allahabad high court - midnapore's case (s upra), …the law laid down by the apex court in...

3 All] Sri Anil Kumar Gupta & Anr. Vs. Pawan Kumar Singh & Ors. 1155

APPELLATE JURISDICTIONCRIMINAL SIDE

DATED: ALLAHABAD 09.09.2015

BEFORETHE HON'BLE BALA KRISHNA NARAYANA, J.

THE HON'BLE MRS. VIJAY LAKSHMI, J.

Contempt Appeal No. 4 of 2014

Sri Anil Kumar Gupta & Anr. ...AppellantsVersus

Pawan Kumar Singh & Ors. Respondents

Counsel for the Appellants:Sri Neeraj Upadhyay, Sri Piyush Shukla,Sri Ramesh Upadhyay, C.S.C.

Counsel for the Respondents:Sri V.K. Singh, Sri G.K. Singh, Sri H.P.Sahi

Contempt of Court Act 1971-Section 19-Contempt Appeal-maintainability againstorder-requiring appellant to appear inperson-without indication that chargeshall be framed-held-being interlocutoryorder-appeal not maintainable.

Held: Para-18By the impugned order, the appellantshave merely been summoned in the Court.The impugned order does not even sayanything that on the date fixed, chargeswould be framed against them. Even ifassuming that their personal appearancewas required for framing of chargesagainst them in the contempt proceeding,but there is absolutely no indication thatby the impugned order, the learned SingleJudge has imposed any punishment on theappellants for contempt. Hence, in view ofthe well settled legal position as discussedabove, we have no doubt in holding thatthe impugned order is an interlocutoryorder against which an appeal underSection 19 of the Contempt of Courts Act,1971 is not maintainable. Therefore, thepresent appeal is liable to be dismissed asnot maintainable. However, the appellantsare not remediless and they are at liberty

to avail any other remedy available tothem under law, if so advised, in wake ofthe law laid down by the Apex Court inMidnapore's case (supra), wherein it hasbeen held that if the High Court, in acontempt proceeding, decides an issue ormakes any direction, relating to the meritsof the dispute between the parties, theaggrieved person is not without remedyand he can challenge it by means of intracourt appeal if the order is of Single Judgeand by seeking special leave to appealunder Article 136 of the Constitution ofIndia in other cases, but not by way offiling an appeal under Section 19 of theContempt of Courts Act.

Case Law discussed:(2000) 4 Supreme Court Cases 400; (2006) 5SCC 399; (2006) 2 SCC 282; 2014 STPL (Web)70 SC; (2005) 3 UPLBEC 2415; (2011) 12 SCC736; (2005) 7 SCC 406; (2002) 5 SCC 406;(2002) 5 SCC 352; Contempt No. 1782 of2013; 1996 (4) SCC 411; (2006) 5 SCC 399;(2005) 3 UPLBEC 2415; (2000) 4 SupremeCourt Cases 400; (1988) 3 SCC 26; (1996) 4SCC 411; (1978) 2 SCC 370; (2009) 2 SCC641; Contempt Appeal No. 7 of 2009.

(Delivered by Hon'ble Mrs. VijayLakshmi, J.)

1. The present appeal, under Section19 of the Contempt of Courts Act, 1971,has been filed by Principal SecretaryHome, Government of U.P. Lucknow andDirector General of Police, U.P. Lucknow,questioning the legality and correctness ofthe order dated 05.03.2014, passed bylearned Single Judge of this Court in CivilMisc. Contempt Petition No. 1140 of 2009;Pawan Kumar Singh & others Vs. KunwarFateh Bahadur Singh, Principal Secretary,Lucknow & others, whereby the learnedSingle Judge, while observing that a primafacie case of non compliance of thejudgment of the writ Court is made out,has directed both the appellants to remainpresent before the Court on the date fixed.

1156 INDIAN LAW REPORTS ALLAHABAD SERIES

2. Heard Sri Ramesh Upadhyay,learned Chief Standing Counsel, assistedby Sri Neeraj Upadhyay, learnedAdditional Chief Standing Counsel andSri Piyush Shukla, learned StandingCounsel, for the appellants and Sri G.K.Singh, assisted by Sri H.P. Sahi, learnedcounsel for the respondents. Perused therecord.

3. The order assailed in this appeal,for convenience, is quoted below:-

"Heard learned counsel for theapplicants and Sri Ramesh Upadhyay,learned Chief Standing Counsel,representing the Principal Secretary(Home), U. P. Government, Lucknow andthe Director General of Police, U.P.,Lucknow.

Services of about 20,000 constablesof civil police (including the applicants)were terminated enmass in the year 2007by a couple of Government orders. TheGovernment orders were challenged byway of large number of writ petitionswhich were clubbed together and the writCourt vide order dated 8th December,2008 allowed the writ petitions andquashed the Government orders wherebythe termination had been directed. TheState Government preferred intra courtappeals which were also dismissed by theDivision Bench on 4th March, 2009.Thereafter contempt proceedings wereinitiated. In the meantime the StateGovernment filed Special Leave Petitionbefore the Apex Court and ultimatelyunder interim order of the Apex Courtdated 25.5.2009 the terminated constableswere given appointment letters and wereallowed to join on 27.05.2009.Subsequently the Special Leave Petitionhas been got dismissed as withdrawn bythe State on 3.3.2013. The effect of the

dismissal of the Special Leave Petition aswithdrawn is that the judgement of thewrit Court stands affirmed and itsimplementation is to be considered.

The effect of the termination ordersbeing quashed would be that there was notermination order in the eye of law andthe terminated employees would bedeemed to be in continuous service andentitled to all consequential benefits. It isnot an issue that all the terminatedconstables have been reinstated w.e.f.27.5.2009 and they are receiving theirsalary ever since then. The only issuewhich remains to be considered is as towhether they would be entitled touninterrupted service benefits from thedate of entering into service and also withregard to their entitlement to payment ofsalary / back wages for the period theyhave remained under termination i.e.from the date of termination till the dateof reinstatement.

According to Sri Upadhyay thejudgement of the writ Court has been fullycomplied with and nothing furtherremains to be implemented. LearnedChief Standing Counsel has relied uponlarge number of decisions of the ApexCourt and this Court in support of hisargument that until and unless the Courtwhile allowing the writ petition had alsodirected for award of back wages andconsequential benefits, there can be noclaim or justification for payment of backwages. Further according to him this isalso the stand taken by the State as isapparent from the affidavit dated03.03.2014 duly sworn by the SpecialSecretary (Home).

On the other hand learned counselfor the applicants submitted that oncetermination had been quashed all theterminated employees were entitled to fullback wages and consequential benefits as


the writ Court had not given any directionfor reducing their back wages on theprinciple of no work no pay. It is alsocase of the applicants that writ Court hadfound that the termination enmass by theGovernment was illegal and oncetermination was held to be illegal,applicants would be entitled to all thebenefits. It has also been submitted thatthe applicants and all other constables inany case would be entitled to their salaryfrom the date of judgement of the writCourt. The Division Bench as also theSupreme Court had dismissed the intraCourt appeal and the Special LeavePetition.

It may be an arguable case thatapplicants may not be entitled to back wagesfor the period when the orders fortermination were in force but there can be noissue that applicants would not be entitled tothe salary from the date of judgement of thewrit Court. Thus, prima facie case of noncompliance of the judgement of the writCourt is made out. Accordingly, thePrincipal Secretary (Home), U.P. Lucknowand the Director of General of Police, U.P.Lucknow need to be summoned. Since thismatter is engaging attention of theGovernment for quite some time, learnedAdvocate General and learned ChiefStanding Counsel have already appeared ona number of occasions and the stand takenby them has already come on record it is notnecessary to issue formal notices to thepresent Principal Secretary (Home) and theDirector General of Police.

Sri Anil Kumar Gupta, presentPrincipal Secretary (Home) has alreadybeen arrayed as opposite party no.7.Upon oral request learned counsel for theapplicant is permitted to implead SriAnand Lal Banerjee, Director General ofPolice, U.P. Lucknow, as opposite partyno.8 during the course of the day.

Sri Upadhyay, learned ChiefStanding Counsel accepts the notices ontheir behalf and shall communicate themof this order.

