature of mandamus, certiorari
of likewise any other appropriate writ commanding
and directing the respondents to produce all the
records related with the case of the petitioners for
just and proper decision of this case.
10.2 That, this Hon’ble Court may be kind enough in
issuing a writ in the nature of mandamus, certiorari
or likewise any other appropriate writ, commanding
and directing the respondent No. 8 to lodge a
separate FIR or to take investigation of merg No.
24/16 of the Police Station, Geedam, District
Dantewada and after due investigation the report
may kindly be submitted before the Hon’ble Court.
10.3 That, this’ Hon’ble Court may be kind enough to
issuing a writ in the nature of mandamus, certiorari
or likewise any other appropriate writ, commanding
and directing respondents No. 2 to 6 to hand over
all the records related with the case of death of
deceased Ranjana Diwan, wife of Manvendra
[2024] 9 S.C.R. 91

Mandakini Diwan and Anr. v. The High Court of Chhattisgarh & Ors.
Singh, the respondent No. 7 for just and proper
investigation, enquiry into the matter.
10.4 That, this Hon’ble Court may be kind enough in
issuing a writ in the nature of mandamus, certiorari
or likewise any other appropriate writ, commanding
and directing the respondent No. 1 to keep the
respondent No. 7 out of the job till the final decision
of the case so that there may be no influence In the
investigation by the respondent No. 7.
10.5 Any other relief, which the Hon’ble Court deems fit
and proper looking to the facts and circumstances
of the case, may also be granted.”
4.7. In the petition before the High Court, respondent no. 1 is the
High Court of Chhattisgarh, respondent no. 2 is State of
Chhattisgarh through Secretary, Department of Home,
respondent no. 3 is the Director General of Police, respondent
no. 4 is Inspector General of Police Headquarters, respondent
no. 5 is Superintendent of Police, Dantewada, respondent no.
6 is Station House Officer, Police Station Geedam, District
Dantewada, respondent no. 7 is the husband of the deceased
and respondent no. 8 is the Central Bureau of Investigation.
4.8. The said petition remained pending for about seven years. By
the impugned order the High Court has dismissed the said
petition. According to the High Court the appellants had
adequate statutory remedy available under section 156(3) of
the Cr.P.C. by approaching the Magistrate concerned.
5. The submissions advanced by the counsel for the appellants is that
it is true that appellant had a remedy of filing a complaint under
section 156(3) Cr.P.C. but considering the fact that the respondent
no. 7 is senior judicial officer and had already exercised his influence
on the administration in ensuring that FIR is not registered and no
free and fair investigation be carried out, they had little hope rather
no hope of getting any justice from the Court of a Magistrate who
would be an officer subordinate to respondent no. 7. It is for this
reason that they had approached the High Court under Article 226
of the Constitution of India.
6. Before us, detailed arguments have been advanced by the
appellants to show the high handedness of the respondent no. 7 in
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influencing the administration in not registering the FIR despite there
being suspicious circumstances resulting in the death of daughter of
the appellant no. 1 and sister of appellant no. 2, more particularly
there being no explanation for the six ante mortem injuries. It was
therefore submitted that this Court may direct for an independent
agency to investigate into the matter.
7. On the other hand, learned counsel appearing for State of
Chhattisgarh submitted that detailed inquiry was carried out and
statements of more than 50 witnesses were recorded; that every
complaint filed by the appellant was enquired into at the highest level
but when no evidence could be found against respondent no. 7, the
complaints were closed. It is also his submission that the appellants
are unnecessarily doubting the credibility of the investigating agency
of the State of Chhattisgarh and it also amounts to putting a blame
not only on the respondent no. 7 but also on the entire police
machinery of the State of Chhattisgarh.
8. Learned counsel also referred to the details as to how the complaints
have been dealt with. It was thus submitted that the appeal be
dismissed and the appellants be left at liberty to approach the
Magistrate under section 156(3) Cr.P.C.
9. Learned senior counsel appearing for the respondent no. 7 also had
similar submissions as were made on behalf of the State of
Chhattisgarh. In addition, it was submitted that respondent no. 7
being a judicial officer having a good reputation is being
unnecessarily targeted by the appellants for ulterior motives. A very
thorough and fair inquiry was carried out in which no complicity of
the respondent no. 7 could be found.
10. It was further submitted that in all the enquiries made, no
incriminating material could be collected against the respondent no.
7 and as such the complaints were rightly closed. By filing the writ
petition and the present appeal the only attempt of the appellants is
to somehow or the other not only tarnish the image of the respondent
no. 7 but also cause unnecessary harassment and jeopardize his
service. Further, a direction to appoint CBI to investigate is also not
warranted in the present case and the appeal deserves to be
dismissed.
11. Shri Tushar Mehta, learned Solicitor General appearing for the CBI
submitted that whatever order the Court passes the same would be
complied with. He also suggested that the Court may consider
[2024] 9 S.C.R. 93

Mandakini Diwan and Anr. v. The High Court of Chhattisgarh & Ors.
appointing a high-level Special Investigation Team or in the
alternative may direct the CBI to investigate the matter as this will
provide credibility and instill confidence not only in the aggrieved
party but also in the society at large.
12. Considering the fact that the respondent no. 7 is a senior judicial
officer any doubt or apprehension in the minds of the appellants who
have lost their family member may be dispelled by the investigation
being carried out by CBI. This may result into doing complete justice
and enforcing the fundamental right of getting a fair investigation.
13. In the case of Awungshi Chirmayo vs. Government of NCT of
Delhi 44 this Court directed CBI to hold enquiry in the criminal matter
related to murder of two cousins due to certain puzzling facts
including inconclusive post mortem report. It held as follows:
"13. In a seminal judgment reported as State of West Bengal v.
Committee for Protection of Democratic Rights, West
Bengal (2010) 3 SCC 571, this Court has discussed in
detail inter alia the circumstances under which the
Constitutional Courts would be empowered to issue
directions for CBI enquiry to be made. This Court noted
that the power to transfer investigation should be used
sparingly, however, it could be used for doing complete
justice and ensuring there is no violation of fundamental
rights. This is what the Court said in Para 70:
“Insofar as the question of issuing a direction to CBI
to conduct investigation in a case is concerned,
although no inflexible guidelines can be laid down to
decide whether or not such power should be
exercised but time and again it has been reiterated
that such an order is not to be passed as a matter of
routine or merely because a party has levelled some
allegations against the local police. This
extraordinary power must be exercised sparingly,
cautiously and in exceptional situations where it
becomes necessary to provide credibility and instil
confidence in investigations or where the incident
may have national and international ramifications or
where such an order may be necessary for doing

44
(2022) SCC Online SC 1452
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complete justice and enforcing the fundamental
rights…”
14. The powers of this Court for directing further investigation regardless
of the stage of investigation are extremely wide. This can be done
even if the chargesheet has been submitted by the prosecuting
agency. In the case of Bharati Tamang v. Union of India (2013) 15
SCC 578, this Court allowed the Writ Petition filed by the widow of
late Madan Tamang who was killed during a political clash and
directed investigation by the CBI which would be monitored by the
Joint Director, CBI. The following observations were made in Para
44:
"44. Whether it be due to political rivalry or personal
vengeance or for that matter for any other motive a
murder takes place, it is the responsibility of the
police to come up to the expectation of the public at
large and display that no stone will remain unturned
to book the culprits and bring them for trial for being
dealt with under the provisions of the criminal law of
prosecution. Any slackness displayed in that
process will not be in the interest of public at large
and therefore as has been pointed out by this Court
in the various decisions, which we have referred to
in the earlier paragraphs, we find that it is our
responsibility to ensure that the prosecution agency
is reminded of its responsibility and duties in the
discharge of its functions effectively and efficiently
and ensure that the criminal prosecution is carried
on effectively and the perpetrators of crime are duly
punished by the appropriate court of law.”
15. This Court has expressed its strong views about the need of Courts
to be alive to genuine grievances brought before it by ordinary
citizens as has been held in Zahira Habibulla H. Sheikh v. State of
Gujarat (2004) 4 SCC 158.
16. It is to observe that unresolved crimes tend to erode public trust in
institutions which have been established for maintaining law and
order. Criminal investigation must be both fair and effective. We say
nothing on the fairness of the investigation appears to us, but the
fact that it has been ineffective is self evident. The kith and kin of the
deceased who live far away in Manipur have a real logistical problem
[2024] 9 S.C.R. 95

Mandakini Diwan and Anr. v. The High Court of Chhattisgarh & Ors.
while approaching authorities in Delhi, yet they have their hope alive,
and have shown trust and confidence in this system. We are
therefore of the considered view that this case needs to be handed
over to CBI, for a proper investigation and also to remove any doubts
in the minds of the appellants, and to bring the real culprits to justice.
17. In view of the discussion made above, the order of the Delhi High
Court dated 18.05.2018, dismissing the prayer of the present
appellants to transfer the investigation to CBI is hereby set aside.
The appeal is hereby allowed and we direct that CBI to hold enquiry
in the matter. The case shall be transferred from SIT to the CBI. The
SIT, which has so far conducted the investigation in the matter, will
hand over all the relevant papers and documents to CBI for
investigation. After a thorough investigation, CBI will submit its
complete investigation report or charge sheet before the concerned
court as expeditiously as possible.””
14. It is true that power to direct CBI to conduct investigation is to be
exercised sparingly and such orders should not be passed in routine
manner. In the present case, the aggrieved party has raised
allegations of bias and undue influence on the police machinery of
the State of Chhattisgarh. Coupled with the fact that the thorough,
fair and independent investigation needs to be carried out to find out
the truth about the whole incident and in particular about the ante
mortem injuries. We are of the view that such a direction needs to
be issued in the present case.
15. We accordingly allow this appeal, set aside the impugned order
passed by the High Court and further direct the CBI-respondent no.
8 to carry out complete and fair investigation and proceed in
accordance to law into the incident and that too expeditiously
considering the fact that the incident is of 2016 and submit a report
to this Court. If the CBI finds that an FIR needs to be registered, it
may itself do so and proceed accordingly and bring such complaint
to a logical conclusion. However, if the CBI comes to the conclusion
that there
is no material which it could collect which is not sufficient in ordinary
course to submit a chargesheet, it would close the proceedings. The
State of Chhattisgarh is directed to extend all cooperation to the CBI
in conducting the investigation and provide all necessary papers and
other strategic support to the CBI as may be required.
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16. We make it clear that we have not made any observation on merit.
However, still we clarify that any observation made in this judgment
will not influence the investigation by the CBI. The appeal is
accordingly allowed.

Result of the case: Appeal Allowed.

Headnotes prepared by: Nidhi Jain

†
 [2024] 9 S.C.R. 97 : 2024 INSC 667

Dharmendra Sharma
v.
Agra Development Authority
(Civil Appeal Nos. 2809-2810 of 2024)
06 September 2024
[Vikram Nath* and Prasanna Bhalachandra Varale, JJ.]

Issue for Consideration

Whether the possession as offered by Agra Development Authority
on 04.12.2014 should be taken as a valid offer of possession even
if there was no completion certificate and whether the firefighting
clearance certificate was available with the ADA or not. Absence
of these documents, if vitiated the offer of possession made by the
ADA.

Headnotes†

Consumer Protection – Deficiency in service – UP Apartment

(Promotion of Construction, Ownership & Maintenance) Act,
2010 – s.4(5) – RERA Act, 2016 – s.19(10) – Offer of possession
made without completion certificate and firefighting
clearance certificate, if valid and lawful:
Held: No – Appellant consistently raised this issue asserting that a
valid offer of possession cannot be made without these documents
– s.4(5) of the UP Apartment (Promotion of Construction,
Ownership & Maintenance) Act, 2010 and s.19(10) of the RERA
Act, 2016 mandate that a developer must obtain these certificates
before offering possession – Despite the appellant’s repeated
requests, ADA failed to produce these certificates, rendering its
offer of possession incomplete and legally invalid – ADA’s failure
to provide the required certificates justifies the appellant’s refusal
to take possession – Thus, appellant entitled to additional
compensation to compensate for the delay caused by ADA’s
breach of its statutory obligations – On facts, in view of the
shortcomings on the part of both the appellant and the ADA,
compensation provided to the appellant apart from what was
awarded by NCDRC – Therefore, apart from the refund of the
entire amount deposited by the appellant @ 9% interest p.a. from
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11.07.2020 (the date of the complaint) till the date of refund, ADA
to pay an additional compensation amount of

* Author
Rs. 15,00,000/- to the appellant – ADA also to return the non-
judicial stamp worth Rs. 3,99,100/- back to the appellant. [Paras
20, 21]
Consumer Protection – Limitation Act, 1963 – ss.18, 19 –
Complaint of the appellant, if was barred by limitation – Plea
of the respondent-Agra Development Authority (ADA) that the
complaint was filed by the appellant in 2020 after six years
from the date of offering possession in 2014 and as such was
barred by limitation:
Held: The complaint was not barred by limitation – The ongoing
interactions between the parties, including ADA’s acceptance of
part payment in 2019 and the reminders sent, effectively extended
the limitation period – NCDRC correctly applied ss.18 and 19 of
the Limitation Act, 1963, which extend the limitation period where
part payments or acknowledgments are made – Thus, cause of
action continued to exist and the filing of the complaint in July 2020
was within the limitation period. [Paras 16, 17]
Consumer Protection Act, 1986 – Pecuniary jurisdiction –
Value of the claim – Determination – Objection raised by the
respondent-Agra Development Authority as regards the
pecuniary jurisdiction of the NCDRC contending that as the
amount deposited by the appellant was only Rs. 59,91,000/-
i.e. less than Rs. 1 crore, the complaint ought to have been
filed before the State Consumer Disputes Redressal
Commission and the NCDRC would have no pecuniary
jurisdiction to entertain the complaint with a value of less than
Rs. 1 crore:
Held: No merit in this argument – In consumer disputes, the value
of the claim is determined not just by the amount deposited but by
the aggregate relief sought, which includes compensation and
other claims – Claim made by the appellant was not limited to the
deposit amount alone but also included compensation for mental
agony, harassment, and loss of income, which brought the total
claim well above Rs. 1 crore – NCDRC rightly held that it had the
requisite pecuniary jurisdiction to entertain the complaint. [Para 19]
[2024] 9 S.C.R. 99

Dharmendra Sharma v. Agra Development Authority

Case Law Cited
Debashis Sinha & Ors. v. R.N.R. Enterprise (2023) 3 SCC 195;
Pioneer Urban Land and Infrastructure Limited v. Union of India &
Ors. [2019] 10 SCR 381 : (2019) 8 SCC 416; Treaty Construction
v. Ruby Tower Cooperative Housing Society Ltd [2019] 9 SCR 606
:
(2019) 8 SCC 157 – relied on.
Ghaziabad Development Authority v. Balbir Singh [2004] 3 SCR
68 : (2004) 5 SCC 65; Rishab Singh Chandel & Anr. v. Parsvnath
Developers Ltd. & Anr. Civil Appeal No.3053 of 2023; Lucknow
Development Authority v. [Link] [1993] Suppl. 3 SCR 615 :
(1994) 1 SCC 243; Marvel Omega Builders Pvt. Ltd. v. Shri Hari
Gokhale & Ors. [2019] 10 SCR 375 : (2020) 16 SCC 226; Experion
Developers Pvt. Ltd. v. Sushma Ashok Shierror [2022] 5 SCR 590
: (2022) 6 SCALE 16 – referred to.
List of Acts
Consumer Protection Act, 1986; UP Apartment (Promotion of
Construction, Ownership & Maintenance) Act, 2010; RERA Act,
2016; Limitation Act, 1963; Supreme Court Rules.
List of Keywords
Agra Development Authority; Offer of possession; Completion
certificate; Firefighting clearance certificate; Deficiency in service;
Refusal to take possession; Complaint not barred by limitation;
Additional compensation; Limitation period extended; Part
payments or acknowledgments; Cause of action continued to
exist; Pecuniary jurisdiction.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2809-2810 of
2024
From the Judgment and Order dated 15.09.2023 and 30.10.2023 of
the National Consumers Disputes Redressal Commission, New
Delhi in CC No.600 of 2020 and RA No.335 of 2023 respectively
Appearances for Parties
Vipin Sanghi, Sr. Adv., Om Prakash, Vikas Singh Jangra, Sudhir
Kulshreshtha, Advs. for the appearing parties.
100 [2024] 9 S.C.R.

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Judgment / Order of the Supreme Court
Judgment
Vikram Nath, J.
1. Civil Appeals 2809-2810 of 2024, by the appellant filed under Section
23 of the Consumer Protection Act, 1986, 45 read with Order XXIV of
the Supreme Court Rules, assail the correctness of the final
judgment and order dated 15.09.2023 passed by the National
Consumer Disputes Redressal Commission46 in CC No.600/2020 as
also the order dated 30th October, 2023 passed on the Review
Application No.335/2023. By the aforesaid orders, the NCDRC
allowed the CC No.600/2020 partly to the extent that it directed
refund of the entire amount deposited by the Complainant (appellant)
(except non-judicial stamp paper worth Rs. 3,99,100/- deposited on
15.02.2014) along with interest @9% p.a. from the date of the
complaint i.e. 11.07.2020 till the date of refund within a period of two
months from the date of the order.
2. Further, Civil Appeal No. 6344 of 2024 has been filed by the Agra
Development Authority 47 assailing the correctness of the same
judgment of the NCDRC dated 15.09.2023 partly allowing the
complaint.
3. The appellant-Dharmendra Sharma had applied for allotment and
purchase of an apartment (residential flat) in the category of Super
Deluxe 2 on 28.07.2011 and had deposited the booking amount of
Rs. 4,60,000/- along with the application. This application was
submitted pursuant to an advertisement issued by the ADA for a
group housing project lodged in the name of ADA Heights, Taj
Nagari, Phase II at Fatehabad Road, near Taj Express Way, Ring
Road, Agra. The allotment was done by lottery system on 29.08.2011
whereby the appellant was allotted Flat [Link]-1/1204 which was
communicated vide letter dated 19.09.2011, according to which the
tentative price of the apartment was Rs. 56,54,000/- which could be
deposited in 24 equal quarterly instalments or could be paid in full
with certain other relaxations. The appellant, opted for full payment
and accordingly vide letter dated 21.10.2011, attached two cheques,
one by the appellant of Rs. 6.94 lakhs and the other of Rs. 45 lakhs

45
CPA, 1986
46
NCDRC
47
ADA
[2024] 9 S.C.R. 101

Dharmendra Sharma v. Agra Development Authority

issued by the LIC Housing Finance Limited. Possession was to be
given within six months under the scheme.
4. Upon completion of six months, the appellant requested for
possession vide communication dated 03.04.2012. Apparently, the
construction was not completed and, in any case, not ready for
delivery of possession, as such no possession was delivered even
after six months. The appellant thereafter received a communication
dated 04.02.2014 offering possession subject to further payment of
Rs. 3,43,178/- along with non-judicial stamp paper for execution of
the deed amounting to Rs. 3,99,100/-. The demand so raised was
under the following three heads:
i) Rs. 84,300/- for solar system; ii) Rs.
46,878/- as leased premium; and iii) Rs.
2,12,000/- for covered parking area.
5. On receipt of the said letter, the appellant visited the site as also the
office of ADA on 15.02.2014. He deposited the non-judicial stamp
papers as required of Rs. 3,99,100/-. But after inspection of the site,
he found various deficiencies in the construction which were
reported to the Assistant Engineer of the ADA with the request that
once the deficiencies are removed, he may be communicated for
taking over possession. ADA sent reminders dated 22.09.2014 and
20/21.11.2014 for depositing the balance amount of Rs. 3,82,748/-.
The appellant, on the other hand, was demanding for completion
certificate. There is a further communication by the ADA dated
17.01.2018 demanding an amount of Rs. 6,11,575/- and for taking
possession after depositing the same and getting the deed executed.
On the other hand, the appellant, vide communication dated
02.04.2018, requested for waiver of interest on the balance amount
and also sought confirmation whether the flat was ready for physical
possession.
6. It was thereafter that the appellant along with letter dated
04.06.2019, sent a cheque dated 01.06.2019 for Rs. 3,43,178/- and
again requested for confirmation of the date of possession. The ADA
encashed the said cheque but did not inform any date for handing
over possession. It looks like the appellant got the loan transferred
to the State Bank of India 48 whereupon the SBI is writing letters

48
SBI
102 [2024] 9 S.C.R.

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demanding the title deed of the apartment vide communications
dated 14.03.2017, 25.06.2019 and 19.10.2019. These
communications further mention that in case the title deed is not
deposited, then penal interest @2% p.a. would be levied. The
appellant again reiterated his earlier request for waiver of interest on
balance amount vide reminder dated 18.09.2019 and again
requested for confirmation whether the flat was ready for physical
possession. The appellant again visited the office of ADA on
23.11.2019 and requested for completion certificate and firefighting
clearance certificate, which were not provided. He again visited the
site and found that the apartment was not in a habitable condition.
The appellant thus proceeded to institute a complaint before the
NCDRC on 10.07.2020 alleging deficiency in service as also unfair
trade practice on the part of ADA.
7. The ADA filed its reply in which the amounts as deposited by the
appellant, as noted above, were admitted. Further, according to
ADA, the construction was ready and possession was offered on
04.02.2014 along with demand of Rs. 3,43,178/- which the appellant
did not pay and continued to claim for waiver of interest and had
ultimately paid the said amount on 04.06.2019 vide cheque dated
01.06.2019. According to ADA, after adjustment there was still an
outstanding amount of Rs. 4,71,159/- as on 05.02.2021. It was also
stated in the written statement that in 2011, at the time of allotment,
the tentative price was Rs. 56,54,000/- and under Clause 45 of the
Registration and Allotment Rules, it was clearly mentioned that the
price could vary upto 10%. Further, according to ADA, the demand
raised by the letter dated 04.02.2014 of solar system, lease premium
and car parking were apart from the cost of the flat and not due to
increased cost. The appellant had unnecessarily delayed payment
of the demand raised on 04.02.2014. It was also stated in the written
statement that out of the 582 apartments built under the project in
question, except for 20 allottees, all other allottees had taken
possession. The ADA further pleaded that the complaint was barred
by time and secondly, that as the total payment made by the
appellant was Rs. 59,97,178/-, as such it would not fall within the
pecuniary limit of the NCDRC, and therefore, the complaint was
liable to be dismissed for the above two reasons also.
8. The parties led their evidence. The NCDRC rejected technical
objections raised by the ADA regarding limitation as also the
pecuniary jurisdiction. In so far as the limitation is concerned, the
[2024] 9 S.C.R. 103

Dharmendra Sharma v. Agra Development Authority

NCDRC held that as subsequent demand and reminders were sent
by the ADA and the ADA even accepted the cheque of Rs. 3,43,178/-
in 2019, it was not open for the ADA to raise the plea of limitation. In
so far as the pecuniary jurisdiction is concerned, the NCDRC held
that the claim was of more than Rs. 2 crores as such the said
objection was also not sustainable. The NCDRC, however, held that
the additional demand made by the ADA vide communication dated
04.02.2014 although was other than additional cost of 10% which
was permissible but, in any case, it was within the 10% admissible
clause, as such could not be held to be illegal. The NCDRC also held
that if the possession was delayed beyond two years, the appellant
would be entitled for a refund but in the present case, Clause 27 of
the Registration and Allotment Rules would not be applicable. The
NCDRC further held that although the appellant had deposited the
non-judicial stamps worth Rs. 3,99,100/- on 15.02.2014 but he
continued to delay payment of additional demand of Rs. 3,43,178/-
and was continuously requesting for waiver of interest resulting into
the presumption that he was avoiding payment of the balance
amount. On such finding the NCDRC denied to grant interest from
the date of deposit but made it applicable from the date of the filing
of the complaint. In so far as the deficiency in construction was
concerned, the NCDRC found that only bald allegations have been
made by the appellant and he never made any effort to get a report
from the Commissioner and allowed the apartment in question to
remain locked for six years.
9. After considering the pleadings and evidence on record and in view
of the above findings, the complaint was partly allowed by the
NCDRC on 15.09.2023.
10. The appellant preferred a Review Application which was dismissed
by the NCDRC by its order dated 30th October, 2023. In the Review
Application also, the NCDRC reiterated that the review was liable to
be rejected as while offering possession, the ADA vide letter dated
04.12.2014 had made a further demand which amount was not
deposited within the time and it was only deposited in 2019 and that
too without interest and the complaint was made after six years and,
therefore, the appellant would not be entitled to interest from the date
of deposit.
11. In the two appeals filed by the appellant, the relief claimed is to the
extent that the payment of interest be awarded from the date of
deposit while refunding the same and not from the date of the
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complaint. Whereas in the appeal filed by the ADA, it is submitted
that in view of the fact that the petition had been filed after six years
from the date of offering possession, as such it was barred by
limitation and also as the amount deposited was only Rs. 59,91,000/-
i.e. less
than Rs. 1 crore, the complaint ought to have been filed before the
State Consumer Disputes Redressal Commission and the NCDRC
would have no pecuniary jurisdiction to entertain the complaint with
a value of less than Rs. 1 crore.
12. We have heard Shri Vipin Sanghi, learned senior counsel appearing
for the appellant and Shri Sudhir Kulshreshtha, learned counsel for
the ADA in all the three appeals.
13. The facts as recorded above are not disputed. Even the NCDRC did
not find any contradiction in the factual aspect. The only issue is as
to whether the possession as offered on 04.12.2014 should be taken
as a valid offer of possession even if there was no completion
certificate and also whether the firefighting clearance certificate was
available with the ADA or not. Despite specific requests and
demands by the appellant for providing the completion certificate and
firefighting clearance, the ADA failed to produce the same. Senior
Counsel for the appellant has relied upon the following judgments in
support of his submission that offer for possession would be invalid
where the completion certificate and firefighting clearance certificate
have not been obtained by the developer i.e. ADA:
(a) Debashis Sinha & Ors. vs. R.N.R. Enterprise49
(b) Pioneer Urban Land and Infrastructure Limited vs. Union
of India & Ors.50
(c) Treaty Construction vs. Ruby Tower Cooperative Housing
Society Ltd.51
It is then submitted that even before the NCDRC the completion
certificate and the firefighting clearance certificate could not be
produced by the respondent -ADA.
14. It is also submitted on behalf of the appellant that under the
provisions of RERA Act, 2016 as also the UP (Promotion of

49
(2023) 3 SCC 195
50
[2019] 10 SCR 381 : (2019) 8 SCC 416
51
[2019] 9 SCR 606 : (2019) 8 SCC 157
[2024] 9 S.C.R. 105

Dharmendra Sharma v. Agra Development Authority

Apartment and Ownership and Maintenance) Act, 2010 offer of
possession would be valid only after a developer obtains the
completion certificate, which had not been done so far by the
developer ADA in the present case. On behalf of the appellant, it is
also argued that the demand
of Rs. 3,43,178/- along with alleged offer of possession dated
14.02.2014 was totally unjustified and illegal. It was also submitted
that the appellant having deposited the amount of approximately Rs.
60 lakhs and that too after taking loan from financial institutions,
cannot be deprived of counting the interest from the date of deposit
rather than from the date of filing of the complaint. In support of this
submission, reliance has been placed upon the following judgments:
(a) Ghaziabad Development Authority vs. Balbir Singh52
(b) Rishab Singh Chandel & Anr. vs. Parsvnath Developers
Ltd. & Anr.535455

(c) Lucknow Development Authority vs. M.K.Gupta10

(d) Marvel Omega Builders Pvt. Ltd. vs. Shri Hari Gokhale &
Ors.11

(e) Experion Developers Pvt. Ltd. vs. Sushma Ashok

Shierror56
15. On such submissions it was prayed by the appellant that his appeals
be allowed and the interest be awarded from the date of deposit and
to that extent the impugned judgment and order of NCDRC be
modified. Further that the appeal filed by the respondent be
dismissed.
16. Having considered the submissions of both parties, we are of the
opinion that both have contributed to delays at various stages. The
respondent ADA raised an objection that the complaint was barred
by limitation, claiming that the complaint was filed on 10.07.2020,
well beyond the statutory limitation period prescribed under Section
24A of the Consumer Protection Act, 1986, which mandates that a
complaint must be filed within two years from the date on which the

52
[2004] 3 SCR 68 : (2004) 5 SCC 65
53
Civil Appeal No.3053 of 2023
54
[1993] Suppl. 3 SCR 615 : (1994) 1 SCC 243
55
[2019] 10 SCR 375 : (2020) 16 SCC 226
56
(2022) 6 SCALE 16
106 [2024] 9 S.C.R.

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cause of action arises. ADA argued that the offer of possession made
on 04.02.2014 should have triggered the limitation period. However,
the NCDRC, in its impugned order, rightly rejected this argument by
considering that the respondent ADA issued reminders to the
appellant on 22.09.2014, 21.11.2014, and 17.01.2018. Additionally,
ADA accepted the appellant’s payment of Rs. 3,43,178/- on
20.06.2019 without any reservations. Given these facts, the NCDRC
correctly applied Sections 18 and 19 of the Limitation Act, 1963,
which extend the limitation period where part payments or
acknowledgments are made. Consequently, the cause of action
continued to exist, and the filing of the complaint in July 2020 is within
the limitation period.
17. This Court concurs with the NCDRC’s reasoning and affirms that the
complaint was not barred by limitation. The ongoing interactions
between the parties, including ADA’s acceptance of part payment in
2019 and the reminders sent, effectively extended the limitation
period under established legal principles. However, while the
complaint is within limitation, we also recognize that the appellant
delayed making the balance payment of Rs. 3,43,178/- for over five
years, from 2014 to 2019. This delay was largely due to the
appellant’s requests for a waiver of interest, which, while
understandable, contributed significantly to the delay in finalizing the
transaction.
18. In light of these circumstances, while the appellant is entitled to a
refund along with interest, it would be inequitable to award interest
from the date of the original payment in 2011 given the appellant’s
role in the delay.
19. The respondent ADA has also challenged the pecuniary jurisdiction
of the NCDRC, contending that the total payment made by the
appellant amounted to Rs. 59,97,178/-, which was less than Rs. 1
crore. As such, ADA argued that the complaint should have been
filed before the State Consumer Disputes Redressal Commission
and not the NCDRC, which has jurisdiction over matters exceeding
Rs. 1 crore as per Section 21(a)(i) of the Consumer Protection Act,
1986. This Court finds no merit in ADA’s argument. The NCDRC, in
its impugned order, correctly observed that the claim made by the
appellant was not limited to the deposit amount alone but also
included compensation for mental agony, harassment, and loss of
income, which brought the total claim well above Rs. 1 crore. In
consumer disputes, the value of the claim is determined not just by
[2024] 9 S.C.R. 107

Dharmendra Sharma v. Agra Development Authority

the amount deposited but by the aggregate relief sought, which
includes compensation and other claims. Therefore, the NCDRC
rightly held that it had the requisite pecuniary jurisdiction to entertain
the complaint, and this Court affirms that finding.
20. The appellant’s key contention regarding the absence of the
completion certificate and firefighting clearance certificate merits
serious consideration. The appellant consistently raised this issue,
asserting that a valid offer of possession cannot be made without
these documents. Section 4(5) of the UP Apartment (Promotion of
Construction, Ownership & Maintenance) Act, 2010 and Section
19(10) of the RERA Act, 2016 mandate that a developer must obtain
these certificates before offering possession. Despite the appellant’s
repeated requests, ADA failed to produce these certificates,
rendering its offer of possession incomplete and legally invalid.
21. The appellant has rightly cited relevant precedents to bolster this
argument. In Debashis Sinha v. R.N.R. Enterprise (2023), 57 this
Court held that possession offered without the requisite completion
certificate is illegal, and a purchaser cannot be compelled to take
possession in such circumstances. The Court in that case held:
“20. Finally, we cannot resist but comment on the
perfunctory approach of Ncdrc while dealing with the
appellants’ contention that it was the duty of the
respondents to apply for and obtain the completion
certificate from KMC and that the respondents ought to
have been directed to act in accordance with law. The
observation made by Ncdrc of the respondents having
successfully argued that it was not their fault, that no
completion certificate of the project could be obtained, is
clearly contrary to the statutory provisions.
21. Sub-section (2) of Section 403 of the KMC Act was
referred to by Ncdrc in the impugned order [Debashis
Sinha v. R.N.R. Enterprise, 2020 SCC OnLine NCDRC
429] . Sub-section (1) thereof, which finds no reference
therein, requires every person giving notice under Section
393 or Section 394 or every owner of a building or a work
to which the notice relates to send or cause to be delivered
or sent to the Municipal Commissioner a notice in writing

57
(2023) 3 SCC 195
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of completion of erection of building or execution of work
within one month of such completion/erection,
accompanied by a certificate in the form specified in the
rules made in this behalf as well as to give to the Municipal
Commissioner all necessary facilities for inspection of
such building or work.
22. Section 393 mandates every person, who intends to
erect a building, to apply for sanction by giving notice in
writing of his intention to the Municipal Commissioner in
such form and containing such information as may be
prescribed together with such documents and plans.
Similarly, Section 394 also mandates every person who
intends to execute any of the works specified in clause (b)
to clause (m) of sub-section (1) of Section 390 to apply for
sanction by giving notice in writing of his intention to the
Municipal Commissioner in such form and containing such
information as may be prescribed.
23. It is, therefore, evident on a conjoint reading of
Sections 403, 390 and 394 of the KMC Act that it is the
obligation of the person intending to erect a building or to
execute works to apply for completion certificate in terms
of the Rules framed thereunder. It is no part of the flat
owner’s duty to apply for a completion certificate. When
the respondents had applied for permission/sanction to
erect, the Calcutta Municipal Corporation Buildings Rules,
1990 (hereafter “the 1990 Rules” for short) were in force.
Rule 26 of the 1990 Rules happens to be the relevant
Rule. In terms of sub-rules (1) to (3) of Rule 26 thereof,
the obligation as cast was required to be discharged by
the respondents. Evidently, the respondents observed the
statutory provisions in the breach.”
This position is supported by other decisions, including Pioneer
Urban Land and Infrastructure Ltd. (supra) and Treaty
Construction (supra), where the absence of these certificates was
found to constitute a deficiency in service. In the present case, the
ADA’s failure to provide the required certificates justifies the
appellant’s refusal to take possession. This strengthens the
appellant’s claim for additional compensation to compensate for the
delay caused by ADA’s breach of its statutory obligations.
[2024] 9 S.C.R. 109

Dharmendra Sharma v. Agra Development Authority

22. This Court is of the considered view that both parties have exhibited
lapses in their respective obligations. On the one hand, the
appellant, despite having paid the tentative price of Rs. 56,54,000/-
in 2012, failed to remit the additional amount of Rs. 3,43,178/-, as
demanded by the ADA, even after being repeatedly reminded.
Instead, the appellant persistently sought a waiver of the penal
interest on the delayed payment, eventually settling the amount only
on 04.06.2019, a significant delay that cannot be overlooked and that
too without the interest component which had further accrued over a
period of about five years. On the other hand, the ADA, despite
making an offer of possession in 2014, did not fulfil its statutory
obligations by providing the requisite completion certificate and
firefighting clearance certificate, both of which are essential for a
valid and lawful offer of possession. The absence of these
documents, which were also not furnished before the NCDRC,
unquestionably vitiates the offer of possession made by the ADA.
23. In light of the aforementioned observations and taking into account
the shortcomings on the part of both the appellant and the ADA, this
Court deems it appropriate to provide a compensation of Rs.
15,00,000/- (Fifteen Lakhs only) apart from what was awarded by
the NCDRC. Therefore, apart from the refund of the entire amount
deposited by the appellant @ 9% interest per annum from
11.07.2020 till the date of refund, the ADA is directed to pay an
additional amount of Rs. 15,00,000/- (Fifteen Lakhs only) to the
appellant. The entire amount should be rendered to the appellant
within three months of this order. We also order the ADA to return
the non-judicial stamp worth Rs. 3,99,100/- back to the appellant.
24. Furthermore, we refrain from imposing any exemplary costs on
either party, recognizing that both have contributed to the situation
at hand. It is also to be noted that the ADA, being a civic body tasked
with serving the public and operating on a non-profit basis, should
not be unduly penalized in a manner that could impede its
functioning.
25. The Civil Appeals 2809-2810 of 2024 are disposed of accordingly.
26. The appeal filed by the ADA i.e. Civil Appeal No. 6344 of 2024 stands
dismissed, as its primary arguments regarding both limitation and
pecuniary jurisdiction are found to be without merit.
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Result of the case: Civil Appeal Nos. 2809-2810 disposed of;
Civil Appeal No. 6344 of 2024 dismissed.

Headnotes prepared by: Divya Pandey

†
 [2024] 9 S.C.R. 110 : 2024 INSC 668

Abhishek Banerjee & Anr.

v.
Directorate of Enforcement
(Criminal Appeal Nos. 2221-2222 of 2023)
09 September 2024
[Bela M. Trivedi* and Satish Chandra Sharma, JJ.]

Issue for Consideration

Matter pertains to seeking quashing of the summons issued to the
appellants by the Enforcement Directorate, seeking their personal
appearance in New Delhi with the documents sought for,
pertaining to the FIR registered in respect of alleged illegal
excavation and theft of Coal, against the accused.

Headnotes†

Prevention of Money Laundering Act, 2002 – s. 50 – Power of

authorities regarding summons, production of documents
and to give evidence – Registration of FIR in respect of
alleged illegal excavation and theft of Coal in leasehold areas
of Coalfields – Issuance of repeated summons to the
appellants u/s. 50 by the Enforcement Directorate seeking
their personal appearance in New Delhi with the documents
sought for, however, they failed to remain present, though
appellant no. 1 appeared once – Meanwhile, complaint filed
by the ED against appellant no. 2 for non-compliance of
summons – Writ Petition by the appellants seeking quashing
of the summons issued to them by the ED and seeking further
direction against the ED not to issue any summons to the
appellants for their appearance in New Delhi, rather than their
hometown-Kolkata – Also miscellaneous case by appellant no
2 seeking quashing of the complaint and the order taking
cognizance of the complaint, as also the summoning order –
Dismissal of the writ petitions and the miscellaneous case –
Challenge to:
Held: Present ECIR is recorded at the Headquaters Investigation
Unit, which is not restricted to any territorial jurisdiction – Further,
as per the specific case of the ED in the complaint, filed against
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the accused persons before the Special Court, PMLA New Delhi,
Rs.168 Crores were allegedly received by the Inspector from the

* Author
co-accused to be delivered to his political bosses, and the said Rs.
168 Crores were transferred through vouchers to Delhi and
Overseas, which clearly established adequate nexus of the
offence and the offenders with the territory of Delhi – Thus, no
illegality in the summons issued by the ED summoning the
appellants to its Office at Delhi, which also has the territorial
jurisdiction, a part of the offence having been allegedly committed
by the accused persons as alleged in the complaint – Also
appellant No. 1 being a Member of Parliament has also an official
residence at Delhi – In view thereof, no substance in the challenge
made by the appellants to the Summons issued to the appellants
u/s. 50 – Furthermore, though the appellant No. 2 before the High
Court had challenged the order taking cognizance of the complaint
and the order summoning her before the Court, she did not even
bother to produce the said Orders before this Court – Since the
said complaint is pending before the Court of Chief Judicial
Magistrate, no opinion/ expressed on the merits of the said
complaint – No illegality found in the said orders passed by the
concerned court and that the said complaint to be proceeded
further by the said court in accordance with law. [Paras 20-22]
Prevention of Money Laundering Act, 2002 – Object and scope
of:
Held: Provisions of PMLA are not only to investigate into the
offence of money laundering but more importantly to prevent
money laundering and to provide for confiscation of property
derived from or involved in money laundering and the matters
connected therewith and incidental thereto – PMLA is a self-
contained Code and the dispensations envisaged thereunder,
must prevail in terms of s. 71 thereof, which predicates that the
provisions of the Act shall have effect notwithstanding anything
inconsistent therewith contained in any other law for the time being
in force, which includes provisions of the Cr.P.C – s. 65 predicates
that the provisions of the Cr.P.C. shall apply insofar as they are not
inconsistent with the provisions of the PMLA in respect of arrest,
search and seizure, attachment, confiscation, investigation,
prosecution and all other proceedings under the Act – Thus, having
regard to the conjoint reading of s. 71 and s. 65 of the PMLA as
also s. 4(2) and s. 5 CrPC, the provisions of PMLA will have the
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effect notwithstanding anything inconsistent therewith contained in
any other law for the time being in force, including the provisions
of the Cr.P.C. [Para 13] Prevention of Money Laundering Act,
2002 – Power to investigate under – Application of the
provisions of Chapter XII CrPC:
Held: Dispensation regarding Prevention of Money Laundering,
Attachment of Proceeds of Crime, and Inquiry/Investigation of
offence of Money Laundering including issuing summons,
recording of statements, calling upon persons for production of
documents etc. upto filing of the Complaint in respect of offence
u/s. 3 of PMLA is fully governed by the provisions of the said Act
itself – Jurisdictional police who is governed by the regime of
Chapter XII CrPC, cannot register the offence of money
laundering, nor can investigate into it, in view of the special
procedure prescribed under the PMLA with regard to the
registration of offence and inquiry/investigation thereof, and that
the special procedure must prevail in terms of s. 71 PMLA –
Submission that the sweep of s. 160 Cr.P.C would extend to
summoning any person irrespective of whether that person is an
accused of that offence or a mere witness, cannot be accepted
since the provisions of Chapter XII CrPC (under which s. 160 falls)
do not apply in all respects to deal with information derived relating
to the commission of money laundering offence much less
investigation thereof. [Paras 14, 15]
Prevention of Money Laundering Act, 2002 – s. 50 – Power of
authorities regarding summons, production of documents
and to give evidence – Code of Criminal Procedure, 1973 –
s.160/161 – Police officer’s power to require attendance of
witnesses and examination of witnesses by police – Glaring
inconsistencies between s. 50 PMLA and s. 160/161 Cr.P.C:
Held: Apart from the fact that s. 50 is a gender neutral, as it does
not make any distinction between a man and a woman, there are
glaring inconsistencies between the provisions contained in s. 50
PMLA and s.160/161 Cr.P.C – Chapter XII Cr.P.C pertains to the
“Information to the Police and their Powers to Investigate” wherein
s.160 empowers the Police Officer making an investigation under
the said Chapter to require any person to attend within the limits of
his own or adjoining station who, from the information given or
otherwise appears to be acquainted with the facts and
circumstances of the case – Whereas, the process envisaged by
s. 50 PMLA is in the nature of an inquiry against the proceeds of
crime and is not “Investigation” in strict sense of the term for
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initiating prosecution; and the authorities referred to in s. 48 PMLA
are not the Police Officers – Statements recorded by the
authorities u/s. 50 PMLA are not hit by Art. 20(3) or Art. 21 of the
Constitution, rather such statements recorded by the authority in
the course of inquiry are deemed to be the Judicial proceedings in
terms of s. 50(4), and are admissible in evidence, whereas the
statements made by any person to a Police Officer in the course
of an investigation under Chapter XII CrPC could not be used for
any purpose, except for the purpose stated in the proviso to s. 162
CrPC – In view of such glaring inconsistencies between
s. 50 PMLA and s. 160/161 Cr.P.C, the provisions of s. 50 PMLA
would prevail in terms of s. 71 read with s. 65 thereof. [Para 16]
Prevention of Money Laundering Act, 2002 – s. 50 – Power of
authorities regarding summons, production of documents
and to give evidence – Procedure prescribed u/r. 11 of the
Rules, 2005 – Following of, by the Summoning Officer –
Requirement:
Held: R. 11 of the Rules 2005, requires the Summoning Officer to
follow the procedure as prescribed therein, i.e., to issue Summons
in Form V appended to the said Rules – Prescribed Form V
requires Summoning Officer to mention not only the Name,
Designation and Address of the Summoning Officer but also the
details of the persons summoned as also the documents sought
therein – Foot note of Form V also mentions that the proceedings
shall be deemed to be judicial proceedings, and if the person
summoned fails to give evidence as mentioned in the Schedule,
he would be liable to penal proceedings under the Act – Thus,
there being specific procedure prescribed under the Statutory
Rules of 2005 for summoning the person under sub-sections (2)
and (3) of s. 50 of the Act, the same would prevail over any other
procedure prescribed under the Code, particularly the procedure
contemplated in s. 160/161 CrPC, as also the procedure for
production of documents contemplated in s. 91 of the Code, in
view of the overriding effect given to the PMLA over the other Acts
including the Cr.P.C. u/s. 71 r/w s. 65 of the PMLA – Prevention of
Money-Laundering (Forms, Search and Seizure or Freezing and
the Manner of Forwarding the Reasons and Material to the
Adjudicating Authority, Impounding and Custody of Records and
the Period of Retention) Rules, 2005. [Para 17]
Prevention of Money Laundering Act, 2002 – s. 50 – Power of
authorities regarding summons, production of documents
and to give evidence – At the stage of issue of summons,
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protection u/Art. 20(3) of the Constitution, if can be claimed
by the person:
Held: s. 50 enables the authorized Authority to issue summon to
any person whose attendance he considers necessary for giving
evidence or to produce any records during the course of the
proceedings under the Act, and that the persons so summoned is
bound to attend in person or through authorized agent, and to state
truth upon the subject concerning which he is being examined or
is expected to make statement and produce documents as may be
required by virtue of sub-section (3) of s. 50 – At the stage of issue
of summons, the person cannot claim protection u/Art. 20(3) of the
Constitution, the same being not “testimonial compulsion” – At the
stage of recording of statement of a person for the purpose of
inquiring into the relevant facts in connection with the property
being proceeds of crime, is not an investigation for prosecution as
such – Summons can be issued even to witnesses in the inquiry
so conducted by the authorized officers – Consequences of Art.
20(3) or s. 25 of the Evidence Act may come into play only if the
involvement of such person is revealed and his or her statements
is recorded after a formal arrest by the ED official. [Para 19]
Case Law Cited
Vijay Madanlal Choudhary and Others v. Union of India and Others
[2022] 6 SCR 382 : (2022) SCC OnLine SC 929 – relied on.
Rana Ayyub v. Directorate of Enforcement [2023] 3 SCR 892 :
(2023) 4 SCC 357 – referred to
List of Acts
Prevention of Money Laundering Act, 2002; Prevention of
MoneyLaundering (Forms, Search and Seizure or Freezing and
the
Manner of Forwarding the Reasons and Material to the
Adjudicating Authority, Impounding and Custody of Records and
the Period of Retention) Rules, 2005; Penal Code 1860;
Prevention of Corruption Act, 1988; Code of Criminal Procedure,
1973; Constitution of India.
List of Keywords
Quashing of summons; Enforcement Directorate; Personal
appearance; Illegal excavation and theft of Coal; Territorial
jurisdiction; Offence of money laundering; Prevent money
laundering; Confiscation of property; Dispensations; Arrest;
Search and seizure; Attachment; Investigation; Attendance of
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witnesses; Examination of witnesses by police; Information to the
Police and their Powers to Investigate; Judicial proceedings;
Testimonial compulsion; Procedure established by law.

Case Arising From

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos.
22212222 of 2023
From the Judgment and Order dated 11.03.2022 of the High Court
of Delhi at New Delhi in WPCRL No. 1808 of 2021 and CRLMC No.
2442 of 2021
Appearances for Parties
Tushar Mehta, SG, Suryaprakash V. Raju, A.S.G., Kapil Sibal, Gopal
Sankaranarayanan, Dr. Abhishek Manu Singhvi, Sr. Advs., Mukesh
Kumar Maroria, Adit Pujari, Amit Bhandari, Ms. Aprajita Jamwal, Ms.
Arshiya Ghose, Vishwajeet Singh Bhatti, Ms. Shubhangi Pandey,
Udayaditya Banerjee, Zoheb Hussain, Annam Venkatesh, Guntur
Pramod Kumar, A.K. Panda, Rajat Nair, Ms. Nisha Bagchi, Harish
Pandey, Ms. Aakriti Mishra, Arvind Kumar Sharma, Sanchit Garga,
Madhav Gupta, Shashwat Jaiswal, Ms. Astha Sharma, Nipun
Saxena, Sanjeev Kaushik, Advs. for the appearing parties.
Judgment / Order of the Supreme Court
Judgment
Bela M. Trivedi, J.
1. Both these Appeals are arising out of the Common Impugned Order
dated 11.03.2022 passed by the High Court of Delhi in W.P (Crl.) No.
1808 of 2021 and Crl. M.C. No. 2442 of 2021, filed by the Appellants
(Original Petitioners), whereby the High Court has dismissed the
same.
2. The Writ Petition (Crl.) No. 1808 of 2021 was filed by the Appellants-
Abhishek Banerjee and Rujira Banerjee seeking quashing of the
Summons dated 10.09.2021 issued to them by the Respondent –
ED under Section 50 of the Prevention of Money Laundering Act,
2002 (hereinafter referred to as the “PMLA”), and seeking further
direction against the Respondent not to issue any Summons under
Section 50 of the said Act to the Appellants for their appearance in
New Delhi, rather than their hometown/ place of domicile i.e. Kolkata.
The Crl. M.C. No. 2442 of 2021 was filed by the Appellant - Rujira
Banerjee seeking quashing of the Complaint dated 13.09.2021 filed
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by the respondent-ED against her for the offence under Section 174
of India
Penal Code (IPC), and for quashing the Order dated 18.09.2021
passed by the Chief Metropolitan Magistrate (CMM), Patiala House,
New Delhi taking cognizance of the complaint, as also the Order
dated 30.09.2021 summoning her, passed by the said Court.
3. The facts in the nutshell are that an FIR/R.C. bearing No.
RC0102020A0022 came to be registered by the CBI, ACB, Kolkata
on 27.11.2020 for the offences under Section 120B and 409 of IPC
and Section 13(2) r/w 13(1)(a) of the Prevention of Corruption Act,
1988 (hereinafter referred to as the “PC Act”), in respect of alleged
illegal excavation and theft of Coal taking place in the leasehold
areas of Eastern Coalfields Limited (ECL) by one Anup Majee alias
Lala with the active connivance of certain employees of ECL. Based
on the said FIR, on 28.11.2020, an ECIR bearing No. 17/HIU/2020
came to be registered by the Respondent at their Head Investigative
Unit situated at New Delhi.
4. During the course of investigation of the FIR in respect of theft of
Coal and illegal excavation being done by the criminal elements in
the leasehold area of ECL, a large number of vehicles/ equipments
used in the illegal coal mining and its transportation were seized. It
was also found that the said case involved money laundering to the
tune of Rs. 1300 Crores. According to the Respondent – ED one of
the accused Vikas Mishra was arrested on 16.03.2021 and another
accused Inspector Ashok Mishra of Bankura Police Station was
arrested on 03.04.2021, who had become part of illegal Coal mafia
and had helped in laundering several hundred crores of rupees. It
was also found during the course of investigation that Inspector
Ashok Kumar Mishra had allegedly received Rs. 168 crores in just
109 days from the co-accused Anup Majee, to be delivered to his
political bosses including co-accused Vinay Mishra. The said Rs.
168 crores were allegedly transferred through vouchers to Delhi and
Overseas.
5. On 22.07.2021, the Respondent issued Summons to the Appellant
No. 1 under Section 50 of PMLA seeking his personal appearance
on 03.08.2021 in New Delhi with the documents sought for. Again on
04.08.2021, another Summons were issued to the Appellant No. 1
seeking the same documents as sought in Summons dated
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22.07.2021 for remaining present on 12.08.2021 in New Delhi. The
Appellant No. 2 was also issued Summons on 04.08.2021 under
Section 50 of PMLA for her personal appearance in New Delhi on
13.08.2021 along with the documents/records stated in the said
Summons. Both the Appellants did not remain present as directed
and furnished their respective replies on 12.08.2021 seeking time to
comply with the said Summons. The Respondent again issued
Summons on 18.08.2021 requiring the Appellant No. 1 to remain
present in New Delhi on 06.09.2021 and Appellant No. 2 to remain
present in New Delhi on 01.09.2021. The Appellant No. 2 replied to
the Summons dated 18.08.2021 requesting the Respondent to
examine her at Kolkata as there was a functional office of the
Respondent in Kolkata and the alleged cause of action had arisen in
West Bengal. The Appellant No. 1 in due compliance to the
Summons dated 18.08.2021 appeared before the Respondent – ED
on 06.09.2021 at New Delhi, however he was again issued
Summons on the same day seeking his personal appearance along
with the documents in New Delhi on 08.09.2021. The Appellant No. 1
did not appear before the respondent however, submitted a reply on
08.09.2021 requesting for four weeks’ time to collect and collate the
documents sought. The Appellant No. 1 was further served with
another Summons dated 10.09.2021 seeking his appearance in New
Delhi on 21.09.2021. The said summons came to be challenged by
the appellants by filing the W.P. (Crl.) No. 1808/2021 before the High
Court.
6. On 13.09.2021, the Respondent filed a Complaint against the
Appellant No. 2 in the Court of Chief Metropolitan Magistrate, Patiala
House, New Delhi under Section 190 (1)(a) r/w Section 200 Cr.P.C.
r/w Section 63(4) PMLA, alleging the commission of the offence
under Section 174 of IPC for non-compliance of the Summons dated
04.08.2021 and 18.08.2021. The said Court vide the Order dated
18.09.2021 took cognizance of the impugned offence and issued
Summons to the Appellant No. 2 for her personal appearance on
30.09.2021. The Appellant No. 2 on 30.09.2021 appeared virtually
and sought exemption from personal appearance. The Learned
CMM passed an Order allowing the exemption application for that
day only, and directed the Appellant No. 2 to remain personally
present before the Court on 12.10.2021. The said complaint filed by
the respondent and the said orders passed by the CMM Court came
to be challenged by the Appellant Rujira by filing the Crl. M.C No.
2442 of 2021 before the High Court.
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7. As stated earlier, both the W.P. (Crl.) No. 1808/2021 and Crl. M.C.
No. 2442/2021 came to be dismissed by the High Court vide the
impugned order.
8. The Learned Senior Counsel Mr. Kapil Sibal, appearing for the
Appellant No. 1 – Abhishek Banerjee made lengthy submissions, the
crux of which may be stated as under: -
i. Section 50 of the PMLA merely indicates the substantive power
of ED to summon but does not provide the procedure for
exercise of such power.
ii. The procedure relating to territoriality of investigation, or power
to summon sick, or infirm/ women/ children and record their
statements has not been provided under Section 50 PMLA, as
it is provided under Section 160 and 161 Cr.P.C.
iii. Power without guidance for manner in which it is to be
exercised could not be said to be fair, just and reasonable
procedure established by law under Article 21 of the
Constitution.
iv. A combined reading of Section 4(2) Cr.P.C. and Section 65
PMLA would show that the application of the Code is not barred
as long as the provisions of the Code are consistent with the
PMLA.
v. The Judgment of this Court in Vijay Madanlal Choudhary and
Others vs. Union of India and Others58 has not dealt with the
issue of procedure for summoning under Section 50 of the
PMLA. vi. The Cr.P.C. provides that the existence of the
territorial nexus to the commission of a crime is a jurisdictional
threshold for the exercise of powers of investigation by a police
officer. However, the Respondent – ED has not demonstrated
as to how it could be prejudiced by calling the Appellant No. 1
to its office in Kolkata where the ED has the Zonal Office.
vii. The Department of Revenue, Ministry of Finance has issued
administrative instructions consistent with Section 51 of PMLA
that demarcate the specific territorial jurisdiction of various
Zonal Offices of the ED. The said instructions must be strictly
complied with by the ED in consonance with Article 21 of the
Constitution of India.