List this case on 13th March, 2014.On the said date the Principal

Secretary (Home) and the DirectorGeneral of Police, U.P. Lucknow wouldremain present before this Court.

A copy of this order may be provided toSri Ramesh Kumar Upadhyay, learned ChiefStanding Counsel, free of costs within 24hours for necessary compliance."

4. At the very outset, learned counselfor the respondents Sri G.K. Singh hasraised a preliminary objection with regard tothe maintainability of this contempt appeal.In this respect, learned counsel for therespondents has drawn our attention to thereport of Stamp Reporter dated 10th March,2014, according to which this contemptappeal is not maintainable. Apart from this,learned counsel for the respondents hasplaced before us the following judgments ofHon'ble Supreme Court in support of hiscontention:-

Midnapore Peoples' Co-op. BankLtd. and others Vs. Chunilal Nanda andothers (2006) 5 SCC 399.

Nand Lal Yadav v. Raja Ram andothers (Contempt Appeal (Criminal) No.1 of 2010).

S.M.A. Abdi, the Principal Secretary(Law) Government of Uttar Pradesh andanother v. Private SecretariesBrotherhood and another 2009 (4) AWC4026.

Dr. Lalji Singh & others v. Dr. AnilKumar Chauhan (Contempt Appeal No. 6of 2014).

5. Sri Ramesh Upadhyay, learnedChief Standing Counsel on the other hand


has submitted that the appeal ismaintainable in view of the law laid downby the Apex Court in case of R.N. Deyand others v. Bhagyabati Pramanik andothers, (2000) 4 Supreme Court Cases400. He has also placed reliance on thejudgment rendered in Midnapore Peoples'Coop Bank Ltd and others Vs. ChunilalNanda and others (2006)5 SCC 399,wherein the Apex Court has carved out anexception by holding that appeal ismaintainable where such direction isincidental to or inextricably connectedwith the order punishing for contempt.Learned Chief Standing Counsel hasdrawn our attention to the earlier order ofthis Court passed in this appeal on12.3.2014, which is reproduced below:-

"On the matter being taken up today,preliminary objection has been raised inregard to maintainability of appeal inquestion.

Sri. R.N. Singh, Senior Advocate hascontended that as per settled law in thecase of Midnapore Peoples' Coop BankLtd and others Vs. Chunilal Nanda andothers (2006)5 SCC 399, appeal can befiled only when jurisdiction to punish forcontempt has been exercised and onlyexception that has been carved out wheresuch direction is incidental to orinextricably connected with the orderpunishing for contempt only then appealunder Section 19 of the Contempt ofCourts Act, 1971 an encompass such asituation, and the case in hand is not atall falling under such an exception.

Sri V.C. Mishra, Senior Advocate/Advocate General, assisted by Sri RameshUpadhya, Chief Standing Counsel on theother hand contended that case in handfalls within the exception that has beencarved out by Supreme Court as here inspite of precise submission having been

made qua entitlement, same has not beenadverted to in its correct perspective andwhat has not been provided for in thejudgment, in the threat of contemptproceeding same is being sought to beawarded, and ignoring the stand of State,opinion has been formed for awardingsalary and Officers of State, for itsimplementation are being summoned inCourt for framing of the charges whereasthere is an application moved by theappellants for discharge taking stand thatorder stands complied with in its wordsand spirit. Summoning of incumbents inperson is nothing but arm twisting device.

Specific query has been raised toboth the counsels, as to whether, Hon'bleApex Court on any subsequent occasionhas clarified the situation, as to in whatcontingency, case in question would fallwithin the category of incidental to orinextricably connected with the orderpunishing for contempt. The answer hasbeen in negative.

Issue requires consideration by thisCourt as to whether case in hand fallswithin the category of incidental to orinextricably connected with the orderpunishing for contempt.

In view of the same, it is necessary toanswer this question, as such list this casefor final hearing on 4.4.2014. Record ofsingle judge be summoned and no furtheraction be taken till that date."

6. Sri Upadhyay has furthersubmitted that the impugned order clearlycomes within the purview of theexception carved out by the Apex Courtin Midnapore's case (supra) because adefinite opinion has been formed bylearned Single Judge that contempt ofcourt has been committed by the State andthe officers of the State have beensummoned in the Court for framing of


charges against them. Learned ChiefStanding Counsel has also placed relianceon the following judgments in support ofthe his contention.

A.P. SRTC & another vs. B.S. DavidPaul; (2006) 2 SCC 282.

Sudhir Vasudeva vs. M. GeorgeRavishekaran & others; 2014 STPL(Web) 70 SC.

Director of Education, Uttaranchaland others vs. Ved Prakash Joshi &others; (2005) 3 UPLBEC 2415.

Abdul Gani Bhat Vs. Chairman,Islamia College Governing Board andothers; (2011) 12 SCC 736.

Rajasthan State Road TransportCorporation vs. Shyam Bihari Lal Gupta;(2005) 7 SCC 406.

Jhareswar Prasad Paul and anothervs. Tarak Nath Ganguly and others;(2002) 5 SCC 352.

Harendra Maurya and 79 others vs.Shri R.M. Srivastava (Contempt No. 1782of 2013).

State of Maharastra vs. Mahboob S.Allibhoy and others; 1996 (4) SCC 411.

Midnapore Peoples' Co-op. BankLtd. And others vs. Chuni Lal Nanda andothers; (2006) 5 SCC 399.

7. The appellants have challengedthe validity of the impugned order mainlyon the ground that the contempt Courtcannot traverse beyond the order orcannot test the correctness or otherwise ofthe order giving additional directions ordelete any direction as it would amount toexercising review jurisdiction. Placingreliance on the law laid down by theHon'ble Supreme Court in the case ofDirector of Education, Uttaranchal v. VedPrakash Joshi (2005) 3 UPLBEC 2415,learned Chief Standing Counsel has

vehemently argued that the judgmentdated 8.12.2008, passed by the writ Courtis totally silent on the issue whether theterminated Constables, who have beenreinstated, are entitled for back wages ornot. He has submitted that the contemptcourt is not entitled to decide this issue byreviewing the judgment of writ Court. Hehas drawn our attention to the followingparagraphs of the impugned order,wherein the learned Single Judge hasobserved as under:

"......It is not an issue that all theterminated constables have beenreinstated w.e.f. 27.5.2009 and they arereceiving their salary ever since then. Theonly issue which remains to be consideredis as to whether they would be entitled touninterrupted service benefits from thedate of entering into service and also withregard to their entitlement to payment ofsalary / back wages for the period theyhave remained under termination i.e.from the date of termination till the dateof reinstatement.

It may be an arguable case thatapplicants may not be entitled to backwages for the period when the orders fortermination were in force but there can beno issue that applicants would not beentitled to the salary from the date ofjudgement of the writ Court. Thus, primafacie case of non compliance of thejudgement of the writ Court is made out.Accordingly, the Principal Secretary(Home), U.P. Lucknow and the Directorof General of Police, U.P. Lucknow needto be summoned....."

8. Relying on the judgment renderedin Ved Prakash Joshi's case (supra) SriUpadhyay has contended that if the writCourt is silent on the issue of payment ofback wages to the reinstated employees,


the contempt Court has no jurisdiction todecide this issue by reviewing thejudgment of the writ Court.

9. In Ved Prakash Joshi's case(supra), the Hon'ble Supreme Court, whilesetting aside the order passed byAllahabad High Court in Civil Misc.Contempt Application No. 3797 of 1998held as under:-

".......The Court exercising contemptjurisdiction cannot take upon itself powerto decide the original proceedings in amanner not dealt with by the Courtpassing the judgment or order. Right orwrong the order has to be obeyed.Flouting an order of the Court wouldrender the party liable for contempt.While dealing with an application forcontempt the Court cannot traversebeyond the order, non-compliance ofwhich is alleged. In other words, it cannotsay what should not have been done orwhat should have been done. It cannottraverse beyond the order. It cannot testcorrectness or otherwise of the order orgive additional direction or delete anydirection. That would be exercisingreview jurisdiction while dealing with anapplication for initiation of contemptproceedings. The same would beimpermissible and indefensible. In thatview of the matter, the order of the HighCourt is set aside."

10. Learned Chief Standing Counselhas submitted that the appeal against theimpugned order is maintainable in view ofthe law laid down by Supreme Court incase of R.N. Dey and others v.Bhagyabati Pramanik and others, (2000) 4Supreme Court Cases 400, in which theApex Court has held that when the courteither suo motu or on a motion or a

reference, decides to take action andinitiate proceedings for contempt and ifthe order is passed not discharging therule issued in contempt proceedings, itwould be an order or decision in exerciseof its jurisdiction to punish for contempt.Against such order appeal would bemaintainable.

11. We have given our thoughtfulconsideration to various pleas advancedby learned counsel for the parties.

12. The present contempt appeal hasarisen in the backdrop of the facts thatservices of about 20,000 Constables ofCivil Police (including the appellants)were terminated en-mass in the year 2007by a couple of Government Orders. ThoseGovernment Orders were challenged byway of large number of writ petitions,which were clubbed together and the writCourt vide order dated 8.12.2008 allowedthe writ petitions and quashed theGovernment Orders, whereby thetermination had been directed. The StateGovernment preferred intra court appealsagainst the order of Single Judge, whichwere also dismissed by the DivisionBench on 4.3.2009. The StateGovernment filed Special Leave Petitionbefore the Apex Court and under interimorder of the Apex Court dated 25.5.2009,the terminated Constables were givenappointment letters and were allowed tojoin their services on 27.5.2009.Subsequently, the Special Leave Petitiongot dismissed as withdrawn by the Stateon 3.3.2013. The effect of the dismissal ofthe Special Leave Petition as withdrawnwas that the judgment of the writ Courtstood affirmed. However, when thejudgment of writ Court was not compliedby the State in its letters and spirit,contempt proceedings were initiated


before this Court by means of filing CivilMisc. Contempt Petition No. 1140 of2009. In the aforesaid contempt petition,the learned Single Judge on 20.5.2009after a detailed discussion of the matter,held as under:

"The Court is left with no option butto record its satisfaction that a primafacie case for willful disobedience andtotal non-compliance of the judgment ofthis Court is made out. The oppositeparties no. 2 to 6 are directed to remainpresent before this Court on the next datewhich is being fixed as 27.5.2009 forframing of the charges.

At this stage on the request of thelearned Advocate General one moreopportunity is given to the oppositeparties to make compliance of thejudgment of this Court by the next datefixed failing which they shall appearbefore this Court. In case of compliancehaving been made and an affidavit to thateffect being filed by the PrincipalSecretary, Department of Home,Government of U.P. their personalappearance would not be necessary.

List on 27.5.2009.A copy of the order may be provided

to Sri M.C. Chaturvedi, learned ChiefStanding Counsel free of cost within 48hours for necessary compliance and to theother parties on payment of usual chargeswithin the same time."

13. The record shows that despitehaving ample time and opportunity, whenthe State did not comply the order dated8.12.2008, passed in Civil Misc. WritPetition No. 45645 of 2007, the learnedSingle Judge of this Court, finding thatprima facie case of non compliance ofjudgment of the writ Court was made out,summoned the Principal Secretary Home,

Government of U.P. Lucknow andDirector General of Police, U.P. Lucknowin Court on 13.3.2014 personally videimpugned order.

14. As the respondents have raised apreliminary objection on themaintainability of this contempt appeal,the issue regarding the maintainability ofthe appeal is to be decided at the firstinstance.

15. Section 19 of the Contempt ofCourts Act, 1971 provides that an appealshall lie as of right from any order ordecision of High Court in the exercise ofits jurisdiction to punish for contempt.Section 19 of the Contempt of Courts Act,1971 read thus:-

"19. Appeals.--(1) An appeal shall lieas of right from any order or decision ofHigh Court in the exercise of itsjurisdiction to punish for contempt--

(a) where the order or decision isthat of a single Judge, to a Bench of notless than two Judges of the Court;

(b) where the order or decision isthat of a Bench, to the Supreme Court:"

16. There is a plethora of judgmentsof Hon'ble Supreme Court on the lawregarding maintainability of contemptappeal.

1. In D.N. Taneja v. Bhajan Lal(1988) 3 SCC 26, the three judge bench ofHon'ble Supreme Court has held that "anappeal will lie under Section 19(1) of theAct only when the High Court makes anorder or decision in exercise of itsjurisdiction to punish for contempt. TheHigh Court exercises its jurisdiction orpower as conferred on it by Article 215 ofthe Constitution when it imposes a


punishment for contempt. When the HighCourt does not impose any punishment onthe alleged contemnor, it does notexercise its jurisdiction or power topunish for contempt under Article 215."

2. In State of Maharashtra vs.Mahboob S. Alibhoy (1996) 4 SCC 411,the Hon'ble Apex Court has held that"words 'any order' must be read with'decision' so as to exclude anyinterlocutory order of the High Courtfrom scope of appeal. Unless by the orderHigh Court imposes punishment inexercise of its jurisdiction to punish forcontempt, no appeal will lie against it."

3. In Purshotam Dass Goel v. B.S.Dhillon (1978) 2 SCC 370, the Hon'bleApex Court has held that "the order ordecision appealed against under section19 must be such that it decides some boneof contention raised before the High Courtaffecting the right of the party aggrieved.Mere initiation of a proceeding forcontempt by the issuance of the notice onthe prima facie view that the case is a fitone for drawing up the proceeding, doesnot decide any question."

4. In Parents Assn. of Students' v.M.A. Khan (2009) 2 SCC 641, it has beenheld by Hon'ble Apex Court that specialappeal from interim order passed bySingle Judge in exercise of contemptjurisdiction if, in view of provisions ofSection 19 of the Contempt of Courts Act,is not maintainable. (Allahabad HighCourt Rules, 1952, Ch. VIII Section B).

5. In S.M.A. Abdi's case (supra), thisCourt has held as follows:-

"It is not to be emphasised that rightof appeal is a creature of statute andunless the law specifically provides forfiling the appeal, that cannot be permitted.Any order or decision as referred inSection 19 of the Act cannot be read

independently from an order of punishingfor contempt."

6. In Smt. Sudha Shukla v. Ausanand others, Contempt Appeal No. 7 of2009, decided on 26.05.2009, this Courthas observed as under:-

"....unless any adverse order havingimmediate effect causing injury is passed,that cannot be appealed either by filingcontempt appeal or even by filing SpecialAppeal if it is not so provided."

7. In Tamilnad Mercantile BankShareholders Welfare Association's case(supra), the Apex Court has approved thejudgments of the Calcutta High Courtrendered in the case of Ashoke KumarRai v. Ashoke Arora and another (96CWN 278), wherein it has been held asunder:-

"The right of appeal will be availableunder Sub- section (1) of Section 19 onlyagainst any decision or order of a HighCourt passed in the exercise of itsjurisdiction to punish for contempt. In thisconnection, it is pertinent to refer to theprovision of Article 215 of theConstitution which provides that everyHigh Court shall be a Court of record andshall have all the powers of such a Courtincluding the power to punish forcontempt of itself. Article 215 confers onthe High Court the power to punish forcontempt of itself. In other words, theHigh Court derives its jurisdiction topunish for contempt from Article 215 ofthe Constitution. As has been noticedearlier, an appeal will lie under Section19(1) of the Act only when the High Courtmakes an order or decision in exercise ofits jurisdiction to punish for contempt. Itis submitted on behalf of the respondentand, in our opinion rightly, that the HighCourt exercises its jurisdiction or poweras conferred on it by Article 215 of theConstitution when it imposes a


punishment for contempt. When the HighCourt does not impose any punishment onthe alleged contemner, the High Courtdoes not exercise its jurisdiction or powerto punish for contempt. The jurisdiction ofthe High Court is to punish. When nopunishment is imposed by the High Court,it is difficult to say that the High Courthas exercised its jurisdiction or power asconferred on it by Article 215 of theConstitution....."

8. In Midnapore's case (supra)Hon'ble Supreme Court, after a detaileddiscussion of its several earlier judgmentshas summed up the matter with thefollowing observations:-

"The position emerging from thesedecisions, in regard to appeals againstorders in contempt proceedings may besummarized thus:-

"I. An appeal under Section 19 ismaintainable only against an order ordecision of the High Court passed inexercise of its jurisdiction to punish forcontempt, that is, an order imposingpunishment for contempt.