58
[2022] 6 SCR 382 : (2022) SCC OnLine SC 929
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viii. The Appellant No. 1 is a permanent resident of Kolkata and
being Member of Parliament has a residence in Delhi, which
however does not alter his permanent residence at Kolkata.
ix. Section 91 of Cr.P.C. only deals with summons for production
of documents, whereas the summons issued to the Appellant
No. 1 under PMLA are for personal appearance before the
Respondent at New Delhi is nothing but an abuse of process of
law.
9. In addition to the above submissions, Learned Senior Counsel Mr.
Abhishek Manu Singhvi along with Learned Senior Counsel Mr.
Gopal Sankaranarayanan appearing for the Appellant No. 2 broadly
made following submissions: -
i. The Appellant No. 2 has been summoned to appear in New
Delhi despite she being a home maker and a mother of two
children. The ED has created Zonal Offices and has an office
at Kolkata. Therefore, summoning the Appellant No. 2 in Delhi
is illegal and reeks mala fide.
ii. The Appellant No. 2 is neither an accused in the predicate
offence nor in the money laundering offence. iii. Protection of
woman provided under Section 160 of Cr.P.C would be
applicable to the PMLA also.
iv. Section 65 of PMLA makes provisions of Cr.P.C. applicable in
so far as they are not inconsistent with the provisions of PMLA
with regard to arrest, search and seizure, attachment,
confiscation, investigation, prosecution and all other
proceedings under the said Act. Therefore, in the absence of
any specific procedure for summoning of witnesses the Cr.P.C.
will apply.
v. Article 21 of the Constitution provides that a person’s life and
liberty can be curtailed by State only in accordance with the
procedure established by law, and therefore the procedure for
Summons curtailing the right of the Appellant No. 2 to life and
liberty must be just and reasonable.
10. The Learned Senior Counsel, Mr. S.V. Raju also made elaborate
submissions on behalf of the Respondent – ED which may be
summarized as under: -
i. Section 91 Cr.P.C. neither encompasses any territorial
jurisdictional limit nor does it contain any proviso for women,
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minors or elderly akin to Section 160 Cr.P.C. A police officer has
to resort to Section 91 Cr.P.C. to mandate the provision of any
document. Hence, Section 91 Cr.P.C. cannot be equated with
the powers under Section 50 of PMLA.
ii. Section 160 Cr.P.C. applies to a Police Officer who is making
an investigation under Chapter XII of Cr.P.C., whereas the
process envisaged by Section 50 of PMLA is in the nature of an
inquiry and is not an Investigation in the strict sense of the term
as held in case of Vijay Madanlal (supra).
iii. ED has the power to summon any person whose attendance is
considered necessary whether to give evidence or to produce
any record as contemplated in Section 50 of the PMLA. A
statement made under Section 50 is admissible in evidence,
whereas the statement made under Section 161 is inadmissible
as provided under Section 162 Cr.P.C.
iv. There are stark inconsistencies between Section 50 PMLA and
Section 160 Cr.P.C., and therefore Section 160 Cr.P.C would
not apply to the proceedings under Section 50 of PMLA.
v. The procedure to exercise power under Section 50 PMLA is laid
down in the Rules called the Prevention of Money Laundering
(Forms, Search and Seizure or Freezing and the Manner of
Forwarding the Reasons and Material to the Adjudicating
Authority, Impounding and Custody of Records and the Period
of Retention) Rules, 2005.
vi. The Appellant No. 1 had attempted to mislead the Court by
suppressing the fact that he had residence in New Delhi also.
vii. The statement made under Section 50 of PMLA would not
infringe any fundamental right of the person contained in Article
20(3) inasmuch as the person making the statement is not an
accused at the time when the statement under Section 50 is
recorded. viii. As regards territorial jurisdiction, it is submitted in
the alternative that as per the case of ED, the proceeds of crime
to the tune of Rs. 168 Crores were transferred through
vouchers to Delhi and Overseas, and therefore, there was
adequate nexus with the territory of Delhi with the alleged
offence. Even a prosecution complaint could have been filed in
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Delhi, which would be consistent with the law laid down by this
Court in Rana Ayyub vs. Directorate of Enforcement.59
ix. The Regional Offices created in the Directorate of Enforcement
are for administrative convenience and do not in any manner
limit the scope of enquiry of those concerned offices or officers,
if the offence of money laundering spreads over multiple States.
x. Section 5 r/w Section 4 (2) of Cr.P.C. itself contemplates that
nothing contained in the Code of 1973 would apply or affect any
special law in force regulating the manner of place of
investigation, inquiring into or dealing with such special
offences. xi. There was no illegality in summoning the Appellant
No. 2 to New Delhi, as according to the ED the proceeds of
crime had travel to New Delhi, which would be the area in which
part of the offence has been allegedly committed.
xii. Section 50 of PMLA is gender neutral as it does not make any
distinction between a man and a woman. The Court cannot
carve out an exception in favour of women in Section 50, when
there is none. Whenever the legislature felt the need to carve
out an exception in favour of women, it has done so as evident
from the proviso to Section 45 of PMLA. Therefore, there
cannot be any presumption that a casus omissus exists in
Section 50.
11. For the sake of convenience, let us refer to some of the provisions
of Cr.P.C and PMLA, relevant for the purpose of deciding these
Appeals, as also relied upon by the learned counsels for the parties.
Relevant Provisions of Cr.P.C.:
4. Trial of offences under the Indian Penal Code and other
laws. —
(1) All offences under the Indian Penal Code (45 of
1860) shall be investigated, inquired into, tried, and
otherwise dealt with according to the provisions
hereinafter contained.
(2) All offences under any other law shall be
investigated, inquired into, tried, and otherwise dealt with
according to the same provisions, but subject to any
enactment for the time being in force regulating the

59
[2023] 3 SCR 892 : (2023) 4 SCC 357
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manner or place of investigating, inquiring into, trying or
otherwise dealing with such offences.
5. Saving. —Nothing contained in this Code shall, in the
absence of a specific provision to the contrary, affect any
special or local law for the time being in force, or any special
jurisdiction or power conferred, or any special form of
procedure prescribed, by any other law for the time being in
force.
91. Summons to produce document or other thing. —
(1) Whenever any Court or any officer in charge of a
police station considers that the production of any
document or other thing is necessary or desirable for the
purposes of any investigation, inquiry, trial or other
proceeding under this Code by or before such Court or
officer, such Court may issue a summons, or such officer
a written order, to the person in whose possession or
power such document or thing is believed to be, requiring
him to attend and produce it, or to produce it, at the time
and place stated in the summons or order.
(2) Any person required under this section merely to
produce a document or other thing shall be deemed to
have complied with the requisition if he causes such
document or thing to be produced instead of attending
personally to produce the same.
(3) Nothing in this section shall be deemed—
(a) to affect sections 123 and 124 of the Indian Evidence
Act, 1872 (1 of 1872), or the Bankers’ Books Evidence
Act, 1891 (13 of 1891), or
(b) to apply to a letter, postcard, telegram or other
document or any parcel or thing in the custody of the
postal or telegraph authority.
160. Police officer’s power to require attendance of
witnesses. —
(1) Any police officer making an investigation under this
Chapter may, by order in writing, require the attendance
before himself of any person being within the limits of his
own or any adjoining station who, from the information
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given or otherwise, appears to be acquainted with the
facts and circumstances of the case; and such person
shall attend as so required:
Provided that no male person [under the age of fifteen
years or above the age of sixty-five years or a woman or
a mentally or physically disabled person] shall be required
to attend at any place other than the place in which such
male person or woman resides.
(2) The State Government may, by rules made in this
behalf, provide for the payment by the police officer of the
reasonable expenses of every person, attending under
sub-section (1) at any place other than his residence.”
Relevant Provisions of PMLA:
50. Powers of authorities regarding summons,
production of documents and to give evidence, etc.—
(1) The Director shall, for the purposes of section 13, have
the same powers as are vested in a civil court under the
Code of Civil Procedure, 1908 (5 of 1908) while trying a
suit in respect of the following matters, namely: —
(a) discovery and inspection;
(b) enforcing the attendance of any person, including any
officer of a banking company or a financial institution or a
company, and examining him on oath;
(c) compelling the production of records;
(d) receiving evidence on affidavits;
(e) issuing commissions for examination of witnesses and
documents; and
(f) any other matter which may be prescribed.
(2) The Director, Additional Director, Joint Director,
Deputy Director or Assistant Director shall have power to
summon any person whose attendance he considers
necessary whether to give evidence or to produce any
records during the course of any investigation or
proceeding under this Act.
(3) All the persons so summoned shall be bound to
attend in person or through authorised agents, as such
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Abhishek Banerjee & Anr. v. Directorate of Enforcement

officer may direct, and shall be bound to state the truth
upon any subject respecting which they are examined or
make statements, and produce such documents as may
be required.
(4) Every proceeding under sub-sections (2) and (3)
shall be deemed to be a judicial proceeding within the
meaning of section 193 and section 228 of the Indian
Penal Code (45 of 1860).
(5) Subject to any rules made in this behalf by the
Central Government, any officer referred to in sub-section
(2) may impound and retain in his custody for such period,
as he thinks fit, any records produced before him in any
proceedings under this Act: Provided that an Assistant
Director or a Deputy Director shall not—
(a) impound any records without recording his reasons for
so doing; or
(b) retain in his custody any such records for a period
exceeding three months, without obtaining the previous
approval of the Director.
51. Jurisdiction of Authorities. —
(1) The authorities shall exercise all or any of the powers
and perform all or any of the functions conferred on, or,
assigned, as the case may be, to such authorities by or
under this Act or the rules framed thereunder in
accordance with such directions as the Central
Government may issue for the exercise of powers and
performance of the functions by all or any of the
authorities.
(2) In issuing the directions or orders referred to in
subsection (1), the Central Government may have regard
to any one or more of the following criteria, namely: —
(a) territorial area;
(b) classes of persons;
(c) classes of cases; and
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(d) any other criterion specified by the Central Government in
this behalf
63. Punishment for false information or failure to give
information, etc.—
(I) Any person wilfully and maliciously giving false
information and so causing an arrest or a search to be
made under this Act shall on conviction be liable for
imprisonment for a term which may extend to two years or
with fine which may extend to fifty thousand rupees or
both. (2) If any person,—
(a) being legally bound to state the truth of any matter
relating to an offence under section 3, refuses to answer
any question put to him by an authority in the exercise of
its powers under this Act; or
(b) refuses to sign any statement made by him in the
course of any proceedings under this Act, which an
authority may legally require to sign; or
(c) to whom a summon is issued under section 50 either
to attend to give evidence or produce books of account or
other documents at a certain place and time, omits to
attend or produce books of account or documents at the
place or time,
he shall pay, by way of penalty, a sum which shall not be
less than five hundred rupees but which may extend to ten
thousand rupees for each such default or failure.
(3) No order under this section shall be passed by an
authority referred to in sub-section (2) unless the person
on whom the penalty is proposed to be imposed is given
an opportunity of being heard in the matter by such
authority.
(4) Notwithstanding anything contained in clause (c) of
sub-section (2), a person who intentionally disobeys any
direction issued under section 50 shall also be liable to be
proceeded against under section 174 of the Indian Penal
Code (45 of 1860).
65. Code of Criminal Procedure, 1973 to apply. —The
provisions of the Code of Criminal Procedure, 1973 (2 of
[2024] 9 S.C.R. 127

Abhishek Banerjee & Anr. v. Directorate of Enforcement

1974) shall apply, in so far as they are not inconsistent
with the provisions of this Act, to arrest, search and
seizure, attachment, confiscation investigation,
prosecution and all other proceedings under this Act.
71. Act to have overriding effect. —The provisions of
this Act shall have effect notwithstanding anything
inconsistent therewith contained in any other law for the
time being in force.
12. In exercise of the powers conferred by sub-Section (1) read with
clause (a), clause (m), clause (n), clause (o), clause (pp) and clause
(w) of sub-section (2) of Section 73 of the PMLA, 2002, the Central
Government has also framed the Rules called “the Prevention of
Money-Laundering (Forms, Search and Seizure or Freezing and the
Manner of Forwarding the Reasons and Material to the Adjudicating
Authority, Impounding and Custody of Records and the Period of
Retention) Rules, 2005”. As per Rule 11 of the said Rules, the
Summoning Officer, while exercising the powers under sub-section
(2) and (3) of Section 50 of the PMLA, has to issue Summons in
Form V, appended to the said Rules. Rule 11 of the said Rules reads
as under: -
“Rule 11: - Forms of records. - The Summoning Officer
shall, while exercising powers under sub-sections (2) and
(3) of Section 50 of the Act, issue summons in Form V
appended to these rules.”
13. At the outset, it may be noted that as well settled by now, the
provisions of PMLA are not only to investigate into the offence of
money laundering but more importantly to prevent money laundering
and to provide for confiscation of property derived from or involved
in money laundering and the matters connected therewith and
incidental thereto. As held by the Three-Judge Bench in Vijay
Madanlal (supra), the PMLA is a self-contained Code and the
dispensations envisaged thereunder, must prevail in terms of
Section 71 thereof, which predicates that the provisions of the Act
shall have effect notwithstanding anything inconsistent therewith
contained in any other law for the time being in force, which includes
provisions of the Cr.P.C. The Section 65 of the Act predicates that
the provisions of the Cr.P.C. shall apply insofar as they are not
inconsistent with the provisions of the PMLA in respect of arrest,
search and seizure, attachment, confiscation, investigation,
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prosecution and all other proceedings under the Act. It is pertinent to
note that Section 4(2) of the Code states that all offences under any
other law shall be investigated, inquired into, tried, and otherwise
dealt with according to
the same provisions but subject to any enactment for the time being
in force regulating the manner or place of investigating, inquiring into,
trying or otherwise dealing with such offences. Further, Section 5 of
the Code states that nothing contain in the Code shall, in absence of
specific provision to the contrary, affect any special or local law for
the time being in force, or any special jurisdiction or power conferred,
or any special form of procedure prescribed, by any other law for the
time being in force. Thus, having regard to the conjoint reading of
Section 71 and Section 65 of the PMLA as also Section 4(2) and
Section 5 of the Code, there remains no shadow of doubt that the
provisions of PMLA will have the effect notwithstanding anything
inconsistent therewith contained in any other law for the time being
in force, including the provisions of the Cr.P.C.
14. Though, it was sought to be vehemently submitted by the learned
counsels for the appellants that the sweep of Section 160 of Cr.P.C.
would extend to summoning any person irrespective of whether that
person is an accused of that offence or a mere witness, the said
submission deserves to be discarded outrightly in view of the specific
observations made by the three-Judge Bench in Vijay Madanlal, to
the effect that the provisions of Chapter XII of the Code (under which
Section 160 falls) do not apply in all respects to deal with information
derived relating to the commission of money laundering offence
much less investigation thereof. The precise observations made by
the Court in Vijay Madanlal, while considering the issue, whether an
ECIR could be equated with an FIR under the 1973
Code or not, are reproduced as under: -
“456…. Considering the scheme of the 2002 Act, though
the offence of money-laundering is otherwise regarded as
cognizable offence (cognizance whereof can be taken
only by the authorities referred to in Section 48 of this Act
and not by jurisdictional police) and punishable under
Section 4 of the 2002 Act, special complaint procedure is
prescribed by law. This procedure overrides the
procedure prescribed under 1973 Code to deal with other
offences (other than money-laundering offences) in the
matter of registration of offence and inquiry/investigation
[2024] 9 S.C.R. 129

Abhishek Banerjee & Anr. v. Directorate of Enforcement

thereof. This special procedure must prevail in terms of
Section 71 of the 2002 Act and also keeping in mind
Section 65 of the same Act. In other words, the offence of
moneylaundering cannot be registered by the
jurisdictional police who is governed by the regime under
Chapter XII of the 1973 Code. The provisions of Chapter
XII of the 1973 Code do not apply in all respects to deal
with information derived relating to commission of money-
laundering offence much less investigation thereof. The
dispensation regarding prevention of money-laundering,
attachment of proceeds of crime and inquiry/investigation
of offence of money laundering upto filing of the complaint
in respect of offence under Section 3 of the 2002 Act is
fully governed by the provisions of the 2002 Act itself. To
wit, regarding survey, searches, seizures, issuing
summons, recording of statements of concerned persons
and calling upon production of documents,
inquiry/investigation, arrest of persons involved in the
offence of money-laundering including bail and
attachment, confiscation and vesting of property being
proceeds of crime. Indeed, after arrest, the manner of
dealing with such offender involved in offence of money-
laundering would then be governed by the provisions of
the 1973 Code - as there are no inconsistent provisions in
the 2002 Act in regard to production of the arrested person
before the jurisdictional Magistrate within twenty-four
hours and also filing of the complaint before the Special
Court within the statutory period prescribed in the 1973
Code for filing of police report, if not released on bail
before expiry thereof.”
15. In view of the above, it is abundantly clear that the dispensation
regarding Prevention of Money Laundering, Attachment of Proceeds
of Crime, and Inquiry/Investigation of offence of Money Laundering
including issuing summons, recording of statements, calling upon
persons for production of documents etc. upto filing of the Complaint
in respect of offence under Section 3 of PMLA is fully governed by
the provisions of the said Act itself. The jurisdictional police who is
governed by the regime of Chapter XII of the Code, can not register
the offence of money laundering, nor can investigate into it, in view
of the special procedure prescribed under the PMLA with regard to
the registration of offence and inquiry/investigation thereof, and that
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the special procedure must prevail in terms of Section 71 of the
PMLA.
16. Apart from the fact that Section 50 is a gender neutral, as it does not
make any distinction between a man and a woman, there are glaring
inconsistencies between the provisions contained in Section 50 of
PMLA and Section 160/161 of Cr.P.C. The Chapter XII of Cr.P.C.
pertains to the “Information to the Police and their Powers to
Investigate”. Section 160 which falls under Chapter XII empowers
the Police Officer making an investigation under the said Chapter to
require any person to attend within the limits of his own or adjoining
station who, from the information given or otherwise appears to be
acquainted with the facts and circumstances of the case, whereas,
the process envisaged by Section 50 of the PMLA is in the nature of
an inquiry against the proceeds of crime and is not “Investigation” in
strict sense of the term for initiating prosecution; and the Authorities
referred to in Section 48 of PMLA are not the Police Officers as held
in Vijay Madanlal. It has been specifically laid down in the said
decision that the statements recorded by the Authorities under
Section 50 of PMLA are not hit by Article 20(3) or Article 21 of the
Constitution, rather such statements recorded by the authority in the
course of inquiry are deemed to be the Judicial proceedings in terms
of Section 50(4), and are admissible in evidence, whereas the
statements made by any person to a Police Officer in the course of
an investigation under Chapter XII of the Code could not be used for
any purpose, except for the purpose stated in the proviso to Section
162 of the Code. In view of such glaring inconsistencies between
Section 50 PMLA and Section 160/161 Cr.P.C, the provisions of
Section 50 PMLA would prevail in terms of Section 71 read with
Section 65 thereof.
17. So far as the procedure to be followed by the Summoning Officer
while exercising the powers under sub-section (2) and (3) of Section
50 of the PMLA is concerned, it is pertinent to note that Rule 11 of
the said Rules 2005, requires the Summoning Officer to follow the
procedure as prescribed therein, i.e., to issue Summons in Form V
appended to the said Rules. The said prescribed Form V requires
Summoning Officer to mention not only the Name, Designation and
Address of the Summoning Officer but also the details of the persons
summoned as also the documents sought therein. The foot note of
Form V also mentions that the proceedings shall be deemed to be
judicial proceedings within the meaning of Section 193 and Section
[2024] 9 S.C.R. 131

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228 of the IPC, and if the person summoned fails to give evidence
as mentioned in the Schedule, he would be liable to penal
proceedings under the Act. Thus, there being specific procedure
prescribed under the Statutory Rules of 2005 for summoning the
person under subsections (2) and (3) of Section 50 of the Act, the
same would prevail over any other procedure prescribed under the
Code, particularly the procedure contemplated in Section 160/161,
as also the procedure for production of documents contemplated in
Section 91 of the Code, in view of the overriding effect given to the
PMLA over the other Acts including the Cr.P.C. under Section 71 r/w
Section 65 of the PMLA.
18. The submission made on behalf of Learned Counsels for the
Appellants that the conferment of power upon the Authority under
Section 50 of PMLA excluding the procedural safeguards would be
contrary to the standard of “procedure established by law” under
Article 21 of the Constitution, is also thoroughly misconceived. The
validity of Section 50 was sought to be challenged in Vijay Madanlal
on the ground of being violative of Article 20(3) and Article 21 of the
Constitution and the Court upholding the validity observed as under:
-
“425. Indeed, sub-section (2) of Section 50 enables the
Director, Additional Director, Joint Director, Deputy
Director or Assistant Director to issue summon to any
person whose attendance he considers necessary for
giving evidence or to produce any records during the
course of any investigation or proceeding under this Act.
We have already highlighted the width of expression
“proceeding” in the earlier part of this judgment and held
that it applies to proceeding before the Adjudicating
Authority or the Special Court, as the case may be.
Nevertheless, sub-section (2) empowers the authorised
officials to issue summon to any person. We fail to
understand as to how Article 20(3) would come into play
in respect of process of recording statement pursuant to
such summon which is only for the purpose of collecting
information or evidence in respect of proceeding under
this Act. Indeed, the person so summoned, is bound to
attend in person or through authorised agent and to state
truth upon any subject concerning which he is being
examined or is expected to make statement and produce
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documents as may be required by virtue of sub-section (3)
of Section 50 of the 2002 Act….
426 to 430…..
431. In the context of the 2002 Act, it must be remembered
that the summon is issued by the Authority under Section
50 in connection with the inquiry regarding proceeds of
crime which may have been attached and pending
adjudication before the Adjudicating Authority. In respect
of such action, the designated officials have been
empowered to summon any person for collection of
information and evidence to be presented before the
Adjudicating Authority. It is not necessarily for initiating a
prosecution against the noticee as such. The power
entrusted to the designated officials under this Act, though
couched as investigation in real sense, is to undertake
inquiry to ascertain relevant facts to facilitate initiation of
or pursuing with an action regarding proceeds of crime, if
the situation so warrants and for being presented before
the Adjudicating Authority. It is a different matter that the
information and evidence so collated during the inquiry
made, may disclose commission of offence of money-
laundering and the involvement of the person, who has
been summoned for making disclosures pursuant to the
summons issued by the Authority. At this stage, there
would be no formal document indicative of likelihood of
involvement of such person as an accused of offence of
money laundering. If the statement made by him reveals
the offence of money -laundering or the existence of
proceeds of crime, that becomes actionable under the Act
itself. To put it differently, at the stage of recording of
statement for the purpose of inquiring into the relevant
facts in connection with the property being proceeds of
crime is, in that sense, not an investigation for prosecution
as such; and in any case, there would be no formal
accusation against the noticee. Such summons can be
issued even to witnesses in the inquiry so conducted by
the authorised officials. However, after further inquiry on
the basis of other material and evidence, the involvement
of such person (noticee) is revealed, the authorised
officials can certainly proceed against him for his acts of
[2024] 9 S.C.R. 133

Abhishek Banerjee & Anr. v. Directorate of Enforcement

commission or omission. In such a situation, at the stage
of issue of summons, the person cannot claim protection
under Article 20(3) of the Constitution. However, if his/her
statement is recorded after a formal arrest by the ED
official, the consequences of Article 20 (3) or Section 25
of the Evidence Act may come into play to urge that the
same being in the nature of confession, shall not be
proved against him. Further, it would not preclude the
prosecution from proceeding against such a person
including for consequences under Section 63 of the 2002
Act on the basis of other tangible material to indicate the
falsity of his claim. That would be a matter of rule of
evidence.”
19. The above ratio laid down in Vijay Madanlal clinches the
contentions raised by the learned counsels for the appellants with
regard to the provisions of Section 50 being violative of Article 20(3)
or Article 21 of the Constitution, and we need not further elaborate
the same, nor do we need to deal with the decisions of this Court on
the said issue which have already been dealt with in Vijay Madanlal.
Suffice it to say that Section 50 enables the authorized Authority to
issue summon to any person whose attendance he considers
necessary for giving evidence or to produce any records during the
course of the proceedings under the Act, and that the persons so
summoned is bound to attend in person or through authorized agent,
and to state truth upon the subject concerning which he is being
examined or is expected to make statement and produce documents
as may be required by virtue of sub-section (3) of Section 50. At the
stage of issue of summons, the person cannot claim protection
under Article 20(3) of the Constitution, the same being not
“testimonial compulsion”. At the stage of recording of statement of a
person for the purpose of inquiring into the relevant facts in
connection with the property being proceeds of crime, is not an
investigation for prosecution as such. The summons can be issued
even to witnesses in the inquiry so conducted by the authorized
officers. The consequences of Article 20(3) of the Constitution or
Section 25 of the Evidence Act may come into play only if the
involvement of such person (noticee) is revealed and his or her
statements is recorded after a formal arrest by the ED official. In our
opinion, the learned counsels for the appellants have sought to
reagitate the issues which have already been settled in Vijay
Madanlal.
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20. Much reliance has been placed by the Learned Counsels for the
Appellants on the Annual Report of Ministry of Finance, GOI, which
according to them has stated about the Organizational Structure of
Directorate of Enforcement, demarcating the territorial jurisdiction of
various Zonal Office of the ED. According to them, such instructions
by the Department of Revenue are for exercise of powers of
investigation by the ED as mandated by Section 51 PMLA and
therefore must be strictly complied with. The said submission also
being fallacious cannot be accepted. Apart from the fact that the
document relied upon is an Annual Report by the Ministry of Finance,
showing the Organizational Structure of the ED, the same could not
be construed as the directions issued by the Central Government for
the purpose of exercise of powers and performance of the functions
by the Authorities as contemplated in Section 51 of the said Act. As
stated in the said Report, the said Offices of the Directorate of
Enforcement all over India are set up to ensure that the Money
Laundering offences are investigated in an effective manner and
they act as deterrence for the potential offenders of the Money
Launderers. Pertinently, the Headquarters Investigation Unit (HIU)
has not been restricted to any territorial jurisdiction in the said
Organizational Structure. The present ECIR bearing
ECIR/17/HIU/2020 is recorded at the HIU. Further, as per the
specific case of the ED in the complaint, filed against the accused
persons before the Special Court, PMLA, Rouse Avenue Courts,
New Delhi, Rs. 168 Crores were allegedly received by the Inspector
Ashok Kumar Mishra from the co-accused Anup Majee to be
delivered to his political bosses, and the said Rs. 168 Crores were
transferred through vouchers to Delhi and Overseas, which clearly
established adequate nexus of the offence and the offenders with
the territory of Delhi. We therefore do not find any illegality in the
summons issued by the respondent-ED summoning the Appellants
to its Office at Delhi, which also has the territorial jurisdiction, a part
of the offence having been allegedly committed by the accused
persons as alleged in the complaint. It is also not disputed that the
Appellant No. 1 being a Member of Parliament has also an official
residence at Delhi.
21. In that view of the matter, we do not find any substance in the
challenge made by the Appellants to the Summons issued to the
Appellants under Section 50 of the PMLA. As contemplated in the
sub-section (3) of Section 50, all the persons summoned are bound
to attend in person or through authorized agents as the officer may
[2024] 9 S.C.R. 135

Abhishek Banerjee & Anr. v. Directorate of Enforcement

direct and are bound to state the truth upon any subject respecting
which they are examined or make statements, and to produce the
documents as may be required. As per sub-section (4) thereof every
proceeding under sub-sections (2) and (3) is deemed to be a Judicial
proceeding within the meaning of Section 193 and Section 228 of
the IPC. As per sub-section (4) of Section 63, a person who
intentionally disobeys any direction issued under Section 50 is liable
to be proceeded against under Section 174 of the IPC.
22. As transpiring from the Status Report submitted by the Deputy
Director, Directorate of Enforcement, New Delhi, pursuant to the
Order passed by this Court on 18.07.2024, the Appellant No. 2 –
Rujira Banerjee had not appeared and not produced the documents
as required vide the Summons dated 04.08.2021 and 18.08.2021.
The ED therefore had filed the Complaint in the Court of Chief
Judicial Magistrate, Patiala House Courts, New Delhi against her
under Section 63 PMLA r/w Section 174 IPC. It is also pertinent to
note that though the Appellant No. 2 by filing the Crl. M.C. No. 2442
of 2021 before the High Court had challenged the Order dated
18.09.2021 passed by the said Court taking cognizance of the said
Complaint and the Order dated 30.09.2021 summoning her before
the Court, she has not even bothered to produce the said Orders
before this Court in the instant Appeals. Since the said Complaint is
pending before the concerned Court of Chief Judicial Magistrate, we
do not express any opinion on the merits of the said Complaint.
Suffice it to say that we do not find any illegality in the said orders
passed by the concerned court and that the said complaint shall be
proceeded further by the said Court in accordance with law.
23. For the reasons stated above, both the Appeals being devoid of
merits are dismissed.

Result of the case: Appeals dismissed

Headnotes prepared by: Nidhi Jain

†
 [2024] 9 S.C.R. 135 : 2024 INSC 673

Anantdeep Singh
v.
The High Court of Punjab and Haryana at
Chandigarh & Anr.
Miscellaneous Application No. 267 of 2024 in
(Civil Appeal No. 3082 of 2022)
06 September 2024
[Vikram Nath* and Prasanna Bhalachandra Varale, JJ.]

Issue for Consideration

Miscellaneous application is filed by the appellant seeking
direction to reinstate him into service as civil judge with all the
consequential benefits in view of the order dated 20.04.2022
passed by the Supreme Court in [Link]. 3082 of 2022.

Headnotes†

Judicial Service – Matrimonial discord between appellant and

his wife – Allegations against the appellant of having an illicit
relationship with a lady judicial officer – The Full Court of the
High Court accepted the report of the Committee of Judges
dated 04.12.2009 and appellant along with the lady judicial
officer were terminated from the services – Aggrieved, both
appellant and lady judicial officer filed separate writ petitions
– The writ petition filed by the lady judicial officer was allowed
and her termination order was set aside – However, the writ
petition filed by the appellant was dismissed – Assailing the
correctness of the judgment, appellant filed SLP – On
20.04.2022, this Court set aside the impugned judgment of the
High Court dated 25.10.2018 and termination order dated
17.12.2009 and directed the Full Court of the High Court to
reconsider the matter – The Full Court of High Court in its
meeting dated 03.08.2023 reiterated its earlier decision of
terminating appellant – Correctness:
Held: Once the termination order is set aside and judgment of the
High Court dismissing the writ petition challenging the said

* Author
[2024] 9 S.C.R. 137

Anantdeep Singh v.
The High Court of Punjab and Haryana at Chandigarh & Anr.
termination order has also been set aside, the natural
consequence is that the employee should be taken back in service
and thereafter proceeded with as per the directions – Once the
termination order is set aside then the employee is deemed to be
in service – There is no justification in the inaction of the High
Court and also the State in not taking back the appellant into
service after the order dated 20.04.2022 – No decision was taken
either by the High Court or by the State of taking back the appellant
into service and no decision was made regarding the back wages
from the date the termination order had been passed till the date
of reinstatement which should be the date of the judgment of this
Court – During the pendency of the said M.A., the State of Punjab
passed an order dated 02.04.2024 terminating the services of the
appellant with retrospective effect i.e. 17.12.2009 – In any case,
the appellant was entitled to salary from the date of judgment
dated 20.04.2022 till fresh termination order was passed on
02.04.2024 – Insofar as the period from 18.12.2009
i.e., after the termination order of 17.12.2009 was passed till
19.04.2022 the date prior to the judgment and order of this Court,
the ends of justice would be served by directing that the appellant
would be entitled to 50 percent of the back wages treating him to
be in service continuously – Such back wages to be calculated
with all benefits admissible under law to the appellant as if he was
in service – Insofar as the challenge to the resolution of the Full
Court of the High Court dated 03.08.2023 and termination order
dated 02.04.2024 is concerned, the appellant would be at liberty
to challenge the same by way of a writ petition before the High
Court which may be decided on its own merits. [Paras 21, 22, 23]

Case Law Cited

State Bank of Patiala and another v. Ramniwas Bansal (dead)
through Lrs. [2014] 3 SCR 984 : (2014) 12 SCC 106; State of
Punjab v. Balbir Singh [2004] Supp. 4 SCR 368 : (2004) 11 SCC
743; State of Punjab and others v. Sukhwinder Singh [2005] Supp.
1 SCR 580 : (2005) 5 SCC 569; State of Punjab and others v.
Rajesh Kumar [2006] Supp. 9 SCR 208 : (2006) 12 SCC 418;
Bishan Lal Gupta v. State of Haryana [1978] 2 SCR 513 :
(1978) 1 SCC 202; State of Punjab v. Sukh Raj Bahadur [1968] 3
SCR 234; High Court of Patna v. Pandey Madan Mohan (1997) 10
SCC 409 – referred to.
138 [2024] 9 S.C.R.

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List of Acts
Punjab Civil Services (General and Common Conditions of
Service) Rules, 1994.

List of Keywords
Judicial service; Matrimonial discord; Illicit relationship;
Termination of services; Reinstatement; Consequential benefits;
Back wages.

Case Arising From

CIVIL APPELLATE JURISDICTION: Miscellaneous Application No.
267 of 2024
In
Civil Appeal No. 3082 of 2022
From the Judgment and Order dated 20.04.2022 of the Supreme
Court of India in C. A. No. 3082 of 2022
Appearances for Parties
P.S. Patwalia, Sr. Adv., Ashok K. Mahajan, Advs. for the Appellant.
Gaurav Dhama, A.A.G., Nidhesh Gupta, Sr. Adv., Rahul Gupta, Ms.
Nupur Kumar, Ms. Niharika Tanwar, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
Vikram Nath, J.
1. Miscellaneous Application No. 267 of 2024 has been filed by the
appellant Anantdeep Singh praying for the following reliefs:
“i) direct the respondents to reinstate the appellant/
applicant into service as Civil Judge with all
consequential benefits in view of the order dated
20.04.2022 passed by this Hon’ble Court in Civil Appeal
No. 3082 of 2022 arising out of Special Leave Petition
(Civil) No. 33435 of 2018; ii) Pass any other order or
orders as this Hon’ble Court may deem fit and proper in
the interest of justice.”
2. Before we deal with the aforesaid application, it would be necessary
to refer to the relevant facts giving rise to the present application:
[2024] 9 S.C.R. 139

Anantdeep Singh v.
The High Court of Punjab and Haryana at Chandigarh & Anr.
2.1. The appellant was a judicial officer with the Punjab Civil
Services (Judicial Branch) since 2006. Under the Punjab Civil
Services (General and Common Conditions of Service) Rules,
1994, period of probation under Rule 7 thereof is for three
years which was to continue till December 2009. At the time of
joining the service in December 2006, the appellant was
already married, however, the marriage was not going very
smoothly and quite often there would be disputes between the
appellant and his wife. In order to avoid the situation getting
worse, the appellant left the official accommodation and
shifted to a private accommodation. His wife and mother-in-
law continued to reside in the official accommodation.
Sometime in November/December 2008, the wife of the
appellant made a complaint as a result of which the appellant
was called by not only the District Judge but also the
Administrative Judge concerned in December 2008 and
February 2009. The appellant explained his position and
clarified why he was residing in a private accommodation. No
written explanation was called from the appellant regarding the
complaint made by his wife at that stage.
2.2. It was only vide communication dated 06.04.2009, that the
appellant was called upon to answer as to whether he was
residing in the official accommodation. Immediately, the
appellant responded vide letter dated 07.04.2009 and a further
letter dated 20.04.2009 stating that he had moved out of his
official accommodation apprehending danger to his life and to
avoid any undue incident and was residing with his maternal
uncle. On 22.04.2009, the appellant filed a petition seeking a
decree of divorce. At the same time, the appellant -mother-
inlaw, who was also a government servant working as
Principal of a Government College at Faridkot, met the District
and Sessions Judge and complained about the appellant with
regard to the dispute with his wife. The District and Sessions
Judge, Faridkot forwarded his report on 20.05.2009 to the
Registrar General of the High Court mentioning the
matrimonial dispute of the appellant.
2.3. In November 2009, reports were called regarding the review
of work of all judicial officers on probation by the Committee
140 [2024] 9 S.C.R.

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of Judges In Charge of review of work and conduct of the
probationers. The report is said to have been sent by the
District and Sessions Judge on 27.11.2009 stating that the
work and conduct of the appellant was satisfactory. Thereafter,
it appears that the Registrar General of the High Court again
wrote to the District and Sessions Judge, Faridkot to send a
detailed report regarding the appellant in particular,
concerning the allegations against the appellant of having an
illicit relationship with a lady judicial officer. The Administrative
Judge on the same day i.e. 01.12.2009, gave his remarks
based on the report of the District and Sessions Judge dated
20.05.2009. The Committee of the Judges overseeing the
work and conduct of the probationers, gave its opinion that the
appellant was not fit to continue in service and further, decided
that the lady judicial officer, with whom the appellant was said
to be having a relationship, be identified and she may also be
confronted with the said allegations.
2.4. On 02.12.2009, the District and Sessions Judge after
recording the statement of the appellant’s wife and the alleged
lady judicial officer, forwarded his report in which it was stated
that wife of the appellant had clearly alleged that her husband
was having an illicit relationship with a lady judicial officer who
was then posted at Phagwada because of which the appellant
used to harass his wife. The Committee of Judges overseeing
the work and conduct of the probationers on 04.12.2009
recommended that the appellant and also the lady judicial
officer were not fit to be retained in the service.
2.5. The Full Court of the High Court in its meeting dated
07.12.2009 accepted the report of the Committee of Judges
dated 04.12.2009 and resolved that the services of not only
the appellant but also the lady judicial officer were to be
terminated by an order of Termination Simpliciter. The work
was withdrawn from the appellant on 07.12.2009. The
resolution of the Full Court dated 07.12.2009 was accepted by
the State of Punjab and an order was passed on 17.12.2009
dispensing with the services of the appellant. On the same
day, another order was passed by the State of Punjab
dispensing the services of the lady judicial officer.
2.6. Aggrieved by the said termination, the appellant filed CWP No.
9003 of 2010 before the High Court. Similarly, the lady judicial
[2024] 9 S.C.R. 141

Anantdeep Singh v.
The High Court of Punjab and Haryana at Chandigarh & Anr.
officer filed a separate petition registered as CWP No. 8250 of
2010 challenging her termination. The Division Bench of the
High Court, vide judgment and order dated 25.10.2018,
dismissed the writ petition of the appellant. On the very next
day i.e., 26.10.2018, the same Division Bench of the High
Court allowed the writ petition of the lady judicial officer, set
aside the termination order, after disbelieving the allegations
of an illicit relationship.
2.7. The High Court of Punjab and Haryana preferred SLP (Civil)
No. 4894 of 2019 assailing the correctness of the judgment
dated 26.10.2018 passed in the case of the lady judicial officer
which came to be dismissed vide order dated 01.07.2019.
Thereafter, the lady judicial officer was reinstated and is
working.
2.8. The appellant preferred SLP (Civil) 33435 of 2018 assailing
the correctness of the judgment dated 25.10.2018 passed by
the High Court dismissing the writ petition. The SLP filed by
the appellant was taken up on 03.03.2022 and after hearing
the parties to some extent, the matter was adjourned.
However, the Court required the counsel for the High Court of
Punjab and Haryana to obtain further instructions in the matter
after orally observing that it was prima facie of the view that
the appellant also deserves to be reinstated in service.
2.9. The counsel for the High Court of Punjab and Haryana
communicated the observations made by this Court to the
Registrar General, vide communication dated 04.03.2022.
However, the Registrar General of the High Court replied vide
communication dated 11.03.2022 with the instructions that the
matter may be argued on merits.
2.10. On 20.04.2022, when the matter came up before the Court,
after hearing the learned senior counsel for the parties, this
Court granted leave and allowed the appeal after setting aside
the impugned judgment of the High Court dated 25.10.2018
and the Termination Order dated 17.12.2009. It further
requested the Full Court of the High Court to reconsider the
matter. The order dated 20.04.2022 is reproduced below:
“Leave granted.
142 [2024] 9 S.C.R.

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We have heard Mr. [Link], learned senior
counsel for the appellant and Mr. Nidhesh Gupta,
learned senior counsel for the respondent-High
Court of Punjab and Haryana and perused the
relevant material placed on record.
We are of the considered view that the Full Court of
the High Court of Punjab and Haryana at Chandigarh
needs to reconsider this matter.
Therefore, the impugned order dated 25th October,
2018 and the order passed by the Principal
Secretary to Government, Punjab, Department of
Home Affairs and Justice on 17th December, 2009
terminating the services of the appellant herein are
set aside.
We, however, request the Full Court of the High
Court of Punjab and Haryana to reconsider the
matter without being influenced by any of the
observations made by the Division Bench of the High
Court in the impugned order.
The appeal accordingly stands disposed of in terms
aforesaid.”
2.11. No consequential orders were passed by the State after the
order dated 20.04.2022 whereby the termination order of the
appellant dated 17.12.2009 passed by the State Government
was set aside. The High Court however, took up the matter on
the administrative side. The Full Court in its meeting dated
16.09.2022 referred the matter to the Recruitment and
Promotion Committee (RPC). Seven months thereafter, the
RPC reiterated its earlier decision dated 04.12.2009, relying
upon the note of the Administrative Judge dated 01.12.2009
and also the report of the District and Sessions Judge dated
20.05.2009. The recommendation of the RPC dated
12.04.2023 is reproduced hereunder:
“...Reconsideration of Hon’ble Full Court decision
dated 07.12.2009 regarding dispensing with the
services of Sh. Anantdeep Singh, former member of
P.C.S. (J.B.), in view of judgment dated 20.04.2022
passed by Hon’ble Supreme Court in the Special
[2024] 9 S.C.R. 143

Anantdeep Singh v.
The High Court of Punjab and Haryana at Chandigarh & Anr.
Leave Petition (Civil) No. 33435 of 2018 titled as
“Anantdeep Singh Vs. The High Court of Punjab and
Haryana at Chandigarh & Anr.”
Sh. Anantdeep Singh, had joined P.C.S. (J.B.) on
12.12.2006. On the recommendation of this Court,
his services were dispensed with, during probation,
vide Punjab Government order dated 17.12.2009.
The officer relinquished charge on 24.12.2009. The
CWP No. 9003 of 2010 filed by him, against the order
dated 17.12.2009 of Punjab Government, was
dismissed by Hon’ble Division Bench of this Court.
vide judgment dated 25.10.2018. Thereafter, Sh.
Anantdeep Singh had filed SLP (Civil) No. 33435 of
2018 titled as “Sh. Anantdeep Singh vs. the High
Court of Punjab and Haryana at Chandigarh and
Another” against the judgment dated 25.10.2018 of
this Court. While disposing of the appeal, Hon’ble
Supreme Court, vide judgment dated 20.4.2022, had
set aside the impugned order dated 25th October
2018 and the order passed by the Principal
Secretary to Government, Punjab, Department of
Home Affairs and Justice on 17th December, 2009
terminating the services of the appellant and
requested the Full Court of this Court to reconsider
the matter.
The matter was reconsidered by Hon’ble Full Court
in its meeting held on 16.09.2022 and it was resolved
that the matter be referred to Hon’ble Recruitment
and Promotion Committee (Subordinate Judicial
Services) for examining the same and report. After
thoroughly re-examining the matter in entirety
particularly the observations of the then
Administrative Judge contained in note dated
01.12.2009 as also the report of District and
Sessions Judge dated 20.05.2009 and the fact that
the officer was merely a probationer and the decision
was taken within the prescribed period, at this stage
the Committee is not in a position to come to any
different conclusion on the basis of material on
144 [2024] 9 S.C.R.

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record. Thus, the Committee reiterates its earlier
decision dated 04.12.2009.”
2.12. As the matter was further delayed and no decision was being
taken and that the appellant had not been taken back in
service despite the termination order having been set aside,
the appellant filed M.A. No. 655 of 2023, which was disposed
of by order dated 04.05.2023, requesting the Full Court of the
High Court to decide the matter within three months. It was
thereafter that the Full Court of the High Court in its meeting
dated 03.08.2023 resolved to reiterate its earlier decision
dated 07.12.2009, terminating the services of the appellant.
2.13. The appellant filed a petition before this Court under Article 32
of the Constitution of India registered as W.P.(Civil) No. 976 of
2023 which was allowed to be withdrawn with liberty to explore
other legal options which may be available to move before the
High Court vide order dated 22.09.2023. The said order is
reproduced hereunder:
“Mr. P.S. Patwalia, learned senior counsel does not
wish to press this writ petition under Article 32 of the
Constitution and would explore other legal options
which may be available to move the High Court.
Taking note of the above submission of the learned
senior counsel, the writ petition stands dismissed as
not pressed, reserving the liberty as aforesaid.”
2.14. The appellant in the meantime approached the High Court
under Right to Information Act, 2005 requesting for a copy of
the letter dated 04.03.2022 written by the counsel for the High
Court to the Registrar General. This letter was made available
on 11.10.2023. It was thereafter that the present M.A. was filed
on 31.10.2023.
2.15. During the pendency of the said M.A. and when the State of
Punjab was also called upon to be served with the copy of
M.A., vide order dated 29.01.2024 and with the matter being
listed on several occasions, the State of Punjab passed an
order dated 02.04.2024 terminating the services of the
appellant with retrospective effect i.e. 17.12.2009. The said
order dated 02.04.2024 has been filed along with I.A. No.
110912 of 2024.
[2024] 9 S.C.R. 145

Anantdeep Singh v.
The High Court of Punjab and Haryana at Chandigarh & Anr.
3. It is on the above set of facts that we have heard Shri P.S. Patwalia,
learned senior counsel appearing for the appellant, Shri Nidhesh
Gupta, learned senior counsel appearing for High Court of Punjab
and Haryana and Shri Gaurav Dhama, learned Additional Advocate
General for the State of Punjab.
4. The submissions advanced by Shri P.S. Patwalia are to the effect
that the judgment and order of this Court dated 20.04.2022 has not
been complied with by the respondents. The respondents ought to
have taken back the appellant in service and thereafter proceeded
to take the decision as directed by this Court. Further it was
submitted that it took almost two years for the respondents to take a
fresh decision. During this period, the appellant has neither been
reinstated in service nor been paid any salary, no arrears have been
paid from 17.12.2009, the date of the earlier termination order even
though the same had been set aside by this Court.
5. It was also submitted by Mr. P.S. Patwalia that this Court in all its
humility had not quashed the decision of the Full Court but having
given serious thought to it, had clearly observed that this Court was
of the considered view that the Full Court of the High Court of Punjab
and Haryana needs to reconsider this matter which in itself is a clear
indication that this Court had expressed its view on the resolution of
the Full Court regarding termination of the appellant’s service to be
not sustainable. It was thereafter that this Court had set aside the
judgment of the High Court dated 25.10.2018 and the Termination
order dated 17.12.2009.
6. It is also submitted on behalf of the appellant that the RPC and also
the Full Court of the High Court have simply reiterated their earlier
resolutions and as such there has been no reconsideration of the
matter, the resolutions placed on record are also non-speaking.
7. It is also the submission of Mr. Patwalia that the complaint against
the appellant was given by his wife and his mother-in-law. The entire
contents of the reports submitted by the District and Sessions Judge
and also the Administration Judge and the Review Committee are
based on the complaint made by the wife and his mother-in-law. No
independent enquiry was conducted, nor any show cause notice was
issued to the appellant calling upon him to give a response to the
complaint made by his wife and mother-in-law.
146 [2024] 9 S.C.R.