II. Neither an order declining toinitiate proceedings for contempt, nor anorder initiating proceedings for contemptnor an order dropping the proceedingsfor contempt nor an order acquitting orexonerating the contemnor, is appealableunder Section 19 of the CC Act. In specialcircumstances, they may be open tochallenge under Article 136 of theConstitution.

III. In a proceeding for contempt, theHigh Court can decide whether anycontempt of court has been committed,and if so, what should be the punishmentand matters incidental thereto. In such aproceeding, it is not appropriate toadjudicate or decide any issue relating tothe merits of the dispute between theparties.

IV. Any direction issued or decisionmade by the High Court on the merits of adispute between the parties, will not be inthe exercise of "jurisdiction to punish forcontempt" and, therefore, not appealableunder Section 19 of the CC Act. The onlyexception is where such direction ordecision is incidental to or inextricablyconnected with the order punishing forcontempt, in which event the appeal underSection 19 of the Act, can also encompassthe incidental or inextricably connecteddirections.

V. If the High Court, for whatsoeverreason, decides an issue or makes anydirection, relating to the merits of thedispute between the parties, in a contemptproceedings, the aggrieved person is notwithout remedy. Such an order is open tochallenge in an intra-court appeal (if theorder was of a learned Single Judge andthere is a provision for an intra-courtappeal), or by seeking special leave toappeal under Article 136 of theConstitution of India (in other cases)."

17. In wake of the severalpronouncements of Hon'ble SupremeCourt and also of this Court, cited aboveand considering the facts andcircumstances of the present case, in ourconsidered opinion, it cannot be said thatby the order impugned, any punishmenthas been imposed on the appellants.

18. By the impugned order, theappellants have merely been summoned inthe Court. The impugned order does not evensay anything that on the date fixed, chargeswould be framed against them. Even ifassuming that their personal appearance wasrequired for framing of charges against themin the contempt proceeding, but there isabsolutely no indication that by theimpugned order, the learned Single Judge has


imposed any punishment on the appellants forcontempt. Hence, in view of the well settledlegal position as discussed above, we have nodoubt in holding that the impugned order is aninterlocutory order against which an appealunder Section 19 of the Contempt of CourtsAct, 1971 is not maintainable. Therefore, thepresent appeal is liable to be dismissed as notmaintainable. However, the appellants are notremediless and they are at liberty to avail anyother remedy available to them under law, ifso advised, in wake of the law laid down bythe Apex Court in Midnapore's case (supra),wherein it has been held that if the HighCourt, in a contempt proceeding, decides anissue or makes any direction, relating to themerits of the dispute between the parties, theaggrieved person is not without remedy andhe can challenge it by means of intra courtappeal if the order is of Single Judge and byseeking special leave to appeal under Article136 of the Constitution of India in other cases,but not by way of filing an appeal underSection 19 of the Contempt of Courts Act.

19. Accordingly, the appeal isdismissed.

20. No order as to costs.--------

APPELLATE JURISDICTIONCRIMINAL SIDE


BEFORETHE HON'BLE SURENDRA VIKRAM SINGH

RATHORE, J.THE HON'BLE RAGHVENDRA KUMAR, J.

Criminal Appeal No. 552 of 2009along with

Criminal Appeal No. 550 of 2009, No. 551of 2009, No. 611 of 2009; No. 282 of

2009, No. 327 of 2009 and 4596 of 2013

Santosh alias Neta Khatik ...ApplicantVersus

State of U.P. ...Opp. Parties

Counsel for the Applicant:Sri Sanjay Mishra, Sri I.M. Khan, SriNeeraj Singh, Sri Upendra Kumar Singh

Counsel for the Respondents:A.G.A.

Criminal Appeal-conviction based uponconfession of co-accused-held-not proper-reasons discussed.

Held: Para-35 & 37-35. Perusal of the aforementioned caselaws makes it abundantly clear that theconfession of co-accused cannot bemade basis for conviction. The reasonbehind is that the said confession wasrecorded by the police officer while themaker was in police custody. The secondreason is that the accused has noopportunity to test the same throughcross-examination nor evidence of suchmaker of the confession is recorded inhis presence. Thus so far as the fiveappellants (from whom or on whosepointing out no recovery has been made)are concerned, the trial court wasswayed away by the seriousness of theoffence and also by the fact that theappellants have a very strong criminalbackground. But this, by itself, cannot bea ground to hold a person guilty. If theindependent witnesses would havecooperated the prosecution and wouldhave supported the case of theprosecution then the position wouldhave been different. The apathy of thepublic in cooperating the prosecution is agreat hurdle in the effectiveadministration of criminal justice andbecause of this apathy of the public, thecourts are left with no option but toacquit the hardened criminals accused ofheinous offences.

37. Law is settled on the point that noperson can be convicted unless and untilthe prosecution succeeds in proving itscase beyond reasonable doubt againstthe accsued persons. Since the only

3 All] Santosh alias Neta Khatik Vs. State of U.P. 1165

evidence available against the above-named five accused was either their ownconfession or confession of co-accused,therefore, keeping in view the legalpronouncement of Hon'ble the ApexCourt, mentioned above, the convictionof these five appellants, rendered by thetrial court become unsustainable underlaw. Accordingly Criminal Appeal No. 552of 2009 preferred by Santosh alias NetaKhatik Criminal Appeal No. 550 of 2009preferred by appellant Pappu aliasFakku, Criminal Appeal No. 551 of 2009preferred by appellant Nankai, CriminalAppeal No. 327 of 2009 preferred byappellant Ramesh and Criminal AppealNo. 4596 of 2013 preferred by appellantRakesh deserve to be allowed.

Case Law discussed:AIR 2011 SC 2283; (2011) 14 SCC 117; (2011)11 SCC 724; (2014) 10 SCC 264; AIR 1964 SC1184; (2012) 4 SCC 722; (2013) 13 SupremeCourt Cases 1; (2014) 13 SCC 90; (2012) 7Supreme Court Cases 646; (2007) 4 SCC 266;(2007) 8 Supreme Court Cases 254; (2011) 10Supreme Court Cases 165; (2014) 5 SupremeCourt Cases 509.

(Delivered by Hon'ble Surendra VikramSingh Rathore, J.)

1. Since all the aforesaid criminalappeals arise out of common judgment,therefore, these are being simultaneouslydecided by a common judgment.

2. Criminal Appeal no. 552 of 2009has been preferred by appellant Santoshalias Neta Khatik, Criminal Appeal No.550 of 2009 has been preferred byappellant Pappu alias Fakku, CriminalAppeal No. 551 of 2009 has beenpreferred by appellant Nankai, CriminalAppeal No. 611 of 2009 has beenpreferred by Kallan, Criminal Appeal No.282 of 2009 has been preferred by PhoolChandra, Criminal Appeal No. 327 of2009 has been preferred by appellant

Ramesh and Criminal Appeal No. 4596 of2013 has been preferred by appellantRakesh.

3. Heard Mr. S.K. Dwivedi and Mr.Upendra Kumar Singh, learned counselfor the appellants, learned A.G.A. for theState and perused the lower court record.

(B) Sentence imposed by trial court:

4. Under challenge in the aforesaidcriminal appeals is the judgment dated17.12.2008 and order dated 18.12.2008passed by the learned Additional SessionsJudge, Court No. 4, Fatehpur in SessionsTrial No. 1108 of 2001 arising out ofCase Crime No. 101 of 2001, PoliceStation Husainganj, District Fatehpurwhereby all the aforesaid appellants wereconvicted for the offence under Section364 I.P.C. and they were sentenced withimprisonment for life and also with fineof Rs. 5,000/- each with defaultstipulation of three months additionalimprisonment. All the appellants wereconvicted for the offence under Section379 I.P.C. and were sentenced withimprisonment of three years. They werefurther convicted for the offence underSection 302/149 I.P.C. and weresentenced with imprisonment for life andalso with fine of Rs. 5,000/- each withdefault stipulation of three monthsadditional imprisonment and alsoconvicted for the offence under Section201 I.P.C. and each of them weresentenced with imprisonment for fiveyears each and also with fine of Rs.5,000/- each with default stipulation ofthree months additional imprisonment.Appellant Kallan, in Criminal Appeal No.611 of 2009, was also convicted for theoffence under Section 411 I.P.C. and wassentenced with three years imprisonment.


All the sentences were directed to runconcurrently. By the same judgment,accused persons, namely, Ram Swaroop,Jagroop and Naresh were acquitted of thecharges levelled against them. It wasdirected that the recovered sheeps, goats,horse and calf be directed to handed overto the successors of the deceased persons.

(C) Facts as narrated in the F.I.R.:

5. In brief, the case of theprosecution was that complainant JugalKishore lodged a F.I.R. at Police StationHusainganj on 9.6.2001 at 13:00 hoursalleging therein that complainant hadasked (1) Chinni Pal, (2) Bheda Pal (3)Ram Raj Pal, (4) Narendra Pal, (5)Chhote Lal Pal, (6) Jitendra Pal and (7)Ram Prasad Pal to keep their sheeps in hisfield for manuring. On 8.6.2001, above-named seven persons had come to thehouse of the complainant to take rationfor them. On 9.6.2001 when thecomplainant went to his field then hefound that neither the above namedpersons were there nor their sheeps andanimals were there. Their belongings andtheir clothes were scattered in the field.One dog was also sitting in the field, whowas barking at the persons. Thesecircumstances raised a suspicion in themind of the complainant that the above-named seven persons have been abductedand animals have been stolen.

(D) Facts revealed duringInvestigation:

6. After registration of the case, theinvestigation proceeded. The InvestigatingOfficer went to the place of occurrence andtook the scattered belongings of the above-named seven persons and its recoverymemo was prepared. On the same day,

while S.O. Maksudan Singh, along withother police personnel, was busy in thesearch of the accused persons and thevictims and reached at the Bhitaura road atTiraha, then S.O. got a secret informationthat three miscreants are going from theroad towards Nauwagaon and from therethey will go to Kolkata on trucks.Immediately police party took the informerwith them and went towards the place asinformed by the informer. When thesepersons reached near the culvert of canalthen they saw that three persons were goingby the side of the canal. Seeing the policeparty, the miscreants leaving the animalsstarted running away. The police party withthe help of Bal Kishan, Ram Raj arrestedappellant Kallan. The other appellants,namely, Khalil and Mehandi Hasan weresuccessful in fleeing away from there. Theywere recognized by the witnesses and thepolice personnel. From the possession ofappellant Kallan 700 sheeps (300 female +200 male and 200 lambs) and one smallhorse and calf and five goats wererecovered. Accused Kallan was enquiredabout the recovered animals then hedisclosed that he along with his othercompanions Khalil, Mehandi Hasan, Pappualias Fakku and Phool Chandra with fiveother miscreants, who were brought byPappu alias Fakku and were not known toappellant Kallan, had assembled at thehouse of Phool Chandra where from theywent to Gram Chhauwa where the sheepswere sitting in the field. Pappu alias Fakkuand Phool Chandra were armed withcountry made pistols. In the said field therewere eight shepherds. All were sleeping inthe field. Out of eight shepherds, sevenwere abducted by them and the 8th one wassuccessful in fleeing away from there.Appellants Kallan, Khalil, Mehandi Hasantook the animals towards Nauwagaon andother accused persons took seven abducted


persons towards Gaya. The recovery memowas accordingly prepared and the recoveredanimals were handed over to Bal Kishan,memo to this effect was also prepared in thepresence of Ram Raj and Bal Kishan. Onthe very next day i.e. on 10.6.2001, thepolice party was engaged in the search ofthe remaining accused persons and also ofabducted persons. When the police partyreached at 7 Mill Chauraha, then they got aninformation through secret informer thatone of the miscreant named Phool Chandrawas standing near 7 Mill Canal Culvertwaiting for a transport and by immediateaction, he can be arrested. The police partyleft the jeep there and went along with theinformer to the place where accused PhoolChandra was present. The informer pointedtowards the said person and at about 11:00a.m., he was taken into custody by thepolice. He disclosed his name as PhoolChandra. He was enquired about theremaining accused persons and also aboutthe abducted persons. Initially he avoided todisclose anything but subsequently hedisclosed that in the intervening night of8/9.6.2001 he along with Kallan, Khalil,Mehandi Hasan, Pappu alias Fakku,Santosh alias Neta Khatik, Rakesh andRamesh went to village Chhibuwa and inthe night at about 11:00 p.m., they abductedseven shepherds while they were sleeping inthe field. One of the shepherds, wassuccessful in making good his escape. Theytook the seven shepherds, after tying theirhands and closing their eyes, with them.However, Kallan, Khalil and MehandiHasan were asked by him to take the sheepstowards Nauwagaon and they will comeand join them after disposing of the sevenshepherds. The second group, under theleadership of appellant Phool Chandra, tookseven abducted shepherds to Raano wellnear Mahadevpur. At that time, it was 12:00in the night. It was disclosed by appellant

Phool Chandra that appellant Pappu aliasFakku, with axe caused the death of threeshepherds and remaining four shepherdswere thrown in the well in the samecondition with their hands tied and otherthree injured shepherds were also thrown inthe same well. Phool Chandra also offeredthat he can get the dead bodies of all theseven persons recovered. So the police partyasked appellant Phool Chandra to sit in thejeep and as pointed out by Phool Chandra,came to the Raano well. Because of themud on the way, the jeep was stopped andfrom there they went on foot to the saidwell. Accused Phool Chandra was ahead ofthe police party and told the police partythat this is the well in which they havethrown all the seven persons. Thereafter thepolice party made arrangement of severalpersons of the village and with the help ofhook and rope and with the help of oneSheetala Prasad Dwivedi, who went insidethe well, all the seven dead bodies weretaken out. In the meantime, one Sant Ramand Durjan, who are relatives of one of thedeceased reached there and identified thedead bodies. A fard (Ex. Ka-6) wasprepared on 10.6.2001. Inquest proceedingsof all the seven dead bodies were conductedand the dead bodies were sent forpostmortem.

(E) Result of Postmortem:

The postmortem on the dead body ofMedha was conducted on 11.6.201 at 3:15p.m. and following injuries were found onhis person:-

(i) Lacerated wound 15 c.m. x 6 c.m.x bone deep on left side head, 8 c.m. awayfrom left ear. Left parietal bone fractured.

(ii) Abrasion 4 c.m. x 5 c.m. on rightwrist joint.

(iii) Abrasion 4 c.m. x 3 c.m. on leftwrist joint.


Postmortem on the body of Ram RajPal was conducted on the same day at3:45 p.m. and following injuries werefound on his person:-

(i) Lacerated wound 8 c.m. x 2 c.m. xbone deep on right side head, 5 c.m. awayfrom right ear. Right parietal bone wasfractured.

7. Postmortem on the body ofChinni was conducted on the same day at4:10 p.m. and following injuries werefound on his person:-

(i) Lacerated wound 6 c.m. x 3 c.m. xbone deep on left side head, 9 c.m. awayfrom left ear. Right and left parietal boneswere fractured

(ii) Lacerated wound 2 c.m. x 1 c.m.x gone deep on left side head, 7 c.m. awayfrom left ear.

In the opinion of the doctor, thecause of death of all above-named threepersons was due to comma as a result ofante-mortem head injuries and durationwas two and a half days old.

Postmortem on the body of deceasedBhaiya Lal was conducted on the sameday at 2:30 p.m. and following injurieswere found:-

(i) Abrasion 6 c.m. x 4 c.m. on rightforearm above right wrist joint.

Postmortem on the body of ChhoteLal was conducted on the same day at4:30 p.m. and no ante mortem injury wasseen on his body.

Postmortem on the body of RamPrasad was conducted on the same day at3:30 p.m. and no external ante morteminjury was seen on the body.

Postmortem on the body of Narendrawas conducted on the same day at 5:00

p.m. and no ante mortem injuries werevisible on his body.

In the opinion of the doctor, thecause of death of these four persons wasasphyxia as a result of ante mortemdrowning.