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8. It was also submitted that the main allegations made by the wife and
mother-in-law relates to the appellant carrying on an illicit
relationship with the lady judicial officer. The other complaints
alleged were of residing outside the official accommodation and of
using a private car, which did not belong to him. It was also alleged
in the complaint that the appellant had threatened and assaulted his
wife. All the other allegations apart from the main allegations of illicit
relationship with the lady judicial officer, were linked to the aforesaid
main allegation.
9. The High Court, on the judicial side in the case of the lady judicial
officer, found that there was not even any remote evidence regarding
their illicit relationship and that the statement of the wife could not be
taken as a gospel truth to throw the said lady judicial officer out of
service, and it was found to be totally unjust. The findings recorded
by the High Court in the judgment dated 26.10.2018 with respect to
the illicit relationship is reproduced hereunder:
“At the outset, we are at a loss to find even remote
evidence about any illicit relationship from the above
except use of the word “illicit relations”. That apart, her
mere statement/ perception like a gospel truth could not
be acted upon to throw the appellant out of service. That
was totally unjust”
10. It was submitted that once the complaint of the wife and mother-
inlaw of the appellant were not found to be credible and truthful with
respect to the allegations of an illicit relationship, any reliance placed
upon the said complaints with respect to minor allegations of using
a private car not belonging to the appellant and of threatening and
assaulting cannot be relied upon without there being any further
corroboration. No reliance can be placed on the said complaints at
all.
11. Mr. Patwalia thus submitted that this Court may not only allow the
M.A. as prayed but may also consider setting aside the Termination
order now passed on 02.04.2024 with retrospective effect from
17.12.2009 and reinstate the appellant back in service with full back
wages and all consequential benefits.
12. It is also submitted that there could not have been any backdating of
the Termination order being made effective from a previous date.
The Termination order can be effective only from the date it is served
[2024] 9 S.C.R. 147

Anantdeep Singh v.
The High Court of Punjab and Haryana at Chandigarh & Anr.
on the employee. As such the order dated 02.04.2024 deserves to
be quashed.
13. Mr. Patwalia has relied upon the judgment of this Court in State
Bank of Patiala and another vs. Ramniwas Bansal (dead)
through Lrs.;60 for the proposition that the dismissal order cannot
be made with retrospective effect, and it would only have prospective
effect.
14. Before we deal with the submissions of Mr. Nidhesh Gupta, learned
senior counsel appearing for the High Court, we may mention the
response of the State as put forth by Additional Advocate General.
According to Mr. Gaurav Dhama the State did not pass any
consequential order after the order dated 20.04.2022. He further
submitted that the order dated 02.04.2024 has been passed as per
the resolution of the Full Court of the High Court. He, however, did
not address the issue as to whether the termination order could have
been passed making it effective from an earlier date.
15. Mr. Nidhesh Gupta, learned senior counsel appearing for the High
Court justified not only the subsequent compliance affected by the
High Court and also the resolution of the Full Court of the High Court
to terminate the service of the appellant w.e.f. the earlier date and
also the termination order issued by the State Government on
02.04.2024. On a specific query as to how the High Court could have
proceeded against an officer who was not taken into service by
passing a resolution of terminating the services from the previous
date, he has sought to mix the issue by submitting that as the
appellant was a probationer and his services were terminated as a
probationer, if he was taken back in service during the period, the
High Court was to take a fresh decision as required by this Court,
then he would be treated as a regular employee because the period
of probation under the Rules is only for a limited period of maximum
three years and not beyond.
16. Mr. Gupta also had no answer as to why the High Court took one
and half years to take the decision. He however expressed his
inability to explain the delay on the part of the State for issue of
termination order after eight months of the resolution of the Full Court
of the High Court. Mr. Gupta further addressed the Court raising the

60
[2014] 3 SCR 984: (2014) 12 SCC 106
148 [2024] 9 S.C.R.

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point that any preliminary enquiry conducted to ascertain the
suitability of a probationer and if termination follows without giving
an opportunity, it will not be bad and will be a case of motive. In
effect, the submission
is that the probationer’s service could be dispensed with without
holding a formal enquiry or giving an opportunity to the probationer
and the employer was well within his right to dispense the service of
the probationer by conducting the preliminary enquiry to ascertain
the suitability. In this connection, he has placed reliance upon the
following judgments:
.i State of Punjab vs. Balbir Singh;61
.i State of Punjab and others vs. Sukhwinder Singh;62iii.
State of Punjab and others vs. Rajesh Kumar;63iv.
Bishan Lal Gupta vs. State of Haryana;64
v. State of Punjab vs. Sukh Raj Bahadur; 65 and vi.
High Court of Patna vs. Pandey Madan Mohan.66
17. Mr. Gupta, while further addressing on merits, submitted that it was
not just the allegation of having illicit relationship with lady judicial
officer but there were other very serious allegations which were
unbecoming of a judicial officer and since the appellant was a
probationer, the Full Court of the High Court found him unsuitable for
continuing in service and accordingly he was dismissed from the
service.
18. He further submitted that in the case of the lady judicial officer whose
petition was allowed by the High Court and has since been reinstated
to the service, the only allegation against the said lady judicial officer
was of carrying on an illicit relationship with the appellant which the
High Court found was without any basis or supporting material.
According to him, in the present case, the High Court in the judgment
dated 25.10.2018 had clearly held that it was omitting the allegations

61
[2004] Supp. 4 SCR 368 : (2004) 11 SCC 743
62
[2005] Supp. 1 SCR 580 : (2005) 5 SCC 569
63
[2006] Supp. 9 SCR 208 : (2006) 12 SCC 418
64
[1978] 2 SCR 513 : (1978) 1 SCC 202
65
[1968] 3 SCR 234 : (1968) 3 SCR 234
66
(1997) 10 SCC 409
[2024] 9 S.C.R. 149

Anantdeep Singh v.
The High Court of Punjab and Haryana at Chandigarh & Anr.
of illicit relation with the lady judicial officer from consideration and
further relied upon other allegations of misconduct or unsuitability
against the appellant and therefore, the appellant cannot claim any
advantage or benefit from the judgment in the case of the lady
judicial officer.
19. Having considered the submissions advanced, at the outset, we
make it clear that we are not entering into the merits of the matter
i.e., the reconsideration by the High Court in the Full Court meeting
held on 03.08.2023 and the termination letter issued by the State on
02.04.2024. These orders could be tested before the High Court by
way of a fresh writ petition to be filed by the appellant and such liberty
having been granted by this Court in the writ petition under Article 32
of the Constitution of India filed by the appellant which was
withdrawn on 22.09.2023. For the above reason, the case laws
relied upon by Mr. Gupta are not being dealt with nor are we dealing
with the case laws relied upon by Mr. Patwalia.
20. We are only dealing with the M.A. No. 267 of 2024 where the
appellant has prayed that he should be reinstated into service as
Civil Judge with all consequential benefits in view of the order dated
20.04.2022 passed by this Court allowing the appeal.
21. Once the termination order is set aside and judgment of the High
Court dismissing the writ petition challenging the said termination
order has also been set aside, the natural consequence is that the
employee should be taken back in service and thereafter proceeded
with as per the directions. Once the termination order is set aside
then the employee is deemed to be in service. We find no justification
in the inaction of the High Court and also the State in not taking back
the appellant into service after the order dated 20.04.2022. No
decision was taken either by the High Court or by the State of taking
back the appellant into service and no decision was made regarding
the back wages from the date the termination order had been passed
till the date of reinstatement which should be the date of the
judgment of this Court. In any case, the appellant was entitled to
salary from the date of judgment dated 20.04.2022 till fresh
termination order was passed on 02.04.2024. The appellant would
thus be entitled to full salary for the above period to be calculated
with all benefits admissible treating the appellant to be in continuous
service.
150 [2024] 9 S.C.R.

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22. Insofar as the period from 18.12.2009 i.e., after the termination order
of 17.12.2009 was passed till 19.04.2022 the date prior to the
judgment and order of this Court, we are of the view that ends of
justice would be served by directing that the appellant would be
entitled to 50 percent of the back wages treating him to be in service
continuously. Such back wages to be calculated with all benefits
admissible under law to the appellant as if he was in service.
[2024] 9 S.C.R. 151

Anantdeep Singh v.
The High Court of Punjab and Haryana at Chandigarh & Anr.

23. Insofar as the challenge to the resolution of the Full Court of the High
Court dated 03.08.2023 and termination order dated 02.04.2024 is
concerned, the appellant would be at liberty to challenge the same
by way of a writ petition before the High Court which may be decided
on its own merits totally uninfluenced by any observations made in
this order. The facts and observations made are only with respect to
the disposal of the M.A. No. 267 of 2024.
24. M.A. stands disposed of accordingly.

Result of the case: M.A. disposed of.

Headnotes prepared by: Ankit Gyan

†
 [2024] 9 S.C.R. 150 : 2024 INSC 660

Chirag Bhanu Singh & Anr.

v.
High Court of Himachal Pradesh & Ors.
(Writ Petition (C) No. 312 of 2024)
06 September 2024
[Hrishikesh Roy* and Prashant Kumar Mishra, JJ.]

Issue for Consideration

Writ petition filed by two seniormost District and Sessions Judges
in the State of Himachal Pradesh aggrieved with the non-
consideration of their names by the High Court Collegium for
elevation as Judges of the High Court and recommendation of
names of two officers junior to them for elevation, in ignorance of
the directions of reconsideration given by the Collegium of the
Supreme Court. Whether the present writ petition is maintainable;
whether elevation for judgeship in the High Court has to be
considered collectively by the High Court Collegium or whether the
Chief Justice acting individually can reconsider the same.

Headnotes†

Judiciary – Higher Judiciary – Appointment of Judges of High

Court – Judicial Review – Absence of consultation amongst
the members of the Collegium – Recommendation by the
Supreme Court Collegium for reconsideration of the names of
the two petitioners for elevation as Judges of the High Court
– Whether the reconsideration of the proposal for the
elevation of the petitioners was jointly made by the Collegium
members of the High Court, following the Supreme Court
Resolution dated 04.01.2024 – Maintainability of the present
writ petition:
Held: The writ petition is maintainable as it questions the lack of
effective consultation – The Chief Justice of a High Court cannot
individually reconsider a recommendation and it can only be done
by the High Court Collegium acting collectively – The process of
judicial appointments to a superior court is not the prerogative of a
single individual – It is a collaborative and participatory process
involving all Collegium members and must reflect the collective
wisdom that draws from diverse perspectives
[2024] 9 S.C.R. 153

Chirag Bhanu Singh & Anr. v.

High Court of Himachal Pradesh & Ors.

* Author
and ensures that principles of transparency and accountability are
maintained – The recommendation by the Supreme Court
Collegium for reconsideration is not expected to be addressed
individually to all the members of the High Court Collegium – Such
communications are naturally addressed to the Chief Justice of the
concerned High Court however, the letter addressed to the Chief
Justice will not enable the Chief Justice to act without participation
by the other two Collegium members – In the present case, there
was no collective consultation and deliberations amongst the
members of the High Court Collegium, the three Constitutional
functionaries of the High Court i.e. the Chief Justice and the two
senior-most companion judges – The procedure adopted in the
matter of reconsideration of the two petitioners is inconsistent with
the law laid down in the Second Judges and the Third Judges case
– The decision of the Chief Justice of the High Court on the
suitability of the two petitioners as conveyed in his letter dated
06.03.2024 is an individual decision and therefore, vitiated – High
Court Collegium to reconsider the names of the two petitioners for
elevation as Judges of the High Court following the Supreme Court
Collegium decision dated 04.01.2024 and the Law Minister’s letter
dated 16.01.2024. [Paras 18, 25, 27, 30-32]
Constitution of India – Article 217 (1), (2) – Appointment of
judges of High Court – Judicial Review – Scope – ‘Lack of
effective consultation’; ‘eligibility’; ‘suitability’:
Held: ‘Lack of effective consultation’ and ‘eligibility’ falls within the
scope of judicial review whereas ‘suitability’ is non-justiciable and
resultingly, the ‘content of consultation’ falls beyond the scope of
judicial review. [Para 15]
Judiciary – Higher Judiciary – Appointment of judges of High
Court – Confidentiality – Protection of sensitive informations:
Held: There is a need to protect certain sensitive information in
matters involving appointment of judges – While transparency is
necessary to ensure fairness and accountability, it must be
carefully balanced with the need to maintain confidentiality –
Disclosing sensitive information would compromise not only the
privacy of the individual but also the integrity of the process.
[Para 29]
154 [2024] 9 S.C.R.

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Judiciary – Higher Judiciary – Appointment of Judges of High

Court – Process of appointment of judges – Departure in the
process, pre and post-1990 after emergence of the Collegium
system – Discussed.
Case Law Cited
Mahesh Chandra Gupta v. Union of India [2009] 10 SCR 921 :
(2009) 8 SCC 273; M. Manohar Reddy v. Union of India
[2013] 1 SCR 711 : (2013) 3 SCC 99; Anna Mathews v. Supreme
Court of India [2023] 1 SCR 463 : (2023) 5 SCC 661; Supreme
Court Advocates-on-Record Assn. v. Union of India [1993] Supp.
2 SCR 659 : (1993) 4 SCC 441; Registrar General, Madras High
Court v. R. Gandhi [2014] 4 SCR 77 : (2014) 11 SCC 547;
Common Cause v. Union of India [2017] 11 SCR 154 : (2018) 12
SCC 377; Special Reference No. 1 of 1998, Re [1998] Supp. 2
SCR 400 : (1998) 7 SCC 739 – referred to.

Books and Periodicals Cited

Abhinav Chandrachud, ‘The Fictional Concurrence of the Chief
Justice’ in Supreme Whispers, Conversations with Judges of the
Supreme Court 1980-1989 (OUP 2018) 162-166; Law
Commission of India, ‘The Method of Appointment of Judges’ (80th
Report, August 1979) – referred to.

List of Acts
Constitution of India.

List of Keywords
Appointment of judges; Judicial Review; Elevation as Judges of
the High Court; High Court Collegium; Collegium system;
Directions of reconsideration given by the Collegium of the
Supreme Court; Elevation for judgeship in the High Court;
Absence of consultation amongst the members of the Collegium;
Lack of effective consultation; Chief Justice of a High Court;
Judicial appointments; Recommendation by Supreme Court
Collegium for reconsideration; Second Judges case; Third Judges
case; ‘Eligibility’; ‘Suitability’; Transparency; Fairness;
Accountability; Confidentiality; Sensitive information.
[2024] 9 S.C.R. 155

Chirag Bhanu Singh & Anr. v.

High Court of Himachal Pradesh & Ors.

Case Arising From

CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 312 of
2024
(Under Article 32 of The Constitution of India)
Appearances for Parties
Arvind P. Datar, Sr. Adv., Ms. Bina Madhavan, S. Udaya Kumar
Sagar, Ms. Shreyasi Kunwar, Ms. Shubhangi Arora, Ms. Niharika
Tanneru, M/s. Lawyer S Knit & Co., Advs. for the Petitioners.
S. Muralidhar, Sr. Adv., K. Parameshwar, Ms. Kanti, Shreenivas Patil,
Ms. Chitransha Singh Sikarwar, Ms. Raji Gururaj, Advs. for the
Respondents.
Judgment / Order of the Supreme Court
Judgment
Hrishikesh Roy, J.
1. Heard Mr. Arvind P. Datar, the learned Senior Counsel appearing for
the writ petitioners. The High Court of Himachal Pradesh is
represented by Dr. S. Muralidhar, the learned Senior Counsel.
2. This writ petition under Article 32 of the Constitution of India has
been filed by the two seniormost District and Sessions Judges
serving in the State of Himachal Pradesh. The prayer in the writ
petition reads thus:
"(a) Issue writ/writs including a writ in the nature of
certiorari calling for the minutes of meeting of the
collegium of the Hon’ble High Court of Himachal
Pradesh whereby names of officers junior to the
present petitioners have been recommended for
elevation as Judges of the Hon’ble High Court
ignoring the directions of reconsideration given by
the Hon’ble Collegium of Hon’ble Supreme Court of
India.
(b) Issue writ/writs, order or direction, writ being in the
nature of mandamus, directing the Respondent No.
1 to consider the names of the Petitioners as
directed by the Hon’ble Collegium of the Hon’ble
156 [2024] 9 S.C.R.

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Supreme Court of India vide Resolution dated

4.1.2024..”
FACTS
3. The petitioners i.e. Chirag Bhanu Singh and Arvind Malhotra were
recommended by the then Collegium of the High Court on 6th
December 2022 for elevation as judges of the Himachal Pradesh
High Court. On 12th July 2023, the Supreme Court Collegium,
however, deferred their consideration. Thereafter, on 4th January,
2024, the Supreme Court Collegium in its wisdom resolved that the
proposal for the elevation of both be remitted for reconsideration to
the Chief Justice of the Himachal Pradesh High Court. In the letter
dated 16th January, 2024, addressed by the Minister for Law and
Justice to the Chief Justice of the Himachal Pradesh, in reference to
the Supreme Court Collegium Resolution dated 4th January, 2024, a
request was made that fresh recommendations be sent for the two
officers against the available service quota vacancies in the
Himachal Pradesh High Court.
4. The grievance of the writ petitioners is that the High Court Collegium
without first reconsidering the two petitioners in terms of the
Supreme Court Collegium Resolution dated 4th January, 2024 as
communicated in the Law Minister’s letter dated 16th January, 2024
had recommended two other judicial officers for elevation. The
argument is that if the latter recommended persons are considered
for appointment ahead of the two petitioners, it would amount to
ignoring their seniority and long-standing unblemished service.
5. On 13th May, 2024, adverting to the contentions raised, this Court
issued notice only to the Registrar General of the Himachal Pradesh
High Court with the following order:
"1. Heard Mr. Arvind Datar, learned senior counsel appearing
for the petitioners.
2. The counsel would submit that the two petitioners
are the senior most judicial officers serving in the
State of Himachal Pradesh. Their names were
recommended for elevation to High Court Judgeship
in December, 2022. The Supreme Court Collegium
on 12.07.2023 however resolved to defer
[2024] 9 S.C.R. 157

Chirag Bhanu Singh & Anr. v.

High Court of Himachal Pradesh & Ors.

consideration for the two petitioners for the present

with the observation that it will be taken up by the
Collegium at an appropriate stage. The senior
counsel then submits that the persons who were
recommended in December, 2022 along with the
petitioners have since been appointed as Judges of
the High Court on 28.07.2023.
3. The Supreme Court thereafter on 04.01.2024
resolved that the proposal for elevation of the two
petitioners be remitted to the Chief Justice
of the Himachal Pradesh High Court for fresh
recommendation by the High Court. This decision is
reflected in the communication dated 16.01.2024
addressed by the Minister for Law and Justice to the
Chief Justice of the Himachal Pradesh High Court
where request is made that fresh recommendations
be sent for the two officers i.e., Chirag Bhanu Singh
and Arvind Malhotra against the unfilled vacancies
from service quota in the Himachal Pradesh High
Court.
4. Projecting the grievances of the petitioners, Mr.
Datar would submit that the Himachal Pradesh High
Court Collegium on 23.04.2024 has recommended
the names of two other Judicial Officers for elevation
as High Court Judges without first acting on the
recommendations of the Supreme Court Collegium
and the 16.01.2024 letter of the Law Minister, for
reconsideration of the two petitioners. Since both
petitioners are the senior most judicial officers, Mr.
Datar contends that if recently recommended judicial
officers are considered for elevation, it will cause
serious prejudice to the expectations of the
petitioners who have unblemished service record as
Judicial Officers.
5. Issue notice only to the Registrar General of the
Himachal Pradesh High Court so that appropriate
information can be obtained on whether the High
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Court Collegium had reconsidered the cases of the

two petitioners, pursuant to the Supreme Court
Resolution dated 04.01.2024 and the Law Minister’s
Communication dated 16.01.2024.”
6. Following the above notice, a Report in sealed cover was filed by the
Registrar General of the Himachal Pradesh High Court. The Report
was perused and was also furnished to the learned Counsel for the
writ Petitioners.
7. The Report of the Registrar General, reflected that the Resolution of
the Supreme Court Collegium (dated 4th January, 2024) was never
received by the Chief Justice of the High Court. It was further stated
that the Chief Justice of the High Court had written to the Chief
Justice of India on 11th December 2023 seeking guidance on whether
the Collegium of the Supreme Court needed further inputs about the
suitability of the two officers for elevation as High Court judges. On
6th March 2024, the Chief Justice of the High Court individually
addressed a letter to the Supreme Court Collegium on the suitability
of the petitioners. This is projected to be in full compliance of the
resolution dated 4th January, 2024 of the Supreme Court Collegium.
The report also notes that a representation was made by one of the
Petitioners to the Chief Justice of India against non-consideration for
elevation. This letter, it is alleged was contemptuous.
8. When the present matter was next heard on 23rd July, 2024, this
Court called for the Supreme Court Resolution dated 4th January,
2024 as the parties wanted to be sure of the same, to make further
submissions. A copy of the Supreme Court resolution was then
produced before this Court and was allowed to be perused by the
respective counsel for the parties.
SUBMISSIONS
9.1. Mr. Datar, the learned Senior Counsel projected that the two
petitioners were direct recruits and the seniormost district judges in
the State of Himachal Pradesh. Over the last two decades, both have
had a blemish-free record and all their 17 ACRs have either been
‘Outstanding’ or ‘Excellent’. It was then submitted that as the two
seniormost judges, they have a constitutional right for
reconsideration of their names. Referring to paragraph-10 of the
Registrar General’s Report, the senior counsel argues that the issue
[2024] 9 S.C.R. 159

Chirag Bhanu Singh & Anr. v.

High Court of Himachal Pradesh & Ors.

of elevation has to be collectively considered by the High Court

Collegium and not by the Chief Justice acting alone. As regards the
letter written by one of the judicial officers to the Chief Justice of
India, it was submitted that it only highlights his judicial journey and
the anguish for not being considered for elevation despite 17 years
of exemplary service. According to Mr. Datar, the letter does not
contain any insinuation against members of the Supreme Court
Collegium and is not contemptuous or disrespectful or in bad taste
as is alleged in the Report of the Registrar General.
9.2. On maintainability, it was submitted that the present writ petition is
limited to ‘lack of effective consultation’ and hence is maintainable.
Reliance has been placed on the decisions of this Court in Mahesh
Chandra Gupta v. Union of India67 (for short “Mahesh Chandra
Gupta”), where it was held that the issues of ‘eligibility’ and ‘effective
consultation’ would be within the realm of judicial review. This was
followed in M. Manohar Reddy v. Union of India 68 and reiterated
recently in Anna Mathews v. Supreme Court of India 69 where it was
held that judicial review is restricted to ‘eligibility’ and not ‘suitability’
or ‘content of consultation’. It was also submitted that the
consideration by the Collegium collectively is an in-built check
against the likelihood of arbitrariness or bias.
9.3. On the other hand, Dr. S. Muralidhar, Learned Senior Counsel
appearing for the High Court of Himachal Pradesh argued that the
present writ petition is not maintainable. The prayer for
reconsideration is, in effect, a request for judicial review over the
‘suitability’ of the candidates. To highlight the limited scope of judicial
review, reliance has been placed on the decisions of this Court in
Supreme Court Advocates-on-Record Assn. v. Union of India 70 (for
short “Second Judges case”), Mahesh Chandra Gupta (supra),71 M.
Manohar Reddy v. Union of India, 72 Registrar General, Madras High

67
[2009] 10 SCR 921 : (2009) 8 SCC 273
68
[2013] 1 SCR 711 : (2013) 3 SCC 99
69
[2023] 1 SCR 463 : (2023) 5 SCC 661
70
[1993] Supp. 2 SCR 659 : (1993) 4 SCC 441 (Para 482)
71
Para 39-41, 43-44 and 71, 74
72
[2013] 1 SCR 711 : (2013) 3 SCC 99 (Para 17-20)
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Court v. R. Gandhi, 73 Common Cause v. Union of India 74

and Anna
Mathews
v. Supreme Court of India. 75
9.4. As regards the Chief Justice of the High Court individually taking a
decision and addressing the letter to the Chief Justice of India, it was
argued by Dr. Muralidhar that the resolution of the Supreme Court
Collegium (4.01.2024) did not specify that the reconsideration of the
petitioners’ names was to be in consultation with the other members
of the High Court Collegium. Therefore, the High Court Chief Justice
according to the learned counsel, could have made the
reconsideration all by himself.
ISSUES
10. Going by the above submissions, the following questions arise for
our consideration:
A) Whether the writ petition is maintainable?
B) Whether elevation for judgeship in the High Court has to be
considered collectively by the High Court Collegium or whether
the Chief Justice acting individually can reconsider the same?
Issue A
11. At the outset, it is apposite to address the issue of maintainability of
the writ petition and the limited scope of judicial review in such
matters. This aspect was addressed by a nine-judge bench of this
Court in Supreme Court Advocates-on-Record Association. v. Union
of India76 (for short “Second Judges case”). It was observed therein
that the scope of judicial review in appointment of judges is limited
as it introduces the ‘judicial element’ in the process and further
judicial review is not warranted apart from some exceptions such as
want of consultation amongst the named constitutional functionaries.
In this regard, the following passage from the Second Judges case
(supra) bears consideration:

73
[2014] 4 SCR 77 : (2014) 11 SCC 547 (Para 25-26)
74
[2017] 11 SCR 154 : (2018) 12 SCC 377 (Para 17)
75
[2023] 1 SCR 463 : (2023) 5 SCC 661 (Para 10)
76
[1993] Supp. 2 SCR 659 : (1993) 4 SCC 441
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Chirag Bhanu Singh & Anr. v.

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“482. This is also in accord with the public interest of

excluding these appointments and transfers from litigative
debate, to avoid any erosion in the credibility of the
decisions, and to ensure a free and frank expression of
honest opinion by all the constitutional functionaries,
which is essential for effective consultation and for taking
the right decision. The growing tendency of needless
intrusion by strangers and busybodies in the functioning
of the judiciary under the garb of public interest litigation,
in spite of the caution in S.P. Gupta [1981 Supp SCC :
(1982) 2 SCR 365] while expanding the concept of locus
standi, was adverted to recently by a Constitution Bench
in Krishna Swami v. Union of India [(1992) 4 SCC 605]. It
is, therefore, necessary to spell out clearly the limited
scope of judicial review in such matters, to avoid similar
situations in future. Except on the ground of want of
consultation with the named constitutional functionaries
or lack of any condition of eligibility in the case of an
appointment, or of a transfer being made without the
recommendation of the Chief Justice of India, these
matters are not justiciable on any other ground, including
that of bias, which in any case is excluded by the element
of plurality in the process of decision-making.”
[emphasis supplied]
12. Thereafter in Special Reference No. 1 of 1998, Re11 (for short “Third
Judges case”), it was noted as under:
“32. Judicial review in the case of an appointment or a
recommended appointment, to the Supreme Court or a
High Court is, therefore, available if the recommendation
concerned is not a decision of the Chief Justice of India
and his seniormost colleagues, which is constitutionally
requisite. They number four in the case of a
recommendation for appointment to the Supreme Court
and two in the case of a recommendation for appointment
to a High Court. Judicial review is also available if, in
making the decision, the views of the seniormost
Supreme Court Judge who comes from the High Court of
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the proposed appointee to the Supreme Court have not

been taken into account. Similarly, if in connection with an
appointment or a recommended appointment to a High
Court, the views of the Chief Justice and senior Judges of
the High Court, as aforestated, and of Supreme Court
Judges knowledgeable about that High Court have not
been sought or considered by the Chief Justice of India
and his two seniormost puisne Judges, judicial review is
available. Judicial review is also available when the
appointee is found to lack eligibility.”
13. Subsequently, a two-judge bench speaking through S.H. Kapadia J
laid down important principles in Mahesh Chandra Gupta (supra).
This Court distinguished between ‘eligibility’ and ‘suitability’ and

11 [1998] Supp. 2 SCR 400 : (1998) 7 SCC 739

noted that Article 217(1) of the Constitution of India pertains to the
‘suitability’ of an individual, whereas Article 217(2) concerns the
‘eligibility’ of a person to become a Judge. While ‘eligibility’ is an
objective criterion, ‘suitability’ is a subjective one. The bench further
observed that decisions regarding who should be elevated, which
primarily involve considerations of “suitability, are not subject to
judicial review. It held as under:
“44. At this stage, we may highlight the fact that there is a
vital difference between judicial review and merit review.
Consultation, as stated above, forms part of the procedure
to test the fitness of a person to be appointed a High Court
Judge under Article 217 (1). Once there is consultation,
the content of that consultation is beyond the scope of
judicial review, though lack of effective consultation could
fall within the scope of judicial review. This is the basic
ratio of the judgment of the Constitutional Bench of this
Court in Supreme Court Advocates-on-Record Assn.
[(1993) 4 SCC 441] and Special Reference No. 1 of 1998,
Re [(1998) 7 SCC 739].”
[2024] 9 S.C.R. 163

Chirag Bhanu Singh & Anr. v.

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14. The above view where the Court distinguished between ‘eligibility’
and ‘suitability’ has been consistently followed 77 in subsequent
decisions of this Court including in the recent decision in Anna
Mathews v Supreme Court of India78 where it was noted as under:
“10. We are clearly of the opinion that this Court, while
exercising power of judicial review cannot issue a writ of
certiorari quashing the recommendation, or mandamus
calling upon the Collegium of the Supreme Court to
reconsider its decision, as this would be contrary to the
ratio and dictum of the earlier decisions of this Court
referred to above, which are binding on us. To do so would
violate the law as declared, as it would amount to
evaluating and substituting the decision of the Collegium,
with individual or personal opinion on the suitability and
merits of the person.”
15. The following position emerges as a result of the above:
i) ‘Lack of effective consultation’ and ‘eligibility’ falls within the
scope of judicial review.
ii) ‘Suitability’ is non-justiciable and resultingly, the ‘content of
consultation’ falls beyond the scope of judicial review.
16. The above legal position clearly suggests that the absence of
consultation amongst the members of the Collegium would be within
the limited purview of judicial review. Proceeding on this
understanding, this Court had issued notice to the Registrar General
to ascertain whether the High Court Collegium adhered to the
procedural requirement of an ‘effective consultation’ for the
reconsideration exercise. The Chief Justice of the High Court, it was
submitted had never received the Resolution of the Supreme Court
Collegium. It was therefore argued that perusing the Resolution of
the Supreme Court was essential for the respective counsel to make
their submissions. As earlier noted, a copy of the resolution (dated
4th January 2024) was produced in Court and the same was allowed
to be perused by the respective counsel for the parties.

77
Manohar Reddy and Anr. v. Union of India (2013) 3 SCC 99, Registrar General, Madras High Court v. R.
Gandhi (2014) 11 SCC 547, Common Cause v. Union of India (2018) 12 SCC 377
78
[2023] 1 SCR 463 : (2023) 5 SCC 661
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17. The aforesaid re-consideration resolution was requisitioned only for

factual determination as to whether ‘effective consultation’ was
made, in terms of the resolution of the SC Collegium. This scrutiny
has nothing to do with the ‘merits’ or the ‘suitability’ of the officers in
question but to verify whether ‘effective consultation’ was made.
Such scrutiny is permissible within the limited scope of judicial review
as discussed before. Therefore, the present writ petition for this
limited scrutiny is found to be maintainable. Issue B
18. The second issue that falls for our consideration is whether elevation
for judgeship in the High Court has to be considered collectively by
the Collegium of the High Court or whether the Chief Justice acting
individually can reconsider the same. The process of judicial
appointments to a superior court is not the prerogative of a single
individual. Instead, it is a collaborative and participatory process
involving all Collegium members. The underlying principle is that the
process of appointment of judges must reflect the collective wisdom
that draws from diverse perspectives. Such a process ensures that
principles of transparency and accountability are maintained.
19. Mr. Datar, the learned Senior Counsel earnestly submitted that the
Chief Justice of a High Court individually cannot reconsider a
recommendation. To appreciate the legal basis for such a contention,
we may refer to the following judgments discussed below.
20. This Court in the Second Judges case (supra) noted as under:
“468. The rule of law envisages the area of discretion to
be the minimum, requiring only the application of known
principles or guidelines to ensure non-arbitrariness, but to
that limited extent, discretion is a pragmatic need.
Conferring discretion upon high functionaries and,
whenever feasible, introducing the element of plurality by
requiring a collective decision, are further checks against
arbitrariness. This is how idealism and pragmatism are
reconciled and integrated, to make the system workable
in a satisfactory manner.”
21. Again, in the Third Judges case (supra), it was observed that “the
element of plurality of judges in formation of the opinion of the Chief
Justice of India, effective consultation in writing and prevailing norms
[2024] 9 S.C.R. 165

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High Court of Himachal Pradesh & Ors.

to regulate the area of discretion are sufficient checks against

arbitrariness.”
22. Mr. Datar placed reliance on the following passage from the decision
in Mahesh Chandra (supra) to buttress his submission:
“73. The concept of plurality of Judges in the formation of
the opinion of the Chief Justice of India is one of inbuilt
checks against the likelihood of arbitrariness or bias. At
this stage, we reiterate that “lack of eligibility” as also “lack
of effective consultation” would certainly fall in the realm
of judicial review. However, when we are earmarking a
joint venture process as a participatory consultative
process, the primary aim of which is to reach an agreed
decision, one cannot term the Supreme Court Collegium
as superior to High Court Collegium. The Supreme Court
Collegium does not sit in appeal over the recommendation
of the High Court Collegium. Each Collegium constitutes
a participant in the participatory consultative process. The
concept of primacy and plurality is in effect primacy of the
opinion of the Chief Justice of India formed collectively.
The discharge of the assigned role by each functionary
helps to transcend the concept of primacy between them.”
23. What was emphasized above is that collaborative deliberations bring
in transparency in the process, as decisions are deliberated,
debated, and recorded. This contributes to public trust in the
judiciary, as it demonstrates that appointments are being made
based on thorough consideration.
24. Tracing the departure in the process of appointment of judges pre
and post-1990 after the emergence of the Collegium system, a legal
Scholar 79 notes that the Second Judges case (supra) effectively
ended the ‘primacy’ or the ‘preponderating voice’ of the Chief Justice
over senior colleagues. Contrasting the observations of the Law
Commission, in its 80th Report in 19798081 with the current system,

79
Abhinav Chandrachud, ‘The Fictional Concurrence of the Chief Justice’ in Supreme Whispers, Conversations
with Judges of the Supreme Court 1980-1989 (OUP 2018) 162-166
80
Law Commission of India, ‘The Method of Appointment of Judges’ (80th Report, August 1979) Available at
[Link]
81
-[Link], <Last accessed on 5.9.2024>
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the author observes that while the Commission recommended that

a Chief Justice of a High Court should consult his two seniormost
colleagues before recommending names to the government for
judicial appointments, it did not mandate that these
recommendations be unanimous or binding. However, the collegium
system introduced through the Second Judges case (supra),
institutionalized the practice of consulting senior colleagues, making
it binding on the chief justice.
25. With the above judgments holding the field, it is difficult to accept the
contention of the learned Senior Counsel, Dr. Muralidhar who argued
that the Chief Justice of the High Court can individually reconsider a
candidate based on how Resolutions are worded. To substantiate
this argument, various Supreme Court Resolutions were placed
before us to show that there is a difference in language and in the
present case, it was specifically addressed to the Chief Justice of the
High Court. It was contended that this wide power of the Collegium
to direct reconsideration individually by the Chief Justice may not be
curtailed. We are disinclined to accept this view as it is well-settled
that the Supreme Court Collegium does not sit in appeal over the
High Court Collegium. 82 It is a participatory process where each of
the Constitutional functionaries have a role to play. In our opinion,
the language therein by itself cannot be understood as permitting the
Chief Justice of the High Court to act on his own, in matters of
recommendation or even reconsideration, for elevation to the High
Court bench. The recommendation by the Supreme Court Collegium
for reconsideration, is not expected to be addressed individually to
all the members of the High Court Collegium. Such communications
are naturally addressed to the Chief Justice of the concerned High
Court but as noted earlier, the letter addressed to the Chief Justice
will not enable the Chief Justice to act without participation by the
other two Collegium members.
26. In this case, the Court is not concerned with the aspects of ‘suitability’
of the petitioners for elevation as judges of the High Court or even
the ‘content of consultation’. Our scrutiny is limited to whether the
reconsideration of the proposal for the elevation of the two
petitioners, was jointly made by the Collegium members of the High

82
Mahesh Chandra Gupta v. Union of India (2009) 8 SCC 273
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Court, following the Supreme Court Resolution dated 4th January

2024.
27. This Court is mindful of the limited scope of interference in such
matters. But this appears to be a case where there was no collective
consultation amongst the three Constitutional functionaries of the
High Court i.e. the Chief Justice and the two senior-most companion
judges. The absence of the element of plurality, in the process of
reconsideration as directed by the Supreme Court Collegium, is
clearly discernible.
28. At this juncture, we must also address the submissions on the letter
written by one of the petitioners, as referenced in the Report of the
Registrar General and argued before this Court. It was contended
that the letter contained contemptuous remarks directed at the
Supreme Court Collegium. We have perused the letter. It is definitely
an expression of hurt by the judicial officer, but will not bring the letter
into the contemptuous category.
29. Before parting, it needs to be stated that there is also a need to
protect certain sensitive information in matters involving appointment
of judges. While transparency is necessary to ensure fairness and
accountability, it must be carefully balanced with the need to
maintain confidentiality. Disclosing sensitive information would
compromise not only the privacy of the individual but also the
integrity of the process.
30. In the case before us, the procedure adopted in the matter of
reconsideration of the two petitioners is found to be inconsistent with
the law laid down in the Second Judges (supra) and the Third Judges
case (supra). There was no collective consultation and deliberations
by the members of the High Court Collegium. The decision of the
Chief Justice of the High Court, on the suitability of the two
petitioners as conveyed in his letter dated 6th March 2024, appears
to be an individual decision. The same therefore stand vitiated both
procedurally and substantially.
31. The final finding from the above is as follows:-
i) The writ petition is maintainable as it questions the lack of
effective consultation;
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ii) The Chief Justice of a High Court cannot individually reconsider

a recommendation and it can only be done by the High Court
Collegium acting collectively.
32. In light of the above, the High Court Collegium should now
reconsider the names of Mr. Chirag Bhanu Singh and Mr. Arvind
Malhotra for elevation as Judges of the High Court, following the
Supreme Court Collegium decision dated 4th January, 2024 and the
Law Minister’s letter dated 16th January, 2024. It is ordered
accordingly.
33. The matter stands allowed in above terms.

Result of the case: Writ petition allowed.

Headnotes prepared by: Divya Pandey

†
 [2024] 9 S.C.R. 166 : 2024 INSC 650

Seetharama Shetty
v.
Monappa Shetty
(Civil Appeal Nos. 10039-40 of 2024)
02 September 2024
[Hrishikesh Roy and S.V.N. Bhatti,* JJ.]

Issue for Consideration

Scope of Sections 33, 34, 37, 39 of the Karnataka Stamp Act,
1957; whether the agreement of sale dated 29.06.1999, with a
recital on delivery of possession to the appellant, conforms to the
definition of conveyance under Section 2(d) read with Article 20(1)
of the Schedule of the Act or not; whether in the facts and the
circumstances of the case, the penalty determined by the trial
Court on the instrument instead of sending the instrument to the
District Registrar for determination and collection of penalty as
may be applicable is legal; whether, the said order of trial court as
confirmed by the impugned orders of the High Court are legal and
valid or call for interference by this Court.

Headnotes†

Karnataka Stamp Act, 1957 – ss.33, 34, 39 – Appellant sought

perpetual injunction restraining the respondent from
interfering with his possession of the plaint schedule
property which he claimed was given to him as part
performance under the suit agreement between them –
Respondent denying the execution of the aforesaid
agreement of sale inter alia claimed that the document was
insufficiently stamped and thus, inadmissible in evidence –
Filed application u/s.33 for impounding of the suit agreement
– Eventually, trial court directed the appellant to pay the
deficit stamp duty and ten times penalty on the agreement of
sale – Penalty determined by the Court on the instrument
instead of sending the instrument to the District Registrar for
determination and collection of penalty, if legal:
Held: No – Before the stage of admission of the instrument in
evidence, the respondent raised an objection on the deficit stamp
duty – Therefore, it was the respondent who required the suit
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agreement to be impounded and then sent to the District Registrar
to be dealt with u/s.39 – Respondent desired the impounding of
the

* Author
suit agreement and collect the deficit stamp duty and penalty – The
trial court is yet to exercise its jurisdiction u/s.34 – On the contrary,
the trial court called for a report from the District Registrar, so for
all purposes, the suit instrument is still at one or the other steps
summed up in paragraph 21 of the present judgment – Therefore,
going by the request of the respondent, the option is left for the
decision of the District Registrar – Contrary to these admitted
circumstances, though the suit instrument is insufficiently
stamped, still the penalty of ten times u/s.34 was imposed through
the impugned orders – The imposition of penalty of ten times at
this juncture in the facts and circumstances of this case is illegal
and contrary to the steps summed up in paragraph 21 – The
instrument is sent to the District Registrar, thereafter the District
Registrar in exercise of his jurisdiction u/s.39, decides the
quantum of stamp duty and penalty payable on the instrument –
The appellant is denied this option by the impugned orders –
Appellant must pay what is due, but as is decided by the District
Registrar and not the Court u/s.34 – The direction to pay ten times
the penalty of the deficit stamp duty set aside. [Paras 22, 23]
Karnataka Stamp Act, 1957 – ss.33-35, 37, 39 – Scope –
Insufficiently stamped instrument – Admission procedure – Steps
explained and summed up. [Paras 21-21.8]
Karnataka Stamp Act, 1957 – s.2(d), Article 5, Article 20(1) of
the Schedule of the Act – ‘conveyance’:
Held: Article 5 of the Schedule of the Act deals with an agreement
of sale coupled with possession and the requirement of paying the
ad valorem stamp duty – If an instrument conforms to the
requirements of conveyance u/s.2(d) r/w Article 20(1) of the
Schedule of the Act, the applicable stamp duty is ad valorem – In
the present case, the appellant did not argue on the applicability
of the clause dealing with possession in the agreement and
requirement to pay ad valorem stamp duty and the relief of
injunction was sought on the basis of delivery of possession by the
respondent under the suit agreement. [Para 14]
Karnataka Stamp Act, 1957 – Object of the Act – Discussed.
[Para 17]
[2024] 9 S.C.R. 171

Seetharama Shetty v. Monappa Shetty

Karnataka Stamp Act, 1957 – ss.34, 39 – Distinction and
discretion under – Distinction in the discretion available to
Every Person/Court; discretionary jurisdiction conferred on
the District Registrar – Discussed.
Case Law Cited
Gangappa and another v. Fakkirappa [2018] 13 SCR 603 – relied
on.
Trustees of H.C. Dhanda Trust v. State of Madhya Pradesh and
others [2020] 11 SCR 268; Chilakuri Gangulappa v. Revenue
Divisional Officer, Madanpalle [2001] 2 SCR 419 : (2001) 4 SCC
197; Hindustan Steel Limited v. Dilip Construction Company
[1969] 3 SCR 736 : (1969) 1 SCC 597; District Registrar and
Collector v. Canara Bank [2004] Suppl. 5 SCR 833 : (2005) 1 SCC
496; State of Maharashtra v. National Organic Chemical Industries
Limited [2024] 4 SCR 340 : (2024) SCC OnLine SC 497; Chiranji
Lal v. Haridas [2005] Supp. 1 SCR 359 : (2005) 10 SCC 746; Petiti
Subba Rao v. Anumala S. Narendra (2002) 10 SCC 427– referred
to.
Digambar Warty and others v. District Registrar Bangalore Urban
District and another ILR 2013 KAR 2099; K. Amarnath v. Smt.
Puttamma ILR 1999 KAR 4634; Suman v. Vinayaka and others
(2013) SCC OnLine Kar 10138; Niyaz Ahmed Siddique v.
Sanganeria Company Private Limited (2023) SCC OnLine Cal
1391; United Precision Engineers Private Limited v. KIOCL Limited
(2016) SCC OnLine Kar 1077; Sri. K. Govinde Gowda v. Smt.
Akkayamma and others ILR 2011 KAR 4719 – referred to.
List of Acts
Karnataka Stamp Act, 1957; Stamp Act, 1899.
List of Keywords
Stamp duty; Deficit stamp duty; Deficit stamp duty and penalty;
Penalty; Levy of stamp duty and penalty; Agreement of sale; Ad
valorem stamp duty; Suit instrument insufficiently stamped; Ten
times penalty on the agreement of sale; Delivery of possession;
Conveyance; Collection of penalty; Insufficiently stamped
instrument; Inadmissible in evidence; District Registrar/Deputy
Commissioner; Perpetual injunction; Part performance under the
suit agreement; Impounding of the suit agreement.
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Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 10039-40 of
2024
From the Judgment and Order dated 23.08.2019 and 14.09.2021 of
the High Court of Karnataka at Bengaluru in WP No. 30734 of 2019
and RP No. 340 of 2019 respectively
Appearances for Parties
Ms. Liz Mathew, Sr. Adv. (Amicus Curiae), Ms. Mallika Agarwal, Ms.
Bagavathy V., Advs.
Parikshit Angadi, Anirudh Sanganeria, Advs. for the Appellant.
Judgment / Order of the Supreme Court
Judgment
S.V.N. Bhatti, J.
1. Leave granted.
2. The Civil Appeals arise from an order dated 14.09.2021 in Review
Petition No. 340 of 2019 and Writ Petition No. 30734 of 2019.
3. In these Civil Appeals, the scope of Sections 33, 34, 37, and 39 of
the Karnataka Stamp Act, 1957 (for short, ‘the Act’) arises for
consideration.
I. Factual Matrix
4. The appellant filed O.S. No. 295 of 2013 for perpetual injunction
restraining the respondent from interfering with the appellant’s
peaceful possession and enjoyment of the plaint schedule property.
The plaint schedule property consists of agricultural land in Kavoor
village of Mangalore taluk. The prayer for injunction rests on the plea
that the respondent entered into the agreement of sale dated
29.06.1999 with the appellant. The appellant claims to have been
put in possession of the plaint schedule property as part
performance under the agreement of sale dated 29.06.1999 by the
respondent. The other clauses covered by the agreement are not
adverted to as part of the narrative, for they are of little relevance for
disposing of the Civil Appeals.
5. It is alleged that the respondent, contrary to the possession given as
part performance under the suit agreement, tried to dispossess the
appellant. This led to exchange of notices between the parties. The
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Seetharama Shetty v. Monappa Shetty

sheet anchor in the appellant’s narrative is that the agreement of
sale dated 29.06.1999 exists between the parties, and in part
performance thereunder, the appellant was put in possession of the
plaint schedule property by the respondent. Contrary to the ad idem
of the parties in putting the appellant in possession, the respondent
was trying to dispossess the appellant from the plaint schedule
property.
Therefore, the suit was filed for the relief of perpetual injunction.
Briefly narrated, the possession claimed under the agreement of
sale is sought to be protected through the prayer for perpetual
injunction.
6. The respondent denies the execution of the agreement of sale dated
29.06.1999. The appellant, since claims possession through the
agreement of sale, the suit agreement shall be treated as a
conveyance. The suit agreement is insufficiently stamped.
Therefore, the document is inadmissible in evidence unless the
document is made compliant with the requirements of the Act.
6.1. The respondent filed an application before the trial court under
Section 33 of the Act to impound the suit agreement to collect
the deficit stamp duty and penalty in accordance with the Act.
By order dated 10.11.2016, the trial court sent the agreement
of sale dated 29.06.1999 to the District Registrar for
determination of requisite stamp duty and penalty payable on
the agreement of sale. The record discloses that the District
Registrar expressed inability to determine the deficit stamp
duty and penalty payable on the suit agreement for want of the
name of the village, hence, returned the instrument to the trial
court. Thereafter, the appellant filed a memo dated 26.04.2017
purporting to clarify the name of the village in the schedule of
the agreement of sale. The said effort was opposed by the
respondent, namely ex-postfacto incorporation of material
details into the suit agreement; gaps in the agreement are not
filled up by the appellant to the detriment of the respondent.
The trial court, agreeing with the respondent’s objection,
rejected the memo dated 26.04.2017. The appellant filed Writ
Petition No. 8506 of 2018 challenging the trial court’s order
dated 12.08.2017 before the High Court of Karnataka. On
10.08.2018, the Writ Petition was disposed of, and the
operative portion reads thus:
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“Accordingly, in modification of the impugned order
dated 12.08.2017, it is directed that a copy of the
memo filed by the plaintiff may be sent by the Trial
Court to the office of the District Registrar for
appropriate proceedings in accordance with law.
However, it is made clear that the order and
proposition with reference to the name of the village
mentioned by the plaintiff/petitioner shall have
relevance only for the purpose of calculation of
deficit stamp duty and other charges but shall have
no bearing on the merit consideration of the
submissions of the parties, including the
submissions of the defendant/ respondent about the
genuineness and the validity of the document in
question and the corresponding right of the
plaintiff/petitioner to contest such objections.”
7. The District Registrar, through report dated 10.11.2016, determined
the deficit stamp duty payable on the instrument at Rs. 71,200/-. The
trial court, by order dated 23.01.2019, directed the appellant to pay
the deficit stamp duty of Rs. 71,200/- and ten times penalty on the
agreement of sale dated 29.06.1999. Thus, the total levy of stamp
duty and penalty is Rs. 7,83,200/-. The appellant assailed the order
dated 23.01.2019 in O.S. NO. 295 of 2013 in Writ Petition No. 30734
of 2019 before the High Court. The Writ Petition was dismissed, and
the appellant was granted four months’ time for payment of deficit
stamp duty and the penalty. The appellant filed Review Petition No.
340 of 2019, and through the impugned order dated 14.09.2021, the
Review Petition was dismissed. Hence, the Civil Appeals have been
filed questioning the orders dated 23.01.2019 and 14.09.2021.
8. The learned Single Judge has, in great detail, referred to all the
attending circumstances, appreciated their implication vis-à-vis the
statutory obligation under the Act to pay ad valorem stamp duty on
an agreement of sale satisfying the definition of a conveyance under
the Act and dismissed the Review Petition. The findings, in brief, are
as follows:
8.1. Section 33 of the Act requires the adjudicating authorities to
impound and determine the duty payable on the suit
agreement.
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Seetharama Shetty v. Monappa Shetty