8. After concluding theinvestigation, charge sheet was filedagainst all the seven accused persons,whose names emerged duringinvestigation.

(F) Defence of appellants:

9. The case of the appellants was oftotal denial and their false implication.Appellant Phool Chandra has also pleadedthat his father was murdered by the policeand the police has falsely implicated himin this case because an F.I.R. was lodgedagainst police personnel for the murder ofhis father.

(G) Prosecution evidence:

10. In order to prove its case, theprosecution has examined PW-1 JugalKishore, who has lodged the F.I.R. PW-2 isBal Krishan, as per case of the prosecution,initially the recovered animals were given inthe custody of this witness. PW-3 isDhunni, as per prosecution case, appellantPhool Chandra was arrested in his presenceand in his presence on his pointing out, thedead bodies were recovered. PW-4Bhagwati was also a witness of the samefact. PW-5 Sheetala Prasad Dwivedi, is theperson, who had assisted the police party intaking out the dead bodies from the well.PW-6 Sant Raj, is also a witness of therecovery of seven dead bodies from thewell. PW-7 Babu Lal, he is the 8thshepherd, who was successful in fleeingaway from the place of occurrence. PW-8 is


Daya Shankar, he is the witness on the pointthat he saw the accused persons taking awaythe abducted persons in the night. PW-9Ram Raj, is a witness regarding recovery of700 sheeps and other animals from thepossession of appellant Kallan. PW-10 RamKishan, is the witness regarding recovery ofscattered articles of seven abducted personsfrom the field of complainant Jugal Kishore.All these independent witnesses except thecomplainant have not supported the case ofthe prosecution and have been declaredhostile. PW-11 is S.O. Madhusudan Singh,who has recovered the animals from thepossession of appellant Kallan and alsoarrested appellant Phool Chandra, thereafterrecovered seven dead bodies on his pointingout. PW-12 Nand Kishore, has stated thaton 13.6.2001, recovered animals were givenin his custody from the first Supurdar BalKishan and he has supported this part of theprosecution case and he has also producedthe said recovered shepherds before thecourt during trial. PW-13 S.I. RanveerSingh, is the Investigating Officer of thiscase. PW-14 is Dr. P.A. Lari, who hadconducted the postmortem on the deadbodies of Merha Pal, Ram Raj Pal, GinniPal and Jitendra Pal. PW-15 Dr. A.S. Khan,who has conducted postmortem on the deadbodies of Chhote Lal Pal, Narendra Pal andRam Prasad Pal, PW-16 Head ConstableAmit Kumar, who has prepared chik reportand G.D. of this case and PW-17 is S.I.R.K. Mishra, who had conducted theinquest proceedings of seven dead bodiesunder the supervision of S.O. MadhusudanSingh.

(H) Defence evidence:

11. On behalf of appellant PhoolChandra, DW-1 Head Moharir ShivBhawan Singh was examined in hisdefence, who has proved the extract of

crime register Ex. Kha-1 and Kha-2. Onthe strength of the said register, he hasstated that a F.I.R. was lodged on29.9.1996 by Nankai son of Vindeshwariand after the investigation, C.O. Sadar,District Fatehpur had filed final report inthe said case, which was accepted videorder dated 4.12.1997. The said F.I.R.was lodged against six named policepersonnel and 18 other police personnelof Police Station Hussainganj.

(I) Finding of the trial court:

12. After appreciating the evidenceon available on record, learned trial courthas convicted the accused appellants asabove, hence these criminal appeals.Howsever, accused Ram Swaroop,Jagroop and Naresh were acquitted.Allegation against these three acquittedpersons was that they were asked to makearrangement of trucks and the onlyevidence against them was confession ofco-accused Pappu alias Fakku.

(J) Submissions on behalf of theappellants:

13. Submission of learned counsel forthe appellants was that in the instant case,recovery is alleged to have been made onlyfrom the possession of appellant Kallan anddead bodies were recovered on the pointingout of appellant Phool Chandra, therefore,the only evidence against remaining fiveappellants was the confession of the accusedappellants Kallan and Phool Chandrawhereby they have named these appellants.Since the said confession does not standcorroborated by any other evidence, so thesame cannot be made basis for conviction ofthese appellants. So far as appellants PhoolChandra and Kallan are concerned, learnedcounsel for these appellants have argued that


apart from the evidence of police personnel,not even a single independent witness hassupported the factum of recovery or thearrest of the appellants. No independentwitness has supported the factum of recoveryof dead bodies on the pointing out of theappellant Phool Chandra. In this background,the sole evidence of police personnel cannotbe treated to be wholly reliable. It has furtherbeen submitted that except the evidence ofthese police witnesses there is no evidence toconnect the appellants Kallan and PhoolChandra with this case. The prosecution hasproposed to prove its case on the basis of thecircumstantial evidence produced by theprosecution. The chain of circumstances wasnot complete. The trial court only on thebasis of the recovery from the possession ofappellant Kallan and Phool Chandra hasdrawn an inference that they are the persons,who are responsible for the death of sevenpersons and only on the strength of suchshaky evidence, has convicted the appellants.Thus, the judgment of the trial court becomesunsustainable under law as learned trial courthas given undue weightage to the evidenceof police personnel and has not appreciatedthe evidence in accordance with the settledprinciples of appreciation of evidence.

(K) Submission on behalf of theState:

14. Learned A.G.A. has submittedthat the trial court has recorded theconviction keeping in view the evidenceavailable against the appellants and alsokeeping in view the pronouncement ofHon'ble the Apex Court in some cases andthe said approach of the trial court cannotbe said to be illegal or irregular. It was avery serious offence wherein sevenpersons were done to death brutally.Appellant Kallan and Phool Chandracould not furnish any explanation for their

false implication and the recoveries.Appellant Kallan could not furnish anyexplanation regarding recovery of suchhuge quantity of animals from hispossession and he has nowhere claimedthat he was the owner of these animals. Ithas also been argued that appellant PhoolChandra has stated that his father wasmurdered by the police personnel,therefore, he has been falsely implicatedin this case. It is submitted that DW-1 hasstated that the said F.I.R. was lodged on29.9.1996 for an offence of murderalleged to have been committed on24.9.1996. After investigation of the saidcase it was found to be false and finalreport was filed which was accepted on4.12.1997. So the said report cannot bethe reason for false implication as the saidF.I.R. was lodged by Nankai, brother ofappellant. So the trial court has rightconvicted the appellants.

(L) Discussion of evidence and legalpoints involved:

15. In view of the rival submissions,we have considered prosecution evidence.Before proceeding further in the matter,we would like to address ourselvesregarding the standard of proof, which isrequired to prove a case based oncircumstantial evidence.

(L i) Standard of proof required incases of circumstantial evidence:

16. Hon'ble the Apex Court in thecase of S.K. Yusuf v. State of WestBengal reported in AIR 2011 SC 2283 inpara 26 has held as under:

"Undoubtedly, conviction can bebased solely on circumstantial evidence.However, the court must bear in mind while


deciding the case involving the commissionof serious offence based on circumstantialevidence that the prosecution case muststand or fall on its own legs and cannotderive any strength from the weakness of thedefence case. The circumstances from whichthe conclusion of guilt is to be drawn shouldbe fully established. The facts so establishedshould be consistent only with the hypothesisof the guilt of the accused and they shouldnot be explainable on any other hypothesisexcept that the accused is guilty. Thecircumstances should be of a conclusivenature and tendency. There must be a chainof evidence so complete as not to leave anyreasonable ground for the conclusionconsistent with the innocence of the accusedand must show that in all human probabilitythe act must have been done by the accused."

17. Hon'ble the Apex Court in theaforesaid case has followed its earlierpronouncements in the following cases:

"Sharad Birdhichand Sarda v. State ofMaharashtra AIR 1984 SC 1622, Krishnanv. State represented by Inspector of Police(2008) 15 SCC 430 and Wakkar and anotherv. State of Uttar Pradesh (2011) 3 SCC 306."