8.2. Section 34 of the Act provides for levy of deficit stamp duty and
penalty. The Section employs the expression “ten times the
amount of the proper duty or deficit portion thereof.” Therefore,
there is no discretion granted to the adjudicating authorities to
waive or reduce the penalty.
8.3. Only on the payment of deficit stamp duty along with ten times
penalty, the suit agreement is relied in evidence.
8.4. The text used in Sections 34 and 39 of the Act cannot be
linguistically approximated, as the legislature has not vested
the discretion given to the Deputy Commissioner under Section
39 of the Act in the same way to the adjudicating authorities
under Section 34 of the Act.
8.5. Relying on case law, the impugned order noted that the
adjudicating authorities do not have the discretion to disobey
the legislative command to waive or reduce the penalty in any
circumstance. The discretion however extends to the grant of
a reasonable time for the payment of duty and penalty.
8.6. Thus, through the Impugned Order, the Learned Single judge
concluded that the Review Petition fails, and the appellant was
granted a period of six months’ time to pay the deficit stamp
duty along with ten times penalty.
9. Hence, the Civil Appeals.
10. We have heard the learned counsel and also Ms. Liz Mathew, who
was appointed as Amicus Curiae to assist the Court. II.
Submissions
11. Learned counsel for the appellant firstly contends that the suit
document conforms to the requirements of the Act and the suit was
for injunction. Considering the total circumstances, it is argued that
even if the suit document is not stamped correctly but having regard
to the orders dated 12.08.2017 and 10.08.2018, the trial court ought
not to have decided the deficit stamp duty and penalty under Section
34 of the Act. Instead, the trial court ought to have sent the
impounded instrument to the District Registrar for determining the
stamp duty and the penalty. Thereupon, the District Registrar would
have exercised his discretionary jurisdiction under Section 39 of the
Act and determined the quantum of penalty payable by the appellant.
In the case on hand, the dispute arose on the application filed by the
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respondent requesting to send the suit document to the District
Registrar for determination of duty and penalty. The District Registrar
has sent a report on the stamp duty payable but has not collected
the deficit stamp duty or levied the penalty on the suit agreement. It
is argued that the case falls under Section 37(2) of the Act, and the
impugned orders have denied the appellant the option to have the
penalty decided by the District Registrar. Therefore, the trial court
and the High Court have committed an illegality by exercising the
jurisdiction under Section 34 of the Act.
12. The learned Amicus Curie places reliance on Gangappa and
another v. Fakkirappa,83 Trustees of H.C. Dhanda Trust v. State
of Madhya Pradesh and others,84 Digambar Warty and others v.
District Registrar, Bangalore Urban District and another, 85 K.
Amarnath v. Smt. Puttamma,86 Suman v. Vinayaka and others,87
Niyaz Ahmed Siddique v. Sanganeria Company Private Limited,88
United Precision Engineers Private Limited v. KIOCL Limited,89
Chilakuri Gangulappa v. Revenue Divisional Officer,
Madanpalle,90 and Sri. K. Govinde Gowda v. Smt. Akkayamma
and others,91 and contends that the scope of jurisdiction in receiving
in evidence insufficiently stamped instruments by every person,
having by law or consent of parties, authority to receive evidence
and every person in charge of a public office on the one hand and
the Deputy Commissioner/District Registrar on the other hand, is
fairly wellsettled by the binding precedents. The scope of discretion
available in two distinct forums covered by Sections 34 and 39 of the
Act is fairly well settled and defined.
12.1. It is further argued that the ratio in Chilakuri Gangulappa
(supra) is not applicable to the facts and circumstances of this
case. The trial court while considering the prayer for an
injunction by relying on the suit document, exercised its

83
[2018] 13 SCR 603 : (2019) 3 SCC 788
84
[2020] 11 SCR 268 : (2020) 9 SCC 510
85
ILR 2013 KAR 2099
86
ILR 1999 KAR 4634
87
(2013) SCC OnLine Kar 10138
88
(2023) SCC OnLine Cal 1391
89
(2016) SCC OnLine Kar 1077
90
[2001] 2 SCR 419 : (2001) 4 SCC 197
91
ILR 2011 KAR 4719
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Seetharama Shetty v. Monappa Shetty

jurisdiction under Section 34 of the Act. The procedure under
Section 37(2) of the Act arises in the cases not attracting
Section 37(1) of the Act. The discretionary jurisdiction under
Section 39 of the Act is exclusive to the District Registrar/
Deputy Commissioner while exercising the powers under the
Act. Thus, expecting the court to exercise the discretion of
Section 39 of the Act is untenable.
III. Analysis
13. We have perused the record and noted the rival submissions. The
following points arise in the Civil Appeals:
I. Whether the agreement of sale dated 29.06.1999, with a recital
on delivery of possession to the appellant, conforms to the
definition of conveyance under Section 2(d) read with Article
20(1) of the Schedule of the Act or not?
II. Whether, in the facts and circumstances of the case, the order
dated 23.01.2019 of trial court, as confirmed by the impugned
orders dated 23.08.2019 and 14.09.2021, are legal and valid or
call for interference by this Court under Article 136 of the
Constitution of India?
Point I
14. Agreement of sale dated 29.06.1999, among other clauses, refers to
the alleged delivery of possession in favour of the appellant by the
respondent. Article 5 of the Schedule of the Act deals with an
agreement of sale coupled with possession and the requirement of
paying the ad valorem stamp duty. If an instrument conforms to the
requirements of conveyance under Section 2(d) read with Article
20(1) of the Schedule of the Act, the applicable stamp duty is ad
valorem. In other words, ad valorem stamp duty is paid on such
instruments. The learned counsel appearing for the appellant has
not argued on the applicability of the clause dealing with possession
in the agreement and requirement to ad valorem pay stamp duty.
The relief of injunction is sought on the basis of delivery of
possession by the respondent under the suit agreement. The
following Judgments are relevant and are close in circumstance to
the case on hand and are referred to.
14.1. Gangappa’s case (supra), analysed a situation on an
insufficiently stamped document produced before a court, and
compared Sections 34 and 39 of the Act and held that the
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discretion conferred by the provision is different by the text and
the context of these provisions. This Court upheld the ratio laid
in Digambar Warty (supra) and held that even though no
discretion was provided to the court to impose a reduced
penalty, Section 38 of the Act empowered the Deputy Collector
to refund the duty so collected. In paragraph 18 of the
Judgment, it is recorded that:
“18. The above view of the Karnataka High Court that
there is no discretion vested with the authority
impounding the document in the matter of collecting duty
under Section 33, is correct. The word used in the said
proviso is “shall”. Sections 33 and 34 clearly indicate that
penalty imposed has to be 10 times. The Division Bench
of the Karnataka High Court in Digambar Warty
[Digambar Warty v. Bangalore Urban District, 2012 SCC
OnLine Kar 8776 : ILR 2013 KAR 2099] has rightly
interpreted the provisions of Sections 33 and 34 of the
Act. We, thus, are of the view that the High Court in the
impugned judgment [Fakkirappa v. Gangappa, 2014
SCC OnLine Kar 12775] did not commit any error in
relying on the judgment of the Division Bench in
Digambar Warty [Digambar Warty v. Bangalore Urban
District, 2012 SCC OnLine Kar 8776 : ILR 2013 KAR
2099]. We thus have to uphold the above view expressed
in the impugned judgment [Fakkirappa v. Gangappa,
2014 SCC OnLine Kar 12775].
However, as a one-time measure, this Court allowed closing
the matter by confirming the payment of deficit duty with the
double penalty as imposed by the trial court. The precedent
interpreted the discretionary limits under Section 34 of the Act.
14.2. In United Precision Engineers Private Limited (supra), the
question arose as to the extent of power exercised by Deputy
Commissioner under Section 37(2) of the Act. The Court
observed that the phrase “in every other case” contained in
Section 37(2) of the Act will have to be understood to include
not only an instrument which is merely impounded and
referred but also an instrument impounded, relating to which
duty and penalty determined but not paid by the party. The
court observed that as per the combined reading of the
sections, if the impounding authority determined the penalty
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Seetharama Shetty v. Monappa Shetty

under Section 37(1) of the Act, and thereafter, sends the
document to Deputy Commissioner under Section 37(2) of the
Act, then the Deputy Commissioner will have the power to
reduce the penalty under Section 38 of the Act. The ratio deals
with the interplay between Sections 37 and 38 of the Act.
15. The impugned order, in fact, refers to these judgments. The High
Court has correctly distinguished the jurisdiction vested in every
person or a person in the public office on the one hand and on the
other hand the District Registrar in determining the penalty payable
on insufficiently stamped instrument. The ratio in all fours is
applicable to the circumstances of the case. Therefore, by relying on
the above judgments, it is held that the appellant, with a view to
produce in evidence the agreement of sale in the suit, must pay the
deficit stamp duty and penalty. We are confirming the findings of the
High Court in this behalf. The next question for consideration is
whether in the facts and the circumstances of the case, the penalty
determined by the Court on the instrument instead of sending the
instrument to the District Registrar for determination and collection
of penalty as may be applicable is legal. Point II
16. Chapter IV of the Act is both mandatory and regulatory. Section 33
mandates every person having by law or consent of parties authority
to receive evidence and every person in charge of public office (for
short, ‘Every Person/Court’) when an instrument insufficiently
stamped is produced, the person is mandated to impound the
insufficiently stamped instrument. In law, the word impound means
to keep in custody of the law. 92 Having taken legal custody of the
insufficiently stamped document, the inter-play available between
Sections 33, 34, 37, 38 and 39 of the Act, as the case may be, would
start operating. Sub-section (2) of Section 33 of the Act fastens an
obligation to examine the instrument on the duty payable, value etc.
of the instrument. Unless it is duly stamped, Section 34 of the Act,
prohibits Every Person/Court from admitting in evidence or act upon
an insufficiently/improperly stamped instrument. The proviso to
Section 34 of the Act, subject to deposit, of deficit stamp duty and
penalty enables receipt of an instrument in evidence which is
otherwise prohibited by Section 34 of the Act.
17. The object of the Act is not to exclude evidence or to enable parties
to avoid obligations on technical grounds. Rather, the object is to

92
(2003) 3 SCC 674
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obtain revenue even from such instruments which are at the first
instance unstamped or insufficiently stamped. The said objective
has the twin elements of recovering the due stamp duty and penalty,
and also the public policy of binding parties to the agreed obligations.
It is apposite to refer to the declaration of law by a seven-judge
bench’s judgement of this Court on the object of the Indian Stamp
Act, 1899.
17.1. In Re: Interplay Between Arbitration Agreements under
Arbitration and Conciliation Act, 1996 and Stamp Act,
1899, 93 a Seven-Judge Bench of this Court noted that Section
35 of the Indian Stamp Act, 1899 (analogous to Section 34 of
the Act) unambiguously requires an instrument chargeable
with stamp duty to only be “admitted in evidence” if it is
properly stamped. This Court further noted that improperly
stamping the instrument does not render that instrument void
or invalid. On the contrary, it is a defect which is curable upon
payment of requisite stamp duty and penalty. The relevant
paragraph reads thus:
“54. Section 35 of the Stamp Act is unambiguous. It
stipulates, “No instrument chargeable with duty shall
be admitted in evidence…” The term “admitted in
evidence” refers to the admissibility of the
instrument. Sub-section (2) of Section 42, too, states
that an instrument in respect of which stamp-duty is
paid and which is endorsed as such will be
“admissible in evidence.” The effect of not paying
duty or paying an inadequate amount renders an
instrument inadmissible and not void. Non-stamping
or improper stamping does not result in the
instrument becoming invalid. The Stamp Act does
not render such an instrument void. The non-
payment of stamp duty is accurately characterised
as a curable defect. The Stamp Act itself provides for
the manner in which the defect may be cured and
sets out a detailed procedure for it. It bears
mentioning that there is no procedure by which a
void agreement can be “cured.”

93
(2024) 6 SCC 1
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Seetharama Shetty v. Monappa Shetty

17.2. In Hindustan Steel Limited v. Dilip Construction
Company,94 this Court held that the Indian Stamp Act, 1899 is
a fiscal measure intended to raise revenue, and the stringent
provisions of the Stamp Act cannot be used as a weapon to
defeat the cause of the opponent. The relevant paragraph
reads thus:
“7. The Stamp Act is a fiscal measure enacted to
secure revenue for the State on certain classes of
instruments: It is not enacted to arm a litigant with a
weapon of technicality to meet the case of his
opponent. The stringent provisions of the Act are
conceived in the interest of the revenue once that
object is secured according to law, the party staking
his claim on the instrument will not be defeated on
the ground of the initial defect in the instrument.
Viewed in that light the scheme is clear.”
17.3. The ratio in District Registrar and Collector v. Canara
Bank 95 and State of Maharashtra v. National Organic
Chemical Industries Limited 96 and Chiranji Lal v. Haridas 97
reiterated that the Indian Stamp Act, 1899 is a piece of fiscal
legislation, and not a remedial statute enacted on demand of
the permanent public policy to receive a liberal interpretation.
The principles for interpreting a fiscal provision/law are fairly
settled. There is no scope for equity or judiciousness if the
letter of law is clear and unambiguous in method, mode and
manner of levy and collection. The decisions further held that
the act authorises involuntary extraction of money, and
therefore, is in the nature fiscal statute which has to be
interpreted strictly.
17.4. Section 37 of the Act stipulates the procedure on how the
instrument impounded is dealt with. The plain reading of
Section 37(1) of the Act discloses that the person impounding
the instrument under Section 33 of the Act and after receiving
the penalty under Section 34 of the Act or duty under Section
36 of the Act, shall send to the Deputy Commissioner an

94
[1969] 3 SCR 736 : (1969) 1 SCC 597
95
[2004] Suppl. 5 SCR 833 : (2005) 1 SCC 496
96
[2024] 4 SCR 340 : (2024) SCC OnLine SC 497
97
[2005] Supp. 1 SCR 359 : (2005) 10 SCC 746
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authenticated copy of such instrument together with the
amount of duty and penalty so levied and collected. Section
37(2) of the Act deals with an instrument not subjected to the
procedure of Sections 34 or 36 of the Act. According to Section
37(2) of the Act, the instrument is sent to the Deputy
Commissioner for enquiry and decision at his end. The Deputy
Commissioner gets jurisdiction under Section 39 of the Act and
then decides the duty and also the penalty leviable on the
insufficiently stamped instrument. In this background, we take
note of the principle laid down on the distinction in the
discretion available to Every Person/Court and the
discretionary jurisdiction conferred on the District Registrar.
See, United Precision Engineers (supra) and Gangappa
(supra).
The settled distinction and discretion available under Sections
34 and 39 of the Act is no more res integra.
18. The above consideration does not actually address the appellant’s
argument under Section 37(2) read with Section 39 of the Act.
Appellant contends that the respondents by filing an application for
impounding the instrument, preferred to have deficit stamp duty and
the penalty collected exclusively by the District Registrar because
the admissibility or otherwise of the suit document is not yet
considered by the trial court for any purpose. From the record, it
appears that the instrument is likely to be considered at the
interlocutory stage for granting or refusing temporary injunction.
Therefore, the option available under Section 33 read with Section
37 of the Act is set in motion, resulting in the instrument being sent
to the District Registrar, and calling for a report.
19. A Three-Judge Bench of this Court in Trustees of HC Dhandha
Trust v State of Madhya Pradesh16 held that in case of deficiency
of Stamp Duty the Collector of Stamps cannot impose ten times
penalty under Section 40(1)(b) of the Indian Stamp Act, 1899
(analogous to Section 39(1)(b) of the Act) automatically or
mechanically. The relevant paragraph reads thus:
“22. The purpose of penalty generally is a deterrence and
not retribution. When a discretion is given to a public

16 [2020] 11 SCR 268 : (2020) SCC OnLine SC 753

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Seetharama Shetty v. Monappa Shetty

authority, such public authority should exercise such
discretion reasonably and not in oppressive manner. The
responsibility to exercise the discretion in reasonable
manner lies more in cases where discretion vested by the
statute is unfettered. Imposition of the extreme penalty
i.e. ten times of the duty or deficient portion thereof
cannot be based on the mere factum of evasion of
duty. The reason such as fraud or deceit in order to
deprive the Revenue or undue enrichment are relevant
factors to arrive at a decision as to what should be the
extent of penalty under Section 40(1)(b).
(Emphasis supplied)”
20. Further, in Petiti Subba Rao v. Anumala S. Narendra,98 this Court
notes on the discretionary limits while interpreting analogous
provisions18 in the Indian Stamp Act,1899 that:
“6. The Collector has the power to require the person
concerned to pay the proper duty together with a penalty
amount which the Collector has to fix in consideration of
all aspects involved. The restriction imposed on the
Collector in imposing the penalty amount is that under no
circumstances the penalty amount shall go beyond ten
times the duty or the deficient portion thereof. That is the
farthest limit which meant only in very extreme
situations the penalty need be imposed up to that
limit. It is unnecessary for us to say that the Collector is
not required by law to impose the maximum rate of penalty
as a matter of course whenever an impounded document
is sent to him. He has to take into account various aspects
including the financial position of the person concerned.
(Emphasis supplied)”

18
Karnataka Stamp Act, 1957 §33 §34 §35 §36 §37 §38 §39

98
(2002) 10 SCC 427
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Indian Stamp Act, 1899 §33 §35 §36 §37 §38 §39 §40

21. As per the steps taken under Sections 33,19 34,20 35, 99 37, 100 and
39101

19 Section 33: Examination and impounding of instruments.- (1) Every person having by law or consent of
parties authority to receive evidence, and every person in charge of a public office, except an officer of
police, before whom any instrument, chargeable in his opinion, with duty, is produced or comes in the
performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound
the same. (2) For that purpose every such person shall examine every instrument so chargeable and so
produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and
description required by the law in force in the 1[State of Karnataka]1 when such instrument was executed
or first executed: [1. Adapted by the Karnataka Adaptations of Laws Order, 1973 w.e.f. 1.11.1973.]
Provided that,— (a) nothing herein contained shall be deemed to require any Magistrate or Judge of a
Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before
him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the
Code of Criminal Procedure, 1898; (b) in the case of a Judge of the High Court, the duty of examining
and impounding any instrument under this section may be delegated to such officer as the Court appoints
in this behalf. (3) For the purposes of this section, in cases of doubt, the Government may determine, —
(a) what offices shall be deemed to be public offices; and (b) who shall be deemed to be persons in
charge of public offices.
20 Section 34: Instruments not duly stamped inadmissible in evidence, etc.- No instrument chargeable with
duty shall be admitted in evidence for any purpose by any person having by law or consent of parties
authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or
by any public officer, unless such instrument is duly stamped: Provided that,— (a) any such instrument
not being an instrument chargeable 1[with a duty not exceeding fifteen naye paise]1 only, or a mortg age
of crop [Article 1[35]1 (a) of the Schedule] chargeable under clauses (a) and (b) of section 3 with a duty
of twenty-five naye paise shall, subject to all just exceptions, be admitted in evidence on payment of the
duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, or the
amount required to make up such duty, together with a penalty of five rupees, or, when ten times the
amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equa l to ten times
such duty or portion; [1. Substituted by Act 29 of 1962 w.e.f. 1.10.1962.] (b) where a contract or
agreement of any kind is effected by correspondence consisting of two or more letters and any one of
the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped; (c)
nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in
a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal
Procedure, 1898; (d) nothing herein contained shall prevent the admission of any instrument in any Court
when such instrument has been executed by or on behalf of the Government, or where it bears the
certificate of the 1[Deputy Commissioner]1 as provided by section 32 or any other provision of this Act

99
Section 35: Admission of instrument where not to be questioned.- Where an instrument has been admitted
in evidence such admission shall not, except as provided in section 58, be called in question at any stage
of the same suit or proceeding on the ground that the instrument has not been duly stamped.
100
Section 37: Instruments impounded how dealt with.- (1) When the person impounding an instrument under
section 33 has by law or consent of parties authority to receive evidence and admits such instrument in
evidence upon payment of a penalty as provided by section 34 or of duty as provided by section 36, he
shall send to the 1[Deputy Commissioner]1 an authenticated copy of such instrument, together with a
certificate in writing, stating the amount of duty and penalty levied in respect thereof, and shall send such
amount to the 1[Deputy Commissioner]1 or to such person as he may appoint in this behalf. [1.
Substituted by Act 29 of 1962 w.e.f. 1.10.1962.] (2) In every other case, the person so impounding an
instrument shall send it in original to the 1[Deputy Commissioner]1. [1. Substituted by Act 29 of 1962
w.e.f. 1.10.1962.]
101
Section 39: 1[Deputy Commissioner]1’s power to stamp instruments impounded.- (1) When the 1[Deputy
Commissioner]1 impounds any instrument under section 33, or receives any instrument sent to him
under sub-section (2) of section 37, not being an instrument chargeable 1[with a duty not exceeding
fifteen naye paise]1 only or a mortgage of crop [Article 1[35]1 (a) of the Schedule] chargeable under
clause (a) or (b) of section 3 with a duty of twenty-five naye paise, he shall adopt the following
procedure:— [1. Substituted by Act 29 of 1962 w.e.f. 1.10.1962.] (a) if he is of opinion that such
instrument is duly stamped, or is not chargeable with duty, he shall certify by endorsement thereon that
[2024] 9 S.C.R. 185

Seetharama Shetty v. Monappa Shetty

2[and such certificate has not been revised in exercise of the powers conferred by the provisions of
Chapter VI]2. [1. Substituted by Act 29 of 1962 w.e.f. 1.10.1962.] [2. Inserted by Act 29 of 1962 w.e.f.
1.10.1962.]
under Chapter IV of the Act, the position in law is well-established,
and axiomatic by the letter of law and precedents of this Court.
However, there are a few misgivings in the sequence of its
application. For the benefit of practice and procedure, we sum up
the steps as follows.
21.1. Section 33 of the Act is titled examination and impounding of
instruments. The object of the provision is to disable persons
from withdrawing the instruments produced by them on being
told that proper stamp duty and penalty should be paid.
21.1.1. The person who intends to rely on an insufficiently/
improperly stamped instrument has option to submit
to the scope of Section 34 of the Act, pay duty and
penalty. The party also has the option to directly move
an application under Section 39 of the Act before the
District Registrar and have the deficit stamp duty and
the penalty as may be imposed collected. In either of
the cases, after the deficit stamp duty and the penalty
are paid, the impounding effected under Section 35 of
the Act is released and the instrument available to the
party for relying as evidence. In the event, a party
prefers to have the document sent to the deputy
commissioner for collecting the deficit stamp duty and
penalty, the Court/Every Person has no option except
to send the document to the District Registrar. The
caveat to the above is that, before the Court/Every
Person exercises the jurisdiction under Section 34 of
the Act, the option must be exercised by a party.
21.2. Section 34 of the Act is titled instruments not duly stamped
inadmissible in evidence. This provision bars the admission of

it is duly stamped, or that it is not so chargeable, as the case may be; (b) if he is of opinion that such
instrument is chargeable with duty and is not duly stamped he shall require the payment of the proper
duty or the amount required to make up the same, together with a penalty of five rupees; or if he thinks
fit; an amount not exceeding ten times the amount of the proper duty or of the deficient portion thereof,
whether such amount exceeds or falls short of five rupees: Provided that, when such instrument has
been impounded only because it has been written in contravention of section 13 or section 14, the
1[Deputy Commissioner]1 may, if he thinks fit, remit the whole penalty prescribed by this section. [1.
Substituted by Act 29 of 1962 w.e.f. 1.10.1962.] (2) 1[Subject to any orders made under Chapter VI,
every certificate]1 under clause (a) of sub- section (1) shall, for the purposes of this Act be conclusive
evidence of the matters stated therein. [1. Substituted by Act 29 of 1962 w.e.f. 1.10.1962.] (3) Where an
186 [2024] 9 S.C.R.

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instrument has been sent to the 1[Deputy Commissioner]1 under sub-section (2) of section 37, the
1[Deputy Commissioner]1 shall, when he has dealt with it as provided by this section, return it to the
impounding officer. [1. Substituted by Act 29 of 1962 w.e.f. 1.10.1962.]
an instrument in evidence unless adequate stamp duty and
the penalty are paid. Every person so authorised to collect
deficit stamp duty and penalty has no discretion except to levy
and collect ten times the penalty of deficit stamp duty.
21.3. Section 35 of the Act is titled admission of instrument where
not to be questioned. Section 35 prohibits questioning the
admission of an insufficiently stamped instrument in evidence.
21.4. Section 37 of the Act is titled instruments impounded, how
dealt with. This Section arises when the party pays the deficit
duty and penalty, the Court is to impound the instrument under
Section 33 of the Act and has to forward the instrument to the
Deputy Commissioner/District Registrar. Sub-section (2) of
Section 37 of the Act deals with cases not falling under Section
34 and 36, and the person impounding an instrument shall
send it in original to the Deputy Commissioner. This includes
the exigencies set out in paragraph 21.1.1.
21.5. Being a regulatory and remedial statute, a party who follows
the regulation, and pays the stamp duty and penalty, as per
Sections 34 or 39 of the Act, the legal objection emanating
from Section 33 of the Act alone is effaced and the document
is admitted in evidence. In other words, the objection under
the Stamp Act is no more available to a contesting party.
21.6. Section 39 of the Act is titled deputy commissioner’s power to
stamp instruments impounded. This Section provides the
procedure to be followed by the Deputy Commissioner/District
Registrar while stamping instruments that are impounded
under Section 33 of the Act. As per Section 39(1)(b) of the Act,
the penalty may extend to ten times the stamp duty payable;
however, ten times is the farthest limit which is meant only for
very extreme situations. Therefore, the Deputy
Commissioner/District Registrar has discretion to levy and
collect commensurate penalty.
21.7. The above steps followed and completed by paying/depositing
the deficit duty and penalty would result in the instrument
becoming compliant with the checklist of the Act. The finality
is subject to the just exceptions envisaged by the Act
addressing different contingencies.
[2024] 9 S.C.R. 187

Seetharama Shetty v. Monappa Shetty

21.8. The scheme does not prohibit a party to a document to first
invoke directly the jurisdiction of the District Registrar and
present the instrument before Court/Every Person after
complying with the requirement of duty and penalty. In such an
event, the available objection under Sections 33 or 34 of the
Act is erased beforehand. The quantum of penalty is primarily
between the authority/court and the opposing party has little
role to discharge.
22. Reverting to the circumstances of the case by keeping in perspective
the steps summarised in the preceding paragraph, we notice that,
before the stage of admission of the instrument in evidence, the
respondent raised an objection on the deficit stamp duty. Therefore,
it was the respondent who required the suit agreement to be
impounded and then sent to the District Registrar to be dealt with
under Section 39 of the Act. In this case, the respondent desired the
impounding of the suit agreement and collect the deficit stamp duty
and penalty. The trial court is yet to exercise its jurisdiction under
Section 34 of the Act. On the contrary, the trial court has called for a
report from the District Registrar, so for all purposes, the suit
instrument is still at one or the other steps summed up in paragraph
21. Therefore, going by the request of the respondent, the option is
left for the decision of the District Registrar. Contrary to these
admitted circumstances, though the suit instrument is insufficiently
stamped, still the penalty of ten times under Section 34 of the Act is
imposed through the impugned orders. The imposition of penalty of
ten times at this juncture in the facts and circumstances of this case
is illegal and contrary to the steps summed up in paragraph 21. The
instrument is sent to the District Registrar, thereafter the District
Registrar in exercise of his jurisdiction under Section 39 of the Act,
decides the quantum of stamp duty and penalty payable on the
instrument. The appellant is denied this option by the impugned
orders. It is trite law that the appellant must pay what is due, but as
is decided by the District Registrar and not the Court under Section
34 of the Act.
23. Hence, for the above reasons, the direction to pay ten times the
penalty of the deficit stamp duty merits interference and accordingly
is set aside. The trial court is directed to send the agreement of sale
dated 29.06.1999 to the District Registrar to determine the deficit
stamp duty and penalty payable. Upon receipt of the compliance
certificate from the District Registrar, without reference to an
[2024] 9 S.C.R. 188
Seetharama Shetty v. Monappa Shetty

objection under the Act, the suit document be received in evidence.

All objections available to the respondents except the above are left
open for consideration.
24. Appeals are allowed in part, as indicated above.

Result of the case: Appeals partly allowed.

Headnotes prepared by: Divya Pandey

†
[2024] 9 S.C.R. 189

Union of India & Ors. v. Lt. Col. Rahul Arora

[2024] 9 S.C.R. 186 : 2024 INSC 672

Union of India & Ors.

v.
Lt. Col. Rahul Arora
(Civil Appeal No. 2459 of 2017)
09 September 2024
[Prashant Kumar Mishra* and Prasanna
Bhalachandra Varale, JJ.]

Issue for Consideration

Legality of the appointment of Judge Advocate who was admittedly
junior to the respondent.

Headnotes†

Service Law – Army Medical Corps – Respondent was charge-

sheeted for: (i) extraneous consideration declaring an army
recruit as ‘fit’ after previously declaring him ‘unfit’; (ii)
absenting himself without leave from 11.04.2004 to
19.04.2004; (iii) conduct of unbecoming of an officer and the
character expected of his position – Upon conclusion of trial
by General Court Martial and two of the three charges proven,
he was dismissed from service – Armed Forces Tribunal
upheld the findings of guilt – However, the High Court allowed
the writ petition preferred by the respondent solely on the
ground that an officer junior to the respondent has acted as
Judge Advocate in GCM:
Held: Before the High Court, two different convening orders were
produced – One by the appellant and the other one by the
respondent – While the documents submitted by the appellant
contained the reasons for appointing a junior as the Judge
Advocate whereas in the convening order submitted by the
respondent no such reason was mentioned – After comparing the
documents, the High Court recorded a finding that the convening
order Annexure R-I (produced by the appellant before the High
Court) has been altered after the same was dispatched and
received by the Headquarters Artillery Centre – The High Court
specifically observed that once a document has been put in the
 course of transmission by the General Officer Commanding,
Andhra Pradesh, Tamil Nadu,

* Author
Karnataka and Kerala area, the same could not be
changed/altered or modified except after recording that there was
a mistake, which needs correction – Once dispatched by the
officer signing the same, the communication of the document is
complete and any alteration in the document is unauthorised – It
is quite apparent that the reason for culling out exception as held
permissible by this Court in Charanjit Singh Gill case, was not
mentioned in the document while the same was dispatched by the
issuing authority and supplied to the respondent – Subsequent
mentioning of the reason in the other document, after putting
signatures by the issuing authority, was unauthorised and
impermissible, the High Court has correctly held that the
convening order suffers from incurable defect as held by this Court
in Charanjit Singh Gill case – The legal position is thus well settled
in Charanjit Singh Gill case that non recording of reasons of
appointment of an officer junior in rank as a Judge Advocate in the
convening order invalidates the Court Martial proceedings – The
High Court has not committed any error of law in holding so in the
facts and circumstances of the case. [Paras 8, 9]

Case Law Cited

Union of India & Anr. v. Charanjit Singh Gill [2000] 3 SCR 245 :
(2000) 5 SCC 742 – relied on.
Union of India v. S.P.S. Rajkumar and Ors. [2007] 5 SCR 521 :
(2007) 6 SCC 407 – referred to.

List of Acts
Army Act; Army Rules.

List of Keywords
Service Law; Army Medical Corps; Dismissal from service;
Appointment of Judge Advocate; Convening orders; Alteration in
document; Incurable defect in convening order; Non-recording of
reasons in convening order; Court Martial Proceedings.

Case Arising From

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2459 of 2017
From the Judgment and Order dated 21.05.2014 of the High Court
of
[2024] 9 S.C.R. 191

Union of India & Ors. v. Lt. Col. Rahul Arora

Punjab & Haryana at Chandigarh in CWP No. 20380 of 2012
192 [2024] 9 S.C.R.

Digital Supreme Court Reports

Appearances for Parties

R Bala, Sr. Adv., Mukesh Kumar Maroria, Ashok Panigrahi, Ishaan
Sharma, Aaditya Dixit, Advs. for the Appellants.
G.S. Ghuman, Harkirat Singh, Jatinder Pal Singh, Advs. for the
Respondent.
Judgment / Order of the Supreme Court
Judgment
Prashant Kumar Mishra, J.
This appeal is directed against the order dated 21.05.2014 passed
by the High Court of Punjab & Haryana in CWP No. 20380 of 2012.
Under the said order, the High Court has set-aside the order passed
by the Armed Forces Tribunal, Chandigarh, 102 which has dismissed
the appeal of the respondent and upheld the findings and sentence
awarded by the General Court Martial. 103
2. The respondent was first commissioned in the Army Medical
Corps104 as medical officer from 29.05.1978 to 31.07.1983. He was
again commissioned as regular officer in AMC on 25.02.1987. In
1996, he was designated as Graded ENT Specialist and was then
upgraded as classified Specialist ENT in the year 2001. In the month
of February, 2002, the respondent was posted with Military Hospital,
Secunderabad wherein he was required to examine new recruits
being forwarded by various training centres.
3. In September, 2002 one Recruit/Soldier/GD K. Siddaiah alleged that
the respondent paid money for reviewing its remarks “unfit ” to
“review after 15 days”. The statement of the recruit was recorded by
one Major Mrs. R.M.B. Mythilly who initiated AFMSF-7. The
respondent was charge-sheeted, and three charges were framed
against him, namely:
(i) The respondent, an ENT Specialist at a Military Hospital, had,
for extraneous consideration declared an Army recruit, K.
Siddaiah, as ‘fit’ after previously declaring him ‘unfit’.

102
‘AFT’
103
‘GCM’
104
‘AMC’
[2024] 9 S.C.R. 193

Union of India & Ors. v. Lt. Col. Rahul Arora

Consequently, the first charge against him was under Section

57(c) of the Army
Act for knowingly and with intent to defraud altering a
document/ remarks in the AFMSF-7.
(ii) The second charge was under Section 39(a) of the Army Act
for absenting himself without leave from 11.04.2004 to
19.04.2004.
(iii) The third charge was under Section 45 of the Army Act for
conduct unbecoming of an officer and the character expected
of his position.
4. Upon conclusion of trial by GCM and upon finding two out of three
charges proven, the respondent was dismissed from service against
which he preferred proceedings before AFT, which upheld the
findings of guilt and the sentence of dismissal from service as
awarded by the GCM. It is this order of the AFT which was assailed
by the respondent before the High Court. The High Court allowed
the writ petition preferred by the respondent solely on the ground
that an officer junior to the respondent has acted as Judge Advocate
in the GCM contrary to the law laid down by this Court in Union of
India & Anr. vs. Charanjit Singh Gill.105
5. Assailing the impugned order of the High Court, Shri R. Bala, learned
Senior Advocate for the appellant/Union of India has argued that
there is no blanket prohibition on appointing an officer of lower rank
than the charged officer to serve as Judge Advocate in a Court
Martial. He would strenuously urge that in Charanjit Singh Gill
(supra), this court has carved out an exception to the effect that “a
Judge Advocate appointed with the Court Martial should not be an
officer of a rank lower than that of the officer facing the trial unless
the officer of such rank is not (having due regard to the exigencies
of public service) available and the opinion regarding non-availability
is specifically recorded in the convening order”. According to learned
senior counsel, the present case falls within the above exception
inasmuch as non-availability of an officer of equivalent or higher rank
was specifically recorded in the convening order. It is also argued,

105
[2000] 3 SCR 245 : 2000 (5) SCC 742
194 [2024] 9 S.C.R.

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referring to Army Rule 103 that a Court Martial shall not be invalid
merely by reason of any invalidity in the appointment of the Judge
Advocate officiating thereat. Reference is made to Union of India
vs. S.P.S. Rajkumar and Ors.106
6. Per contra, Shri G.S. Ghuman, learned counsel appearing for the
respondent would submit that one Major Rajiv Dutta was appointed
as a Judge Advocate in the Court Martial, who was junior in rank to
the respondent. This was informed to the respondent by forwarding
certified copy of the convening order under the Army Rules 33 (7)
and 34 and the same was also received by the respondent on
07.10.2014. Both the copies were filed with the written statement. In
these orders, the prerequisites of bringing the appointment of an
officer equivalent or junior to the rank of the respondent was not
mentioned, therefore, the High Court has taken the correct view in
the matter by referring to Charanjit Singh Gill (supra).
7. In the present appeal, we are only concerned with the legality of the
appointment of Judge Advocate who was admittedly junior to the
respondent, therefore, we are not dwelling on the facts of the case
or merits of the charges.
8. Before the High Court, two different convening orders were
produced. One by the appellant and the other one by the
respondent. While the documents submitted by the appellant
contained the reasons for appointing a junior as the Judge Advocate
whereas in the convening order submitted by the respondent no
such reason was mentioned. After comparing the documents, the
High Court has recorded a finding that the convening order Annexure
R-I (produced by the appellant before the High Court) has been
altered after the same was dispatched and received by the
Headquarters Artillery Centre, Hyderabad. The High Court noted that
Annexure P-I is identically worded, but in the second page, the
words “in my opinion having due regard to the exigencies of public
service an officer of equal or superior rank to the accused is not
available to act as Judge Advocate” are additional. The High Court
specifically observed that once a document has been put in the
course of transmission by the General Officer Commanding, Andhra
Pradesh, Tamil Nadu, Karnataka and Kerala area, the same could

106
[2007] 5 SCR 521 : 2007 (6) SCC 407
[2024] 9 S.C.R. 195

Union of India & Ors. v. Lt. Col. Rahul Arora

not be changed/altered or modified except after recording that there

was a mistake, which needs correction. Once dispatched by the
officer signing the same, the communication of the document is
complete and any alteration in the document is unauthorised.
9. In the above circumstances, it is quite apparent that the reason for
culling out exception as held permissible by this Court in Charanjit
Singh Gill (supra), was not mentioned in the document while the
same was dispatched by the issuing authority and supplied to the
respondent. Subsequent mentioning of the reason in the other
document, after putting signatures by the issuing authority, was
unauthorised and impermissible, the High Court has correctly held
that the convening order suffers from incurable defect as held by this
Court in Charanjit Singh Gill (supra) in the following words:
“16. It is true that a Judge Advocate theoretically performs
no function as a Judge but it is equally true that he is an
effective officer of the Court conducting the case against
the accused under the Act. It is his duty to inform the Court
of any defect or irregularity in the charge and in the
constitution of the Court or in the proceedings. The quality
of the advice tendered by the Judge Advocate is very
crucial in a trial conducted under the Act. With the role
assigned to him a Judge Advocate is in a position to sway
the minds of the Members of the Court Martial as his
advice or verdict cannot be taken lightly by the persons
composing the Court who are admittedly not law-knowing
persons. It is to be remembered that the Courts Martial
are not part of the judicial system in the country and are
not permanent courts.
18. In view of what has been noticed hereinabove, it is
apparent that if a “fit person” is not appointed as a Judge
Advocate, the proceedings of the Court Martial cannot be
held to be valid and its finding legally arrived at. Such an
invalidity in appointing an “unfit” person as a Judge
Advocate is not curable under Rule 103 of the Rules. If a
fit person possessing requisite qualifications and
otherwise eligible to form part of the General Court Martial
is appointed as a Judge Advocate and ultimately some
invalidity is found in his appointment, the proceedings of
196 [2024] 9 S.C.R.

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the Court Martial cannot be declared invalid. A “fit person”

mentioned in Rule 103 is referable to Rules 39 and 40. It
is contended by Shri Raval, learned Additional Solicitor
General that a person fit to be appointed as Judge
Advocate is such officer who does not suffer from any
ineligibility or disqualification in terms of Rule 39 alone. It
is further contended that Rule 40 does not refer to
disqualifications.
We cannot agree with this general proposition made on
behalf of the appellant inasmuch as sub-rule (2) of Rule
40 specifically provides that Members of a Court Martial
for trial of an officer should be of a rank not lower than that
of the officer facing the trial unless such officer is not
available regarding which specific opinion is required to
be recorded in the convening order. Rule 102
unambiguously provides that “an officer who is
disqualified for sitting on a Court Martial, shall be
disqualified for acting as a Judge Advocate at that Court
Martial”. A combined reading of Rules 39, 40 and 102
suggests that an officer, who is disqualified to be a part of
a Court Martial, is also disqualified from acting and sitting
as a Judge Advocate at the Court Martial. It follows,
therefore, that if an officer lower in rank than the officer
facing the trial cannot become a part of the Court Martial,
the officer of such rank would be disqualified for acting as
a Judge Advocate at the trial before a GCM. Accepting a
plea to the contrary would be invalidating the legal bar
imposed upon the composition of the Court in sub-rule (2)
of Rule 40.
20. The purpose and object of prescribing the conditions
of eligibility and qualification along with desirability of
having Members of the Court Martial of the rank not lower
than the officer facing the trial is obvious. The lawmakers
and the rule-framers appear to have in mind the respect
and dignity of the officer facing the trial till guilt is proved
against him by not exposing him to the humiliation of being
subjected to trial by officers of lower rank. The importance
of the Judge Advocate as noticed earlier being of a
[2024] 9 S.C.R. 197

Union of India & Ors. v. Lt. Col. Rahul Arora

paramount nature requires that he should be such person

who inspires confidence and does not subject the officer
facing the trial to humiliation because the accused is also
entitled to the opinion and services of the Judge Advocate.
Availing of the services or seeking advice from a person
junior in rank may apparently be not possible ultimately
resulting in failure of justice.”
10. The legal position is thus well settled in Charanjit Singh Gill (supra)
that non recording of reasons of appointment of an officer junior in
rank as a Judge Advocate in the convening order invalidates the
Court Martial proceedings. The High Court has not committed any
error of law in holding so in the facts and circumstances of the case.
11. The next argument raised by the appellant taking shelter of Army
Rule 103 is referred only to be rejected for the reason that the
protection under this rule is available only where a fit person has
been appointed as a Judge Advocate. If the person so appointed is
not fit to act and perform the duties of the Judge Advocate as held in
Charanjit Singh Gill (supra), Rule 103 would not come to the
rescue of the appellant. Moreover, such argument has already been
rejected by this Court in paragraph 18 of the report in Charanjit
Singh Gill (supra).
12. In view of the forgoing discussion, we find no substance in this Civil
Appeal which deserves to be and is hereby dismissed.

Result of the case: Appeal dismissed.

Headnotes prepared by: Ankit Gyan

†
 [2024] 9 S.C.R. 194 : 2024 INSC 674

Ashok Kumar Sharma & Ors

v.
Union of India
(Writ Petition (Civil) No. 551 of 2024)
09 September 2024
[Dr. Dhananjaya Y Chandrachud, CJI, J.B. Pardiwala
and Manoj Misra, JJ.]

Issue for Consideration

Whether the Court under Article 32 can issue a writ to the Union
Government to cancel existing licences and halt the issuance of
new licences for the export of arms and military equipments to
Israel.

Headnotes†

Constitution of India – Art. 32 – The petition seeks directions

to the Union Government to cancel existing
licences/permissions and to halt the grant of new licences to
companies in India for the export of arms and military
equipment to Israel during the ongoing conflict in Gaza:
Held: First, the conduct of an independent sovereign nation
namely, Israel is not and cannot be made amenable to the
jurisdiction of this Court – To consider the grant of the reliefs as
sought, it would inevitably become necessary to enter a finding in
regard to the allegations which have been leveled by the
petitioners against the State of Israel – Absent jurisdiction over a
sovereign State, it would be impermissible for this Court to
entertain the grant of reliefs of this nature – The second aspect of
the matter which requires to be noticed is that the petition seeks a
cancellation of the existing licences and prohibition on the
issuance of new licences for the export of arms and military
equipments by Indian companies – Some of these licenses may
be governed by contracts with international entities, including
within the State of Israel – The grant of injunctive relief by this
Court would necessarily implicate a judicial direction for breach of
international contracts and agreements – The fall out of such
breaches cannot be appropriately assessed by this Court and
[2024] 9 S.C.R. 199
would lay open Indian companies which have firm commitments to
proceedings for damages which may affect their own financial
viability – Third, the statutory provisions of our law confer sufficient
power on the Union Government if it decides to Ashok Kumar
Sharma & Ors v. Union of India

act in such cases – For instance, prohibitions can be imposed by

the Union of India under the Foreign Trade (Regulation and
Development Act) as well as under the provisions of the Customs
Act, 1962 – Whether in a given case, any such action is warranted
is a matter which has to be decided by the Union Government
bearing in mind economic, geo-political and other interests of the
nation in the conduct of international relations – The self-imposed
restraint on Courts entering into areas of foreign policy is, thus,
grounded in sound rationale which has been applied across time
– For the above reasons, the reliefs which have been sought in
these proceedings are not amenable to the exercise of judicial
remedies under Article 32 of the Constitution. [Paras 7, 8, 9, 10,
11]

List of Acts
Constitution of India; Foreign Trade (Regulation and Development
Act); Customs Act, 1962.

List of Keywords
Article 32 of the Constitution of India; Sovereign nation; Licenses
for export of arms and military equipment; Permissions; Conflict in
gaza; International law obligations; International contracts and
agreements; International relations; Self-imposed restraints on
Courts; Foreign Policy.

Case Arising From

CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 551 of
2024
(Under Article 32 of The Constitution of India)
Appearances for Parties
Prashant Bhushan, Ms. Cheryl Dsouza, Ms. Ria Yadav, Luma Kanta
Bhandari, Ms. Sulekha Agarwal, Prasanna S, Advs. for the
Petitioners.
Barun Kumar Sinha, Mrs. Pratibha Sinha, Sneh Vardhan, Abhishek,
Advs. for the Respondent.
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Judgment / Order of the Supreme Court
Judgment
1. The petition, invoking Article 32 of the Constitution, has been
instituted by former civil servants, scholars, activists and experts in
fields such as International Relations, Human Rights and Policy
Analysis.
2. The petition seeks directions to the Union Government to cancel
existing licences/permissions and to halt the grant of new licences
to companies in India for the export of arms and military equipment
to Israel during the ongoing conflict in Gaza. These companies, as
the petitioners describe, include a Public Sector Enterprise in the
Ministry of Defence and private companies which have allegedly
been granted licenses after October 2023. The petitioners claim a
violation of India’s international law obligations and of Articles 14, 21
and 51(c) of the Constitution.
3. Supporting the submissions of the petitioners, Mr Prashant
Bhushan, counsel has relied on the rulings of the International Court
of Justice allegedly into the conduct of Israel in Palestinian
territories. The submission is that India is bound by international
treaties which disallow the supply of military weapons to states who
have engaged in war crimes/genocide.
4. In other words, the submission is that the continuation of the export
licences would constitute action complicit against the Genocide
Convention and other international obligations which India has
assumed.
5. The fundamental objection to the maintainability of a petition of the
nature that is before the Court lies in the fact that the authority and
jurisdiction in relation to the conduct of foreign affairs is vested with
the Union Government under Article 73 of the Constitution. Apart
from Article 73, the provisions of Article 253 of the Constitution
stipulate that Parliament has the power to make any law for the
whole or any part of the territory of India for implementing any treaty,
agreement or convention with any other country or countries or any
decision made at any international conference, association or other
body.
6. There is a presumption that international law is a part and parcel of
the law of the nation unless the application of a principle of
international law is excluded expressly or by necessary implication
[2024] 9 S.C.R. 201
by the competent legislature. However, the basic issue which falls
for consideration in the present proceedings is whether the Court
under Article 32 can issue a writ to the Union Government to cancel
existing licences and halt the issuance of new licences for the export
of arms and military equipments to Israel. We are affirmatively of the
view that the answer to this question must be in the negative for more
than one reason.
Ashok Kumar Sharma & Ors v. Union of India

7. First any grant of relief in the present proceedings is presaged on

the submission of the petitioners in regard to the conduct of an
independent sovereign nation namely, Israel in the conduct of its
operations in Gaza. The sovereign nation of Israel is not and cannot
be made amenable to the jurisdiction of this Court. Hence, for this
Court to consider the grant of the reliefs as sought, it would inevitably
become necessary to enter a finding in regard to the allegations
which have been leveled by the petitioners against the State of
Israel. Absent jurisdiction over a sovereign State, it would be
impermissible for this Court to entertain the grant of reliefs of this
nature.
8. The second aspect of the matter which requires to be noticed is that
the petition seeks a cancellation of the existing licences and
prohibition on the issuance of new licences for the export of arms
and military equipments by Indian companies. Some of these
licenses may be governed by contracts with international entities,
including within the State of Israel. The grant of injunctive relief by
this Court would necessarily implicate a judicial direction for breach
of international contracts and agreements. The fall out of such
breaches cannot be appropriately assessed by this Court and would
lay open Indian companies which have firm commitments to
proceedings for damages which may affect their own financial
viability.
9. Third, the statutory provisions of our law confer sufficient power on
the Union Government if it decides to act in such cases. For
instance, prohibitions can be imposed by the Union of India under
the Foreign Trade (Regulation and Development Act) as well as
under the provisions of the Customs Act, 1962. Whether in a given
case, any such action is warranted is a matter which has to be
decided by the Union Government bearing in mind economic, geo-
political and other interests of the nation in the conduct of
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international relations. In taking an appropriate decision, the
Government bears into account all relevant considerations including
the commitments of the nation at the international level.
10. The danger in the Court taking over this function is precisely that it
would be led into issuing injunctive reliefs without a full and
comprehensive analysis or backdrop of the likely consequences of
any such action. The self-imposed restraint on Courts entering into
areas of foreign policy is, thus, grounded in sound rationale which
has been applied across time.
11. For the above reasons, we have come to the conclusion that the
reliefs which have been sought in these proceedings are not
amenable to the exercise of judicial remedies under Article 32 of the
Constitution.
12. We clarify that the observations which have been made in the earlier
part of this judgment are not intended to reflect any opinion by this
Court either in the conduct of foreign policy by the Government of
India, or for that matter, by any sovereign nation which is not subject
to the jurisdiction of this Court.
13. The Writ Petition shall accordingly stand dismissed for the above
reasons.
14. Pending applications, if any, including the application for
intervention/ impleadment stand disposed of.

Result of the case: Writ petition dismissed.

Headnotes prepared by: Ankit Gyan

†
 [2024] 9 S.C.R. 199 : 2024 INSC 670

Cox & Kings Ltd.

v.
Sap India Pvt. Ltd. & Anr.
(Arbitration Petition No. 38 of 2020)
09 September 2024
[Dr. Dhananjaya Y. Chandrachud, CJI, J.B. Pardiwala* and
Manoj Misra, JJ.]

Issue for Consideration

Whether the application of the petitioner for the appointment of an
arbitrator deserves to be allowed. Whether the requirement of
prima facie existence of an arbitration agreement, as stipulated
u/s. 11 of the Act, 1996, is satisfied. Whether the respondent no. 2
is a party to the arbitration agreement or not.

Headnotes†

Arbitration and Conciliation Act, 1996 – s.11(6) r/w. s.11(12) (a)

– Petitioner has filed the present petition in terms of s.11(6)
r/w.s.11(12)(a) of the Act, seeking appointment of an arbitrator
for the adjudication of disputes and claims in terms of clause
15.7 of the Services General Terms and Conditions
Agreement dated 30.10.2015 entered into between the
Petitioner and respondent no. 1 – The petitioner had also
arrayed respondent no. 2 in the arbitration notice –
Respondents have contended that respondent no. 2 has
neither impliedly nor explicitly consented to the arbitration
agreement between the petitioner and respondent no. 1:
Held: It is settled that the arbitral tribunal is the preferred first
authority to look into the questions of arbitrability and jurisdiction,
and the courts at the referral stage should not venture into
contested questions involving complex facts – The respondents
have raised a number of objections against the present petition,
however, none of the objections raised question or deny the
existence of the arbitration agreement under which the arbitration
has been invoked by the petitioner in the present case – Thus, the
requirement of prima facie existence of an arbitration agreement,
as stipulated u/s. 11 of the Act, 1996, is satisfied – Once the arbitral
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tribunal is constituted, it shall be open for the respondents to raise
all the

* Author
available objections in law, and it is only after (and if) the
preliminary objections are considered and rejected by the tribunal
that it shall proceed to adjudicate the claims of the petitioner –
Further, on the issue of impleadment of respondent no. 2, which is
not a signatory to the arbitration agreement, elaborate
submissions have been made on both the sides, placing reliance
on terms of the agreements, email exchanges, etc – In view of the
complexity involved in the determination of the question as to
whether the respondent no. 2 is a party to the arbitration
agreement or not, this Court is of the view that it would be
appropriate for the arbitral tribunal to take a call on the question
after taking into consideration the evidence adduced before it by
the parties and the application of the legal doctrine as elaborated
in the decision in Cox and Kings – Thus, petition is allowed and an
arbitrator is appointed. [Paras 30, 32, 33, 34, 35]

Case Law Cited

Cox and Kings Ltd. v. SAP India Pvt. Ltd. [2023] 15 SCR 621 :
2023 INSC 1051; In Re: Interplay Between Arbitration Agreements
under the Arbitration and Conciliation Act, 1996 and the Stamp Act
[2023] 15 SCR 1081 : 1899 2023 INSC 1066 – followed.
Lombardi Engg. Ltd. v. Uttarakhand Jal Vidyut Nigam Ltd. [2023]
13 SCR 943 : 2023 INSC 976; SBI General Insurance Co. Ltd. v.
Krish Spinning 2024 INSC 532 – relied on.
Chloro Controls India (P) Ltd v. Severn Trent Water Purification Inc
[2012] 13 SCR 402 : (2013) 1 SCC 641 – referred to.