In the case of Haresh Mohandas Rajputv. State of Maharashtra 2011 (12) SCC 56,Hon'ble Apex Court following its earlierdecision in the case of Krishnan v. Staterepresented by Inspector of Police (2008) 15SCC 430 observed that when a case restsupon circumstantial evidence, such evidencemust satisfy the following tests:

"(i) the circumstances from which aninference of guilt is sought to be drawn,must be cogently and firmly established;

(ii) those circumstances should bedefinite tendency unerringly pointingtowards guilt of the accused;

(iii) the circumstances, takencumulatively, should form a chain so

complete that there is no escape from theconclusion that within all humanprobability the crime was committed bythe accused and none else; and

(iv) the circumstantial evidence inorder to sustain conviction must becomplete and incapable of explanation ofany other hypothesis than that of the guiltof the accused and such evidence shouldnot only be consistent with the guilt of theaccused but should be inconsistent withhis innocence."

Though a conviction may be basedsolely on circumstantial evidence,however, the Court must bear in mind theaforesaid tests while deciding a caseinvolving the commission of a seriousoffence in a gruesome manner.

18. Hon'ble the Apex Court in thecase of Manthuri Laxmi Narsaiah Vs.State of A.P. reported in (2011) 14 SCC117 has held in paragraph no. 6 as under:-

"6. It is by now well settled that in acase relating to circumstantial evidencethe chain of circumstances has to be speltout by the prosecution and if even one linkin the chain is broken the accused mustget the benefit thereof. We are of theopinion that the present is in fact a caseof no evidence."

19. Likewise in the case ofMustkeem Vs. State of Rajasthan reportedin (2011) 11 SCC 724 Hon'ble the ApexCourt in paragraph no. 24 has held asunder:-

"24. In a most celebrated case of thisCourt, Sharad Birdhichand Sarda Vs.State of Maharashtra (1984) 4 SCC 116in para 153, some cardinal principlesregarding the appreciation ofcircumstantial evidence have been


postulated. Whenever the case is based oncircumstantial evidence the followingfeatures are required to be complied with.It would be beneficial to repeat the samesalient features once again which are asunder: (SCC p. 185)

The circumstances from which theconclusion of guilt is to be drawn must orshould be and not merely "may be" fullyestablished;

The facts so established should beconsistent only with the hypothesis of theguilt of the accused, that is to say, theyshould not be explainable on any otherhypothesis except that the accused isguilty;

the circumstances should be of aconclusive nature and tendency;

they should exclude every possiblehypothesis except the one to be proved;and

There must be a chain of evidence socomplete as not to leave any reasonableground for the conclusion consistent withthe innocence of the accused and mustshow that in all human probability the actmust have been done by the accused."

The aforementioned judgments havebeen followed in a recent judgment in thecase of Sangili alias Sanganathan Vs.State of Tamilnadu reported in (2014) 10SCC 264.

20. Keeping in view theaforementioned legal proposition, theevidence of the prosecution has to beappreciated. In the instant case, none wasnamed in the F.I.R. The F.I.R. was lodgedon the next day at about 1:00 p.m. at thePolice Station Husainganj, which wassituated at a distance of about onekilometer. It is true that the F.I.R. wasslightly delayed in the instant case. Thedelay in lodging the F.I.R. has absolutelyno relevance because in the F.I.R. no

allegation has been made against anyperson and the complainant has simplyinformed the police that the sheeps andshepherds were missing and theirbelongings were lying scattered in hisfield. The purpose of F.I.R. is very limitedand it is only to set the criminal law intomotion. The complainant must have cometo know this fact only when he wouldhave visited his field. Thus delay in F.I.R.becomes immaterial.

21. In the instant case, investigationrevealed that in the intervening night of8/9.6.2001, seven persons were abductedfrom the field of complainant JugalKishore and their animals, whichcontained 700 sheeps and some otheranimals were stolen. This offence wascommitted under the leadership ofappellant Phool Chandra. Theinvestigation revealed that all the accusedpersons assembled at the house ofappellant Phool Chandra. Thereafter theywent to the field of complainant JugalKishore, abducted seven shepherds andhave stolen their 700 sheeps and someother animals. They went towardsNauwagaon where appellant PhoolChandra made a separate party of threeaccused persons under the leadership ofappellant Kallan and asked them to gotowards Nauwagaon and told them that heshall soon join them after disposing ofthese seven abducted persons. AppellantPhool Chandra came along with otheraccused persons and brought sevenabducted persons to Ranewell wheresome of the abducted persons were givenblows with axe and thereafter all theseven persons were thrown into the wellof Ranewell. Appellant Kallu was arrestedon the very next day of the incident on9.6.2001 at about 11:00 p.m. in the nightand thereafter on the next day, on


10.6.2001 appellant Phool Chandra wasarrested and after his arrest, on hispointing out, the dead bodies of sevenabducted persons were recovered. Perusalof the record shows that after registrationof the case, a message was flashedthrough R.T. Set regarding this incidentthat seven persons have been abductedalong with their animals and S.O. duringinvestigation got the information aboutthe same through his secret informers.

22. Thus in the instant case, there aredefinitely two different sets of accusedpersons. One is of appellant Phool Chandraand appellant Kallan. Appellant Kallan wasarrested by the police and from hispossession the stolen animals wererecovered. Likewise, appellant PhoolChandra was also arrested by the police andon the basis of his information, a recoveryunder Section 27 of the Indian Evidence Actwas made and seven dead bodies wererecovered. The other set of five remainingappellants stands on different footing.Nothing incriminating is alleged to havebeen recovered from their possession. Thename of six accused persons came into lightin the statement of co-accused persons, whowere arrested by the police. So the case ofboth the set of accused persons has to bedealt with separately. Regarding the accusedpersons, who were either not arrested by thepolice or from whose possession, nothingincriminating is alleged to have beenrecovered, it has been submitted that the onlyevidence available against them was eithertheir own confession or confession of theaccused persons made in the police custody.Apart from it, there is no other evidence toconnect them with the instant offence.

23. Submission is that theconfession of the co-accused person, byitself, cannot be held to be sufficient to

record a conviction. On this point, learnedcounsel for the appellants has placedreliance on the pronouncement ofConstitution Bench of Hon'ble the ApexCourt in the case of Haricharan Kurmi,Jogia Hajam Vs. State of Bihar reportedin AIR 1964 SC 1184. Our attention wasdrawn towards the following part of thejudgment, which reads as under:-

"As we have already indicated, thisquestion has been considered on severaloccasions by judicial decisions and it hasbeen consistently held that a confessioncannot be treated as evidence which issubstantive evidence against a co-accusedperson. In dealing with a criminal casewhere the prosecution relies upon theconfession of one accused person againstother accused person, the proper approachto adopt is to consider the other evidenceagainst such an accused person, and if thesaid evidence appears to be satisfactoryand the court is inclined to hold that thesaid evidence may sustain the chargeframed against the said accused person,the court turns to the confession with aview to assure itself that the conclusionwhich it is inclined to draw from the otherevidence is right. As was observed by SirLawrence Jenkins in Emperor v. LalitMohan Chockerburty, ILR 38 Cal 559 aconfession can only be used to "lendassurance to other evidence against a co-accused". In Periyaswami Moopan v.Emperor. ILR 54 Mad 75 Reilly, J.,observed that the provision of S. 30 goesnot further than this, "where there isevidence against the co-accusedsufficient, "if believed, to support hisconviction, then the kind of confessiondescribed in S. 30 may be thrown into thescale as a additional reason for believingthat evidence." In Bhuboni Sahu v. TheKing, 76 Ind App. 147 the Privy Council


has expressed the same view. Sir. JohnBeaumont who spoke for the Board,observed that

"a confession of a co-accused isobviously evidence of a very weak type. Itdoes not indeed come within thedefinition of "evidence" contained in S. 3of the Evidence Act. It is not required tobe give on oath, nor in the presence of theaccused, and it cannot be tested by cross-examination. It is a much weaker type ofevidence than the evidence of anapprover, which is not subject to any ofthose infirmities. S. 30, however, providesthat the Court may take the confessioninto consideration and thereby, no doubt,makes it evidence on which the court mayact; but the section does not say that theconfession is to amount to proof. Chearlythere must be other evidence. Theconfession is only one element in theconsideration of all the facts proved in thecase; it can be put into the scale andweighed with the other evidence."