List of Acts
Arbitration and Conciliation Act, 1996.

List of Keywords
Arbitrator; Appointment of an arbitrator; Arbitration agreement;
Existence of arbitration agreement; Arbitral Tribunal; Available
objections in law; Impleadment of party; Party not signatory to
arbitration agreement; Referral stage; Complex questions
involving complex facts.
[2024] 9 S.C.R. 205

Cox & Kings Ltd. v. Sap India Pvt. Ltd. & Anr.
Case Arising From
CIVIL ORIGINAL JURISDICTION: Arbitration Petition No. 38 of 2020
Under Section 11(6) read with Section 11(12)(a) of the Arbitration
and Conciliation Act 1996
Appearances for Parties
Nagarkatti Kartik Uday, Hiroo Advani, Divyakant Lahoti, Ms. Vindhya
Mehra, Ms. Madhur Jhavar, Ms. Praveena Bisht, Kartik Lahoti,
Navdeep Dahiya, Kumar Vinayakam Gupta, Ms. Mallika Luthra,
Saksham Barsaiyan, Karandeep Dahiya, Ms. Surbhi Saran, Ms. Ria
Garg, Rahul Maheshwari, Advs. for the Petitioner.
Ritin Rai, Sr. Adv., Farhad Sorabjee, Dheeraj Nair, Kumar Kislay,
Pratik Pawar, Siddhesh Pradhan, Ms. Shanaya Cyrus Irani, Anirudh
Krishnan, Shiva Krishnamurti, Balaji Srinivasan, George Pothan
Poothicote, Ms. Manisha Singh, Ms. Jyoti Singh, Ashu Pathak,
Arunava Mukherjee, Debesh Panda, Pallav Mongia, Ajay Bhargava,
Aseem Chaturvedi, Mrs. Trishala Trivedi, M/s. Khaitan & Co., Ujjwal
A. Rana, Himanshu Mehta, M/s. Gagrat and Co., Advs. for the
Respondents.
Judgment / Order of the Supreme Court
Judgment
J.B. Pardiwala, J.
1. Cox & Kings Ltd. (hereinafter referred to as the “petitioner”) has filed
the present petition in terms of Section 11(6) read with Section
11(12)(a) of the Arbitration & Conciliation Act, 1996 (for short “the
Act, 1996”), seeking appointment of an arbitrator for the
adjudication of disputes and claims in terms of clause 15.7 of the
Services General Terms and Conditions Agreement dated
30.10.2015 entered into between the Petitioner and SAP India Pvt.
Ltd. (hereinafter referred to as the “respondent no. 1”)
A. FACTUAL MATRIX
2. The petitioner is a company registered under the Companies Act,
1956 and is engaged in the business of providing tourism packages
and hospitality services to its customers.
3. Respondent no. 1 is also a company registered under the
Companies Act, 1956 and is engaged in the business of providing
business software solution services. It is a wholly-owned subsidiary
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of SAP SE GMBH (Germany) (hereinafter referred to as the
“respondent no. 2”), a company incorporated under the laws of
Germany.
4. The petitioner and respondent no. 1 entered into a SAP Software
End User License Agreement & SAP Enterprise Support Schedule
(for short “License Agreement”) on 14.12.2010 under which the
petitioner was made a licensee of certain Enterprise Resource
Planning (“ERP”) software developed and owned by the
respondents. The License Agreement is a mandatory pre-requisite
for all customers of the respondents who intend to enter into any
software agreement with the respondents.
5. It is the case of the petitioner that while it was developing its own
software for e-commerce operations in 2015, it was approached by
respondent no. 1 who recommended their ‘Hybris Solution’
(hereinafter referred to as the “SAP Hybris Software”) for use by
the petitioner. It is the case of the petitioner that respondent no. 1
had, at the relevant point in time, represented that the SAP Hybris
Software would be suitable and 90% compatible to the requirements
of the petitioner. It was further represented that the customisation of
the balance 10% would take about 10 months from the date of
execution of an agreement and that the customisation of the SAP
Hybris Software would take lesser time than the time the petitioner
may take in developing its own technological solution.
6. The transaction for the purchase, customisation and use of the SAP
Hybris Software was divided into three separate agreements entered
into between the petitioner and respondent no. 1:
i. First, Software License and Support Agreement Software Order
Form no. 3 (for short “Order Form no. 3”) dated 30.10.2015 for the
purchase of SAP Hybris Software License by the petitioner. ii.
Second, the Services General Terms and Conditions Agreement (for
short “GTC agreement”) dated 30.10.2015 containing the terms
and conditions governing the implementation of the SAP Hybris
Software.
iii. Third, SAP Global Service and Support Agreement, Order Form
no. 1 dated 16.11.2015 (for short “Order Form no. 1”) which
was executed pursuant to the signing of the GTC agreement
and contained the terms of payment between the parties for the
services being rendered.
[2024] 9 S.C.R. 207

Cox & Kings Ltd. v. Sap India Pvt. Ltd. & Anr.
7. It is the case of the petitioner that as it had already entered into the
License Agreement with respondent no. 1 in 2010, it was not
required to do so again for the purpose of purchasing the SAP Hybris
Software. The GTC agreement, Order Form no. 3 and Order Form
no. 1 were all executed pursuant to the License Agreement. The said
three agreements are ancillary to the License Agreement and have
a similar underlying commercial purpose.
8. It is pertinent to note that in terms of Clause 15.7 of the GTC
agreement, in the event of any dispute, the parties agreed to resolve
their disputes through arbitration. Clause 15.7 of GTC agreement
reads as under:
“15.7 Dispute Resolution: In the event of any dispute or
difference arising out of the subject matter of this
Agreement, the Parties shall undertake to resolve such
disputes amicably. If disputes and differences cannot be
settled amicably then such disputes shall be referred to
bench of three arbitrators, where each party will nominate
one arbitrator and the two arbitrators shall appoint a third
arbitrator. Arbitration award shall be binding on both
parties. The arbitration shall be held in Mumbai and each
party will bear the expenses of their appointed arbitrator.
The expense of the third arbitrator shall be shared by the
parties. The arbitration process will be governed by the
Arbitration & Conciliation Act, 1996.”
9. Certain issues arose between the parties regarding the timely
completion and implementation of the SAP Hybris Software. After
several queries from the petitioner, respondent no. 1 vide e-mail
dated 24.04.2016, informed about certain challenges in the
execution of the SAP Hybris Software project. Thereafter, a series of
emails were exchanged between respondent no. 1 and the petitioner
regarding the completion of the project.
10. Subsequently, as there was no response from respondent no. 1 to
the e-mails sent by the petitioner, the latter, vide e-mail dated
31.08.2016 contacted respondent no. 2, i.e., the German parent
company of respondent no. 1 and apprised them of the issues being
faced by the petitioner in the execution and delivery of the SAP
Hybris Software. Respondent no. 2 was informed of the various
shortcomings in the execution of the project and the negative
ramifications being caused to the petitioner’s business as a result
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thereof. In response to the concerns raised by the petitioner,
respondent no. 2, vide e-mail dated 01.09.2016, assured to provide
a framework for resolution of the challenges and completion of the
project.
11. Respondent no. 2 vide email dated 07.10.2016 assured the
petitioner that it would monitor the execution of the project and
requested the petitioner for an opportunity to agree on the revised
plan and delivery. As per the minutes of the meeting dated
14.11.2016, one of the suggestions given by respondent no. 2 as
part of the revised proposal for the execution of the project was that
a substantial part of the project work would be outsourced to the
more experienced global team, and one representative of
respondent no. 2 would overlook the progress of the project at the
execution level.
12. Unable to resolve the issues, the contract for the SAP Hybris
Software project ultimately came to be rescinded on 15.11.2016. In
response to this, respondent no. 2, vide e-mail dated 23.11.2016,
requested the petitioner for one last opportunity to complete the
project, which the petitioner declined vide email dated 24.11.2016.
13. Respondent no. 2, vide email dated 09.12.2016 sent to the
petitioner, communicated that there were shortcomings at the
petitioner’s end as well and the respondents could not be said to be
solely responsible for the collapse of the SAP Hybris Software
project.
14. Despite several correspondences and meetings, the matter could
not be settled amicably between the parties. On 29.10.2017,
respondent no. 1 issued a notice invoking arbitration under Clause
15.7 of the GTC agreement for the alleged wrongful termination of
the contract between the parties and non-payment of Rs. 17 Crore.
Upon failure of the petitioner to nominate an arbitrator in response
to the aforesaid notice, a Section 11(6) petition was instituted by
respondent no. 1 before the Bombay High Court. The said petition
came to be allowed vide order dated 30.11.2018 and an arbitral
tribunal was constituted to adjudicate the disputes between the
parties. The petitioner filed its Statement of Defence and
counterclaims on 31.07.2019 for an amount of Rs. 45,99,71,098/-.
15. It may not be out of place to state at this stage that respondent no.
2 was not made a party to the aforesaid arbitration proceedings. In
the course of the said proceedings, the petitioner filed an application
[2024] 9 S.C.R. 209

Cox & Kings Ltd. v. Sap India Pvt. Ltd. & Anr.
under Section 16 of the Act, 1996 before the arbitral tribunal,
contending that the four agreements entered into between the
parties were part of a composite transaction and for this reason the
agreements should be made a part of a singular proceeding.
16. During the pendency of the aforesaid application, on 22.10.2019, the
NCLT, Mumbai admitted an application filed under Section 7 of the
Insolvency and Bankruptcy Code, 2016 (for short “the Insolvency
Code”) against the petitioner and appointed an Interim Resolution
Professional. Vide Public Announcement dated 25.10.2019, the
Interim Resolution Professional ordered for the commencement of
the Corporate Insolvency Resolution Process (‘CIRP’). On
05.11.2019, the NCLT passed an order adjourning the arbitration
proceedings sine die due to initiation of the CIRP.
17. Meanwhile, upon seeking permission of the Interim Resolution
Professional, the petitioner sent a fresh notice to the respondents on
07.11.2019 invoking arbitration under Clause 15.7 of the GTC
agreement. Pertinently, the petitioner arrayed respondent no. 2 in
the said arbitration notice. The petitioner appointed Dr. Justice Arijit
Pasayat, former Judge of this Court, as its nominated arbitrator and
called upon the respondents to appoint their arbitrator for the
constitution of the tribunal. However, upon failure of the respondents
to appoint an arbitrator in terms of the said notice, the petitioner has
preferred the present petition.
B. REFERENCE ORDER
18. This petition was heard by a three-Judge Bench of this Court. By an
order dated 06.05.2022, Chief Justice N.V Ramana (as he then was)
speaking for himself and Justice A.S. Bopanna doubted the
correctness of the application of the Group of Companies doctrine
by the Indian courts. Chief Justice Ramana criticised the approach
of a three-Judge Bench of this Court in Chloro Controls India (P)
Ltd v. Severn Trent Water Purification Inc reported in (2013) 1
SCC 641 which relied upon the phrase “claiming through or under”
appearing in Section 45 of the Act, 1996 to adopt the Group of
Companies doctrine. He noted that the subsequent decisions of this
Court read the doctrine into Sections 8 and 35 of the Act, 1996
without adequately examining the interpretation of the phrase
“claiming through or under” appearing in those provisions. He also
observed that economic concepts such as tight group structure and
single economic unit alone cannot be utilized to bind a non-signatory
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to an arbitration agreement in the absence of an express consent.
Consequently, he referred the matter to the larger bench to seek
clarity on the interpretation of the phrase “claiming through or under”
appearing under Sections 8, 35 and 45 respectively of the Act, 1996.
The following two questions were formulated by him for reference:
i. Whether the phrase “claiming through or under” in Sections 8
and 11 respectively of the Act, 1996 could be interpreted to
include the Group of Companies doctrine; and
ii. Whether the Group of Companies doctrine as expounded by
Chloro Controls (supra) and subsequent judgments is valid in
law?
19. Justice Surya Kant, in a separate opinion, observed that the
decisions of this Court before Chloro Controls (supra) adopted a
restrictive approach by placing undue emphasis on formal consent.
Justice Surya Kant traced the evolution of the Group of Companies
doctrine to observe that it had gained a firm footing in Indian
jurisprudence. However, he opined that this Court has adopted
inconsistent approaches while applying the doctrine in India, which
needed to be clarified by a larger bench. Accordingly, he highlighted
the following questions of law for determination by the larger Bench:
i. Whether the Group of Companies Doctrine should be read into
Section 8 of the Act, 1996 or whether it can exist in Indian
jurisprudence independent of any statutory provision;
ii. Whether the Group of Companies Doctrine should continue to
be invoked on the basis of the principle of ‘single economic
reality’; iii. Whether the Group of Companies Doctrine should
be construed as a means of interpreting implied consent or
intent to arbitrate between the parties; and
iv. Whether the principles of alter ego and/or piercing the corporate
veil can alone justify pressing the Group of Companies
Doctrine into operation even in the absence of implied
consent?
C. SUBMISSIONS ON BEHALF OF THE APPELLANT
20. Mr. Hiroo Advani, the learned counsel appearing on behalf of the
petitioner, submitted at the outset that the GTC agreement, Order
Form no. 1, Order Form no. 3 and the License Agreement are
interlinked and form part of a composite transaction. The said four
agreements cannot be performed in isolation and have to be read
[2024] 9 S.C.R. 211

Cox & Kings Ltd. v. Sap India Pvt. Ltd. & Anr.
coherently for achieving the common object underlying the
agreements.
21. The counsel submitted that respondent no. 1 is indisputably a fully
owned subsidiary of respondent no. 2 and the customisation of the
SAP Hybris Software to meet the requirements of the petitioner was
not feasible without the aid, execution and performance of
respondent no. 2. He submitted that for such reason, it could be said
that there exists a direct commercial relationship between the
petitioner and both the respondents.
22. The counsel further submitted that the various emails exchanged
between the petitioner and respondent no. 2 are indicative of the
intention of respondent no. 2 to monitor the execution of the SAP
Hybris Software project and to ensure the compliance of the
contractual obligations on behalf of respondent no. 1. The counsel
adverted to the contents of many such emails in support of his
contention.
23. The counsel placed reliance on certain clauses of the License
Agreement, Order Form no. 3 and GTC agreement to submit that
although respondent no. 2 may not have been a signatory to the
agreements, yet it had been entrusted with certain liabilities and
obligations under the agreements entered into between the
petitioner and respondent no. 1, thereby making it a veritable party
to the transaction.
24. In the last, the counsel submitted that as per the decision of the
Constitution Bench of this Court in Cox and Kings Ltd. v. SAP India
Pvt. Ltd. & Anr. reported in 2023 INSC 1051 the court at the stage
of referral is only required to look prima facie into the validity and
existence of an arbitration agreement and should leave the
questions relating to the involvement of the non-signatory to the
arbitral tribunal.
D. SUBMISSIONS ON BEHALF OF THE RESPONDENTS
25. Mr. Ritin Rai, the learned senior counsel appearing on behalf of the
respondents made the following submissions which can be broadly
divided into four categories:
i. Contentions and claims sought to be raised by the petitioner
are pending adjudication before another arbitral tribunal
constituted under the same dispute resolution clause
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• The same contentions and claims as sought to be
advanced in the present petition have already been raised
and are pending adjudication before an arbitral tribunal
constituted under the GTC Agreement. In the said
proceedings, the Bombay High Court appointed an
arbitrator and the same was affirmed by this Court.
• The claims of the petitioner pertaining to the GTC
agreement read with Order Form no. 1 (collectively
referred to as the “Service Agreement”) are already sub-
judice and cannot be permitted to be reagitated. The
petitioner has already filed its counterclaims for an
amount of Rs. 45,99,71,098/- before the arbitral tribunal
presided by Justice Madan B. Lokur (Retd.).
• Allowing parallel arbitration proceedings emanating from
the same agreement and transaction would entail a risk of
conflicting judgments on the same subject matter
including the analogous set of facts in evidence. As such,
the principles of res sub-judice and res judicata would be
attracted to the second arbitration proceedings and
consequently the present petition.
ii. Respondent no. 2 has neither impliedly nor explicitly
consented to the arbitration agreement between the
petitioner and respondent no. 1
• The agreements in question have been executed only
between the petitioner and respondent no. 1. Respondent
no. 2 is not a signatory to any of the agreements between
the petitioner and respondent no. 1.
• Respondent no. 2 has been unnecessarily and
disingenuously made a party to the present proceedings.
Not a single limb of the transaction between the petitioner
and respondent no. 1 was to be performed by or has been
performed by respondent no. 2. Respondent no. 2 was
never part of the negotiation process between the
petitioner and respondent no. 1. Respondent no. 2 did not
by its conduct, agree, either impliedly or explicitly, to be
bound by the terms and conditions of the agreements
between respondent no. 1 and the petitioner.
[2024] 9 S.C.R. 213

Cox & Kings Ltd. v. Sap India Pvt. Ltd. & Anr.
• It is preposterous to suggest that by trying to address the
concerns of a customer of the subsidiary company (who
had voluntarily reached out), respondent no. 2 would
become liable under the contracts executed solely
between the petitioner and respondent no. 1.
• Respondent no. 2 entered the fray only when the
petitioner, of its own accord, approached it and levelled
certain allegations and raised issues concerning the SAP
Hybris Software project with its management in August,
2016.
• There is nothing on record either in the contractual
framework or otherwise to indicate that the project was to
be performed by respondent no. 2. The only
communication with respondent no. 2 in respect of the
SAP Hybris Software project arose after the escalation
emails in August, 2016 where the petitioner itself
requested the management of respondent no. 2 company
to help with the alleged issues plaguing the SAP Hybris
Software project. It was neither the intention of the
petitioner nor that of respondent no. 1 to bind respondent
no. 2 to the agreements.
• The references to respondent no. 2 in the License
Agreement only indicate that respondent no. 1 has
obtained a license from respondent no. 2. No part of the
License Agreement between the petitioner and
respondent no. 1 was to be performed by respondent no.
2 and it is only in such circumstances that the parties
chose not to make respondent no. 2 a party thereto. The
references to respondent no. 2 in the License Agreement
are standard references used by global software licensing
companies. These references cannot bind a foreign
owner of such licenses. Any finding to the contrary would
completely upset the well-established commercial
practice in this sector and would set a dangerous
precedent.
iii. Claims raised by the petitioners are beyond the ambit of
Clause 15.7 of the GTC agreement
• There exists no commonality between the four
agreements entered into between the petitioner and
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respondent no. 1. The contention of the petitioner that the
four agreements form part of a “single composite
transaction” is incorrect as the License Agreement and
Order Form no. 3 bear no significance to the
implementation of the software, which is covered by the
Services Agreement comprising of the
GTC agreement and Order Form no. 1. Implementation is
an exercise de hors the purchase of the license of the
software.
• The claims raised by the petitioner are beyond the ambit
of the Services Agreement. As the License Agreement
read with Order Form no. 3 is distinct and independent
from the Services Agreement, it naturally follows that the
arbitration agreement contained under the GTC
agreement read with Order Form no. 1 does not apply to
the License Agreement read with Order Form no. 3.
• As the arbitration clause under the License Agreement
read with Order Form no. 3 has not been invoked till date
by either of the parties, it stands to reason that any alleged
claims pertaining to the License Agreement read with
Order Form no. 3 as mentioned in the notice of arbitration
are time-barred and cannot be adjudicated upon. On this
ground alone, the present Petition is liable to be
dismissed.
iv. The present petition is not bona fide and the petitioners
have suppressed material facts from this Court
• The present proceedings are a belated and misconceived
attempt on the part of the petitioner to inflate amounts that
it claims are due from respondent no. 1 and respondent
no. 2. This is sought to be done by the petitioner to portray
and provide a false view of its financial position to the
creditors and subvert the due process of law through
colourable actions. The petitioner is indulging in forum-
shopping by once again attempting to appoint an
arbitrator under the GTC agreement, a right which both
the Bombay High Court and this Court, in two separate
lengthy proceedings, under Sections 11 and 14
respectively of the Act, 1996, had decisively held to be
forfeited by the petitioner for all times to come.
[2024] 9 S.C.R. 215

Cox & Kings Ltd. v. Sap India Pvt. Ltd. & Anr.
• The petitioner failed to disclose that respondent no. 1 had
challenged the notice of arbitration before the NCLT,
Mumbai.
E. SUBMISSIONS ON BEHALF OF THE INTERVENOR,
UNCITRAL NATIONAL COORDINATION COMMITTEE FOR
INDIA (UNCCI)
26. Mr George Pothan Poothicote and Ms Manisha Singh, the learned
counsel appearing on behalf of the intervenors in I.A. no. 69863 of
2023, made the following submissions:
i. UNCITRAL Model Law on International Commercial Arbitration
(“model law”) was amended in 2006 to address the concerns about
the formal requirements necessary for constituting an arbitration
agreement. The amendment was adopted by the United Nations
General Assembly vide Resolution 61/33 dated 04.12.2006. Post the
amendment, Article 7 of the model law provides two options to the
member states – the first option requires the arbitration agreement
to be in the form of a clause in a contract or a separate agreement,
both of which must be in writing; the second option is silent on the
requirement of a written agreement and thus the contract law
applicable in a specific jurisdiction remains available for the
determination of the level of consent necessary for a party to
become bound by an arbitration agreement allegedly made by
reference. Section 7 of the Act, 1996 is similar to (but not the same
as) the first option. ii. As per the Constitution Bench decision in Cox
and Kings (supra), the court, at the referral stage, is not bound to
go into the merits of the case to decide if the non-signatory is bound
by the arbitration agreement. On the contrary, the referral court
should leave it to the arbitral tribunal to decide such an issue.
F. ANALYSIS
27. Having heard the learned counsel appearing for the parties and
having gone through the materials on record, the short question that
falls for our consideration is whether the application of the petitioner
for the appointment of an arbitrator deserves to be allowed.
28. On the scope of powers of the referral court at the stage of Section
11(6), it was observed by us in Lombardi Engg. Ltd. v.
Uttarakhand Jal Vidyut Nigam Ltd. reported in 2023 INSC 976 as
follows:
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“26. Taking cognizance of the legislative change, this
Court in Duro Felguera, S.A. v. Gangavaram Port Ltd.
[Duro Felguera, S.A. v. Gangavaram Port Ltd., (2017) 9
SCC 729 : (2017) 4 SCC (Civ) 764], noted that post 2015
Amendment, the jurisdiction of the Court under Section
11(6) of the 1996 Act is limited to examining whether an
arbitration agreement exists between the parties —
“nothing more, nothing less.””
(Emphasis supplied)
29. A Constitution Bench of this Court in In Re: Interplay Between
Arbitration Agreements under the Arbitration and Conciliation
Act, 1996 and the Stamp Act, 1899 reported in 2023 INSC 1066,
speaking through one of us (Dr. D.Y. Chandrachud, CJI), considered
the scope of judicial interference by the referral court in a Section 11
application. A few relevant observations made therein are
reproduced hereinbelow:
“81. One of the main objectives behind the enactment of
the Arbitration Act was to minimise the supervisory role of
Courts in the arbitral process by confining it only to the
circumstances stipulated by the legislature. For instance,
Section 16 of the Arbitration Act provides that the Arbitral
Tribunal may rule on its own jurisdiction “including ruling
on any objection with respect to the existence or validity
of the arbitration agreement”. The effect of Section 16,
bearing in view the principle of minimum judicial
interference, is that judicial authorities cannot intervene in
matters dealing with the jurisdiction of the Arbitral Tribunal.
Although Sections 8 and 11 allow Courts to refer parties
to arbitration or appoint arbitrators, Section 5 limits the
Courts from dealing with substantive objections pertaining
to the existence and validity of arbitration agreements at
the referral or appointment stage. A Referral Court at
Section 8 or Section 11 stage can only enter into a prima
facie determination. The legislative mandate of prima
facie determination ensures that the Referral Courts do
not trammel the Arbitral Tribunal’s authority to rule on its
own jurisdiction.”
30. In a recent decision in SBI General Insurance Co. Ltd. v. Krish
Spinning reported in 2024 INSC 532, it was observed by us that the
[2024] 9 S.C.R. 217

Cox & Kings Ltd. v. Sap India Pvt. Ltd. & Anr.
arbitral tribunal is the preferred first authority to look into the
questions of arbitrability and jurisdiction, and the courts at the
referral stage should not venture into contested questions involving
complex facts. A few relevant paragraphs of the said decision are
extracted hereinbelow:
“98. What follows from the negative facet of arbitral
autonomy when applied in the context of Section 16 is that
the national courts are prohibited from interfering in
matters pertaining to the jurisdiction of the arbitral tribunal,
as exclusive jurisdiction on those aspects vests with the
arbitral tribunal. The legislative mandate of prima facie
determination at the stage of Sections 8 and 11
respectively ensures that the referral courts do not end up
venturing into what is intended by the legislature to be the
exclusive domain of the arbitral tribunal.
xxx xxx xxx
114. In view of the observations made by this Court in In
Re: Interplay (supra), it is clear that the scope of enquiry
at the stage of appointment of arbitrator is limited to the
scrutiny of prima facie existence of the arbitration
agreement, and nothing else. […]
xxx xxx xxx
125. We are also of the view that ex-facie frivolity and
dishonesty in litigation is an aspect which the arbitral
tribunal is equally, if not more, capable to decide upon the
appreciation of the evidence adduced by the parties. We
say so because the arbitral tribunal has the benefit of
going through all the relevant evidence and pleadings in
much more detail than the referral court. If the referral
court is able to see the frivolity in the litigation on the basis
of bare minimum pleadings, then it would be incorrect to
doubt that the arbitral tribunal would not be able to arrive
at the same inference, most likely in the first few hearings
itself, with the benefit of extensive pleadings and
evidentiary material.”
(Emphasis supplied)
31. Further, on the scope of enquiry at the referral stage for the
determination of whether a non-signatory can be impleaded as a
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party in the arbitration proceedings, it was observed by the
Constitution Bench in Cox and Kings (supra) as follows:
“158. Section 16 of the Arbitration Act enshrines the
principle of competence-competence in Indian arbitration
law. The provision empowers the Arbitral Tribunal to rule
on its own jurisdiction, including any ruling on any
objections with respect to the existence or validity of
arbitration agreement. Section 16 is an inclusive provision
which comprehends all preliminary issues touching upon
the jurisdiction of the Arbitral Tribunal. [Uttarakhand Purv
Sainik Kalyan Nigam Ltd. v. Northern Coal Field Ltd.,
(2020) 2 SCC 455 : (2020) 1 SCC (Civ) 570] The doctrine
of competence-competence is intended to minimise
judicial intervention at the threshold stage. The issue of
determining parties to an arbitration agreement goes to
the very root of the jurisdictional competence of the
Arbitral Tribunal.
xxx xxx xxx
160. In Pravin Electricals (P) Ltd. v. Galaxy Infra & Engg.
(P) Ltd. [Pravin Electricals (P) Ltd. v. Galaxy Infra & Engg.
(P) Ltd., (2021) 5 SCC 671 : (2021) 3 SCC (Civ) 307] , a
Bench of three Judges of this Court was called upon to
decide an appeal arising out of a petition filed under
Section 11(6) of the Arbitration Act for appointment of sole
arbitrator. The issue before the Court was the
determination of existence of an arbitration agreement on
the basis of the documentary evidence produced by the
parties. This Court prima facie opined that there was no
conclusive evidence to infer the existence of a valid
arbitration agreement between the parties. Therefore, the
issue of existence of a valid arbitration agreement was
referred to be decided by the Arbitral Tribunal after
conducting a detailed examination of documentary
evidence and crossexamination of witnesses.
161. The above position of law leads us to the inevitable
conclusion that at the referral stage, the Court only has to
determine the prima facie existence of an arbitration
agreement. If the referral court cannot decide the issue, it
should leave it to be decided by the Arbitral Tribunal. The
[2024] 9 S.C.R. 219

Cox & Kings Ltd. v. Sap India Pvt. Ltd. & Anr.
referral court should not unnecessarily interfere with
arbitration proceedings, and rather allow the Arbitral
Tribunal to exercise its primary jurisdiction. In ShinEtsu
Chemical Co. Ltd. v. Aksh Optifibre Ltd. [Shin-Etsu
Chemical Co. Ltd. v. Aksh Optifibre Ltd., (2005) 7 SCC
234], this Court observed that there are distinct
advantages to leaving the final determination on matters
pertaining to the validity of an arbitration agreement to the
Tribunal : (Shin-Etsu Chemical Co. case [Shin-Etsu
Chemical Co. Ltd. v. Aksh Optifibre Ltd., (2005) 7 SCC
234] , SCC p.
267, para 74)
“74. … Even if the Court takes the view that the
arbitral agreement is not vitiated or that it is not
valid, inoperative or unenforceable, based
upon purely a prima facie view, nothing
prevents the arbitrator from trying the issue fully
and rendering a final decision thereupon. If the
arbitrator finds the agreement valid, there is no
problem as the arbitration will proceed and the
award will be made. However, if the arbitrator
finds the agreement invalid, inoperative or void,
this means that the party who wanted to
proceed for arbitration was given an
opportunity of proceeding to arbitration, and the
arbitrator after fully trying the issue has found
that there is no scope for arbitration.”
xxx xxx xxx
164. In case of joinder of non-signatory parties to an
arbitration agreement, the following two scenarios will
prominently emerge: first, where a signatory party to an
arbitration agreement seeks joinder of a non-signatory
party to the arbitration agreement; and second, where a
non-signatory party itself seeks invocation of an arbitration
agreement. In both the scenarios, the referral court will be
required to prima facie rule on the existence of the
arbitration agreement and whether the non-signatory is a
veritable party to the arbitration agreement. In view of the
complexity of such a determination, the referral court
should leave it for the Arbitral Tribunal to decide whether
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the non-signatory party is indeed a party to the arbitration
agreement on the basis of the factual evidence and
application of legal doctrine. The Tribunal can delve into
the factual, circumstantial, and legal aspects of the matter
to decide whether its jurisdiction extends to the non-
signatory party. In the process, the Tribunal should comply
with the requirements of principles of natural justice such
as giving opportunity to the non-signatory to raise
objections with regard to the jurisdiction of the Arbitral
Tribunal. This interpretation also gives true effect to the
doctrine of competence-competence by leaving the issue
of determination of true parties to an arbitration agreement
to be decided by the Arbitral Tribunal under Section 16.
165. In view of the discussion above, we arrive at the
following conclusions:
………
(l) At the referral stage, the referral court should leave it for
the Arbitral Tribunal to decide whether the non-signatory
is bound by the arbitration agreement […]”
(Emphasis supplied)
32. As discussed above, the respondents have raised a number of
objections against the present petition, however, none of the
objections raised question or deny the existence of the arbitration
agreement under which the arbitration has been invoked by the
petitioner in the present case. Thus, the requirement of prima facie
existence of an arbitration agreement, as stipulated under Section
11 of the Act, 1996, is satisfied.
33. Once the arbitral tribunal is constituted, it shall be open for the
respondents to raise all the available objections in law, and it is only
after (and if) the preliminary objections are considered and rejected
by the tribunal that it shall proceed to adjudicate the claims of the
petitioner.
34. Further, on the issue of impleadment of respondent no. 2, which is
not a signatory to the arbitration agreement, elaborate submissions
have been made on both the sides, placing reliance on terms of the
agreements, email exchanges, etc. In view of the complexity
involved in the determination of the question as to whether the
respondent no. 2 is a party to the arbitration agreement or not, we
[2024] 9 S.C.R. 221

Cox & Kings Ltd. v. Sap India Pvt. Ltd. & Anr.
are of the view that it would be appropriate for the arbitral tribunal to
take a call on the question after taking into consideration the
evidence adduced before it by the parties and the application of the
legal doctrine as elaborated in the decision in Cox and Kings
(supra).
35. In view of the aforesaid, the present petition is allowed. We appoint
Shri Justice Mohit S. Shah, former Chief Justice of the High Court of
Judicature at Bombay to act as the sole arbitrator. The fees of the
arbitrator including other modalities shall be fixed in consultation with
the parties.
36. It is made clear that all the rights and contentions of the parties are
left open for adjudication by the learned arbitrator.
37. Pending application(s), if any, shall stand disposed of.

Result of the case: Petition allowed.

Headnotes prepared by: Ankit Gyan

†
 [2024] 9 S.C.R. 218 : 2024 INSC 675

Manilal
v.
The State of Rajasthan & Ors.
(Civil Appeal No. 10440 of 2024)
10 September 2024
[B.R. Gavai and K.V. Viswanathan,* JJ.]

Issue for Consideration

Matter pertains to the appointment of the appellant to the post of
Teacher Grade-III for TSP Area.

Headnotes†

Service law – Appointment – Post of Teacher Grade III Level II

in the Scheduled Area (TSP) – Eligibiity was graduation with
minimum 45% marks and one year Bachelor of Education
([Link]) – However, candidates who had taken admission in
[Link] course after issuance of notification dated 31.8.09 of
National Council for Teacher Education, had to secure
minimum 50 % at graduation level or equivalent examination
– Appellant applied for the post, he had 44.58% marks in his
graduation and had taken admission in the [Link] course on
23.10.2009-after the cut-off date – Appellant, being from the
reserved category, qualifying percentage for admission to the
[Link] Course was 40% marks in graduation (45% for general
category) – Rejection of appellant’s candidature since he had
secured less than 45% marks in his graduation – Appellant
and similarly situated candidate filed writ petitions, which
were dismissed – Appellant then filed an appeal – Meanwhile,
notification by NCTE that minimum percentage of marks in
graduation shall not be applicable to those incumbents who
had already taken admission to [Link] or equivalent course
prior to 29.07.2011 – Interim order passed directing the
respondents to accord appointment to the appellant and
pursuant thereto, the appellant was appointed – However, the
Division Bench relying on a matter, dismissed the appeal, and
thereafter his appointment was cancelled, though the appeal
filed by the similarly situated candidate had already been
allowed:
[2024] 9 S.C.R. 223

Manilal v. The State of Rajasthan & Ors.

* Author
Held: It would be improper to discriminate inter se among a
homogenous group of students admitted for the academic session
2009-10 – It could not be that those students admitted in the first
round of counselling would be eligible, even with less than 50%
marks in graduation, while the others admitted in the subsequent
rounds of counselling would not be – It was on this reasoning that
an identically situated student who had taken [Link] admission after
the appellant, was given relief – One person or situation should be
treated the same as another – Judgment of the High Court is set
aside – Authorities directed to treat the appointment given to the
appellant, pursuant to the interim order of the Division Bench, as
a regular appointment and after reinstating the appellant, grant
him consequential benefits – Rajasthan Panchayati Raj Act, 1994
– Rajasthan Panchayati Raj Rules, 1996. [Paras 15, 16]

Case Law Cited

Neeraj Kumar Rai and Ors. v. State of U.P. and Others [2017] 6
SCR 444 – referred to.

List of Acts
Rajasthan Panchayati Raj Act, 1994; Rajasthan Panchayati Raj
Rules, 1996.

List of Keywords
Appointment; Post of Teacher Gade-III for TSP Area; Graduation
with minimum 45% marks and One year Bachelor of Education
([Link]); Reserved category; Discriminate inter se among
homogenous group of students; Back wages; Fitment of pay.

Case Arising From

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10440 of 2024

From the Judgment and Order dated 27.04.2022 of the High Court
of Judicature for Rajasthan at Jodhpur in DBSAW No. 997 of 2019

Appearances for Parties

Nishant Bishnoi, Saurabh Ajay Gupta, Ms. Srishti Prabhakar, Advs.

for the Appellant.
Divyank Panwar, Milind Kumar, Advs. for the Respondents.
224 [2024] 9 S.C.R.

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Judgment / Order of the Supreme Court
Judgment
K.V. Viswanathan, J.
1. Leave granted.
2. The present appeal calls in question the correctness of the judgment
of the Division Bench of the High Court of Judicature for Rajasthan
at Jodhpur dated 27.04.2022 in D.B. Special Appeal Writ No. 997 of
2019. By the said judgment, the Division Bench dismissed the
appeal of the appellant and confirmed the order dated 27.11.2018 of
the learned Single Judge dismissing the writ petition of the appellant.
3. We have heard Mr. Nishant Bishnoi, learned counsel for the
appellant and Mr. Milind Kumar, learned counsel for the respondent-
State and perused the records of the case. We have also considered
the written submissions filed by the parties.
4. The facts lie in a very narrow compass. The respondent-authorities
under the provisions of the Rajasthan Panchayati Raj Act, 1994 and
the Rajasthan Panchayati Raj Rules, 1996, on 11.09.2017, issued
an advertisement inviting applications for the post of Teacher Grade
III Level II in the Scheduled Area (TSP). A total of 1455 posts were
advertised. The relevant clauses of the advertisement were as
under:-
“6. MINIMUM EDUCATIONAL QUALIFICATIONS:-
Under sub-section (1) of section (23) of the Free and
Compulsory Education Act 2009, the notification of the
National Council of Teacher Education vide notification
dated 23 August 2010 and 29 July 2011 and given by the
Hon’ble High Court in the order of instructions and
according to the notification dated 29.08.2017 of the State
Government, the minimum qualifications and minimum
percentage for various categories to be included in
Rajasthan Teacher Recruitment 2016 (Revised) will be as
follows:
6.1 For Class 6 to 8 (Level-II):
General Education (Class 6 to 8):
A. Graduation and 2-year Diploma in Elementary
Education (by whatever name known) Graduation and 2-
[2024] 9 S.C.R. 225

Manilal v. The State of Rajasthan & Ors.

year Diploma in Elementary Education (by whatever
name known). OR
Graduation with minimum 50% marks and one year
Bachelor in Education ([Link]) Graduation with at least
50% marks and 1-year Bachelor in Education ([Link]). OR
Graduation with minimum 45% marks and One year
Bachelor of Education ([Link]) obtained in accordance with
the National Council for Teacher Education (Recognition
Norms and Procedure) Regulations issued from time to
time in this regard.
OR
Senior Secondary (or its equivalent) with at least 50%
marks and 4 year Bachelor in Elementary Education
([Link]).
OR
Senior Secondary (or its equivalent) with at least 50%
marks and 4-year B.A/[Link]. or [Link]./[Link]. OR
Graduation with minimum 50% marks and one year [Link].
(Special Education)
xxx xxx
“6.3 In seriatim of the judgment dated 20.5.2011 passed
in various petitions by the Division Bench of Hon’ble High
Court, Jodhpur, according to School Education
Department, Rajasthan letter number F 7(1)/Plan/2011
dated 17th June 2011, the following candidates would also
be eligible to participate in Rajasthan High Primary School
Teachers Direct Recruitment 2016 (amended):-
(l) All such candidates who have taken admission in
teacher training courses before issuance of notification
dated 27.09.07 by the National Teachers Education
Council; for them there is no binding to secure minimum
percentage in graduation level or equivalent examination.
(2) All such candidates who have after issuance of
notification dated 27.09.07 by the National Teachers
Education Council; but before issuance of notification
dated 31.8.09, for them it is binding to secure minimum
226 [2024] 9 S.C.R.

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45 percent at graduation level or equivalent examination.
(3) All such candidates who had taken admission in
various teachers training courses after issuance of
notification dated 31.8.09 of National Council for Teacher
Education, for them it is binding to secure minimum 50
percent at graduation level or equivalent examination.”
(Emphasis supplied)
5. The appellant applied for the post of Teacher under the said
advertisement. It is undisputed that the appellant had 44.58% marks
in his graduation. It is also undisputed that the appellant secured
admission in the Bachelor of Education ([Link]) course on 23.10.2009
i.e. the date on which he deposited the fee. This fact is admitted in
the counter affidavit of the State filed before this Court in Para 7 and
in the written submissions filed by the State in Para 1. The appellant,
being admittedly from the reserved category, the qualifying
percentage required for admission to the [Link] Course was 40%
marks in graduation (45% for general category) as is clear from the
12.04.2019 Press Release. The appellant fulfilled this criteria and
obtained admission.
6. When the matter stood thus, the appellant’s name did not appear in
the provisional list of selected candidates despite securing 44.58%
marks, which was way above the cut-off marks. The appellant
contends that he was informed that his candidature was rejected for
the reason that he had secured less than 45% marks in his
graduation.
7. Being aggrieved, the appellant filed S.B. Civil Writ No. 16005 of 2018
and one Rakesh Gaur, who was similarly situated, also filed S.B.
Civil Writ No. 14129 of 2018 [Rakesh Gaur vs. The State of
Rajasthan]. Both the writ petitions were dismissed on 27.11.2018.
Undeterred, the appellant filed D.B. Spl. Appl. Writ No. 997 of 2019.
Rakesh Gaur filed D.B. Spl. Appl. Writ No. 224 of 2019.
8. At this stage, on 13.11.2019, the National Council for Teacher
Education [NCTE] issued a clarification by way of a supplementary
notification which stated that minimum percentage of marks in
graduation shall not be applicable to those incumbents who had
already taken admission to the Bachelor of Education or Bachelor of
Elementary Education or equivalent course prior to 29th July, 2011. It
further stated that the notification of 13.11.2019 was to be made
[2024] 9 S.C.R. 227

Manilal v. The State of Rajasthan & Ors.

applicable from 29.07.2011. The relevant extracts of the notification
is as follows:-
“(B). After clause (b), at the end, the following proviso shall be
inserted namely:
“Provided that minimum percentage of marks in
graduation shall not be applicable to those incumbents
who had already taken admission to the Bachelor of
Education or Bachelor of Elementary Education or
equivalent course prior to the 29th July, 2011.
2. This notification shall be deemed to have come into force on
the 29th July, 2011.
Sanjay Awasthi,
Member Secy
(Advt III/4/ Exty/304/19)
Note: The principal notification was published in the
Gazette of India, Extraordinary, Part III, Section 4, Vide
number [Link]. 61-3/20/2010 NCTE (N & S) dated the 23rd
August, 2010 and was subsequently amended vide
number
[Link]. 61- 1/2011 NCTE (N & S) dated the 29th July, 2011.
Explanatory Memorandum
The amendment notification number [Link]. 61-1/2011
NCTE (N & S) dated the 29th July, 2011 issued by the
National Council for Teacher Education was challenged
before the Supreme Court in the case of Neeraj Kumar
Rai and others Vs. State of U.P. and Ors. in Civil Appeal
No. 9732 of 2017 and the Hon’ble Court vide its order
dated the 25th July, 2017 had directed the National Council
for Teacher Education to issue a clarification by way of a
supplementary notification regarding the percentage of
marks specified therein. Necessary amendment is
required to be made retrospectively from the date of
notification of the said rules. It is certified that none will be
adversely affected by the retrospective effect being given
to the amendment rules.
(Emphasis supplied)
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9. The supplementary notification of 13.11.2019 was a sequel to the
judgment of this Court in Neeraj Kumar Rai and Ors. Vs. State of
U.P. and Others [Civil Appeal No. 9732 of 2017 decided on
25.07.2017].
10. It was noticed by this Court in Neeraj Kumar Rai (supra) that the
2009 Norms and Standards for Secondary Teacher Education
Programme through Open and Distance Learning System leading to
[Link]. did not provide for any minimum percentage of marks in
Bachelor’s degree. Thereafter, this Court noticed that in the NCTE
notification dated 23.08.2010, the requirement of prescribed
percentage of marks in graduation was laid down and on that basis
the said requirement was incorporated in the 29.07.2011 notification.
The appellants in Neeraj Kumar Rai (supra) relying on the
judgments delivered by a Division Bench of the Rajasthan High
Court in D.B. Civil Writ Petition No. 3964 of 2011 etc. [Sushil
Sompura and Ors. Vs. State (Education) and Ors.] and the
learned Single Judge of the Uttarakhand High Court in Writ Petition
No. 772(SS) of 2011 etc. [Baldev Singh and Ors. Vs. State of
Uttarakhand and Ors.] respectively contended that in case the
admission to the [Link]. course had been obtained prior to the
prescription of the minimum qualifying marks by NCTE in Bachelor’s
Degree, the minimum qualifying marks in graduation ought not to be
insisted. Recording the submission of the learned Additional Solicitor
General to the effect that the appellants therein are to be treated on
par, this Court granted relief to the appellants therein on par with the
relief granted by the Rajasthan and Uttarakhand High Courts.
11. Independently, in the matter of State of Rajasthan vs. Ankul
Singhal - D.B. Special Appeal Writ No. 545 of 2020, by an order
dated 08.09.2020, the Division Bench, while dismissing the appeal
of the State, had the following to say insofar as the facts in Ankul
Singhal were concerned:
“Admission to the said post was initiated in terms of
advertisement issued in the month of April, 2009. Eligibility
for admission was 45% marks at graduation level.
Respondent had secured 49.61% marks in his graduation
examination. Respondent cleared the Pre-Shiksha Shastri
test. Counseling for allotment of colleges on merit
cumpreference was notified on 04.07.2009. The
respondent deposited the necessary fee on 07.07.2009.
First round of counseling was held between 31.07.2009
[2024] 9 S.C.R. 229

Manilal v. The State of Rajasthan & Ors.

and 03.08.2009. Second round of counseling was held
between 26.08.2009 and 28.08.2009. As per notification
dated 21.08.2009, respondent was allotted college for
pursuing Shiksha Shastri course 2009-10 and was
admitted on 04.09.2009.
Clauses 9.3(ii) and 9.3(iii) of the advertisement dated
31.07.2018 read as under:
9.3 The Hon’ble High Court of Rajasthan, Jodhpur
Division Bench, in order of judgment dated 20.05.2011
passed in various petitions, according to School
Education Department, Rajasthan letter number F 7(1)
E.E/ Plan/2011 dated 17 June, 2011 and clarification
dated 16.09.2013, the following candidates would be
eligible to participate in Rajasthan Primary and Upper
Primary School Teachers Direct Recruitment, 2018:-
(i) All such candidates who have taken admission in
teacher training courses before issuance of
notification dated 27.09.2007 of the National
Teachers Education Council, they are not obliged to
obtain minimum percentage marks at bachelors level
or equivalent examination.
(ii) All such candidates who have taken admission in
teacher training courses after issuance of notification
dated 27.09.2007 of National Teachers Education
Council but before issuance of notification dated
31.08.2009 in teaching training courses, for them it
is compulsory to obtain minimum 45 percent marks
at graduation level or equivalent examination.
(iii) All such candidates who had taken admission in
teachers training courses after issuance of
notification of National Teachers Education Council
dated 31.08.2009, for them it is compulsory to obtain
minimum 50 percent marks at graduation level or
equivalent examination.
Learned Single Judge rightly observed that the admission
of the respondent in the course would relate back to the
date of admission after the first round of counselling which
took place before 31.08.2009. If that is not so, then an
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absurd classification of homogeneous group of students
admitted in Shiksha Shastri course in the academic
session 2009-10 would arise and the same would have no
nexus to be achieved. Thus, some students in
respondent’s class admitted after first round of counseling
would be eligible, even with less than 50% marks in
graduation, to be appointed as Teacher Grade-III, Level-Il
while the respondent who was also from the same class
and admitted through the same process would not be
eligible for appointment for the reason of less than 50%
marks in graduation.
Learned Single Judge rightly held that the said uneven
and discriminatory situation between equals (students of
Shiksha Shastri class of 2009-10) would be unsustainable
and was liable to be declared ultra vires Article 14 of the
Constitution of India.
Learned Single Judge then rightly drew the conclusion
that Clause 9.3(iii) read with clause 9.3(ii) of the
advertisement dated 31.07.2018 entitling eligibility for
those with 45% marks at graduation who had substantially
undergone the admission process to Shiksha Shastri
course and were allotted college for the purpose before
31.08.2009 though admitted later and the case of the
respondent would fall in the said category as he had taken
admission to Shiksha Shastri course pursuant to
advertisement in April, 2009 when notification dated
27.09.2007 was operative and as per the said notification
eligibility criteria was 45% marks in graduation course.
Hence, the learned Single Judge rightly held that the case
of the respondent was liable to be considered for
appointment as Teacher Grade-III, Level-Il as per his
competitive merit in the category subject to his fulfilling
other requirements eligibility on his application in
pursuance of advertisement dated 31.07.2018.”
(Emphasis supplied)
The Special Leave Petition (C) No. 15793/2020 filed by the State
against the judgment in Ankul Singhal (supra) was dismissed by
this Court on 01.02.2021.
[2024] 9 S.C.R. 231

Manilal v. The State of Rajasthan & Ors.

12. By an order of 23.10.2021, in the appellant’s D.B. Spl. Appl. Writ No.
997 of 2019, relying on the NCTE notification of 13.11.2019, an
interim order was passed directing the respondents to accord
appointment to the appellant on the post of Teacher Gade-III
pursuant to the Advertisement No. 02 of 2017 in question for TSP
Area (English subject), if otherwise eligible. It is not disputed that the
appellant has, pursuant to the interim order was appointed.
Thereafter, it is contended that after the impugned order, the
appellant’s appointment was cancelled on 07.06.2022.
13. On 10.03.2022, the D.B. Spl. Appl. Writ No. 224 of 2019 of Rakesh
Gaur (supra), who was identically situated, was allowed by relying
on the Division Bench judgment in Ankul Singhal (supra). In fact,
the said Rakesh Gaur has taken admission on 05.11.2009, after the
appellant herein.
14. However, when the appeal of the appellant came up on 27.04.2022,
by relying on D.B. Civil Special Appeal (Writ) No. 1205 of 2019
(Dinesh Chandra Damor vs. State of Rajasthan), the appeal was
dismissed. The appellant herein had joined the course on
23.10.2009 whereas as is clear from the facts of Dinesh Chandra
Damor (supra) that candidate has joined on 20.10.2010 i.e. one
year and two months (approx.) after the cut-off date of 31.08.2009.
15. The appellant’s case was more akin to the case of Rakesh Gaur
(supra), who had taken admission on 05.11.2009. We are clearly of
the opinion on the special facts of this case that the Division Bench
erred in applying the case of Dinesh Chandra Damor (supra)
instead of applying the reasoning in the judgment in Ankul Singhal
(supra) and Rakesh Gaur (supra) to the facts of this case. As was
held in Ankul Singhal (supra), it will be improper to discriminate
inter se among a homogenous group of students admitted for the
academic session 2009-10. As was pointed out therein, it could not
be that those students admitted in the first round of counselling
would be eligible, even with less than 50% marks in graduation,
while the others admitted in the subsequent rounds of counselling
would not be. It was on this reasoning that Rakesh Gaur (supra)
was given relief. Rakesh Gaur (supra) was a case identically
situated with the case of the appellant. What is sauce for the goose
should be sauce for the gander too.
16. In view of the same, we allow the appeal and set aside the impugned
judgment of the High Court dated 27.04.2022 in D.B. Spl. Appl. Writ
232 [2024] 9 S.C.R.

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No. 997 of 2019. We direct the respondent-authorities to treat the
appointment given to the appellant, pursuant to the interim order of
the Division Bench dated 23.10.2021, as a regular appointment and
after reinstating the appellant grant consequential benefits. We
direct that except for the period the appellant actually worked, he
shall not be entitled to any back wages. However, fitment of pay shall
be granted. Necessary orders shall be passed within a period of four
weeks from today. No order as to costs.

Result of the case: Appeal allowed.

Headnotes prepared by: Nidhi Jain

†
 [2024] 9 S.C.R. 229 : 2024 INSC 691

Choudappa & Anr.

v.
Choudappa since Deceased by Lrs. & Ors.
(Special Leave Petition (Civil) No. 3056 of 2023)
03 September 2024
[Pankaj Mithal and R. Mahadevan, JJ.]

Issue for Consideration

In 2014, an application purported to be u/s. 141 CPC or under
Order XX Rule 12 CPC was filed by the respondents for the
determination of the mesne profits as directed by the judgment,
order and decree dated 12.07.1973. Whether such an application
is barred by limitation.

Headnotes†

Code of Civil Procedure, 1908 – [Link], r.12 and s.141 – A suit

for recovery of possession and for correction of mutation
entries was filed by respondents in the year 1963 and it was
decreed on 12.07.1973 – The said judgment, order and decree
specifically directs for holding an inquiry regarding mesne
profits from the date of the suit i.e., 24.09.1963 in accordance
with Order XX Rule 12, CPC – Respondents applied for
execution and were put into possession of the suit land
property in the year 2005 – Thereafter, in 2014 an application
was filed by respondents for the determination of the mesne
profits – Petitioners moved an application u/[Link], r.11(d)
CPC contending that such an application was hopelessly
barred by limitation – Application u/[Link], r.11 (d) CPC
rejected by the trial Court – Revision filed against the said
order was dismissed by the High Court – Propriety:
Held: The Court of first instance while passing the judgment and
order dated 12.07.1973 had specifically stated for holding an
inquiry regarding mesne profits from the date of the suit i.e.,
24.09.1963 in accordance with Order XX Rule 12, CPC – Such an
inquiry is nothing but a continuation of the suit and is in the nature
of preparation of the final decree and as such, it cannot be said
that any application moved as a reminder for completing the
inquiry is barred by limitation or is liable to be dismissed on the
234 [2024] 9 S.C.R.

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ground of delay or laches – It is settled that in a situation where no
limitation stands provided either by specific applicability of the
Limitation Act or by the special statute governing the dispute, the
Trial Court must undertake a holistic assessment of the facts and
circumstances of the case to examine the possibility of delay –
When no limitation stands prescribed, it would be inappropriate for
a Court to supplement the legislature’s wisdom by its own and
provide a limitation – No limitation as an absolute rule could be
provided in such matters and it depends upon the facts and
circumstances of each case whether the proceedings have been
initiated in a fairly reasonable time – In the instant case, the two
Courts below having held that the proceedings are not barred by
limitation and that actually the proceedings are not in the nature of
a fresh proceedings, rather than a continuation of the old suit in
the form of a preparation of the final decree – No fault can be found
in the said decisions. [Paras 12, 13, 15, 16, 17]
Case Law Cited
Kattukandi Edathil Krishnan and Anr. v. Kattukandi Edathil Valsan
and Ors. [2022] 7 SCR 1120 : (2022) 16 SCC 71 : AIR Online
2022 SC 2841; M/s. North Eastern Chemicals Industries (P) Ltd.
& Anr. v. M/s. Ashok Paper Mill (Assam) Ltd. & Anr. [2023] 15 SCR
821 [[Link]. 2669 of 2013, dated 11.12.2023 passed by the
Supreme Court] – referred to.
List of Acts
Code of Civil Procedure, 1908.
List of Keywords
Order XX Rule 12 of Code of Civil Procedure, 1908; Mesne profits;
Determination of mesne profits; Limitation; Inquiry regarding
mesne profits; Continuation of old suit; Preparation of final decree;
Reminder for completing inquiry.

Case Arising From

EXTRA-ORDINARY APPELLATE JURISDICTION: Special Leave
Petition (Civil) No. 3056 of 2023
From the Judgment and Order dated 22.07.2022 of the High Court
of Karnataka at Kalaburagi in CRP No. 200017 of 2022
Appearances for Parties
C. Nageswara Rao, Sr. Adv., Vikram Hegde, Chitwan Sharma, Advs.
for the Petitioners.
 Ameet Deshpande, Sr. Adv., Akshat Shrivastava, Satvic Mathur,
Advs. for the Respondent.
[2024] 9 S.C.R. 231

Choudappa & Anr. v. Choudappa since Deceased by Lrs. & Ors.

Judgment / Order of the Supreme Court

Order
Heard learned senior counsel for the parties.
The challenge in the present special leave petition is to the revisional
order dated 22nd July, 2022 passed by the High Court dismissing the
revision of the petitioners arising from the rejection of their
application alleged to have been filed under Order VII Rule 11(d) of
the Code of Civil Procedure, 1908 (for short, ‘C.P.C.’).
A suit for recovery of possession and for correction of mutation
entries was filed by the respondents in the year, 1963 and it was
decreed on 12.07.1973. The said judgment, order and decree
specifically directs for holding an inquiry regarding mesne profits
from the date of the suit i.e., 24.09.1963 in accordance with Order
XX Rule 12, C.P.C. The aforesaid judgment, order and decree of the
Court of first instance attained finality with the dismissal of the appeal
filed by the petitioners in the year, 1980.
The respondents applied for the execution so as to obtain
possession of the suit land sometime in the year, 1993 and after
going through the entire exercise of execution, issuance of warrant
for possession, the respondents were put into possession of the suit
land property in the year, 2005.
It appears that sometime in 2014, an application purported to be
under Section 141 C.P.C. or under Order XX Rule 12 C.P.C. was
filed by the respondents for the determination of the mesne profits
as directed by the judgment, order and decree dated 12.07.1973.
Once such an application was filed, the petitioners moved
application under Order VII Rule 11(d) C.P.C. contending that such
an application is hopelessly barred by limitation and as such, it
should be rejected outright.
The aforesaid application filed under Order VII Rule 11(d) C.P.C. was
rejected by the Trial Court and the revision thereof also met the same
fate at the hands of the High Court. Thus, the Special Leave Petition.
236 [2024] 9 S.C.R.

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Learned counsel for the petitioners has argued that the application
allegedly moved by the respondents for an inquiry for mesne profits
is in the nature of a second execution and since, it has been filed
decades after the decree has attained finality, it is liable to be
dismissed on the ground of limitation.
Learned counsel for the respondents on the other hand contends
that the aforesaid application is not in a nature of a second execution
or in the form of a fresh suit or a plaint, rather it is only a reminder to
the Court to complete the process of inquiry with regard to
determination of mesne profits as has been directed by the Court of
first instance vide judgment and order dated 12.07.1973. The said
proceedings are actually proceedings under Order XX Rule 12
C.P.C. wherein the Court is obliged to hold an inquiry with regard to
determination of the mesne profits from the date of institution of the
suit and till the delivery of the possession.
Admittedly, the said inquiry has not been conducted and completed
and that the law nowhere provides for any specific time limit for
initiation of such proceedings rather the Court is obliged to undertake
this exercise on its own.
In Kattukandi Edathil Krishnan and Anr. Vs. Kattukandi Edathil
Valsan and Ors.,107 the Court while dealing with the matter regarding
a preliminary decree and the final decree in connection with the
decree passed in a suit for partition opined that fundamentally there
is a distinction between a preliminary and a final decree and that
proceedings for final decree can be initiated at any point of time as
there is no limitation for initiation of such proceedings. Either of the
parties to the suit can move an application for preparation of the final
decree or the Court may take action in this regard suo moto. In fact,
after the passing of the preliminary decree, the Trial Court is obliged
to proceed for the preparation of the final decree and should not
adjourn the matter sine die. There is no need to file any separate
application for the preparation of the final decree.
The aforesaid analogy with regard to the preparation of the final
decree pursuant to the preliminary decree for partition can very well
be applied to the cases where a decree is passed with a direction to
hold an inquiry with regard to determination of mesne profits. This is
evident from the plain reading of Order XX Rule 12 C.P.C. For the

107
[2022] 7 SCR 1120 : 2022 (16) SCC 71 : AIR Online 2022 SC 2841
 sake of convenience, Order XX Rule 12 C.P.C. is reproduced herein
below:-
[2024] 9 S.C.R. 233

Choudappa & Anr. v. Choudappa since Deceased by Lrs. & Ors.

“12. Decree for possession and mesne profits.—

(1) Where a suit is for the recovery of possession of
immovable property and for rent or mesne profits, the
Court may pass a decree—
(a) for the possession of the property;
(b) for the rents which have accrued on the property during
the period prior to the institution of the suit or directing an
inquiry as to such rent;
(ba) for the mesne profits or directing an inquiry as to such
mesne profits;
(c) directing an inquiry as to rent or mesne profits from the
institution of the suit until—
(i) the delivery of possession to the decree-holder,
(ii) the relinquishment of possession by the judgment-debtor
with notice to the decree-holder through the Court, or
(iii) the expiration of three years from the date of the decree,
whichever, event first occurs.
(2) Where an inquiry is directed under clause (b) or
clause (c), a final decree in respect of the rent or mesne
profits shall be passed in accordance with the result of
such inquiry.”
It is in the light of the aforesaid provision that the Court of first
instance while passing the judgment and order dated 12.07.1973
had specifically stated as under: -
“An inquiry be held regarding future mesne profits of the
said suit lands from the date of the suit, that is 24-9-1963
under Order 20 Rule 12(a) C.P.C.”
Now, such an inquiry is nothing but a continuation of the suit and is
in the nature of preparation of the final decree and as such, it cannot
238 [2024] 9 S.C.R.

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be said that any application moved as a reminder for completing the
inquiry is barred by limitation or is liable to be dismissed on the
ground of delay or laches.
Learned counsel for the petitioners has placed reliance upon a
recent decision of this Court in M/s. North Eastern Chemicals
Industries (P) Ltd. & Anr. Vs. M/s. Ashok Paper Mill (Assam) Ltd. &
Anr. passed in Civil Appeal No. 2669 of 2013 on 11th December, 2023
to contend that where no limitation is provided, steps ought to be
taken for initiation of proceedings within a reasonable time and not
decades later.
In the aforesaid relied upon decision, the Court has clearly stated
that in a situation where no limitation stands provided either by
specific applicability of the Limitation Act or by the special statute
governing the dispute, the Trial Court must undertake a holistic
assessment of the facts and circumstances of the case to examine
the possibility of delay. When no limitation stands prescribed, it
would be inappropriate for a Court to supplement the legislature’s
wisdom by its own and provide a limitation.
In view of the aforesaid decision also, no limitation as an absolute
rule could be provided in such matters and it depends upon the facts
and circumstances of each case whether the proceedings have been
initiated in a fairly reasonable time.
The two Courts below having held that the proceedings are not
barred by limitation and that actually the proceedings are not in the
nature of a fresh proceedings, rather than a continuation of the old
suit in the form of a preparation of the final decree, we cannot find
fault with the said decisions. We are not inclined to grant any
indulgence in the matter. The present petition is, accordingly,
dismissed.
The petitioners are set at liberty to participate in the inquiry before
the Trial Court in so far as the determination of mesne profits are
concerned.
Pending application(s), if any, shall stand disposed of.

Result of the case: Petition dismissed.

Headnotes prepared by: Ankit Gyan
†

[2024] 9 S.C.R. 235 : 2024 INSC 671

Chalasani Udaya Shankar and others

v.
M/s. Lexus Technologies Pvt. Ltd. and others
(Civil Appeal Nos. 5735-5736 of 2023)
09 September 2024
[Sanjiv Khanna and Sanjay Kumar,* JJ.]

Issue for Consideration

NCLT and NCLAT, if justified in dismissing the company petition by
the appellant seeking rectification of the Register of Members of
respondent No.1-Company by entering their names therein u/ss.
59 and 88 of the Companies Act, 2013, and to initiate action
against respondent Nos. 2, 3 and 4, for oppression and
mismanagement, and criminal proceedings u/ss. 447 and 448 of
the 2013 Act, for committing fraud.

Headnotes†

Companies Act, 2013 – ss. 59 and 88 – Rectification of

registrar of members – Allegations of fraudulent transfer of
shares and mismanagement in the company – Company
petition by the appellant seeking rectification of the Register
of Members of respondent No.1-Company by entering their
names therein u/ss. 59 and 88, and to initiate action against
respondent Nos. 2-4, for oppression and mismanagement, as
also criminal proceedings u/ss. 447 and 448 for committing
fraud – Dismissed by the NCLT – Appeal thereagainst and IA
also dismissed – Correctness:
Held: National Company Law Tribunal exercising jurisdiction u/s.
59 has to examine the factual issues to ascertain the substance of
the issue before it – Expression ‘rectification’ connotes something
that ought to have been done but, by error, was not done, or what
ought not to have been done but was done, requiring correction –
Phrase ‘sufficient cause’ in s. 59 is to be tested in relation to the
statutory mandate thereof-anything done or omitted to be done in
contravention of the Act of 2013 or the Rules framed thereunder –
If, on facts, an open-and-shut case of fraud is made out in favour
240 [2024] 9 S.C.R.

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of the person seeking rectification, the NCLT would be entitled to
exercise such power u/s. 59 – Proper verification of

* Author
the assertions made by the parties was a sine qua non – Acting
President of the NCLT, by failing to carry out the said exercise,
failed to discharge the mandate of law – Exercise of power u/s. 59
is to be undertaken in right earnest by examining the material,
evidence, and the facts on record – This was not done, rather, a
narrow view was taken without calling upon respondent No. 2 to
prove the veracity of the contrary story put forth by him, despite
receiving monies from the appellants – Facts, material, and
evidence had to be examined in the context of the underlying facts,
which would have included the receipt of monies, the signatures
on the transfer deeds, etc. – Questions of fact must be decided on
the principle of preponderance of probabilities, giving due weight
to the specific facts, as found, so as to draw the conclusion that a
reasonable person, acquainted with the relevant field, would draw
on the basis of the same facts – Interim order passed by the
Member (Judicial) of the NCLT indicated, in clear terms, the issues
that arose for consideration and the inquiry required to determine
the same – However, the President of the NCLT ignored the said
interim order, and chose to summarily dismiss the petition, without
considering the material already placed on record and without
further evidence being adduced – Also, the NCLAT did not even
get the facts right – Judgment in Company Petition, in Company
Appeal and I.A. set aside – Company Petition restored to the file
of the NCLT, for consideration afresh on merits and in accordance
with law, upon proper appreciation of evidence – Companies Act,
1956 – s. 155 (s.111A thereafter) – National Company Law
Tribunal Rules, 2016 – r. 70(5).

Case Law Cited

Ammonia Supplies Corporation (P) Ltd. v. Modern Plastic
Containers Pvt. Ltd. and others [1998] Supp. 1 SCR 413 : (1998)
7 SCC 105; High Court of Judicature at Bombay through its
Registrar v. Udaysingh and others [1997] 3 SCR 803 : (1997) 5
SCC 129; Jai Mahal Hotels Private Limited v. Devraj Singh and
others [2015] 11 SCR 323 : (2016) 1 SCC 423; Adesh Kaur v.
Eicher Motors Limited and others [2018] 5 SCR 200 : (2018) 7
SCC 709; Dhulabhai v. State of Madhya Pradesh and another
[1968] 3 SCR 662 – relied on.
Standard Chartered Bank v. Andhra Bank Financial Services
Limited [2006] Supp. 2 SCR 1 : (2006) 6 SCC 94; Shashi Prakash
Khemka (Dead) through legal representatives and another v.
NEPC MICON (Now NEPC India Limited) and others (2019) 18
SCC 569; IFB
242 [2024] 9 S.C.R.

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Agro Industries Limited v. SICGIL India Limited and others [2023]

1 SCR 527 : (2023) 4 SCC 209; Smiti Golyan and others v. Nulon
India Ltd. and others Company Appeal (AT) No. 222 of 2018,
decided on 25.03.2019 – referred to.

List of Acts
Companies Act, 2013; Companies Act, 1956; National Company
Law Tribunal Rules, 2016.

List of Keywords
Company petition; Rectification of the Register of Members;
Oppression and mismanagement; Fraud; Fraudulent transfer of
shares; Rectification; Sufficient cause; Jurisdiction of the civil
court; Verification of the assertions made by parties; Principle of
preponderance of probabilities; Interim order.

Case Arising From

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.5735-5736 of
2023
From the Judgment and Order dated 10.04.2023 of the National
Company Law Appellate Tribunal, Chennai in CA(AT) (CH) No.44 of
2021 and IA No.548 of 2021
Appearances for Parties
Dhruv Mehta, Sr. Adv., P B A Srinivasan, V. Aravind, Keith Varghese,
Ms. Srishti Bansal, Sumit Swami, Ms. Aanchal Pundir, Amit K. Nain,
Advs. for the Appellants.
Mrs. Aishwarya Bhati, A.S.G., Byrapaneni Suyodhan, Ms. Tatini
Basu, Kumar Shashank, Ruchi Kohli, Navanjay Mahapatra, Shiv
Mangal Sharma, Prasenjeet Mahapatra, Ms. BLN Shivani, Amrish
Kumar, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
Sanjay Kumar, J.
1. Orders alike, dismissing their claims, having been passed by the
original and appellate forums, Chalasani Udaya Shankar, Sripathi
Sreevana Reddy and Yalamanchilli Manjusha are in appeal under
[2024] 9 S.C.R. 243

Chalasani Udaya Shankar and others v.

M/s. Lexus Technologies Pvt. Ltd. and other

Section 423 of the Companies Act, 2013 [for brevity, ‘the Act of
2013’].
2. The appellants had approached the National Company Law
Tribunal, Hyderabad/Amaravati Bench [for brevity, ‘the NCLT’], by
way of Company Petition No. 667/59 & 241/HDB/2018, seeking
rectification of the Register of Members of M/s. Lexus Technologies
Pvt. Ltd., Vijayawada, Andhra Pradesh, respondent No.1, by
entering their names therein under Sections 59 and 88 of the Act of
2013, and to initiate action against Mantena Narasa Raju, Appa Rao
Mukkamala and Suresh Anne, respondent Nos. 2,3 and 4, for
oppression and mismanagement, apart from criminal proceedings
under Sections 447 and 448 of the Act of 2013 for committing fraud.
3. Their case, as set out in the Company Petition, was as follows: M/s.
Lexus Technologies Pvt. Ltd. was incorporated under the provisions
of the Companies Act, 1956, on 28.03.2000. Its authorized share
capital was ₹1,50,00,000/-, divided into 15,00,000 equity shares of
₹10/- each. The issued, subscribed and paid-up capital of the
company was ₹1,10,96,230/-, divided into 11,09,623 equity shares
of ₹10 each. The company is in the business of software
development and ancillary activities and it acquired land at
Chinnakakani Village in Guntur District in January, 2002, for
establishing its infrastructure. On 09.03.2004, Mantena Narasa
Raju, respondent No.2, had entered into a share purchase
agreement with one C. Suresh, shareholder of the company, and
acquired 10,51,933 equity shares, representing 94.8% of the equity
share capital of the company. Thereafter, Mantena Narasa Raju and
Appa Rao Mukkamala, respondent Nos. 2 and 3, were appointed as
Directors of the Company on 02.03.2004. Suresh Anne, respondent
No.4, became a Director of the company on 30.09.2004. While so,
on 18.04.2015, the appellants acquired the equity shares held by
Mantena Narasa Raju, respondent No.2, i.e., 10,51,933 equity
shares, by executing Securities Transfer Deeds in Form No. SH-4.
Chalasani Udaya Shankar, appellant No.1, acquired 3,51,933 equity
shares, representing 31.72% of the shareholding, while Sripathi
Sreevana Reddy, appellant No.2, and Yalamanchilli Manjusha,
appellant No.3, acquired 3,50,000 equity shares each, representing
their 31.54% individual shareholding. Share certificates were issued
to them, signed and authenticated by Appa Rao Mukkamala and
244 [2024] 9 S.C.R.

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Suresh Anne, respondent Nos. 3 and 4. The appellants claim to have

paid consideration of ₹14,67,41,557/- to Mantena Narasa Raju,
respondent No.2, towards the acquisition of their shares - Chalasani
Udaya Shankar, appellant No.1, paid ₹4,90,91,557/- while Sripathi
Sreevana Reddy and Yalamanchilli Manjusha, appellant Nos.2 and
3, each paid ₹4,88,25,000/- individually.
4. It is the further case of the appellants that they shared a very
congenial and cordial relationship with Mantena Narasa Raju, Appa
Rao Mukkamala and Suresh Anne, respondent Nos.2, 3 and 4, and
they left the complete managerial control with them despite being the
majority shareholders. They claim that they had no suspicion
whatsoever against the said persons, but due to their failure in
conducting Annual General Meetings during the financial years
2014-15, 2015-16 and 2016-17, the Registrar of Companies struck
off the name of M/s. Lexus Technologies Pvt. Ltd. from the Register
of Companies on 21.07.2017, in exercise of power under Section
248 of the Act of 2013. The appellants claim that, it was only upon
browsing the online portal, they came to know that the said persons
had thereafter filed annual returns and financial statements for the
years in question with false information, by erasing their
shareholding from the records of the company. The appellants allege
that the aforesaid persons committed various acts of oppression with
the intention of grabbing the company property. They, accordingly,
prayed for rectification of the Register of Members of the company,
by entering their names, and to initiate appropriate action against
respondent Nos. 2, 3 and 4. Allegations were also made against V.
Vasudev Reddy, respondent No.5, the Chartered Accountant
associated with the company, to the effect that he was a co-
conspirator and action was sought against him. The appellants also
sought various interim reliefs pending disposal of the Company
Petition. In the first instance, the NCLT directed status quo to be
maintained as regards the company’s assets and invited objections
from the other side.
5. The company, respondent No.1, filed a counter opposing the grant
of interim reliefs. Therein, it contended that the appellants could not
allege oppression and mismanagement as they were not members
of the company and were, in fact, seeking rectification of the Register
of Members in that regard. The transfer of shares, as claimed by the
[2024] 9 S.C.R. 245

Chalasani Udaya Shankar and others v.

M/s. Lexus Technologies Pvt. Ltd. and other

appellants, was denied and, in consequence, their locus to maintain

the company petition was challenged. Issue of limitation was also
raised as the appellants’ claim was that they had acquired the shares
on 18.04.2015 but the company petition was filed only on
09.11.2018, i.e., after the lapse of over three years. The company
alleged that it had received emails from respondent Nos. 3 and 4
stating that
the appellants had forged their signatures on the purported share
certificates and the company asserted that the NCLT would have no
jurisdiction to adjudicate such allegations of fraud and only the
competent civil court could decide the same.
6. A reply was also filed by Mantena Narasa Raju, respondent No.2,
contesting the interim reliefs sought. While reiterating the
contentions of the company in its counter, he disputed the appellants’
ownership of the shares. He asserted that he never sold any shares
to the appellants and that they were complete strangers to him. He
claimed that he had borrowed a sum of ₹5.66 crore from one L.
Ramesh, his friend, who agreed to lend him the money through
banking channels, by arranging for a total sum of ₹14.66 crore, out
of which he would take back ₹9 crore and the balance ₹5.66 crore
could be retained by respondent No.2. He further claimed that L.
Ramesh arranged for his known persons to remit the amounts in his
bank account and it was in this context that the appellants deposited
the total sum of ₹14,66,39,400/- in his account. He further claimed
that he returned the sum of ₹9 crore, as per the instructions of L.
Ramesh, to one Swarna Bhaskar H. (₹7.5 crore) and to one Venkata
Surya R (₹1.5 crore), i.e., in all, ₹9 crore. He further claimed that L.
Ramesh forcibly obtained his signatures on several documents,
including white papers, letter heads, blank non-judicial stamp papers
and green sheets, at that time. He alleged that those blank papers
might have been handed over to the appellants by L. Ramesh and
they fabricated the documents. He pointed out that the share transfer
deeds put forth by the appellants projected a total consideration of
₹14,67,41,557/- , but only the sum of ₹14,66,39,400/- had been
remitted, leaving a balance of ₹1,02,157/-. He also alleged that the
format of the appellants’ share certificates was not that of the
company and the folio numbers therein were different, indicating that
they had been fabricated by the appellants.
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7. The appellants filed separate rejoinders to the replies filed by

respondent Nos. 1 and 2. Therein, they reiterated their claims and
asserted that their petition was within time. They denied the financial
transactions allegedly arranged by L. Ramesh and the alleged
fabrication of documents by them. They pointed out that the
signature of respondent No.2 appeared in the share transfer forms
at the correct place, manifesting that the same were not fabricated
on signed blank papers. As regards the shortfall in the consideration,
they asserted that a portion of the stamp duty on the transfer was to
be borne by respondent No.2 and it was accordingly adjusted,
leading to the lesser sum of ₹14,66,39,465/- being paid.
8. Thereupon, the NCLT, through the Member (Judicial), passed an
interim order on 27.06.2019. Having considered the matter, the
NCLT noted as follows: Respondent No.2 had addressed letter dated
29.12.2014 (Annexure A-1) to the Board of Directors of the company
expressing his intention to sell his shareholding therein. A Board
Meeting was held on 24.01.2015 to consider his request and it was
found that there was no buyer within the existing shareholders who
was willing to purchase the shares of respondent No. 2. This was
stated to have been communicated to respondent No.2 leaving it
open to him to make his own arrangement for sale of his shares to
outsiders. It was in these circumstances that the appellants
purchased the shares of respondent No.2. By e-mail dated
20.04.2015 (Annexure A-4), respondent No.3 sought the approval of
the other shareholders for sale of these shares in favour of the
appellants. A meeting was held on 27.04.2015 in this regard and
share certificates were also issued on the said date to the appellants.
These share certificates were signed by respondent Nos. 3 and 4 as
Directors of the company. It was noted that respondent No. 2 had
contested this claim, by asserting that respondent Nos. 3 and 4 were
not even in India on the said date and that the share certificates were
fabricated. Various discrepancies were pointed out by him in the said
certificates, including absence of the signature of the company
secretary. The NCLT, however, noted that respondent No.2 did not
dispute the receipt of monies from the appellants. Further, the NCLT
also noted that respondent No.2 did not dispute his signatures
appearing in the share certificates and share transfer forms but his
attempt was to explain the same, by claiming that L. Ramesh had
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obtained blank papers from him which had been misused. Noting the
details of the financial transactions sought to be put forth by
respondent No.2 in relation to the receipt of ₹14.66 crore, the NCLT
observed that this aspect needed to be probed as the undisputed
fact remained that the said sum was remitted into the account of
respondent No.2. The NCLT observed that it was necessary to go
into the issue as to whether this amount was actually remitted at the
instance of L. Ramesh as there was no evidence at that point of time
in proof of the claims of respondent No.2 in that regard. The NCLT
noted that it was a question to be enquired into as to whether
respondent No.2 has returned ₹5.66 crore, which he claimed to have
received as a loan, and this was a question to be thoroughly looked
into during a full inquiry. The NCLT further noted that on the strength
of these oral contentions, it was not possible to accept at that stage
that the said monies were given to him only as a loan and not for the
sale of his shares. His further claim that he had signed various blank
papers, judicial stamp papers, letter heads, etc. also required to be
examined at the time of final disposal of the matter. It was noted that
respondent No.2 was a doctor by profession. The NCLT went on to
observe that Form SH-4 was a printed form, as were the share
certificates, and it was not believable that the same could have been
fabricated on signed blank papers. Dealing with the contention that
respondent Nos. 3 and 4 were not even in the country on the date in
question, the NCLT noted that none had appeared on their behalf
and they had not chosen to file any counter in support of the stand
taken by them. As on that date, per the NCLT, respondent No.2 relied
upon the communication allegedly received by him from respondent
Nos. 3 and 4, but the authenticity of the same still remained to be
proved, as respondent Nos. 3 and 4 had not filed any affidavit. The
NCLT also noted that there were conflicting materials produced by
both sides and at that stage, it could not be decided whether the
signatures in the share certificates did not belong to respondent Nos.
3 and 4 and the issue required to be thoroughly examined at the time
of final hearing.
9. Dealing with the issue of limitation, the NCLT observed that the case
of the appellants was that they came to know of their names being
excluded only after the company filed financial accounts and
statements for the years 2014-15, 2015-16 and 2016-17, and the
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petition was filed within three years from the date of such knowledge.
Opining that limitation was a mixed question of fact and law, the
NCLT stated that it needed to be examined at the final hearing stage,
after the parties filed all their documents. The NCLT also rejected the
contention of the respondents that it had no jurisdiction to try the
petition as it involved issues of fraud, etc. The NCLT, therefore,
observed that an interim order restraining the company and
respondent Nos. 2 to 4 from either disposing of or creating
encumbrances over the assets of the company would not affect
either of the parties, pending disposal of the main petition, and
accordingly granted an interim order to that effect.
10. This being the tone and tenor of the NCLT’s interim order, the final
order dated 21.08.2021 passed by the NCLT, dismissing the
Company Petition, makes for an interesting reading. Be it noted that
the interim order was passed by the Member (Judicial) of the NCLT
and the final order came to be passed over two years later by its
Acting President. Significantly, no reference whatsoever was made
to the 46-page interim order in the body of the final order. It is as if
the Acting President of the NCLT was completely oblivious of what
had transpired in the matter earlier, though a passing reference was
made by him to an interim order passed on 22.10.2019, impleading
three more respondents in the Company Petition.
11. Respondent Nos. 1 and 2 again filed counters in the main Company
Petition essentially replicating the stands taken by them in their
earlier counters. The appellants also filed their rejoinder thereto
along with several documents. Having referred to the facts, as set
out in the Company Petition, the Acting President of the NCLT noted
that separate counters had been filed by respondent Nos. 1 and 2,
on the one hand, and by the newly impleaded respondent Nos. 8 to
10, who claimed independent rights in the same shareholding.
Respondent Nos. 3 and 4 had filed Memos adopting the counter filed
by the company, respondent No.1. Perusal of the judgment dated
21.08.2021 reflects that the Acting President of the NCLT extracted
the gist of the pleadings of the parties and went on to reproduce the
caselaw cited by them at great length. His actual findings commence
from paragraph 9 at page 60 of his 67-page order. The points that
fell for consideration were set out by him in paragraph 9.1, which
reads as under:
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‘(1) Whether the Petition filed is well within the time.

(2) Whether purported transfer of shares is in accordance
with the provisions of the Companies Act and in
accordance with clauses of the Articles of Association.
(3) Whether the amount purportedly paid should be
treated as consideration to the shareholders of the
Company, by the Petitioners.
(4) Whether the share certificates purportedly issued to
the Petitioners are genuine.
(5) Whether any relief can be granted to the Petitioners
or whether the petition is maintainable.’
12. On the issue of limitation in point No.1, the Acting President baldly
summed up that filing of the petition by the appellants was an
afterthought and, therefore, the question of limitation did not arise,
as the petition was not filed within the limitation period of three years.
This cryptic approach in para 9.2 was not in keeping with the
observation of the Member (Judicial) of the NCLT in the interim order
that limitation, being a mixed question of law and fact, required to be
examined fully.
13. On point No.2, the Acting President rejected the case of the
appellants, by way of brief para 9.3, completely ignoring the points
set out by the Member (Judicial) in the interim order and the material
placed on record, such as the share transfer forms, share certificates
and emails/ correspondence, which supported the case of the
appellants. His categorical finding that ‘not a single document
existed between the parties to show that there was a transfer of
shares and not a single document was filed to show that the existing
shareholders were given an opportunity to buy the shares’ was
clearly contrary to the material available on record, viz., the emails,
transfer forms, share certificates, etc. No doubt, the genuineness of
these documents required to be verified but without even venturing
to do so, they could not have been dismissed thus.
14. As regards point No.3, the Acting President observed that there was
no covering letter or correspondence to support the claim that the
amount transferred into the account of respondent No.2 was for
purchase of shares. He noted the discrepancy in the sale
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consideration amount to the extent of ₹1,02,157/- and the claim of

respondent No.2 that one L. Ramesh was also involved. He then
went on to surmise that there were some other transactions between
the parties and the company had been entangled in the dispute for
reasons best known to the parties. On that basis, he strangely
concluded that it could not be accepted that the monies transferred
into the account of respondent No.2 were for purchase of shares.
The version put forth by respondent No.2, as rightly pointed out in
the interim order, required to be proved and could not have been
taken to be the truth straightaway in this abrupt and self-serving
manner.
15. As regards point No.4, the Acting President opined that the
appearance of the share certificates was dubious and the numbers
therein were also completely different. He held that, without going
deep into the aspect, it could be concluded that the share certificates
were not genuine and were fabricated. Again, no evidence
whatsoever was led or considered on the issue. Surprisingly so, as
the appellants produced the original share certificates given to them
along with their rejoinder and filed applications for production of the
original record of shareholders of the company and their share
certificates of 2004, Board Resolutions, Minutes of Meetings, etc.
16. On point No.5, the Acting President concluded that the appellants
had failed to prove their case and had not bothered to realize their
rights as shareholders, if at all they had considered themselves to
be so. He observed that the very manner and conduct of the
appellants indicated that the transaction which seems to have taken
place between the parties was completely different, without involving
the company, and for no reason, the company had been entangled
in the dispute. The case of the appellants was held to be fraudulent
in nature and devoid of fact and law. He, accordingly, dismissed the
case with costs of ₹5,00,000/-.
17. Aggrieved by the dismissal of their petition, the appellants
approached the National Company Law Appellate Tribunal, Chennai
Bench (NCLAT), by way of Company Appeal (AT) (CH) No. 44 of
2021. They also filed I.A. No. 548 of 2021 therein for interim relief
pending its disposal. However, the NCLAT dismissed their appeal
and I.A. by judgment dated 10.04.2023. Speaking for the Bench, the
Member (Technical) referred to the facts of the case; the contentions
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of the parties; the points for consideration set out by the NCLT and
its findings thereon. Thereafter, the relevant provisions of the Act of
2013 were extracted at length and again, reference was made to the
contentions of both sides. Having done so, the NCLAT curiously
concluded that L. Ramesh had remitted through his ‘known persons’
the sum of ₹14,66,39,400/- into the bank account of respondent No.
2. The NCLAT then strangely observed as follows:
‘First of all, the money has not been transferred by the
‘Appellants’ in favour of the ‘Respondents’. Secondly, as
admitted in the averments as well as recorded clearly in
the ‘impugned order’ that, Mr. Lingamaneni Ramesh gave
Rs. 14,67,41,557/- and took back Rs. 9 Crores from the
‘Respondents’ as such prima-facie this does not seem to
be a clear transaction of payment of money towards
acquisition of shares and consequently allotment of
shares in favour of the ‘Appellants’ is also not established.’
18. Significantly, the three persons named by the NCLAT in the table in
the very same paragraph as the ‘known persons’ who paid the
monies are none other than appellant Nos. 2 and 3 and Ms. Vahini
Surya Chalasani, the joint-account holder of appellant No. 1.
Therefore, the conclusion of the NCLAT that the money was not
transferred by the appellants was factually incorrect. Further, the
story put forth by respondent No. 2 as to his friend, L. Ramesh,
playing a role in the transaction was taken to be the biblical truth by
the NCLAT though it was very much in dispute and required to be
proved, even as per the interim order passed by NCLT. As regards
the issue of limitation, the NCLAT simply went by the date of
purchase of the shares and the date of the institution of the Company
Petition and concluded that the same was barred by limitation,
without reference to the issue highlighted by the NCLT in its initial
interim order that limitation, being a mixed question of law in fact,
required further examination as to when the clock would start ticking.
The further finding of the NCLAT that the appellants had not
furnished any documentary proof of their claims was equally bereft
of foundation as material had been produced by them, which was
duly taken note of in the NCLT’s interim order, which led it to the
opinion that further inquiry was needed on those aspects. To further
compound the patent lack of application of mind on its part, the
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NCLAT observed that the appellants failed to produce their original

share certificates pursuant to the NCLT’s order dated 18.02.2021,
overlooking the fact that the original share certificates and other
documents were, in fact, filed by the appellants along with their
rejoinder dated 22.03.2021. Concluding that the appellants had
failed to cross the first hurdle of locus, the NCLAT held that they
could not maintain the allegation of oppression and mismanagement
which would be available only to a person who is a member of the
company. The NCLAT accordingly dismissed the appeal and the I.A.
as devoid of merit, leading to the filing of these appeals.
19. IA Nos. 171771 and 168458 of 2023 filed in one of these appeals by
the appellants seeking permission to file additional documents are
allowed and the said documents are taken on record. IA No. 72990
of 2024 is also allowed at the sole risk and peril of the appellants,
permitting deletion of the name of respondent No. 6 from the array
of parties.
20. While ordering notice in these appeals on 01.09.2023, this Court
raised certain questions, which the appellants were required to
answer. The questions read as follows:
‘1. Why, after acquiring the shares, the appellants did not
come on the Board of Directors?
2. Why the appellants did not attend or call upon the
Directors to hold the Annual General Meeting(s)?
3. Why the appellants did not take steps as the annual
accounts were not audited and submitted to them and
with the Registrar of Companies.’
The appellants were directed to file an affidavit dealing with the
aforesaid aspects. Pursuant thereto, Affidavit of Compliance dated
08.12.2023 was filed by the appellants. Therein, apropos the first
query as to why the appellants did not come onto the Board of
Directors after acquiring the shares, they stated that they had
purchased the shares for investment purpose and hence, initially,
they did not take interest in the affairs of the company. They further
stated that they had long-standing business and personal relations
with respondents 3 and 4, who were the Directors of the company,
and in such circumstances, a fiduciary relationship existed between
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them. According to them, they did not come onto the Board of
Directors due to these reasons and trusted that respondents 3 and
4 would continue to run the affairs of the company in accordance
with law.
21. As regards the second query posed by this Court as to why they did
not attend Annual General Meetings or call upon the Directors to
hold such meetings, the appellants stated that the name of the
company was struck off by the Registrar of Companies on
21.07.2017 owing to failure in filing of Annual Returns for the
financial years 2014-15, 2015-16 and 2016-17. It was only on
coming to know of this that the appellants claim to have inquired with
the Directors and were informed that the issue would be settled
shortly. The Directors are stated to have informed them orally that
there was a complaint filed against the Directors and the Auditor of
the company in Machavaram Police Station at Vijayawada on
30.12.2013, by one of the shareholders, and the Directors promised
that all issues would be settled and the Annual Returns would be
updated with the Registrar of Companies along with the names of
the investors. They further stated that they could not file a company
petition when the name of the company was struck off from the rolls
of the Registrar of Companies. They asserted that the name of the
company was restored in August, 2017, but the company filed
Annual Returns for the years 2014-15 to 2016-
17 only on 12.06.2018. It was after this event that the appellants
claim to have found that their names were not in the shareholders’
list and questioned the Directors about such non-inclusion. They
further claim that the Directors assured them that after the police
case was closed, the names of the appellants would be added but
the appellants found out that even after the closure of the case on
30.06.2018, their names were not shown as shareholders. It was in
these circumstances that the company petition was filed before the
NCLT. The appellants asserted that it was due to these reasons that
they could not call for an Annual General Meeting, as they were not
shown as shareholders of the company.
22. In response to the third query as to why they did not take steps when
the annual accounts were not audited and submitted to them or with
the Registrar of Companies, the appellants stated that, as they were
informed that there was a police case against the Auditor of the
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company, they could not take any steps to get the accounts audited
and submitted to them. They further stated that due to the fiduciary
relationship between respondents 2 to 4 and the appellants, they
never suspected that the respondents were not holding Annual
General Meetings and were mis-managing the affairs of the
company. Further, the Directors are stated to have promised that the
issue would be settled and that the Annual Returns would be
updated with the Registrar of Companies and that the investors’
names would be updated. However, despite such assurances by the
Directors, the appellants deemed it prudent to inspect the records of
the company by accessing its master data on the MCA portal in 2017
and were shocked to find that the affairs of the company were being
run contrary to law, as a result of which the name of the company
was struck off by the Registrar of Companies. The appellants also
came to know that their shareholding was not reflected in the
Register of Members and they accordingly filed a composite petition
before the NCLT under Sections 59 and 241 of the Act of 2013.
23. Satisfactory answers having been furnished by the appellants as
aforestated, it would be appropriate at this stage to take note of the
statutory provisions and precedential law relating thereto. Originally,
Section 155 of the Companies Act, 1956, dealt with rectification
proceedings in connection with entry of names in the Register of
Members of a company. Section 155 was omitted with effect from
31.05.1991. Section 111 and Section 111-A were inserted in the
Companies Act, 1956, with effect from 31.05.1991 and 20.09.1995
respectively. These provisions corresponded to erstwhile Section
155. Presently, Section 59 of the Act of 2013 and Rule 70(5) of the
National Company Law Tribunal Rules, 2016, deal with rectification.
Rule 70(5) is in pari materia with Section 111(7) of the Companies
Act, 1956.
24. In Ammonia Supplies Corporation (P) Ltd. vs. Modern Plastic
Containers Pvt. Ltd. and others, 108 the short question for
consideration was framed thus by this Court: ‘Whether in the
proceedings under Section 155 of the Companies Act, 1956, the
Court has exclusive jurisdiction in respect of all the matters raised
therein or has only summary jurisdiction?’ It was observed that the

108
[1998] Supp. 1 SCR 413 : (1998) 7 SCC 105
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very word ‘rectification’ in Section 155 of the Companies Act, 1956,

connotes something that ought to have been done but by error was
not done or ought not to have been done but was done, requiring
correction. It was held that the Court has discretion to find out
whether the dispute raised is really for rectification or is of such a
nature that, unless decided first, it would not come within the purview
of rectification. It was further held that, if it is truly a case of
rectification, all matters raised in that connection should be decided
under Section 155, but if it finds adjudication of any matter not falling
under it, the Court may direct a party to get his right adjudicated by
a civil court. Noting that there was nothing in the Companies Act,
1956, expressly barring the jurisdiction of the civil court, it was
observed that where the ‘Court’ as defined under the Act is
exercising its powers under various sections, where it has been
vested with exclusive jurisdiction, the jurisdiction of the civil court is
impliedly barred. It was, therefore, held that to the extent the ‘Court’
has exclusive jurisdiction under Section 155, the jurisdiction of the
civil court is impliedly barred. But for what is not covered as
aforesaid, the civil court would have jurisdiction. Noting that the
jurisdiction of the ‘Court’ under Section 155 is summary in nature, it
was held that it would be appropriate for the ‘Court’ to see for itself
whether any document alleged to be forged is said to be so, only to
exclude the jurisdiction of the ‘Court’ or it is genuinely so. As the High
Court, exercising jurisdiction under Section 155 of the Companies
Act, 1956, had not examined the case in this light, this Court
remanded the matter to the High Court for decision afresh.
The observations in paragraph 26 of the judgment are of relevance
in this regard and are extracted below:
“26. The proviso gave discretion to the court to direct an
issue of law to be tried, if raised. By this deletion,
submission is that the Company Court now itself has to
decide any question relating to the rectification of the
Register including the law and not to send one to the civil
court. There could be no doubt any question raised within
the peripheral field of rectification, it is the court under
Section 155 alone which would have exclusive
jurisdiction. However, the question raised does not rest
here. In case any claim is based on some seriously
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disputed civil rights or title, denial of any transaction or any

other basic facts which may be the foundation to claim a
right to be a member and if the court feels such claim does
not constitute to be a rectification but instead seeking
adjudication of basic pillar some such facts falling outside
the rectification, its discretion to send a party to seek his
relief before the civil court first for the adjudication of such
facts, it cannot be said such right of the court to have been
taken away merely on account of the deletion of the
aforesaid proviso. Otherwise under the garb of
rectification one may lay claim of many such contentious
issues for adjudication not falling under it. Thus in other
words, the court under it has discretion to find whether the
dispute raised is really for rectification or is of such a
nature that unless decided first it would not come within
the purview of rectification. The word “rectification” itself
connotes some error which has crept in requiring
correction. Error would only mean everything as required
under the law has been done yet by some mistake the
name is either omitted or wrongly recorded in the Register
of the company. ...”
25. In Standard Chartered Bank vs. Andhra Bank Financial Services
Limited,109 a 3-Judge Bench of this Court affirmed the view taken in
Ammonia Supplies Corporation (P) Ltd. (supra) that the
jurisdiction exercised by a Company Court under Section 155 of the
Companies
Act, 1956 (Section 111, thereafter), was somewhat summary in
nature and that, if a seriously disputed question of title arose, the
Company Court should relegate the parties to a suit, which was the
more appropriate remedy for investigation and adjudication of such
seriously disputed questions of title.
26. In Jai Mahal Hotels Private Limited vs. Devraj Singh and
others, 110 this Court again held that issues which truly relate to
‘rectification’ of the Register fall within the summary jurisdiction of
the Company Law Board and only complex questions of title fall

109
[2006] Supp. 2 SCR 1 : (2006) 6 SCC 94
110
[2015] 11 SCR 323 : (2016) 1 SCC 423
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outside its jurisdiction. It was observed that there is a thin line in

appreciating the scope of jurisdiction of the Company Court and the
jurisdiction is exclusive, if the matter truly relates to ‘rectification’, but
if the issue is alien to ‘rectification’, such matter may not be within
the exclusive jurisdiction of the Company Court.
27. In Adesh Kaur vs. Eicher Motors Limited and others,111 this Court
found, on facts, that it was an open-and-shut case of fraud, in which
the appellant who had applied for rectification had been the victim,
and held that the appellate tribunal was not correct in relegating the
appellant to the civil court on the ground that a criminal complaint
and a SEBI investigation were pending and in holding that it was not
proper for the National Company Law Tribunal to exercise power to
rectify the Register under Section 59 of the Companies Act, 2013.
28. In Shashi Prakash Khemka (Dead) through legal
representatives and another vs. NEPC MICON (Now NEPC India
Limited) and others,112 this Court again had occasion to deal with
exercise of power under Section 111-A of the Companies Act, 1956.
The Company Law Board’s view had been reversed by the Madras
High Court in appeal, whereby the appellants were relegated to the
remedy of a civil suit in relation to the issue raised qua the transfer
of shares. This Court took note of the earlier judgment in Ammonia
Supplies Corporation (P) Ltd. (supra) but noted that Section 430
of the Act of 2013 barred the jurisdiction of the civil court and opined
that the effect thereof is that, in matters in respect of which power
has been conferred on the National Company Law Tribunal, the
jurisdiction
of the civil court is completely barred. This Court observed that it is
not in dispute that, were a dispute to arise today, remedy of a civil
suit would be completely barred and the power would vest with the
National Company Law Tribunal under Section 59 of the Companies
Act, 2013. Noting that the cause of action in that case had arisen at
a stage prior to enactment of the Act of 2013, this Court was of the
view that relegating the parties to a civil suit would not be the

111
[2018] 5 SCR 200 : (2018) 7 SCC 709
112
(2019) 18 SCC 569
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appropriate remedy, considering the manner in which Section 430 of

the Act of 2013 was widely worded.
29. Shashi Prakash Kemka (supra) was followed by the National
Company Law Appellate Tribunal, New Delhi, in Smiti Golyan and
others vs. Nulon India Ltd. and others113 whereby, the decision of
the National Company Law Tribunal, Principal Bench, in relation to
rectification proceedings was upheld without relegating the parties
to the civil court. Civil Appeal No. 4639 of 2019 filed before this Court
against Smiti Golyan (supra) was dismissed on 03.07.2019 and this
Court observed that the findings recorded by the National Company
Law Appellate Tribunal were absolutely proper and no ground was
made out to interfere with the same.
30. Thereafter, in IFB Agro Industries Limited vs. SICGIL India
Limited and others,114 this Court considered the appropriate forum
for adjudication and determination of violations and consequential
action thereon under the Securities and Exchange Board of India
(Substantial Acquisition of Shares and Takeovers) Regulations,
1997, and the Securities and Exchange Board of India (Prohibition
of Insider Trading) Regulations, 1992. It was observed that the
Securities and Exchange Board of India (SEBI) was conferred with
regulatory jurisdiction, which included ex-ante powers to predict
possible violations and take preventive measures. This Court held
that the role of SEBI as a regulator could not be circumvented by
applying for rectification under Section 111-A of the Act of 1956 and
that, such an approach would be impermissible as scrutiny and
examination of a transaction allegedly conducted in violation of the
Regulations has to be processed through the rules and remedies
provided in the Regulations themselves. This Court emphasized that
when Constitutional Courts are called upon to interpret provisions
affecting exercise of powers and jurisdiction by regulatory bodies, it
is the duty of the Court to ensure that transactions falling within the
province of the regulators are necessarily subjected to their scrutiny
and regulation. It was pointed out that this would ensure that the
regulatory body charged with the duty to protect the consumers has
real-time control over the sector, thereby realizing the purpose of its

113
Company Appeal (AT) No. 222 of 2018, decided on 25.03.2019
114
[2023] 1 SCR 527 : (2023) 4 SCC 209
[2024] 9 S.C.R. 259

Chalasani Udaya Shankar and others v.

M/s. Lexus Technologies Pvt. Ltd. and other

constitution. It was, therefore, held that the purpose of these

regulations could not be short-circuited by making an application to
the Company Court under Section 111-A of the Act of 1956, on the
ground that the provision bestowed jurisdiction parallel to the SEBI.
It is in this context that this Court, in IFB Agro Industries Limited
(supra), examined Sections 155 and 111-A of the Act of 1956 and
Section 59 of the Act of 2013. The judgment heavily relied upon and
extensively quoted from the earlier judgment in Ammonia Supplies
Corporation (P) Ltd. (supra), which we have already referred to
hereinabove and also quoted.
31. The judgment in Ammonia Supplies Corporation (P) Ltd. (supra),
as noted, states that the provisions relating to rectification give
discretion to the Company Court to examine whether, under the garb
of rectification, one is laying claim for an adjudication of such
contentions and issues which do not fall within the realm of
‘rectification’ and consequently, within the jurisdiction of the
Company Court. However, if the Company Court finds that the
dispute relates to the field of ‘rectification’ or its peripheral aspects,
it will have exclusive jurisdiction to address the claim under Section
155 of the Act of 1965. When the Court is, however, of the opinion
that the contentious issues that are raised before it for adjudication
do not fall within that sphere and, in consequence, its jurisdiction
under that provision, the power of rectification should not be
exercised. Thus, if the application for rectification, in effect, includes
projected claims which do not come within the purview of rectification
and the Company Court feels that the civil court/regulatory body
would be the more appropriate forum, jurisdiction under Section 155
of the Act of 1965 would not be exercised.
32. This would mean that the National Company Law Tribunal exercising
jurisdiction under Section 59 of the Act of 2013 has to examine the
factual issues to ascertain the substance of the issue before it after
removing the cloak of the form of the application. The expression
‘rectification’, as already pointed out, connotes something that ought
to have been done but, by error, was not done, or what ought not to
have been done but was done, requiring correction. The phrase
‘sufficient cause’ in Section 59 of the Act of 2013 is to be tested in
relation to the statutory mandate thereof, i.e., anything done or
260 [2024] 9 S.C.R.

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omitted to be done in contravention of the Act of 2013 or the Rules

framed thereunder.
33. Significantly, the earlier decision in Shashi Prakash Khemka
(supra) had concluded that the jurisdiction of the civil court would be
barred by referring to the provisions of Section 430 of the Act of
2013. Neither this provision nor this decision was noticed by this
Court in IFB Agro Industries Limited (supra). However, it would be
wrong to hold that, for the said reason, there is a conflict between
these two decisions. The jurisdiction of the civil court or for that
matter, any other forum, would be barred only when the subject
matter of the dispute squarely falls within the domain and jurisdiction
of the court/ forum constituted under the provisions of the Act of
1956/Act of 2013. When and where the Act of 1956/Act of 2013 does
not confer such exclusive jurisdiction on the court/forum constituted
thereunder or the dispute falls outside the realm of that particular
provision of the Act of 1956/Act of 2013, the jurisdiction of the civil
court would not be completely barred (See Dhulabhai vs. State of
Madhya Pradesh and another 115). Notably, the edict in Ammonia
Supplies Corporation (P) Ltd. (supra) was also to this effect and it
was followed and affirmed in the decisions that followed thereafter.
In Adesh Kaur (supra), this Court observed that if, on facts, an open-
and-shut case of fraud is made out and the person seeking
rectification was the victim, the National Company Law Tribunal
would be entitled to exercise such power under Section 59 of the Act
of 2013. This Court rejected the contention that, as criminal
proceedings had been initiated, there was a serious dispute and it
was not correct for the National Company Law Tribunal to exercise
power under Section 59 of the Act of 2013. The contention that the
shares had been dematted and were in the name of another person
and, therefore, the power of rectification should not have been
exercised, was also rejected.
34. In the present case, proper verification of the assertions made by the
parties was a sine qua non. The Acting President of the NCLT, by
failing to carry out the said exercise, failed to discharge the mandate
of law. Exercise of power under Section 59 of the Act of 2013 is to
be undertaken in right earnest by examining the material, evidence,

115
[1968] 3 SCR 662
[2024] 9 S.C.R. 261

Chalasani Udaya Shankar and others v.

M/s. Lexus Technologies Pvt. Ltd. and other

and the facts on record. This has not been done. Rather, a narrow
view was taken without calling upon respondent No. 2 to prove the
veracity of the contrary story put forth by him, despite receiving
monies from the appellants. The facts, material, and evidence had
to be examined in the context of the underlying facts, which would
have included the receipt of monies, the signatures on the transfer
deeds, etc. Needless to state, questions of fact must be decided on
the principle of preponderance of probabilities, giving due weight to
the specific facts, as found, so as to draw the conclusion that a
reasonable person, acquainted with the relevant field, would draw
on the basis of the same facts. (See High Court of Judicature at
Bombay through its Registrar vs. Udaysingh and others 116).
35. Neither the Acting President of the NCLT nor the NCLAT examined,
with any seriousness, the issues raised before them to come to a
cogent conclusion as to whether the disputes raised by the
respondents were mere moonshine. Notably, in Ammonia Supplies
Corporation (P) Ltd. (supra), this Court held to that effect in the
context of Section 155 of the Companies Act, 1956. Thereafter, in
Aadesh Kaur (supra) also, this Court affirmed that if, on facts, an
open-and-shut case of fraud is made out in favour of the person
seeking rectification, the National Company Law Tribunal would be
entitled to exercise such power under Section 59 of the Act of 2013.
Therefore, verification of this aspect was essential but the NCLT
failed to discharge this mandate.
36. Another crucial fact that needs to be noted is that the interim order
passed on 27.06.2019 by the Member (Judicial) of the NCLT had
indicated, in clear terms, the issues that arose for consideration and
the inquiry required to determine the same. However, ignoring the
said interim order, the Acting President of the NCLT chose to
summarily dismiss the petition, without considering the material
already placed on record and without further evidence being
adduced. The documents that were referred to and attached to the
Company Petition and the appellants’ rejoinder were glossed over
or were completely ignored. Compounding the error of the Acting
President of the NCLT, the NCLAT did not even get the facts right.

116
[1997] 3 SCR 803 : (1997) 5 SCC 129
262 [2024] 9 S.C.R.

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Production of the original share certificates by the appellants and

their argument, relying on Section 46 of the Act of 2013, that the
signatures thereon by two Directors was sufficient in the eye of law,
was totally lost sight of by the NCLAT. Further, the NCLAT blindly
accepted the story put forth by respondent No. 2 to such an extent
that it totally overlooked the fact that it was the appellants who had
paid ₹14,66,39,400/- to respondent No. 2. Neither the NCLT nor the
NCLAT chose to labour over the actual issues for consideration by
looking at the documentary evidence already placed on record or by
calling for further evidence in that regard.
37. On the above analysis, these appeals deserve to be and are,
accordingly, allowed. The judgment in Company Petition No. 667/59
& 241/HDB/2018 and the judgment in Company Appeal (AT) (CH)
No. 44 of 2021 & I.A. No. 548 of 2021 are set aside. Company
Petition No. 667/59 & 241/HDB/2018 is restored to the file of the
National Company Law Tribunal, Amaravati Bench, for consideration
afresh on merits and in accordance with law, upon proper
appreciation of evidence. Given the passage of time since the
institution of the petition, we would request the National Company
Law Tribunal, Amaravati Bench, to give priority to the same and
endeavour to dispose it of as expeditiously as possible.
Pending I.A.s, if any, shall stand disposed of.
Parties shall bear their own costs.

Result of the case: Appeals allowed.

Headnotes prepared by: Nidhi Jain

†
 [2024] 9 S.C.R. 257 : 2024 INSC 669

Dhanraj Aswani
v.
Amar S. Mulchandani & Anr.
(Criminal Appeal No. 2501 of 2024)
09 September 2024
[Dr. Dhananjaya Y. Chandrachud, CJI, J.B.
Pardiwala* and Manoj Misra, JJ.]

Issue for Consideration

Whether an application for anticipatory bail under Section 438 of
the Code of Criminal Procedure, 1973 is maintainable at the
instance of an accused while he is already in judicial custody in
connection with his involvement in a different case.

Headnotes†

Code of Criminal Procedure, 1973 – s.438 – Accused already

in judicial custody in connection with one case, if can apply
for anticipatory bail in a different case – Maintainability of
such anticipatory bail applications – Divergent opinions
expressed by different High Courts:
Held: An anticipatory bail application filed at the instance of an
accused already in judicial custody in a different offence is
maintainable – An accused is entitled to seek anticipatory bail in
connection with an offence so long as he is not arrested in relation
to that offence – Once he is arrested, the only remedy available to
him is to apply for regular bail either u/s.437 or s.439, as the case
may be – There is no express or implied restriction in the CrPC or
in any other statute that prohibits the Court of Session or the High
Court from entertaining and deciding an anticipatory bail
application in relation to an offence, while the applicant is in
custody in relation to a different offence – No restriction can be
read into s.438 to preclude an accused from applying for
anticipatory bail in relation to an offence while he is in custody in a
different offence, as that would be against the purport of the
provision and the intent of the legislature – The only restriction on
the power of the court to grant anticipatory bail u/s.438 is the one
prescribed u/s.438(4) and in other statutes like the Scheduled
264 [2024] 9 S.C.R.

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Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989,
etc. – While a person already

* Author
in custody in connection with a particular offence apprehends
arrest in a different offence, then, the subsequent offence is a
separate offence for all practical purposes – Thus, all rights
conferred by the statute on the accused as well as the
investigating agency in relation to the subsequent offence are
independently protected – For the purpose of
interrogation/investigation in an offence, the investigating agency
can seek remand of the accused whilst he is in custody in
connection with a previous offence so long as no order granting
anticipatory bail has been passed in relation to the subsequent
offence – Under s.438, the pre-condition for a person to apply for
pre-arrest bail is a “reason to believe that he may be arrested on
an accusation of having committed a non-bailable offence” –
Therefore, the only pre-condition for exercising the said right is the
apprehension of the accused that he is likely to be arrested –
Custody in one case does not have the effect of taking away the
apprehension of arrest in a different case – Right of an accused to
protect his personal liberty u/Article 21 of the Constitution of India
with the aid of the provision of anticipatory bail u/s.438 cannot be
defeated or thwarted without a valid procedure established by law
– Such procedure should also pass the test of fairness,
reasonableness and manifest non-arbitrariness u/Article 14.
[Paras 60, 66]
Code of Criminal Procedure, 1973 – s.46 – ‘Arrest how made’–
“reason to believe” – Prisoner Transit Warrant (P.T. Warrant)
u/s.267 – “other proceedings” – Whether a person, while in
custody for a particular offence, can have a “reason to
believe” that he may be arrested in relation to some other
non-bailable offence – High Court of Rajasthan in Sunil
Kallani reasoned that once a person is taken in custody in
relation to an offence, thereafter it is not possible to arrest
him in relation to a different offence as one of the essential
conditions for arrest is placing the body of the accused in
custody of the police authorities by means of actual touch or
confinement – As there cannot be any actual touch or
confinement while a person is in custody, he cannot have a
“reason to believe” that he may be arrested in relation to a
different offence:
[2024] 9 S.C.R. 265

Dhanraj Aswani v. Amar S. Mulchandani & Anr.

Held: Such view not agreed with – There are two fundamental
fallacies in the reasoning adopted by the Rajasthan High Court –
First, the High Court failed to consider the possibility of arrest of
the person in custody in relation to a different offence immediately
after he is set free from the custody in the first offence – The
second fallacy in the reasoning of the High Court is that there can
be no arrest of an accused in relation to a different offence while
he is already in custody in relation to some offence – Ways by
which a person who is already in custody may be arrested,
enumerated – Incorrect to hold that a person, while in custody,
cannot have a “reason to believe” that he may be arrested in
relation to a different offence – Though a plain reading of s.46
makes it clear that arrest involves actual touch or confinement of
the body of the person sought to be arrested however, arrest can
also be effected without actual touch if the person sought to be
arrested submits to the custody by words or action – A lawful arrest
can be made even without actually seizing or touching the body –
Actions or words which successfully bring to the notice of the
accused that he is under a compulsion and thereafter cause him
to submit to such compulsion will also be sufficient to constitute
arrest – This is in conformity with the modality of the arrest
contemplated u/s.46 – Procedure followed in cases where a
person already in custody is required to be arrested in relation to
a different offence, explained – When a person in custody is
confronted with a P.T. Warrant obtained in relation to a different
offence, such a person has no choice but to submit to the custody
of the police officer who has obtained the P.T. Warrant – Thus,
although there is no confinement to custody by touch, yet there is
submission to the custody by the accused based on the action of
the police officer in showing the P.T. Warrant to the accused –
Thereafter, on production of the accused before the jurisdictional
Magistrate, like in the case of arrest of a free person who is not in
custody, the accused can either be remanded to police or judicial
custody, or he may be enlarged on bail and sent back to the
custody in the first offence – s.267 can be invoked to require
production of the accused before the jurisdictional Magistrate, who
can thereafter remand him to the custody of the investigating
agency – Such an interpretation of the provision would give true
effect to the words “other proceedings” as they appear in s.267,
which cannot be construed to exclude proceedings at the stage of
investigation – Contrary to the view taken by the Rajasthan,
Allahabad and Delhi High Courts, a person, while in custody in
relation to an offence, can be arrested in relation to a different
266 [2024] 9 S.C.R.

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offence, either after getting released from custody in the first
offence, or even while remaining in custody in the first offence.
[Paras 38, 40-42, 46, 49, 51-53]

Arrest – Subsequent arrest – Effect on accused – Plea of the

appellant that as the object of s.438, CrPC was to prevent an
accused from the humiliation of arrest, its protection would
not include within its ambit a person who is already in
custody:
Held: Rejected – Each arrest a person faces compounds their
humiliation and ignominy – Each subsequent arrest underscores
a continued or escalating involvement in legal troubles that can
erode the dignity of the person and their public standing – When a
subsequent arrest occurs, it intensifies the emotional and social
burden, amplifying the perception of their criminality and
reinforcing negative judgments from society – Subsequent arrest
in relation to different offences, while the individual is in custody in
a particular offence, further alienates the individual from their
community and adversely affects their personal integrity – Each
additional arrest exacerbates the person’s shame making the
cumulative impact of such legal entanglements increasingly
devastating. [Para 58]
Criminal Law – Procedural laws – Rights conferred under –
Importance – Discussed.
Code of Criminal Procedure, 1973 – s.438 – Anticipatory bail –
Concept – Evolution – Discussed.

Case Law Cited

Narinderjit Singh Sahni v. Union of India [2001] Supp. 4 SCR 114
: (2002) 2 SCC 210 – distinguished.
Sunil Kallani v. State of Rajasthan (2021) SCC OnLine Raj 1654;
Rajesh Kumar Sharma v. CBI (2022) SCC OnLine All 832; Bashir
Hasan Siddiqui v. State (GNCTD) (2023) SCC OnLine Del 7544 –
disapproved.
Kartar Singh v. State of Punjab [1994] 2 SCR 375 : (1994) 3 SCC
569; Gurbaksh Singh Sibbia v. State of Punjab [1980] 3 SCR 383
: (1980) 2 SCC 565; Sushila Aggarwal v. State (NCT of Delhi)
[2020] 2 SCR 1 : (2020) 5 SCC 1; Prathvi Raj Chauhan v. Union
of India [2020] 2 SCR 727 : (2020) 4 SCC 727; Siddharam
Satlingappa Mhetre v. State of Maharashtra and Others [2010] 15
SCR 201 : (2011) 1 SCC 694; Central Bureau of Investigation
[2024] 9 S.C.R. 267

Dhanraj Aswani v. Amar S. Mulchandani & Anr.

Special Investigation Cell-I New Delhi v. Anupam J. Kulkarni
[1992] 3 SCR 158 : (1992) 3 SCC 141; Tejesh Suman v. State of
Rajasthan (2023) SCC OnLine SC 76; State of U.P. v. Deoman
Upadhyaya [1961] 1 SCR 14 : AIR (1960) SC 1125; Tusharbhai
Rajnikantbhai Shah v. State of Gujarat [2024] 8 SCR 235 : (2024)
SCC OnLine SC 1897; A.R. Antulay v. R. S. Nayak [1988] Suppl.
1 SCR 1 : (1988) 2 SCC 602; State of West Bengal v. Anwar Ali
Sarkar [1952] 1 SCR 284 : (1952) 1 SCC 1 – referred to.
Alnesh Akil Somji v. State of Maharashtra (2021) SCC OnLine
Bom 5276; Sanjay Kumar Sarangi v. State of Odisha (2024) SCC
OnLine Ori 1334; Amir Chand v. The Crown (1949) SCC OnLine
Punj 20; S. Harsimran Singh v. State of Punjab (1984) Cri LJ 253;
State v. K.N. Nehru (2011) SCC OnLine Mad 1984; Roshan Beevi
and others v. Joint Secretary to Government of Tamil Nadu and
others (1983) SCC OnLine Mad 163; C. Natesan v. State of Tamil
Nadu and Others (1998) SCC OnLine Mad 931; Ranjeet Singh v.
State of Uttar Pradesh (1995) Cri LJ 3505; State of Maharashtra
v. Yadav Kohachade (2000) Cri LJ 959 – referred to.
Alderson v. Booth (1969) 2 All ER 271 – referred to.

Books and Periodicals Cited

Law Commission’s 48th Report (1972); Law Commission’s 41st
Report; Black’s Law Dictionary (5th Edition, 1979) – referred to.

List of Acts
Code of Criminal Procedure, 1973; Constitution of India.

List of Keywords
Section 438 of the Code of Criminal Procedure, 1973; Anticipatory
bail; Police custody; Judicial custody; Accused already in judicial
custody; Anticipatory bail in a different case; “reason to believe”;
Arrest; Subsequent arrest; Custody; Regular bail; Arrest
apprehended; Apprehension of arrest; Apprehension of arrest in a
different case/offence; Likely to be arrested; First offence; Custody
in the first offence; Different offence; Subsequent offence; Remand
of the accused; Previous offence; Pre-condition for pre-arrest bail;
Arrest in relation to some other non-bailable offence; Actual touch
or confinement; Formal arrest; Possibility of arrest of the person in
custody; Prisoner Transit Warrant; Jurisdictional Magistrate.
268 [2024] 9 S.C.R.

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Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.2501
of 2024
From the Judgment and Order dated 31.10.2023 of the High Court
of Judicature at Bombay in ABA No.2801 of 2023
Appearances for Parties
Sidharth Luthra, Sr. Adv., Prashant S. Kenjale, Amol Nirmalkumar
Suryawanshi, Ms. Srishty Pandey, Ashutosh Chaturvedi, Ms. Gayatri
Virmani, Shubham Gavande, Advs. for the Appellant.
Siddharth Dave, Sr. Adv., Shantanu Phanse, SS Bedekar, Prastut
Dalvi, Ms. Vidhi Thaker, Siddhant Sharma, Advs. for the
Respondents.
Judgment / Order of the Supreme Court
Judgment
J.B. Pardiwala, J.
For the convenience of exposition, this judgment is divided into the
following parts:

A. SUBMISSIONS ON BEHALF OF THE APPELLANT....... 4*

B. SUBMISSIONS ON BEHALF OF THE RESPONDENT
NO. 1 (ORIGINAL ACCUSED) ........................................ 7*
C. VIEWS OF DIFFERENT HIGH COURTS ON THE ISSUE
IN QUESTION ................................................................... 10*
D. ANALYSIS ......................................................................... 25*
i. Evolution of the concept of anticipatory bail ....... 25* ii.
Whether a person, while in custody for a particular
offence, can have a “reason to believe” that he may be
arrested in relation to some other non-
bailable offence? .................................................... 44*
iii. Illustrative Examples ................................................ 63*
E. CONCLUSION ..............................................................
65*
1. A short question of general public importance on which there is great
divergence of judicial opinion that falls for the consideration of this
Court is as under:
[2024] 9 S.C.R. 269

Dhanraj Aswani v. Amar S. Mulchandani & Anr.

“Whether an application for anticipatory bail under Section
438 of the Code of Criminal Procedure, 1973 (for short,
“CrPC”) is maintainable at the instance of an accused
while he is already in judicial custody in connection with
his involvement in a different case?”

* Ed. Note: Pagination as per the original Judgment.

2. This appeal arises from the judgment and order dated 31.10.2023
passed by the High Court of Judicature at Bombay in Anticipatory
Bail Application No. 2801 of 2023 by which the High Court overruled
the objection raised by the appellant herein (original complainant) as
regards the maintainability of the anticipatory bail application filed by
respondent no. 1 (original accused) in connection with CR No. 806
of 2019 registered with Pimpri Police Station for the offences
punishable under Sections 406, 409, 420, 465, 467, 468, 471
respectively read with Section 34 of the Indian Penal Code (for short,
“IPC”) and thereby took the view that although respondent no.1
herein may already be in custody in connection with ECIR No. 10 of
2021, yet he would be entitled to pray for anticipatory bail in
connection with a different case.
3. It appears from the materials on record that respondent no. 1 herein
came to be arrested in connection with ECIR No. 10 of [Link]
in custody, he apprehended arrest in connection with CR No. 806 of
2019 registered against him at the instance of the appellant herein.
In such circumstances, he prayed for anticipatory bail before the
High Court. The appellant herein intervened in the proceedings of
said anticipatory bail application and raised an objection that as
respondent no. 1 herein is already in custody in connection with
ECIR No. 10 of 2021, he cannot pray for anticipatory bail in
connection with CR No. 806 of 2019. The objection raised by the
appellant herein in his capacity as the complainant came to be
overruled and the High Court proceeded to hold that although
respondent no. 1 herein may be in custody in one case, yet the same
would not preclude him from seeking pre-arrest bail in connection
with a different case. Since the objection was overruled, the
appellant is now before this Court.
A. SUBMISSIONS ON BEHALF OF THE APPELLANT
4. Mr. Sidharth Luthra, the learned Senior counsel appearing for the
appellant canvassed the following submissions:
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i. The High Court committed a serious error in taking the view that
although a person might be in custody after his arrest in one
case, yet such a person can apply for the grant of prearrest bail
under Section 438 of the CrPC in connection with a different
case.
ii. The essential part of arrest is placing the corpus (body of the
person) in custody of the police authorities. The natural
corollary, therefore, is that a person who is already in custody
cannot have reasons to believe that he would be arrested as
he already stands arrested. The pre-condition to invoke Section
438 CrPC is that the accused should have a reason to believe
that he “may be arrested”. If the accused is already in custody,
then he can have no reason to believe that he “may be
arrested”. iii. The salutary provision of Section 438 of the CrPC
was enshrined with a view to see that the liberty of any
individual concerned is not put in jeopardy on frivolous grounds
at the instance of unscrupulous or irresponsible person or
officers who may be in charge of the prosecution. If such is the
objective behind the enactment of Section 438 of the CrPC,
then for a person who is already arrested there is no question
of any humiliation being caused.
iv. If an accused while being in custody in connection with one
case, is granted anticipatory bail under Section 438 of the CrPC
in connection with a different case, then it would not be possible
for him to fulfill the requirement of the condition that may be
imposed under Section 438(2)(i) of the CrPC i.e. to make
himself/ herself available for interrogation as and when
required. In other words, a person in custody would not be able
to meet or comply with the condition that may be imposed
under Section 438(2)(i) of the CrPC. This being a material
consideration for grant of anticipatory bail, it would be illogical
to permit a person to seek anticipatory bail if he is unable to
satisfy conditions that may be imposed under Section 438(2)(i)
of the CrPC.
v. If a person who is already in custody in connection with one
case apprehends arrest in connection with a different case,
then he is not remediless. In such circumstances, he can seek
to surrender and pray for regular bail on the principle of
“deemed custody” both in Magistrate as well as Sessions
triable cases.
[2024] 9 S.C.R. 271

Dhanraj Aswani v. Amar S. Mulchandani & Anr.

5. Mr. Luthra, with a view to fortify his aforesaid submissions, placed
strong reliance on the following decisions:
i. Kartar Singh v. State of Punjab, [1994] 2 SCR 375, (1994) 3
SCC 569
ii. Gurbaksh Singh Sibbia v. State of Punjab, [1980] 3 SCR
383, (1980) 2 SCC 565 iii. Sushila Aggarwal v. State (NCT
of Delhi), [2020] 2 SCR 1,
(2020) 5 SCC 1 iv. Sunil Kallani v. State of Rajasthan, 2021
SCC OnLine Raj
1654
v. Rajesh Kumar Sharma v. CBI, 2022 SCC OnLine All 832 vi.
Tejesh Suman v. State of Rajasthan, 2023 SCC OnLine SC 76 vii.
Bashir Hasan Siddiqui v. State (GNCTD), (2023) SCC OnLine
Del 7544 viii. Narinderjit Singh Sahni v. Union of India,
[2001] Supp. 4 SCR 114, (2002) 2 SCC 210.
6. In such circumstances referred to above, the learned Senior counsel
prayed that there being merit in his appeal, the same may be allowed
and the impugned order passed by the High Court be set aside.
B. SUBMISSIONS ON BEHALF OF THE RESPONDENT NO. 1
(ORIGINAL ACCUSED)
7. Mr. Siddharth Dave, the learned Senior counsel appearing for the
original accused, vehemently opposed the present appeal and
canvassed the following submissions:
i. The legal maxim ubi jus ibi remedium i.e. where there is a right,
there is a remedy, is recognised as a basic principle of
jurisprudence. A Constitution Bench of this Court in Anita
Kushwaha v. Pushap Sudan reported in (2016) 8 SCC 509
held that the right to access justice is so inalienable, that no
system of governance can possibly ignore its significance,
leave alone afford to deny the same to its citizens. It was also
held that the ancient Roman jurisprudential maxim ubi jus ibi
remedium has contributed to the acceptance of access to
justice as a basic and inalienable human right, which all
civilized societies recognise and enforce.
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ii. The right of an accused to apply for pre-arrest bail under
Section 438 of the CrPC is intrinsically linked to his right to
access the competent courts to avail his remedies under the
law. A person would thus be entitled to apply for pre-arrest bail
under Section 438 of the CrPC in one case, even though he may be
in custody in connection with some other case. iii. The right of an
accused to protect his personal liberty within the contours of Article
21 of the Constitution of India, by applying for pre-arrest bail under
Section 438 CrPC cannot be eliminated without a procedure
established by law. Further, such procedure should also pass the
test of fairness, reasonableness and manifest non-arbitrariness on
the touchstone of Article 14 of the Constitution of India.
iv. Under Section 438 of the CrPC, the pre-condition for a person
to apply for pre-arrest bail is a “reason to believe that he may
be arrested on accusation of having committed a non-bailable
offence”. Therefore, the only pre-condition for exercising the
said right is the apprehension of the accused that he may be
arrested.
v. The arrest of an accused in one case cannot foreclose his right
to apply for pre-arrest bail in a different case, since there is no
such stipulation in the language of Section 438 of the CrPC.
The restrictions on the exercise of power to grant pre-arrest bail
under Section 438 of the CrPC are prescribed under Section
438(4) of the CrPC which provides that the provisions of
Section 438 shall not apply to cases involving arrest under
Sections 376(3), 376AB, 376DA or 376DB respectively of the
IPC. vi. A Constitution Bench of this Court, in Sushila
Aggarwal (supra) while considering the statutory restrictions
on Section 438 of the CrPC held that where the Parliament
intended to exclude or restrict the powers of the Court under
Section 438 of the CrPC, it did so in categorical terms (such as
Section 438(4)). The omission on the part of the legislature to
restrict the right of any person accused of having committed a
non-bailable offence to seek anticipatory bail can lead one to
assume that neither a blanket restriction can be read into the
text of Section 438 CrPC by this Court, nor can inflexible
guidelines in the exercise of discretion be insisted as that would
amount to judicial legislation. vii. A statutory restriction on the
right to apply for pre-arrest bail is also found under Sections 18
and 18A(2) respectively of the Scheduled Castes and
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Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short,
“the Act, 1989”). The said provisions provide that Section 438
of the CrPC shall not apply to cases under the Act, 1989. That
despite the statutory bar under Sections 18 and 18A(2)
respectively of the Act, 1989 a threeJudge Bench of this Court
in Prathvi Raj Chauhan v. Union of India reported in (2020)
4 SCC 727 held that if a complaint does not make out a prima
facie case for applicability of the Act, 1989 the bar under
Sections 18 and 18A(2) respectively of the said Act shall not
apply. The aforesaid judgment indicates the judicial approach
of adopting an interpretation in favour of personal liberty.
8. In such circumstances referred to above, Mr. Dave prayed that there
being no merit in the appeal, the same may be dismissed.
C. VIEWS OF DIFFERENT HIGH COURTS ON THE ISSUE IN
QUESTION
9. In Sunil Kallani (supra), a learned Single Judge of the High Court of
Rajasthan took the view that an application for anticipatory bail
would not be maintainable at the instance of a person who is already
arrested and is in police custody or judicial custody in relation to a
different case. The line of reasoning adopted by the High Court in
taking such a view was that a person who is already in custody
cannot have a reason to believe that he would be arrested as he
already stood arrested, albeit in a different case. The High Court
observed that arrest means to actually touch or confine the body of
the person to the custody of a police officer and an essential part of
arrest is placing the corpus, that is the body of the person, in custody
of the police authorities. In light of this essential requirement to
constitute an arrest, a person who is already in custody cannot have
a reason to believe that he may be arrested as he stood already
arrested. The High Court tried to fortify its view by relying on some
of the observations made by this Court in Narinderjit Singh Sahni
(supra). A few relevant observations made by the High Court are
extracted hereinbelow:
“17. The Scheme of Code of Criminal Procedure does not
define the word arrest. In Chapter V of Code of Criminal
Procedure, Section 41 lays down when police may arrest
without warrant. Section 41B lays down procedure of
arrest and duties of officer. Section 46 mentions how
arrest is to be made.
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18. Upon reading Section 46 Cr.P.C. (supra), it is
apparent that arrest would mean to actually touch or
confine the body of the person to custody of the police
officer. Section 167 Cr.P.C. lays down that the custody
may be given to the police for the purpose of investigation
(called as remand) or be sent to jail (called as judicial
custody). Thus the essential part of arrest is placing the
corpus, body of the person in custody of the police
authorities whether of a police station or before him or in
a concerned jail.
19. The natural corollary is therefore that a person who
is already in custody cannot have reasons to believe that
he shall be arrested as he stands already arrested. In view
thereof, the precondition of bail application to be moved
under Section 438 Cr.P.C. i.e. reasons to believe that he
may be arrested” do not survive since a person is already
arrested in another case and is in custody whether before
the police or in jail.
xxx xxx xxx
23. As pointed out by learned counsel for the petitioner
that there may be cases where a person who has already
been arrested in a particular case may be faced with
registering of several FIRs by the persons who do not
want him to be released from jail and in the said
circumstances only option available is to take anticipatory
bail in other FIRs as the police would seek his arrest in all
the cases. It may be subsequently registered against him
for non-bailable Offences and in such an event, there
would be infraction of his personal liberty. However this
Court does not agree to the submissions noticed as
above. Once the FIR has been registered in relation to an
offence committed against any person by an accused he
cannot claim to be protected from offences which he may
have committed with other persons who have their
individual right of registering an FIR against such an
accused. The accused will have to face investigation and
subsequent trial in relation to each and every case
individually. The question whether he may be punished
separately or jointly for other cases is a completely
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different question altogether and need not be gone into
the present case.
24. However, keeping in view observations in Narinderjit
Singh Sahni, (supra) and considering that the purpose of
preventive arrest by a direction of the court on an
application under Section 438 Cr.P.C. would be an order
in vacuum. As a person is already in custody with the
police this Court is of the view that such an anticipatory
bail application under Section 438 Cr.P.C. would not lie
and would be nothing but travesty of justice in allowing
anticipatory bail to such an accused who is already in
custody.
25. Examining the issue from another angle if such an
application is held to be maintainable the result would be
that if an accused is arrested say for an offence committed
of abduction and another case is registered against him
for having committed murder and third case is- registered
against him for having stolen the car which was used for
abduction in a different police station and the said accused
is granted anticipatory bail in respect to the offence of
stealing of the car or in respect to the offence of having
committed murder the concerned Police Investigating
Agency where FIRs have been registered would be
prevented from conducting individual investigation and
making recoveries as anticipatory bail once granted would
continue to operate without limitation as laid down by the
Apex Court in Sushila Aggarwal, (supra). The concept of.
anticipatory bail, as envisaged under-Section 438 Cr.P.C.
would stand frustrated. The provisions of grant of
anticipatory bail are essentially to prevent the concerned
person from litigation initiated with the object of injuring
and humiliating the applicant by haying him so arrested
and for a person who stands already arrested, such a
factor does not remain available.
26. In view of above discussion, this Court holds that the
anticipatory bail would not lie and would not be
maintainable if a person is already arrested and is in
custody of police or judicial custody in relation to another
criminal case which may be for similar offence or for
different offences.”
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(Emphasis supplied)
10. In the case of Rajesh Kumar Sharma (supra), a learned Single
Judge of the High Court of Allahabad followed the view taken by the
High Court of Rajasthan referred to above.
11. In Bashir Hasan Siddiqui (supra), a learned Single Judge of the
High Court of Delhi, relying on Sunil Kallani (supra) and Rajesh
Kumar Sharma (supra), took a similar view that an application
seeking anticipatory bail would not be maintainable at the instance
of a person who apprehends arrest if such a person is already
arrested and is in custody in connection with a different offence. The
relevant observations made by the High Court in paragraph 6 of the
said decision are extracted as under:
“6. Therefore, keeping in view the entire facts and
circumstances and also taking into account the judgment
passed by the Rajasthan High Court in Sunil Kallani
(supra) and subsequently judgment passed by Allahabad
High Court in Rajesh Kumar Sharma (supra), this Court is
in consonance with the opinions of both the High Court
that since the accused is in custody in another FIR, the
anticipatory bail in other FIR is not maintainable. As a
result, the present petition stands dismissed.”
(Emphasis supplied)
12. In Alnesh Akil Somji v. State of Maharashtra reported in 2021
SCC OnLine Bom 5276, a learned Single Judge of the High Court
of Judicature at Bombay formulated the following question of law for
its consideration:
“Whether an anticipatory bail application would be
maintainable by an accused who is already arrested and
is in magisterial custody in relation to another crime?”
13. The Bombay High Court also took notice of the decision of the High
Court of Rajasthan in Sunil Kallani (supra). The decision of this
Court in the case of Narinderjit Singh Sahni (supra) was also
looked into and ultimately it was held that an accused has every
right, even if he is arrested in a number of cases, to move the courts
for anticipatory bail in each of the offence registered against him,
irrespective of the fact that he is already in custody in relation to a
different offence. The High Court was of the view that the
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application(s) under Section 438 of the CrPC would have to be heard
and decided on merits independent
of the other cases in which he is already in custody. We may refer
to some of the observations made by the High Court as under:
“8. A plain reading of the provision would show that the
only restriction provided is under Section 438 (4) of the Cr.
PC, which says that the provision will not apply to
accusations of offences which are stated in Section 438
(4) of the Cr.P.C. Similarly, certain special statutes have
excluded the operation of Section 438 of the Cr.P.C. for
accusation of offences punishable under those special
statutes, for example Section 18A of the Schedule Caste
and Schedule Tribes (Prevention of Atrocities) Act, 1989
bars exercise of powers under Section 438 of the Cr.P.C.
9. The Hon’ble Apex Court in the case of Sushila A
Aggarwal and others (supra), while dealing with the scope
of Section 438 of the Cr.P.C has followed the decision in
the case of Shri Gurbaksh Singh Sibbia and others Versus
State of Punjab and regarding the bar or restriction on the
exercise of power to grant anticipatory bail, the Hon’ble
Apex Court has held as follows:
“62. […] In this background, it is important to notice
that the only bar, or restriction, imposed by
Parliament upon the exercise of the power (to grant
anticipatory bail) is by way of a positive restriction i.e.
in the case where accused are alleged to have
committed offences punishable under Section 376
(3) or Section 376-AB or Section 376-DA or Section
376-DB of the Penal Code. In other words,
Parliament has now denied jurisdiction of the court
(i.e. Court of Session and High Courts) from granting
anticipatory bail to those accused of such offences.
The amendment [Code of Criminal Procedure
Amendment Act, 2018 introduced Section 438 (4)]
reads as follows:
“438. (4) Nothing in this section shall apply to
any case involving the arrest of any person on
accusation of having committed an offence
under sub-section (3) of Section 376 or Section
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376-AB or Section 376-DA or Section 376-DB
of the Indian Penal Code”.
63. Clearly, therefore, where Parliament wished to
exclude or restrict the power of courts, under Section
438 of the Code, it did so in categorical terms.
Parliament’s omission to restrict the right of citizens,
accused of other offences from the right to seek
anticipatory bail, necessarily leads one to assume
that neither a blanket restriction can be read into by
this Court, nor can inflexible guidelines in the
exercise of discretion, be insisted upon- that would
amount to judicial legislation”.
10. Similarly, the Hon’ble Apex Court has made following
observations in the case of Shri Gurbaksh Singh Sibbia
and others (supra):
“39. Fifthly, the provisions of Section 438 cannot be
invoked after the arrest of the accused. The grant of
“anticipatory bail” to an accused who is under arrest
involves a contradiction in terms, insofar as the
offence or offences for which he is arrested, are
concerned. After arrest, the accused must seek his
remedy under Section 437 or Section 439 of the
Code, if he wants to be released on bail in respect of
the offence or offences for which he is arrested”.
11. It is thus very clear, according to Hon’ble Apex Court,
that anticipatory bail will not be maintainable in case a
person is in custody in the same offence for which pre-
arrest bail is sought, the restriction, if any, upon
maintainability of prearrest bail will be there only if a
person is in custody in that particular offence itself.
12. From the above pronouncements, two things are
clear. First, there is no such bar in Cr.P.C or any statute
which prohibits Session or the High Court from
entertaining and deciding an anticipatory bail, when such
person is already in judicial or police custody in some
other offence. Second, the restriction cannot be stretched
to include arrest made in any other offence as that would
be against the purport of the provision.
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xxx xxx xxx
14. I may point out here that the case of Narinderjit Singh
Sahni and Another (supra) was in respect of
maintainability of Article 32 wherein relief in the nature of
Section 438 was sought. Even, the said judgment does
not hold in very clear terms that a person arrested in one
offence cannot seek the relief provided under Section 438
of [Link] in another offence merely on the ground that he
stands arrested in another district offence.
15. In my considered opinion, there was no proper
interpretation of Section 438 of the [Link] at the hands of
learned Additional Sessions Judge. Accused has every
right, even if he is arrested in number of cases, to move in
each of offence registered against him irrespective of the
fact that he is already in custody but for different offence,
for the reason that the application (s) will have to be heard
and decided on merits independent of another crime in
which he is already in custody.
16. One cannot and must not venture, under the garb of
interpretation, to substantiate its own meaning than the
plain and simple particular though provided by statute.
What has not been said cannot be inferred unless the
provision itself gives room for speculation. If the purpose
behind the intendment is discernible sans obscurity and
ambiguity, there is no place for supposition.”
(Emphasis supplied)
14. In Sanjay Kumar Sarangi v. State of Odisha reported in 2024 SCC
OnLine Ori 1334, a learned Single Judge of the High Court of Orissa
took the view that there is no statutory bar for an accused in custody
in connection with a case to pray for grant of anticipatory bail in a
different case registered against him. The court, upon perusal of the
relevant provisions, took the view that arrest means physical
confinement of a person with or without the order of the Court. The
Court noted that Section 167(2) of the CrPC, which governs
‘remand’, is applicable to a case where the accused is already
arrested, and charge-sheet has not been filed. The Court observed
that there is no specific provision in the CrPC which governs a
situation where a person is required to be arrested/remanded in
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connection with a new case when he is already in custody in
connection with some other
case and in such a situation, the accused can only be remanded in
connection with the new case on the order of the competent court.
Answering the question whether such order of remand by the court
can be equated with an act of arrest, the Court held that the purpose
of remand as in the case of arrest is to collect evidence during
investigation, and thus both amount to one and the same thing.
15. The High Court proceeded to explain that if a new case is registered
against a person already in custody in connection with one case, the
police in such circumstances can either seek an order of remand
from the court or arrest the accused, as and when he is released
from custody in connection with the other case. The Court explained
that it is only in the latter scenario that an order of anticipatory bail
under Section 438 of the CrPC would become effective because it is
only after the accused is released from custody that he can be
arrested in relation to the subsequent case. The Court said that the
anticipatory bail operates at a future time. After being released from
custody in the former case, if he is sought to be arrested in relation
to the subsequent case, there is no reason why he should be
precluded from approaching the court beforehand with the
necessary protection in the form of anticipatory bail.
16. The court clarified that a person cannot be arrested if he is already
in custody in connection with some case, however, his right to obtain
an anticipatory bail in connection with a different case cannot be
curtailed having regard to the scheme of the CrPC. The anticipatory
bail, if granted, shall however be effective only if he is arrested in
connection with the subsequent case consequent upon his release
from custody in the previous case.
17. Lastly, the Court observed that there is nothing in the CrPC which
takes away the right of the accused to seek his liberty or of the
investigating agency to investigate the case only because the
accused is in custody in a different case. The Court observed that
an accused can exercise his right of moving the court for anticipatory
bail just as the investigating agency can exercise its right to
investigate the subsequent case by seeking remand of the accused
from the court having jurisdiction over the case. Both the rights can
co-exist and operate at their respective and appropriate times. The
court held that if the application of the investigating agency, seeking
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remand of the accused whilst he is in custody in connection with the
former case,
is allowed, the accused can no longer pray for anticipatory bail in the
subsequent case, as then he could be said to be technically in
custody in connection with the subsequent case also. In such a
scenario, the accused can only seek regular bail. The Court further
elaborated that the grant of anticipatory bail does not clothe the
accused with a licence to avoid investigation or claim any immunity
therefrom.
18. We may refer to some of the relevant observations made by the
learned Single Judge as under:
“13. To illustrate, a person is in custody in connection with
a case and a new case is registered against him for
commission of some other offence. Two recourses are
available to the police in such a situation - firstly to seek
an order of remand from the Court if the presence of the
accused is required for investigation or secondly, to arrest
him, as and when he is released from custody in
connection with the previous case. It is only in the second
scenario that an order of anticipatory bail can become
effective because only then can he be ‘arrested’. It is trite
law that the distinction between an order in case of
custody bail and anticipatory bail is that the former is
passed when the accused is already arrested and in
custody and operates as soon as it is passed (subject to
submission of bail bonds etc), while the latter operates at
a future time-when the person not being in custody, is
arrested. This, according to the considered view of this
Court, is the crux of the issue. To amplify, since an order
granting anticipatory bail becomes effective only when the
person is arrested and as it is not possible to arrest a
person already in custody, it follows that when, on being
released from custody in the former case, he is sought to
be arrested in the new case, there is no reason why he
shall be restrained from moving the Court beforehand to
arm himself with necessary protection in the form of
anticipatory bail to protect himself from such a situation. If
such an order is passed by the Court in his favour, it shall
become effective if and when he is arrested as normally
happens. The only catch is, he cannot be arrested as long
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as he is in custody in the first-mentioned case. So, his right
to obtain an order in the new case beforehand that can be
effective only upon his release from the first-mentioned
case cannot be denied under the scheme of the Code.
14. Another aspect must also be taken into consideration
- when a person is in custody in connection with a case
and a new case gets registered against him, it is, for all
practical purposes a separate case altogether. This
implies all rights conferred by the statute on the accused
consequent upon registration of a case against him as well
as the investigating agency are independently protected.
There is no provision in the Code that takes away the right
of the accused to seek his liberty or of the investigating
agency to investigate into the case only because he is in
custody in another case. As already stated, the accused
can exercise his right of moving the court for anticipatory
bail which would of course be effective only upon his
release from the earlier case and in the event of his arrest
in the subsequent case. Similarly, the right of the
investigating agency to investigate/interrogate in the
subsequent case can be exercised by seeking remand of
the accused from the court in the subsequent case. Both
these scenarios are not mutually exclusive and can
operate at their respective and appropriate times. The
investigating agency, if it feels necessary for the purpose
of interrogation/investigation can seek remand of the
accused whilst he is in custody in connection with the
previous case and if such prayer is allowed, the accused
can no longer pray for grant of anticipatory bail as then he
would be technically in custody in connection with the
subsequent case also. Then, he can only seek regular or
custody bail. It is also to be considered that if the
prosecution has the power to register a case against a
person who is in custody in connection with another case
how can the accused be deprived of his right to seek
protection of his liberty in such case? This would militate
against the very principle underlying Article 21 of the
Constitution as also Section 438 of the Code.
15. This takes the court to the reasoning adopted by the
learned single judge of Rajasthan High Court in the case
of Sunil Kallani (supra) that “…..the concerned Police
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Investigating Agency where FIRs have been registered
would be prevented from conducting individual
investigation and making recoveries as anticipatory bail
once granted would continue to operate without limitation
as laid down by the Apex Court in Sushila Aggarwal,
(supra)….”
With great respect, this Court is unable to persuade itself
to agree with the above-quoted reasoning in view of the
fact that grant of anticipatory bail does not and cannot
grant the accused a licence to avoid investigation or clothe
him with any immunity there-from. In fact, sub-section (2)
of Section 438 holds the answer to this question as
follows:
(2) When the High Court or the Court of Session
makes a direction under sub-section (1), it may
include such conditions in such directions in the light
of the facts of the particular case, as it may think fit,
including-
(i) a condition that the person shall make
himself available for interrogation by a police
officer as and when required;
xxx xxx xxx
It is needless to mention that an order under subsection
(1) can be passed only upon hearing the Public
Prosecutor. Hence, the prosecution can always insist
upon inclusion of such a condition by the court in the order
grating anticipatory bail. And in so far as ‘recoveries’ are
concerned, as already stated, it is always open to the
investigating agency to pray for remand of the accused,
as long as he is in custody, for such purpose and an order
granting anticipatory bail has not been passed. […]
xxx xxx xxx
17. From a conspectus of the analysis made hereinbefore
thus, this Court holds as follows:
(i) There is no statutory bar for an accused in custody
in connection with a case to pray for grant of anticipatory
bail in another case registered against him;
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(ii) Anticipatory bail, if granted, shall however be
effective only if he is arrested in connection with the
subsequent case consequent upon his release from
custody in the previous case;
(iii) The investigating agency, if it feels necessary for the
purpose of interrogation/investigation can seek remand of
the accused whilst he is in custody in connection with the
previous case and in which no order granting anticipatory
bail has yet been passed. If such order granting remand
is passed, it would no longer be open to the accused to
seek anticipatory bail but he can seek regular bail.
18. In the cases at hand, the prosecution has not
sought for nor obtained any order from the
Court for remand of the petitioners in the
subsequent cases registered against them.
Thus, this Court holds that the Anticipatory Bail
applications are maintainable...”
(Emphasis supplied)
19. Thus, it appears from the aforesaid discussion
that there are divergent opinions expressed by
different High Courts of the country. The
Rajasthan, Delhi and Allahabad High Courts
have taken the view that an anticipatory bail
application would not be maintainable if the
accused is already arrested and is in custody in
connection with some offence. On the other
hand, the Bombay and Orissa High Courts have
taken the view that even if the accused is in
custody in connection with one case,
anticipatory bail application at his instance in
connection with a different case is maintainable.
D. ANALYSIS
i. Evolution of the concept of anticipatory bail
20. The Code of Criminal Procedure, 1898 (for short, “the 1898 Code”)
did not contain any specific provision analogous to Section 438 of
the CrPC. In Amir Chand v. The Crown reported in 1949 SCC
OnLine Punj 20, the question before the Full Bench was whether
Section 498 of the 1898 Code empowered the High Court or the
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Court of Session to grant bail to a person who had not been placed
under restraint by arrest or otherwise. The Full Bench answered the
reference as under:
“…The very notion of bail presupposes some form of
previous restraint. Therefore, bail cannot be granted to a
person who has not been arrested and for whose arrest
no warrants have been issued. Section 498, Criminal
Procedure Code, does not permit the High Court or the
Court of Session to grant bail to anyone whose case is not
covered by sections 496 and 497, Criminal Procedure
Code. It follows, therefore, that bail can only be allowed to
a person who has been arrested or detained without
warrant or appears or is brought before a Court. Such
person must be liable to arrest and must surrender himself
before the question of bail can be considered. In the case
of a person who is not under arrest, but for whose arrest
warrants have been issued, bail can be allowed if he
appears in Court and surrenders himself. No bail can be
allowed to a person at liberty for whose arrest no warrants
have been issued. The petitioners in the present case are,
therefore, not entitled to bail. The question referred to the
Full Bench is, therefore, answered in the negative.”
(Emphasis supplied)
21. Under the 1898 Code, the concept of anticipatory or pre-arrest bail
was absent and the need for introduction of a new provision in the
CrPC empowering the High Court and Court of Session to grant
anticipatory bail was pointed out by the 41st Law Commission of
India in its report dated September 24, 1969. It observed thus in para
39.9 of the said report (Volume I):
“Anticipatory bail
39.9 The suggestion for directing the release of a person
on bail prior to his arrest (commonly known as
“anticipatory bail”) was carefully considered by us. Though
there is a conflict of judicial opinion about the power of a
Court to grant anticipatory bail, the majority view is that
there is no such power under the existing provisions of the
Code. The necessity for granting anticipatory bail arises
mainly because sometimes influential persons try to
implicate their rivals in false causes for the purpose of
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disgracing them or for other purposes by getting detained
in jail for some days. In recent times, the accentuation of
political rivalry, this tendency is showing signs of steady
increase. Apart from false cases, where there are
reasonable grounds for holding that a person accused of
an offence is not likely to abscond, or otherwise misuse
his liberty while on bail, there seems no justification to
require him first to submit to custody, remain in prison for
some days and then apply for bail”
We recommend the acceptance of this suggestion. We are
further of the view that this special power should be
conferred only on the High Court and the Court of
Session, and that the order should take effect at the time
of arrest or thereafter.
In order to settle the details of this suggestion, the
following draft of a new section is placed for consideration:
‘497-A. (1) When any person has a reasonable
apprehension that he would be arrested on an accusation
of having committed a non-bailable offence, he may apply
to the High Court or the Court of Session for a direction
under this section. That court may, in its discretion, direct
that in the event of his arrest, he shall be released on bail.
(2) A Magistrate taking cognizance of an offence against
that person shall, while taking steps under Section 204(1),
either issue summons or a bailable warrant as indicated
in the direction of the court under sub-section (1).
(3) If any person in respect of whom such a direction is
made is arrested without warrant by an officer in charge
of a police station on an accusation of having committed
that offence, and is prepared either at the time of arrest or
at any time while in the custody of such officer to give bail,
such person shall be released on bail.’
We considered carefully the question of laying down in the
statute certain conditions under which alone anticipatory
bail could be granted. But we found that it may not be
practicable to exhaustively enumerate those conditions;
and moreover, the laying down of such conditions may be
construed as prejudging (partially at any rate) the whole
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case. Hence we would leave it to the discretion of the court
and prefer not to fetter such discretion in the statutory
provision itself. Superior courts will, undoubtedly, exercise
their discretion properly, and not make any observations
in the order granting anticipatory bail which will have a
tendency to prejudice the fair trial of the accused.”
(Emphasis supplied)
22. The suggestion made by the Law Commission was, in principle,
accepted by the Central Government which introduced clause 447
in the Draft Bill of the Code of Criminal Procedure, 1970 with a view
to confer express power on the High Court and the Court of Session
to grant anticipatory bail. The said clause of the draft bill was enacted
with certain modifications and became Section 438 of the CrPC.
23. The Law Commission, in paragraph 31 of its 48th Report (1972),
made the following comments on the aforesaid clause:
“The Bill introduces a provision for the grant of anticipatory
bail. This is substantially in accordance with the
recommendation made by the previous Commission. We
agree that this would be a useful addition, though we must
add that it is in very exceptional cases that such a power
should be exercised.
We are further of the view that in order to ensure that the
provision is not put to abuse at the instance of
unscrupulous petitioners, the final order should be made
only after notice to the Public Prosecutor. The initial order
should only be an interim one. Further, the relevant
section should make it clear that the direction can be
issued only for reasons to be recorded, and if the court is
satisfied that such a direction is necessary in the interests
of justice.
It will also be convenient to provide that notice of the
interim order as well as of the final orders will be given to
the Superintendent of Police forthwith.”
(Emphasis supplied)
24. Section 438 of the CrPC reads thus:
“Discretion for grant of bail to person apprehending
arrest.─(1) Where any person has reason to believe that
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he may be arrested on accusation of having committed a
non-bailable offence, he may apply to the High Court or
the Court of Session for a direction under this section that
in the event of such arrest he shall be released on bail;
and that Court may, after taking into consideration, inter
alia, the following factors, namely:--(i) the nature and
gravity of the accusation;
(ii) the antecedents of the applicant including the fact as
to whether he has previously undergone imprisonment on
conviction by a Court in respect of any cognizable offence;
(iii) the possibility of the applicant to flee from justice; and.
(iv) where the accusation has been made with the object
of injuring or humiliating the applicant by having him so
arrested,
either reject the application forthwith or issue an interim
order for the grant of anticipatory bail:
Provided that, where the High Court or, as the case may
be, the Court of Session, has not passed any interim order
under this sub-section or has rejected the application for
grant of anticipatory bail, it shall be open to an officer
incharge of a police station to arrest, without warrant the
applicant on the basis of the accusation apprehended in
such application.
(1A) Where the Court grants an interim order under sub-
section (1), it shall forthwith cause a notice being not less
than seven days notice, together with a copy of such order
to be served on the Public Prosecutor and the
Superintendent of Police, with a view to give the Public
Prosecutor a reasonable opportunity of being heard when
the application shall be finally heard by the Court,
(1B) The presence of the applicant seeking anticipatory
bail shall be obligatory at the time of final hearing of the
application and passing of final order by the Court, if on
an application made to it by the Public Prosecutor, the
Court considers such presence necessary in the interest
of justice.
(2) When the High Court or the Court of Session makes a
direction under sub-section (1), it may include such
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conditions in such directions in the light of the facts of the
particular case, as it may think fit, including--
(i) a condition that the person shall make himself
available for interrogation by a police officer as and when
required;
(ii) a condition that the person shall not, directly or
indirectly, make any inducement, threat or promise to any
person acquainted with the facts of the case so as to
dissuade him from disclosing such facts to the Court or to
any police officer;
(iii) a condition that the person shall not leave India
without the previous permission of the Court;
(iv) such other condition as may be imposed under
subsection (3) of section 437, as if the bail were granted
under that section.
(3) If such person is thereafter arrested without warrant
by an officer in charge of a police station on such
accusation, and is prepared either at the time of arrest or
at any time while in the custody of such officer to give bail,
he shall be released on bail; and if a Magistrate taking
cognizance of such offence decides that a warrant should
be issued in the first instance against that person, he shall
issue a bailable warrant in conformity with the direction of
the Court under sub-section (1).
(4) Nothing in this section shall apply to any case
involving the arrest of any person on accusation of having
committed an offence under sub-section (3) of section 376
or section 376AB or section 376DA or section 376DB of
the Indian Penal Code (45 of 1860).”
25. The Statement of Objects and Reasons accompanying the bill for
introducing Section 438 in the CrPC indicates that the legislature felt
that it was imperative to evolve a device by which an alleged
accused is not compelled to face ignominy and disgrace at the
instance of influential people who try to implicate their rivals in false
cases. The purpose behind incorporating Section 438 in the CrPC
was to recognise the importance of personal liberty and freedom in
a free and democratic country. A careful reading of this section
reveals that the legislature was keen to ensure respect for the
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personal liberty of individuals by pressing in service the age-old
principle that an individual is presumed to be innocent till he is found
guilty by the court. [See: Siddharam Satlingappa Mhetre v. State
of Maharashtra and Others reported in (2011) 1 SCC 694].
26. In the context of anticipatory bail, this Court, in Siddharam
Satlingappa Mhetre (supra), discussed the relevance and
importance of personal liberty as under:
“36. All human beings are born with some unalienable
rights like life, liberty and pursuit of happiness. The
importance of these natural rights can be found in the fact
that these are fundamental for their proper existence and
no other right can be enjoyed without the presence of right
to life and liberty. Life bereft of liberty would be without
honour and dignity and it would lose all significance and
meaning and the life itself would not be worth living. That
is why “liberty” is called the very quintessence of a civilised
existence.
37. Origin of “liberty” can be traced in the ancient Greek
civilisation. The Greeks distinguished between the liberty
of the group and the liberty of the individual. In 431 BC, an
Athenian statesman described that the concept of liberty
was the outcome of two notions, firstly, protection of group
from attack and secondly, the ambition of the group to
realise itself as fully as possible through the self-
realisation of the individual by way of human reason.
Greeks assigned the duty of protecting their liberties to the
State. According to Aristotle, as the State was a means to
fulfil certain fundamental needs of human nature and was
a means for development of individuals’ personality in
association of fellow citizens so it was natural and
necessary to man. Plato found his “republic” as the best
source for the achievement of the self-realisation of the
people.
xxx xxx xxx
43. A distinguished former Attorney General for India, M.C.
Setalvad in his treatise War and Civil Liberties observed
that the French Convention stipulates common happiness
as the end of the society, whereas Bentham postulates the
greatest happiness of the greatest number as the end of
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law. Article 19 of the Indian Constitution averts to freedom
and it enumerates certain rights regarding individual
freedom. These rights are vital and most important
freedoms which lie at the very root of liberty. He further
observed that the concept of civil liberty is essentially
rooted in the philosophy of individualism. According to this
doctrine, the highest development of the individual and the
enrichment of his personality are the true function and end
of the State. It is only when the individual has reached the
highest state of perfection and evolved what is best in him
that society and the State can reach their goal of
perfection. In brief, according to this doctrine, the State
exists mainly, if not solely, for the purpose of affording the
individual freedom and assistance for the attainment of his
growth and perfection. The State exists for the benefit of
the individual.
xxx xxx xxx
49. An eminent English Judge, Lord Alfred Denning
observed:
“By personal freedom I mean freedom of every
lawabiding citizen to think what he will, to say what
he will, and to go where he will on his lawful occasion
without hindrance from any person…. It must be
matched, of course, with social security by which I
mean the peace and good order of the community in
which we live.”
50. An eminent former Judge of this Court, Justice H.R.
Khanna in a speech as published in 2 IJIL, Vol. 18 (1978),
p. 133 observed that
“… Liberty postulates the creation of a climate
wherein there is no suppression of the human spirits,
wherein, there is no denial of the opportunity for the
full growth of human personality, wherein head is
held high and there is no servility of the human mind
or enslavement of the human body.””
27. In Kartar Singh (supra), a Constitution Bench of this Court held that
there is no constitutional or fundamental right to seek anticipatory
bail. In the said case, this Court was called upon to consider the
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constitutional validity of sub-section (7) of Section 20 of the Terrorists
and Disruptive Activities (Prevention) Act, 1987. The Constitution
Bench also looked into the validity of Section 9 of the Code of
Criminal Procedure (U.P. Amendment) Act, 1976 which deleted the
operation of Section 438 of the CrPC in the State of Uttar Pradesh
with effect from 28.11.1975. In the aforesaid context, Justice
Ratnavel Pandian speaking for himself and on behalf of four other
Judges observed as under:
“326. The High Court of Punjab and Haryana in Bimal Kaur
[AIR 1988 P&H 95 : (1988) 93 Punj LR 189 : 1988 Cri LJ
169] has examined a similar challenge as to the vires of
Section 20(7) of TADA Act, and held thus:
“In my opinion Section 20(7) is intra vires the
provision of Article 14 of the Constitution in that the
persons charged with the commission of terrorist act
fall in a category which is distinct from the class of
persons charged with commission of offences under
the Penal Code and the offences created by other
statutes. The persons indulging in terrorist act form
a member of well organised secret movement. The
enforcing agencies find it difficult to lay their hands
on them. Unless the Police is able to secure clue as
to who are the persons behind this movement, how
it is organised, who are its active members and how
they operate, it cannot hope to put an end to this
movement and restore public order. The Police can
secure this knowledge only from the arrested
terrorists after effective interrogation. If the real
offenders apprehending arrest are able to secure
anticipatory bail then the police shall virtually be
denied the said opportunity.”
327. It is needless to emphasise that both the Parliament
as well as the State Legislatures have got legislative
competence to enact any law relating to the Code of
Criminal Procedure. No provision relating to anticipatory
bail was in the old Code and it was introduced for the first
time in the present Code of 1973 on the suggestion made
of the Forty-first Report of the Law Commission and the
Joint Committee Report. It may be noted that this section
is completely omitted in the State of Uttar Pradesh by
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Section 9 of the Code of Criminal Procedure (Uttar
Pradesh Amendment) Act, 1976 (U.P. Act No. 16 of 1976)
w.e.f. 2811-1975. In the State of West Bengal, proviso is
inserted to Section 438(1) of the Code w.e.f. 24-12-1988
to the effect that no final order shall be made on an
application filed by the accused praying for anticipatory
bail in relation to an offence punishable with death,
imprisonment for life or imprisonment for a term of not less
than seven years, without giving the State not less than
seven days’ notice to present its case. In the State of
Orissa, by Section 2 of Orissa Act 11 of 1988 w.e.f. 28-6-
1988, a proviso is added to Section 438 stating that no
final order shall be made on an application for anticipatory
bail without giving the State notice to present its case for
offence punishable with death, imprisonment for life or
imprisonment for a term of not less than seven years.
xxx xxx xxx
329. Further, at the risk of repetition, we may add that
Section 438 is a new provision incorporated in the present
Code creating a new right. If that new right is taken away,
can it be said that the removal of Section 438 is violative
of Article 21. In Gurbaksh Singh [(1980) 2 SCC 565 : 1980
SCC (Cri) 465 : (1980) 3 SCR 383] , there is no specific
statement that the removal of Section 438 at any time will
amount to violation of Article 21 of the Constitution.”
(Emphasis supplied)
28. The aforesaid decision was discussed in the course of the hearing
of this case for the limited proposition that there is no constitutional
or fundamental right to seek anticipatory bail. Section 438 of the
CrPC is just a statutory right.
29. In Gurbaksh Singh Sibbia (supra), a Constitution Bench of this
Court (speaking through Justice Y.V. Chandrachud, Chief Justice, as
his Lordship then was) undertook an extensive analysis of the
provision
of anticipatory bail. This Constitution Bench decision can be termed
as a profound and passionate essay on how personal liberty under
the Constitution can be consistent with needs of investigations and
why this Court should avoid any generalisation that would take away
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the discretion of the courts dealing with a new set of facts in each
case. Chief Justice Y.V. Chandrachud observed thus:
“8. […] Attendant upon such investigations, when the
police are not free agents within their sphere of duty, is a
great amount of inconvenience, harassment and
humiliation. That can even take the form of the parading
of a respectable person in handcuffs, apparently on way
to a Court of justice. The foul deed is done when an
adversary is exposed to social ridicule and obloquy, no
matter when and whether a conviction is secured or is at
all possible. It is in order to meet such situations, though
not limited to these contingencies, that the power to grant
anticipatory bail was introduced into the Code of 1973.
xxx xxx
xxx
12. […] The legislature conferred a wide discretion on the
High Court and the Court of Session to grant anticipatory
bail because it evidently felt, firstly, that it would be difficult
to enumerate the conditions under which anticipatory bail
should or should not be granted and secondly, because
the intention was to allow the higher courts in the echelon
a somewhat free hand in the grant of relief in the nature of
anticipatory, bail. That is why, departing from the terms of
Sections 437 and 439, Section 438(1) uses the language
that the High Court or the Court of Session “may, if it thinks
fit” direct that the applicant be released on bail. Sub-
section (2) of Section 438 is a further and clearer
manifestation of the same legislative intent to confer a
wide discretionary power to grant anticipatory bail. It
provides that the High Court or the Court of Session, while
issuing a direction for the grant of anticipatory bail, “may
include such conditions in such directions in the light of
the facts of the particular case, as it may think fit”,
including the conditions which are set out in Clauses (i) to
(iv) of Sub-section(2).
xxx xxx xxx
14. Generalisations on matters which rest on discretion
and the attempt to discover formulae of universal
application when facts are bound to differ from case to
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case frustrate the very purpose of conferring discretion.
No two cases are alike on facts and therefore, courts have
to be allowed a little free play in the joints if the conferment
of discretionary power is to be meaningful. There is no risk
involved in entrusting a wide discretion to the Court of
Session and the High Court in granting anticipatory bail
because, firstly, these are higher courts manned by
experienced persons, secondly, their orders are not final
but are open to appellate or revisional scrutiny and above
all because, discretion has always to be exercised by
courts judicially and not according to whim, caprice or
fancy. On the other hand, there is a risk in foreclosing
categories of cases in which anticipatory bail may be
allowed because life throws up unforeseen possibilities
and offers new challenges. Judicial discretion has to be
free enough to be able to take these possibilities in its
stride and to meet these challenges.
15. […] While laying down cast-iron rules in a matter like
granting anticipatory bail, as the High Court has done, it is
apt to be overlooked that even judges can have but an
imperfect awareness of the needs of new situations. Life
is never static and every situation has to be assessed in
the context of emerging concerns as and when it arises.”
30. As regards making out a ‘special case’ to seek anticipatory bail, this
Court in Gurbaksh Singh Sibbia (supra) said:
“21. […] A wise exercise of judicial power inevitably takes
care of the evil consequences which are likely to flow out
of its intemperate use. Every kind of judicial discretion,
whatever may be the nature of the matter in regard to
which it is required to be exercised, has to be used with
due care and caution. In fact, an awareness of the context
in which the discretion is required to be exercised and of
the reasonably foreseeable consequences of its use, is
the hallmark of a prudent exercise of judicial discretion.
One ought not to make a bugbear of the power to grant
anticipatory bail.
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xxx xxx
xxx
27. […] An accused person who enjoys freedom is in a
much better position to look after his case and to properly
defend himself than if he were in custody. As a
presumably innocent person he is therefore entitled to
freedom and every opportunity look after his own case. A
presumably innocent person must have his freedom to
enable him to establish his innocence.”
31. In Gurbaksh Singh Sibbia (supra), this Court emphasized that the
applicant must have a tangible reason to believe. Vague
apprehension will not do. Secondly, it held that the High Court or the
Court of Session should not ask an applicant to go before the
Magistrate to try his luck under Section 437 of the CrPC. It was also
observed that once the accused is arrested, Section 438 of the CrPC
ceases to play any role with reference to the offence or offences for
which he is arrested. This Court also cautioned against passing a
blanket order for anticipatory bail.
32. The following principles of law as regards the grant of anticipatory
bail can be discerned from Gurbaksh Singh Sibbia (supra):
i. The applicant must genuinely show the “reason to believe” that
he may be arrested for a non-bailable offence. Mere fear is not
belief and the grounds on which the belief of the applicant is
based must be capable of being examined by the Court
objectively. Specific events and facts must be disclosed to
enable the Court to judge the reasonableness of belief or
likelihood of arrest, the existence of which is the sine qua non
in the exercise of the power to grant anticipatory bail.
ii. The High Court or the Court of Session must apply its mind to
the question of anticipatory bail and should not leave it to the
discretion of the Magistrate under Section 437 CrPC.
iii. Filing of the FIR is not a condition precedent. However,
imminence of a likely arrest founded on the reasonable belief
must be shown.
iv. Anticipatory bail can be granted so long as the applicant is not
arrested in connection with that case/offence.
v. Section 438 of the CrPC cannot be invoked by the accused in
respect of the offence(s)/case in which he has been arrested.
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The remedy lies under Section 437 or 439 of the CrPC, as the
case may be, for the offence for which he is arrested.
vi. The normal rule is to not limit the operation of the order in
relation to a period of time.
33. On account of various decisions of benches of lesser strength than
in Gurbaksh Singh Sibbia (supra) taking a view curtailing the scope
of the findings in the said case, the scope of Section 438 of the CrPC
came to be considered yet again in Siddharam Satlingappa Mhetre
(supra). A two-Judge Bench in Siddharam Satlingappa Mhetre
(supra) held that the intervening decisions between 1980 and 2011
curtailing the scope of Gurbaksh Singh Sibbia (supra) were per
incuriam.
34. However, since Siddharam Satlingappa Mhetre (supra) was
delivered by a coram of two Judges, the matter again reached the
Constitution Bench in the judgment rendered in the case of Sushila
Aggarwal (supra) laying down the following principles:
i. An application for anticipatory bail should be based on concrete
facts (and not vague or general allegations). It is not essential
that an application should be moved only after an FIR is filed.
ii. It is advisable to issue a notice on the anticipatory bail
application to the Public Prosecutor.
iii. Nothing in Section 438 of the CrPC compels or obliges courts
to impose conditions limiting relief in terms of time. The courts
would be justified – and ought to impose conditions spelt out in
Section 437(3) of the CrPC [by virtue of Section 438(2)]. The
need to impose other restrictive conditions would have to be
judged on a case-to-case basis.
iv. Courts ought to be generally guided by considerations such as
the nature and gravity of the offences, the role attributed to the
applicant, and the facts of the case, while considering whether
to grant anticipatory bail or not.
v. Once granted, Anticipatory bail can, depending on the conduct
and behaviour of the accused, continue after filing of the
chargesheet till the end of trial.
vi. An order of anticipatory bail should not be a “blanket” order and
should be confined to a specific incident.
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vii. An order of anticipatory bail does not limit the rights of the
police to conduct investigation.
viii. The observations in Gurbaksh Singh Sibbia (supra) regarding
“limited custody” or “deemed custody” would be sufficient for
the purpose of fulfilling the provisions of Section 27 of the
Indian Evidence Act, 1872.
ix. The police can seek cancellation of anticipatory bail under
Section 439(2) of the CrPC.
x. The correctness of an order granting bail can be considered by
the appellate or superior court.
35. The aforesaid principles as regards the grant of anticipatory bail
discernible from the decision of this Court in Sushila Aggarwal
(supra) are general and may not have a direct bearing on the
question we are called upon to consider and answer. What is
important to be taken note of in the decision in Sushila Aggarwal
(supra) is the following:
“62. … In this background, it is important to notice that the
only bar, or restriction, imposed by Parliament upon the
exercise of the power (to grant anticipatory bail) is by way
of a positive restriction i.e. in the case where accused are
alleged to have committed offences punishable under
Section 376 (3) or Section 376-AB or Section 376-DA or
Section 376-DB of the Penal Code. In other words,
Parliament has now denied jurisdiction of the courts (i.e.
Court of Session and High Courts) from granting
anticipatory bail to those accused of such offences. […]
63. Clearly, therefore, where Parliament wished to exclude
or restrict the power of courts, under Section 438 of the
Code, it did so in categorical terms. Parliament’s omission
to restrict the right of citizens, accused of other offences
from the right to seek anticipatory bail, necessarily leads
one to assume that neither a blanket restriction can be
read into by this Court, nor can inflexible guidelines in the
exercise of discretion, be insisted upon-that would amount
to judicial legislation”.
(Emphasis supplied)
36. What has been conveyed in the aforesaid decision is that the court,
on its own, should not try to read any other restriction as regards the
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exercise of its power to consider the plea for grant of anticipatory
bail. Wherever parliament intends or desires to exclude or restrict
the power of courts, it does so in categorical terms. This is very much
evident from the plain reading of sub-section (4) of Section 438 of
the CrPC itself. The dictum as laid is that the court should not read
any blanket restriction nor should it insist for some inflexible
guidelines as that would amount to judicial legislation.
ii. Whether a person, while in custody for a particular
offence, can have a “reason to believe” that he may
be arrested in relation to some other non-bailable
offence?
37. The line of reasoning adopted by the High Court of Rajasthan in
Sunil Kallani (supra) was that once a person is taken in custody in
relation to an offence, it is not possible thereafter to arrest him in
relation to a different offence as one of the essential conditions for
arrest is placing the body of the accused in custody of the police
authorities by means of actual touch or confinement. As there cannot
be any actual touch or confinement while a person is in custody, he
cannot have a “reason to believe” that he may be arrested in relation
to a different offence.
38. However, there are two fundamental fallacies in the reasoning
adopted by the Rajasthan High Court. First, the High Court failed to
consider the possibility of arrest of the person in custody in relation
to a different offence immediately after he is set free from the custody
in the first offence. In such a scenario, if it is held that the application
seeking anticipatory bail in relation to an offence, filed during the
period when the applicant is in custody in relation to a different
offence, would not be maintainable, then it would amount to
precluding the applicant from availing a statutory remedy which he
is otherwise entitled to and which he can avail as soon as he is
released from custody in the first offence. Thus, in cases where the
accused has a “reason to believe” that he may be arrested in relation
to an offence different from the one in which he is in custody
immediately upon his release, the view taken by the Rajasthan High
Court, if allowed to stand, would deprive him of his statutory right of
seeking anticipatory bail because it is quite possible that before such
a person is able to exercise the aforesaid right, he may be arrested.
39. In our opinion, no useful purpose would be served by depriving the
accused of exercising his statutory right to seek anticipatory bail till
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his release from custody in the first offence. We find force in the
submission of the respondent that if the accused is not allowed to
obtain a pre-arrest bail in relation to a different offence, while being
in custody in one offence, then he may get arrested by the police
immediately upon his release in the first case, even before he gets
the opportunity to approach the competent court and file an
application for the grant of anticipatory bail in relation to the said
particular offence. This practical shortcoming in the approach taken
by the Rajasthan High Court is prone to exploitation by investigating
agencies for the purpose of putting the personal liberty of the
accused in peril.
40. The second fallacy in the reasoning of the High Court is that there
can be no arrest of an accused in relation to a different offence while
he is already in custody in relation to some offence. Although there
is no specific provision in the CrPC which provides for the arrest of
an accused in relation to an offence while he is already in judicial
custody in a different offence, yet this Court explained in Central
Bureau of Investigation, Special Investigation Cell-I, New Delhi
v. Anupam J. Kulkarni reported in (1992) 3 SCC 141 that even if
an accused is in judicial custody in connection with the investigation
of an earlier case, the investigating agency can formally arrest him
in connection with his involvement in a different case and associate
him with the investigation of that other case. In other words, this
Court clarified that even when a person is in judicial custody, he can
be shown as arrested in respect of any number of other crimes
registered elsewhere in the country. Reliance was placed by this
Court on the decision of Punjab & Haryana High Court in S.
Harsimran Singh v. State of Punjab reported in 1984 Cri LJ 253
wherein it was held that there is no inflexible bar under the law
against the re-arrest of a person who is already in judicial custody in
relation to a different offence. The High Court held that judicial
custody could be converted into police custody by an order of the
Magistrate under Section 167(2) of the CrPC for the purpose of
investigating the other offence. The relevant paragraphs of Anupam
J. Kulkarni (supra) are extracted hereinbelow:
“11. A question may then arise whether a person arrested
in respect of an offence alleged to have been committed
by him during an occurrence can be detained again in
police custody in respect of another offence committed by
him in the same case and which fact comes to light after
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the expiry of the period of first fifteen days of his arrest.
The learned Additional Solicitor-General submitted that as
a result of the investigation carried on and the evidence
collected by the police the arrested accused may be found
to be involved in more serious offences than the one for
which he was originally arrested and that in such a case
there is no reason as to why the accused who is in
magisterial custody should not be turned over to police
custody at a subsequent stage of investigation when the
information discloses his complicity in more serious
offences. We are unable to agree. In one occurrence it
may so happen that the accused might have committed
several offences and the police may arrest him in
connection with one or two offences on the basis of the
available information and obtain police custody. If during
the investigation his complicity in more serious offences
during the same occurrence is disclosed that does not
authorise the police to ask for police custody for a further
period after the expiry of the first fifteen days. If that is
permitted then the police can go on adding some offence
or the other of a serious nature at various stages and seek
further detention in police custody repeatedly, this would
defeat the very object underlying Section 167. However,
we must clarify that this limitation shall not apply to a
different occurrence in which complicity of the arrested
accused is disclosed. That would be a different
transaction and if an accused is in judicial custody in
connection with one case and to enable the police to
complete their investigation of the other case they can
require his detention in police custody for the purpose of
associating him with the investigation of the other case. In
such a situation he must be formally arrested in
connection with other case and then obtain the order of
the Magistrate for detention in police custody. The learned
Additional Solicitor-General however strongly relied on
some of the observations made by Hardy, J. in Mehar
Chand case [(1969) 5 DLT 179] extracted above in
support of his contention namely that an arrested accused
who is in judicial custody can be turned over to police
custody even after the expiry of first fifteen days at a
subsequent stage of the investigation in the same case if
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the information discloses his complicity in more serious
offences. We are unable to agree that the mere fact that
some more offences alleged to have been committed by
the arrested accused in the same case are discovered in
the same case would by itself render it to be a different
case. All these offences including the so-called serious
offences discovered at a later stage arise out of the same
transaction in connection with which the accused was
arrested. Therefore there is a marked difference between
the two situations. The occurrences constituting two
different transactions give rise to two different cases and
the exercise of power under Sections 167(1) and (2)
should be in consonance with the object underlying the
said provision in respect of each of those occurrences
which constitute two different cases. Investigation in one
specific case cannot be the same as in the other. Arrest
and detention in custody in the context of Sections 167(1)
and (2) of the Code has to be truly viewed with regard to
the investigation of that specific case in which the accused
person has been taken into custody. In S. Harsimran
Singh v. State of Punjab [1984 Cri LJ 253 : ILR (1984) 2
P&H 139] a Division Bench of the Punjab and Haryana
High Court considered the question whether the limit of
police custody exceeding fifteen days as prescribed by
Section 167(2) is applicable only to a single case or is
attracted to a series of different cases requiring
investigation against the same accused and held thus: (p.
257, para 10-A)
“We see no inflexible bar against a person in custody
with regard to the investigation of a particular offence
being either re-arrested for the purpose of the
investigation of an altogether different offence. To
put it in other words, there is no insurmountable
hurdle in the conversion of judicial custody into
police custody by an order of the Magistrate under
Section 167(2) of the Code for investigating another
offence. Therefore, a re-arrest or second arrest in a
different case is not necessarily beyond the ken of
law.”
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This view of the Division Bench of the Punjab and Haryana
High Court appears to be practicable and also conforms
to Section 167. We may, however, like to make it explicit
that such re-arrest or second arrest and seeking police
custody after the expiry of the period of first fifteen days
should be with regard to the investigation of a different
case other than the specific one in respect of which the
accused is already in custody. A literal construction of
Section 167(2) to the effect that a fresh remand for police
custody of a person already in judicial custody during
investigation of a specific case cannot under any
circumstances be issued, would seriously hamper the
very investigation of the other case the importance of
which needs no special emphasis. The procedural law is
meant to further the ends of justice and not to frustrate the
same. It is an accepted rule that an interpretation which
furthers the ends of justice should be preferred. It is true
that the police custody is not the beall and end-all of the
whole investigation but yet it is one of its primary requisites
particularly in the investigation of serious and heinous
crimes. The legislature also noticed this and permitted
limited police custody. The period of first fifteen days
should naturally apply in respect of the investigation of
that specific case for which the accused is held in custody.
But such custody cannot further held to be a bar for
invoking a fresh remand to such custody like police
custody in respect of an altogether different case involving
the same accused.
xxx xxx xxx
13. … There cannot be any detention in the police custody
after the expiry of first fifteen days even in a case where
some more offences either serious or otherwise
committed by him in the same transaction come to light at
a later stage. But this bar does not apply if the same
arrested accused is involved in a different case arising out
of a different transaction. Even if he is in judicial custody
in connection with the investigation of the earlier case he
can formally be arrested regarding his involvement in the
different case and associate him with the investigation of
that other case and the Magistrate can act as provided
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under Section 167(2) and the proviso and can remand him
to such custody as mentioned therein during the first
period of fifteen days and thereafter in accordance with
the proviso as discussed above. …”
(Emphasis supplied)
41. It was submitted on behalf of the appellant that a person already in
judicial custody in relation to an offence, cannot have a “reason to
believe” that he may be arrested on the accusation of having
committed a different offence. However, we do not find any merit in
the aforesaid submission. There are two ways by which a person,
who is already in custody, may be arrested –
a. First, no sooner than he is released from custody in connection
with the first case, the police officer can arrest and take him into
custody in relation to a different case; and
b. Secondly, even before he is set free from the custody in the first
case, the police officer investigating the other offence can
formally arrest him and thereafter obtain a Prisoner Transit
Warrant (“P.T. Warrant”) under Section 267 of the CrPC from
the jurisdictional magistrate for the other offence, and
thereafter, on production before the magistrate, pray for
remand;
OR
Instead of effecting formal arrest, the investigating officer can make
an application before the jurisdictional magistrate seeking a P.T.
Warrant for the production of the accused from prison. If the
conditions required under 267 of the CrPC are satisfied, the
jurisdictional magistrate shall issue a P.T. Warrant for the production
of the accused in court. When the accused is so produced before
the court in pursuance of the P.T. Warrant, the investigating officer
will be at liberty to make a request for remanding the accused, either
to police custody or judicial custody, as provided in Section 167(1)
of the CrPC. At that time, the jurisdictional magistrate shall consider
the request of the investigating officer, peruse the case diary and the
representation of the accused and then, pass an appropriate order,
either remanding the accused or declining to remand the accused.
[See: State v. K.N. Nehru reported in 2011 SCC OnLine Mad 1984]
42. As arrest in both the aforesaid circumstances is permissible in law,
it would be incorrect to hold that a person, while in custody, cannot
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have a “reason to believe” that he may be arrested in relation to a
different offence. As a logical extension of this, it can also be said
that when procedural law doesn’t preclude the investigating agency
from arresting a person in relation to a different offence while he is
already under custody in some previous offence, the accused too
cannot be precluded of his statutory right to apply for anticipatory
bail only on the ground that he is in custody in relation to a different
offence.
43. The procedure for arrest of the accused in relation to an offence after
he is released from custody in the first offence would be similar to
the procedure of arrest which is required to be followed in any other
cognizable offence. However, we think it is necessary to shed some
light on the procedure to effect arrest in the second category of
cases, that is, where the investigating agency arrests the accused in
relation to an offence while he is in custody in relation to a different
offence.
44. As discussed in the preceding paragraphs, an accused could be
arrested either when he is free or when he is in custody in some
offence. Similarly, an arrest can be made by a police officer either
without a warrant or with a warrant issued by a court. Thus, the
following possibilities emerge:
a. If an accused is arrested without a warrant while he is free and
not in custody, then he has to be produced before the nearest
Magistrate, who may remand him to police or judicial custody
or may grant bail if applied for by the accused.
b. If an accused is arrested with a warrant while he is free and not
in custody, then Section 81 of the CrPC permits the production
of such a person before the court issuing the warrant.
c. If an accused is arrested with or without a warrant while he is
already in custody in one offence, then it is only under Section
267 of the CrPC that he can be removed from such custody
and produced before the Magistrate under whose territorial
jurisdiction the other offence is registered.
45. Section 46(1) of the CrPC reads as under:
“46. Arrest how made.—(1) In making an arrest the police
officer or other person making the same shall actually
touch or confine the body of the person to be arrested,
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unless there be a submission to the custody by word or
action.
Provided that where a woman is to be arrested, unless the
circumstances indicate to the contrary, her submission to
custody on an oral intimation of arrest shall be presumed
and, unless the circumstances otherwise require or unless
the police officer is a female, the police officer shall not
touch the person of the woman for making her arrest.”
46. Thus, the plain reading of the aforesaid makes it clear that arrest
involves actual touch or confinement of the body of the person
sought to be arrested. However, arrest can also be effected without
actual touch if the person sought to be arrested submits to the
custody by words or action.
47. The term ‘arrest’ is not defined either in the procedural Acts or in the
various substantive Acts, though Section 46, CrPC, lays down the
mode of arrest to be effected. Black’s Law Dictionary (5th Edition,
1979) defines arrest as follows:
“To deprive a person of his liberty by legal authority.
Taking, under real or assumed authority, custody of
another for the purpose of holding or detaining him to
answer a criminal charge or civil demand. Arrest involves
the authority to arrest, the assertion of that authority with
the intent to effect an arrest, and the restraint of the person
to be arrested. All that is required for an ‘arrest’ is some
act by officer indicating his intention to detain or take
person into custody and thereby subject that person to the
actual control and will of the officer, as formal declaration
of arrest is required.”
48. Similarly, the term ‘custody’ too is not defined either in the CrPC or
the IPC. The Corpus Juris Secondum (Vol. 25 at Page 69) defines
‘custody’ as follows:
“When it is applied to persons, it implies restraint and may
or may not imply physical force sufficient to restrain
depending on the circumstances and with reference to
persons charged with crime, it has been defined as
meaning on actual confinement or the present means of
enforcing it, the detention of the person contrary to his will.
Applied to things, it means to have a charge or safe-
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keeping, and connotes control and includes as well,
although it does not require, the element of physical or
manual possession, implying a temporary physical control
merely and responsibility for the protection and
preservation of the thing in custody. So used, the word
does not connote dominion or supremacy of authority. The
said term has been defined as meaning the keeping,
guarding, care, watch, inspection, preservation or security
of a thing, and carries with it the idea of the thing being
within the immediate personal care and control of the
prisoner to whose custody it is subjected; charge; charge
to keep, subject to order or direction; immediate charge
and control and not the final absolute control of
ownership.”
[See: Roshan Beevi and others v. Joint Secretary to
Government of Tamil Nadu and others, 1983 SCC OnLine Mad
163]
49. The Rajasthan High Court proceeded on the assumption that there
can be no arrest while a person is in judicial custody because it is
not possible for the police officer to arrest him without actual touch
or confinement while such person is under custody. However, we are
unable to agree with the view taken by the High Court for the reason
that a lawful arrest can be made even without actually seizing or
touching the body. Actions or words which successfully bring to the
notice of the accused that he is under a compulsion and thereafter
cause him to submit to such compulsion will also be sufficient to
constitute arrest. This Court in State of U.P. v. Deoman Upadhyaya
reported in AIR 1960 SC 1125 held that submission to the custody
by word or action by a person is sufficient so as to constitute arrest
under Section 46 of the CrPC.
50. In the aforesaid context, we may also refer to and rely upon the
decision of the Queen’s Bench in Alderson v. Booth reported in
[1969] 2 All ER 271. The relevant observations are as under:
“There are a number of cases, both ancient and modern,
as to what constitutes an arrest, and whereas there was a
time when it was held that there could be no lawful arrest
unless there was an actual seizing or touching, it is quite
clear that is no longer the law. There may be an arrest by
mere words, by saying “I arrest you” without any touching,
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provided of course that the accused submits and goes
with the police officer. Equally it is clear, as it seems to me,
that an arrest is constituted when any form of words in
used which, in the circumstances, of the case, were
calculated to bring to the accused’s notice, and did bring
to the accused’s notice, that he was under compulsion and
thereafter he submitted to that compulsion.”
(Emphasis supplied)
51. The aforesaid decision fortifies the view that the actual seizing or
touching of the body of the person to be arrested is not necessary in
a case where the arrester by word brings to the notice of the accused
that he is under compulsion and thereafter the accused submits to
that compulsion. This is in conformity with the modality of the arrest
contemplated under Section 46 of the CrPC wherein also it is
provided that the submission of a person to be arrested to the
custody of the arrester by word or action can amount to an arrest.
The essence of the decision in Alderson (supra) is that there must
be an actual seizing or touching, and in the absence of that, it must
be brought to the notice of the person to be arrested that he is under
compulsion, and as a result of such notice, the said person should
submit to that compulsion, and then only the arrest is consummated.
52. As pointed out in the preceding paragraphs, a police officer can
formally arrest a person in relation to an offence while he is already
in custody in a different offence. However, such formal arrest doesn’t
bring the accused in the custody of the police officer as the accused
continues to remain in the custody of the Magistrate who remanded
him to judicial custody in the first offence. Once such formal arrest
has been made, the police officer has to make an application under
Section 267 of the CrPC before the Jurisdictional Magistrate for the
issuance of a P.T. Warrant without delay. If, based on the
requirements prescribed under Section 267 of the CrPC, a P.T.
Warrant is issued by the jurisdictional Magistrate, then the accused
has to be produced before such Magistrate on the date and time
mentioned in the warrant, subject to Sections 268 and 269
respectively of the CrPC. Upon production before the jurisdictional
Magistrate, the accused can be remanded to police or judicial
custody or be enlarged on bail, if applied for and allowed. The only
reason why we have delineated the procedure followed in cases
where a person already in custody is required to be arrested in
relation to a different offence is to negate the reasoning of the
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Rajasthan, Delhi and Allahabad High Courts that once in custody, it
is not possible to re-arrest a person in relation to a different offence.
When a person
in custody is confronted with a P.T. Warrant obtained in relation to a
different offence, such a person has no choice but to submit to the
custody of the police officer who has obtained the P.T. Warrant. Thus,
in such a scenario, although there is no confinement to custody by
touch, yet there is submission to the custody by the accused based
on the action of the police officer in showing the P.T. Warrant to the
accused. Thereafter, on production of the accused before the
jurisdictional Magistrate, like in the case of arrest of a free person
who is not in custody, the accused can either be remanded to police
or judicial custody, or he may be enlarged on bail and sent back to
the custody in the first offence. A number of decisions have held that
although Section 267 of the CrPC cannot be invoked to enable
production of the accused before the investigating agency, yet it can
undoubtedly be invoked to require production of the accused before
the jurisdictional Magistrate, who can thereafter remand him to the
custody of the investigating agency. Such an interpretation of the
provision would give true effect to the words “other proceedings” as
they appear in the text of Section 267 of the CrPC, which cannot be
construed to exclude proceedings at the stage of investigation. [See:
C. Natesan v. State of Tamil Nadu and Others, 1998 SCC OnLine
Mad 931; Ranjeet Singh v. State of Uttar Pradesh, 1995 Cri LJ
3505; State of Maharashtra v. Yadav Kohachade, 2000 Cri LJ 959]
53. Thus, contrary to the view taken by the Rajasthan, Allahabad and
Delhi High Courts, a person, while in custody in relation to an
offence, can be arrested in relation to a different offence, either after
getting released from custody in the first offence, or even while
remaining in custody in the first offence. In such circumstances, it
follows that a person, while in custody in relation to an offence, can
have “reason to believe” that he may be arrested in relation to a
different cognizable offence. We find no restriction in the text of
Section 438 or the scheme of the CrPC precluding a person from
seeking anticipatory bail in relation to an offence while being in
custody in relation to another offence. In the absence of any such
restriction, we find no valid reason to read any prohibition in the text
of Section 438 of the CrPC, to preclude a person in custody from
seeking anticipatory bail in relation to different offences.
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54. The option of applying for anticipatory bail in relation to an offence,
while being in custody in relation to a different offence, will only be
available to the accused till he is arrested by the police officer
on the strength of the P.T. Warrant obtained by him from the court
concerned. We must clarify that mere formal arrest (on-paper arrest)
would not extinguish the right of the accused to apply for anticipatory
bail. We say so because a formal arrest would not result in the
submission of the accused, who is already in custody, to the custody
of the police officer effecting a formal arrest in the subsequent case.
However, if after effecting a formal arrest, the police officer on the
strength of the same procures a P.T. Warrant from the jurisdictional
Magistrate, the accused would have no other choice but to submit to
that compulsion and the right of the accused to apply for anticipatory
bail would thereafter get extinguished.
55. If an accused is granted anticipatory bail in relation to an offence,
while being in custody in a different offence, then it shall no longer
be open to the police officer in the first case to apply under Section
267 of the CrPC for the production of the accused before the
jurisdictional Magistrate for the purpose of remanding him to police
or judicial custody. However, it shall be open to the jurisdictional
Magistrate to require the production of accused under Section
267(1) for any other purpose mentioned under the said section
except for the purpose of remanding him to police or judicial custody.
[See: Tusharbhai Rajnikantbhai Shah v. State of Gujarat,
reported in 2024 SCC OnLine SC 1897]
56. We would also like to observe that contrary to the submission of the
appellant that grant of anticipatory bail to the accused would prevent
the investigating authorities from conducting investigation and
discoveries, etc., it is always open to the concerned investigating
officer to apply before the Magistrate in whose custody the accused
is in relation to a different offence, seeking permission of such
Magistrate to interrogate the accused in relation to the particular
offence which he is investigating.
57. It was also submitted by the appellant that as the object of Section
438 of the CrPC was to prevent an accused from the humiliation of
arrest, the protective cover of the provision would not include within
its ambit a person who is already in custody. In other words, a person
once arrested in relation to an offence, cannot be said to suffer
further humiliation for any subsequent arrest which may take place,
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and thus, the relief of anticipatory bail should not be made available
to a person who is already in custody.
58. We are unable to accept the aforesaid contention of the appellant.
Each arrest a person faces compounds their humiliation and
ignominy. We say so because each subsequent arrest underscores
a continued or escalating involvement in legal troubles that can
erode the dignity of the person and their public standing. The initial
arrest itself often brings a wave of social stigma and personal
distress, as the individual struggles with the implications of their legal
predicament. When a subsequent arrest occurs, it intensifies this
emotional and social burden, amplifying the perception of their
criminality and reinforcing negative judgments from society.
Subsequent arrest in relation to different offences, while the
individual is in custody in a particular offence, further alienates the
individual from their community and adversely affects their personal
integrity. For this reason, it is incorrect to assume that subsequent
arrests diminish the level of humiliation. On the contrary, each
additional arrest exacerbates the person’s shame making the
cumulative impact of such legal entanglements increasingly
devastating.
iii. Illustrative Examples
59. The discrimination that would be caused if the submissions
canvassed on behalf of the appellant were to be accepted can be
understood with the aid of the following illustrations:
Illustration A
(1) ‘A’ is in custody for a case under Section 420 of the IPC,
and is enlarged on bail on a particular date. On the same day, ‘A’s’
wife registers a case under Section 498A IPC against him. Here, if
the appellant’s argument is accepted, ‘A’ would be able to apply for
anticipatory bail.
(2) ‘B’ is in custody under Section 420 of the IPC, and he has
applied for bail. However, the order releasing him on bail is yet to be
passed. While so, ‘B’s’ wife files a case under Section 498A of the
IPC against him. Here, if the appellant’s argument is accepted. ‘B’
would not be able to apply for anticipatory bail while in custody for a
case under Section 420. He can apply for anticipatory bail in relation
to the case under Section 498A only if he is not arrested immediately
after his release in the case under Section 420. If he is arrested
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immediately in the case under Section 498A after being released in
the case under Section 420, then the only remedy left for him would
be to seek regular bail.
If the interpretation sought to be put forward by the appellant is
accepted, two persons who are accused of similar offences are
entitled to different sets of rights. While one is permitted to avail the
right under Section 438 of the CrPC, the other is deprived of it,
merely on the basis of the point in time when the FIR gets lodged.
Illustration B
(1) ‘X’ is in custody for an offence under Section 302 of the
IPC punishable by life imprisonment or death, and subsequently an
FIR is registered against him for an offence under Section 376 of the
IPC which is punishable with imprisonment which may extend for
life. Here, if the appellant’s argument is accepted, then ‘X’ would not
be able to apply for anticipatory bail in the subsequent case, since
he is in custody for the earlier case under Section 302 of the IPC.
(2) ‘Y’ is in custody for an offence under Section 384 of the
IPC [extortion – punishable with imprisonment for 3 years], and while
in custody for this offence, an FIR is registered against him for an
offence under Section 406 of the IPC [criminal breach of trust –
punishable with imprisonment for 3 years]. In this example as well, if
the argument of the appellant is accepted, ‘Y’ would not be able to
apply for anticipatory bail, even though the offence is punishable with
imprisonment for 3 years.
‘Y’, therefore, would be placed at par with a person who has
committed a serious crime and would ordinarily not be granted
anticipatory bail. However, by prohibiting ‘Y’ from even applying for
anticipatory bail for an offence punishable by imprisonment for a
maximum of 3 years [i.e. Section 406 of the IPC], ‘Y’ is placed in the
same class as ‘X’.
E. CONCLUSION
60. Our examination of the matter has led us to the following conclusions:
i. An accused is entitled to seek anticipatory bail in connection
with an offence so long as he is not arrested in relation to that
offence. Once he is arrested, the only remedy available to him
is to apply for regular bail either under Section 437 or Section
439 of the CrPC, as the case may be. This is evident from para
39 of Gurbaksh Singh Sibbia (supra).
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ii. There is no express or implied restriction in the CrPC or in any
other statute that prohibits the Court of Session or the
High Court from entertaining and deciding an anticipatory bail
application in relation to an offence, while the applicant is in
custody in relation to a different offence. No restriction can be
read into Section 438 of the CrPC to preclude an accused from
applying for anticipatory bail in relation to an offence while he
is in custody in a different offence, as that would be against the
purport of the provision and the intent of the legislature. The
only restriction on the power of the court to grant anticipatory
bail under Section 438 of the CrPC is the one prescribed under
sub-section (4) of Section 438 of the CrPC, and in other
statutes like the Act, 1989, etc.
iii. While a person already in custody in connection with a
particular offence apprehends arrest in a different offence,
then, the subsequent offence is a separate offence for all
practical purposes. This would necessarily imply that all rights
conferred by the statute on the accused as well as the
investigating agency in relation to the subsequent offence are
independently protected. iv. The investigating agency, if it
deems necessary for the purpose of interrogation/investigation
in an offence, can seek remand of the accused whilst he is in
custody in connection with a previous offence so long as no
order granting anticipatory bail has been passed in relation to
the subsequent offence. However, if an order granting
anticipatory bail in relation to the subsequent offence is
obtained by the accused, it shall no longer be open to the
investigating agency to seek remand of the accused in relation
to the subsequent offence. Similarly, if an order of police
remand is passed before the accused is able to obtain
anticipatory bail, it would thereafter not be open to the accused
to seek anticipatory bail and the only option available to him
would be to seek regular bail.
v. We are at one with Mr. Dave that the right of an accused to
protect his personal liberty within the contours of Article 21 of
the Constitution of India with the aid of the provision of
anticipatory bail as enshrined under Section 438 of the CrPC
cannot be defeated or thwarted without a valid procedure
established by law. He is right in his submission that such
procedure should also pass the test of fairness,
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reasonableness and manifest nonarbitrariness on the anvil of
Article 14 of the Constitution of India.
vi. Under Section 438 of the CrPC, the pre-condition for a person
to apply for pre-arrest bail is a “reason to believe that he may
be arrested on an accusation of having committed a non-
bailable offence”. Therefore, the only pre-condition for
exercising the said right is the apprehension of the accused that
he is likely to be arrested. In view of the discussion in the
preceding paragraphs, custody in one case does not have the
effect of taking away the apprehension of arrest in a different
case.
vii. If the interpretation, as sought to be put forward by Mr. Luthra
is to be accepted, the same would not only defeat the right of a
person to apply for pre-arrest bail under Section 438 of the
CrPC but may also lead to absurd situations in its practical
application.
61. Before we part with the matter, we would like to underscore the
importance of the rights conferred under the procedural laws as
noted by a Constitution Bench of this Court in A.R. Antulay v. R. S.
Nayak reported in (1988) 2 SCC 602. It was observed therein that
no man can be denied of his rights under the Constitution and the
laws. He has a right to be dealt with in accordance with the law, and
not in derogation of it. This Court held that a denial of equal
protection of laws, by being singled out for a special procedure not
provided under the law, caused denial of rights under Article 14 of
the Constitution of India. A few relevant observations are extracted
hereinbelow:
“41. In the aforesaid view of the matter and the principle
reiterated, it is manifest that the appellant has not been
ordered to be tried by a procedure mandated by law, but
by a procedure which was violative of Article 21 of the
Constitution. That is violative of Articles 14 and 19 of the
Constitution also, as is evident from the observations of
the Seven Judges Bench judgment in Anwar Ali Sarkar
case [(1952) 1 SCC 1 : AIR 1952 SC 75 : 1952 SCR 284
: 1952 Cri LJ 510] where this Court found that even for a
criminal who was alleged to have committed an offence, a
special trial would be per se illegal because it will deprive
the accused of his substantial and valuable privileges of
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defence which, others similarly charged, were able to
claim.
xxx xxx
xxx
81. […] We proclaim and pronounce that no man is above
the law, but at the same time reiterate and declare that no
man can be denied his rights under the Constitution and
the laws. He has a right to be dealt with in accordance with
the law and not in derogation of it. This Court, in its anxiety
to facilitate the parties to have a speedy trial gave
directions on 16-2-1984 as mentioned hereinbefore
without conscious awareness of the exclusive jurisdiction
of the Special Courts under the 1952 Act and that being
the only procedure established by law, there can be no
deviation from the terms of Article 21 of the Constitution of
India. That is the only procedure under which it should
have been guided. By reason of giving the directions on
16-2-1984 this Court had also unintentionally caused the
appellant the denial of rights under Article 14 of the
Constitution by denying him the equal protection of law by
being singled out for a special procedure not provided for
by law. […]”
(Emphasis supplied)
62. Similarly, a Constitution Bench of this Court in State of West Bengal
v. Anwar Ali Sarkar reported in (1952) 1 SCC 1, held that procedural
law confers very valuable rights on a person, and their protection
must be as much the object of a Court’s solicitude as those conferred
under the substantive law. Few pertinent observations are extracted
hereinbelow:
“27. The argument that changes in procedural law are not
material and cannot be said to deny equality before the
law or the equal protection of the laws so long as the
substantive law remains unchanged or that only the
fundamental rights referred to in Articles 20 to 22 should
be safeguarded is, on the face of it, unsound. The right to
equality postulated by Article 14 is as much a fundamental
right as any other fundamental right dealt with in Part III of
the Constitution. Procedural law may and does confer very
valuable rights on a person, and their protection must be
316 [2024] 9 S.C.R.

Digital Supreme Court Reports

as much the object of a court’s solicitude as those
conferred under substantive law.”
(Emphasis supplied)
63. It was also sought to be argued by Mr. Luthra that the issue at hand
has already been dealt with and decided by a three-Judge Bench of
this Court in Narinderjit Singh Sahni (supra). It was contended that
the dictum laid therein is that an anticipatory bail application filed by
an accused in a different case, while he is in custody in one case,
would not be maintainable. However, we are unable to agree with
such submission of the appellant. In the said case, the Petitioners
therein, who were arrayed as accused in multiple FIRs registered at
various police stations across the country, had invoked the
jurisdiction of this Court under Article 32 praying for an order for bail
in the nature as prescribed under Section 438 of the CrPC. The crux
of the grievance of the Petitioners was that although they had
secured an order of bail in one case yet they were being detained in
prison on the strength of a production warrant in another matter.
This, according to the petitioners, was violative of Article 21 as they
were deprived of their liberty despite having been granted bail in one
of the cases.
64. The aforesaid contention of the Petitioners in the said case was
ultimately rejected by this Court on the ground that even if the
Petitioners could be said to have been deprived of their liberty, such
deprivation was in accordance with the due process of law. Having
observed thus, this Court dismissed the Writ Petition filed by the
Petitioners as no infraction of Article 21 was established.
65. Evidently, this Court in the aforesaid case had no occasion to go into
the question of maintainability of an application for grant of
anticipatory bail by an accused who is already in judicial custody in
relation to some offence. On the contrary, this Court in Narinderjit
Singh Sahni (supra) examined the issue whether a blanket order in
the nature of anticipatory bail could be passed by this Court in
exercise of its Writ Jurisdiction, wherein the Petitioner was arrayed
as an accused in multiple criminal proceedings.
66. On the other hand, in the present case, we have decided the issue
of maintainability of an anticipatory bail application filed at the
instance of an accused who is already in judicial custody in a
different offence and have reached the conclusion that such an
application is maintainable under the scheme of the CrPC. However,
[2024] 9 S.C.R. 317

Dhanraj Aswani v. Amar S. Mulchandani & Anr.

it is clarified that each of such applications will have to be decided
by the competent courts on their own merits.
67. In view of the aforesaid discussion, the present appeal must fail and
the same is thereby dismissed.
68. The High Court of Judicature at Bombay shall now proceed to decide
the anticipatory bail application filed by the respondent accused on
its own merits.
69. Pending application(s), if any, shall stand disposed of.
70. The Registry shall forward one copy each of this judgment to all the
High Courts across the country.

Result of the case: Appeal dismissed.

Headnotes prepared by: Divya Pandey

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