24. Regarding appellants PhoolChandra and Kallan, learned counsel forthe appellants has submitted that all thepublic witnesses, who were made witnessof the recovery by the police, have notsupported the case of the prosecution.Thus the sole evidence to prove thesecircumstances, remains the evidence ofonly police personnel and the soleevidence of police personnel cannot beacted upon by the court. So the first pointto be considered is whether the evidenceof police personnel can be acted upon.

(L ii) Whether evidence of policepersonnel can be acted upon:

25. Before proceeding further in thematter, we would like to addressourselves on the point as to whether theevidence of police personnel can be acted

upon or the same should be discardedonly on the ground that they are policepersonnel. In the case of Govindarajualias Govinda Vs. State (BySriramapuram Police Station and another)reported in (2012) 4 SCC 722 Hon'ble theApex Court in paragraph nos. 30 and 31has held as under:-

"30. It cannot be stated as a rule thata police officer can or cannot be a soleeye-witness in a criminal case. It willalways depend upon the facts of a givencase. If the testimony of such a witness isreliable, trustworthy, cogent and dulycorroborated by other witnesses oradmissible evidences, then the statementof such witness cannot be discarded onlyon the ground that he is a police officerand may have some interest in success ofthe case. It is only when his interest in thesuccess of the case is motivated byoverzealousness to an extent of hisinvolving innocent people; in that event,no credibility can be attached to thestatement of such witness.

31. This Court in the case of GirjaPrasad (2007) 15 SCC 760 whileparticularly referring to the evidence of apolice officer, said that it is not the lawthat Police witnesses should not be reliedupon and their evidence cannot beaccepted unless it is corroborated inmaterial particulars by other independentevidence. The presumption applies asmuch in favor of a police officer as anyother person. There is also no rule of lawwhich lays down that no conviction canbe recorded on the testimony of a policeofficer even if such evidence is otherwisereliable and trustworthy. The rule ofprudence may require more carefulscrutiny of their evidence. If such apresumption is raised against the policeofficers without exception, it will be an


attitude which could neither do credit tothe magistracy nor good to the public, itcan only bring down the prestige of thepolice administration."

26. In the case of Rohtash KumarVs. State of Haryana reported in (2013)14 Supreme Court Cases 434, Hon'ble theApex Court in paragraph no. 35 has heldas under:-

"35. The term witness, means aperson who is capable of providinginformation by way of deposing asregards relevant facts, via an oralstatement, or a statement in writing, madeor given in Court, or otherwise. InPradeep Narayan Madgaonkar and Ors. v.State of Maharashtra (1995) 4 SCC 255,this Court examined the issue of therequirement of the examination of anindependent witness, and whether theevidence of a police witness requirescorroboration. The Court herein held, thatthe same must be subject to strict scrutiny.However, the evidence of police officialscannot be discarded merely on the groundthat they belonged to the police force, andare either interested in the investigating orthe prosecuting agency. However, as faras possible the corroboration of theirevidence on material particulars, shouldbe sought. (See also: Paras Ram v. Stateof Haryana (1992) 4 SCC 662; BalbirSingh v. State (1996) 11 SCC 139;Kalpnath Rai v. State (Through CBI)(1997) 8 SCC 732; M. Prabhulal v.Assistant Director, Directorate ofRevenue Intelligence (2003) 8 SCC 449;and Ravinderan v. Superintendent ofCustoms (2007) 6 SCC 410)."

(underlined by us)

27. Similar view was expressed byHon'ble the Apex Court in the case of

Yakub Abdul Razak Memon Vs. State ofMaharashtra reported in (2013) 13Supreme Court Cases 1.

28. It is true that in the instant case,the public witness regarding recovery andarrest of appellant Phool Chandra andarrest of appellant Kallan, recovery ofdead bodies on the pointing out ofappellant Phool Chandra have turnedhostile, inspite of the fact that theirsignatures were present on the recoverymemos but they have stated that theirsignatures were obtained subsequently.Keeping in view the facts of the instantcase, where the accused persons arealleged to have murdered seven personssimply for animals, then how a person ofrural background with virtually having noprotection against such criminals can dareto depose against them. In our consideredopinion, this was the main reason as towhy these witnesses have not supportedthe case of the prosecution.

(L iii) Whether evidence of hostilewitness stands wiped out from record:

29. Law is settled on the point thateven if the witnesses have been declaredhostile, even then their evidence does notstand wiped out from the record and thecourt would be lawful in seekingcorroboration from the said evidence onany point where the evidence of suchwitness supports the case of theprosecution. Reference may be made onthis point to the pronouncement ofHon'ble the Apex Court in the case ofRohtash Kumar (supra) wherein Hon'blethe Apex Court has observed that theevidence of a hostile witness cannot berejected in toto merely because theprosecution choose to treat him as hostileand cross examined him. This point has


been considered in the aforementionedcase in paragraph nos. 25, 26 and 27,which reads as as under:

"25. It is a settled legal propositionthat evidence of a prosecution witnesscannot be rejected in toto, merely becausethe prosecution chose to treat him ashostile and cross examined him. Theevidence of such witnesses cannot betreated as effaced, or washed off therecord altogether. The same can beaccepted to the extent that their version isfound to be dependable, upon a carefulscrutiny thereof.

26. In State of U.P. v. RameshPrasad Misra and Anr. (1996) 10 SCC360, this Court held, that evidence of ahostile witness would not be rejected inentirety, if the same has been given infavour of either the prosecution, or theaccused, but is required to be subjected tocareful scrutiny, and thereafter, thatportion of the evidence which isconsistent with the either case of theprosecution, or that of the defence, maybe relied upon. (See also: C. Muniappanand Ors. v. State of Tamil Nadu (2010) 9SCC 567; Himanshu @ Chintu v. State(NCT of Delhi) (2011) 2 SCC 36; andRamesh Harijan v. State of U.P. (2012) 5SCC 777).

27. Therefore, the law permits thecourt to take into consideration thedeposition of a hostile witness, to theextent that the same is in consonance withthe case of the prosecution, and is foundto be reliable in careful judicial scrutiny."

30. Similar view was expressed byHon'ble the Apex Court in the case ofPaulmeli and another Vs. State of TamilNadu through Inspector of Police reportedin (2014) 13 SCC 90 and also in the caseof Shyamal Ghosh Vs. State of West

Bengal reported in (2012) 7 SupremeCourt Cases 646.

31. In view of the aforementionedlegal proposition, we first consider the caseof five appellants, namely, Santosh alias NetaKhatik, Pappu alias Fakku, Nankai, Rameshand Rakesh, from whose possession or onwhom pointing out nothing incriminating isalleged to have been recovered. Learned trialcourt in its judgment has observed that all theappellants have very strong criminal historyagainst them including the offences ofmurder. Perusal of the record also shows thatappellant Ramesh and Pappu alias Fakkuwere arrested during investigation and madeconfessions in police custody but admittedlynothing incriminating is alleged to have beenrecovered from their possession or on theirpointing out. Thus, their confessions, inpolice custody, are hit by the provisions ofSections 25 and 26 of the Indian EvidenceAct. The only evidence that remains againstthe above-named five appellants is theconfession of co-accused.

(L iv) Evidentiary value ofconfession of co-accused:

32. The Constitution Bench of Hon'blethe Apex Court in the case of HaricharanKurmi (Supra) has held that the confession ofco-accused is a weak type of evidence. Theview expressed by Hon'ble the Apex Courtin the aforementioned case of HaricharanKurmi has been followed by Hon'ble ApexCourt in its subsequent judgment in the caseof Prakash Kumar Vs. State of Gujaratreported in (2007) 4 SCC 266. Hon'ble theApex Court in paragraph no. 7 has held asunder:

"7. The prosecution could not adduceany other supporting evidence to provethe guilt of the appellant. Even based on


the confession of the co-accused, the onlyallegation against the appellant is that hewas in the company of the other co-accused and had pointed out towards thevictim by making a sign whereupon theother accused over-powered the victimand took him forcibly in the Maruti van.To prove that the appellant was in thecompany of other accused, there is noother independent evidence. Even thoughthe prosecution adduced other evidence toprove that the victim Babulal MisrimalJain was forcibly taken and kept inunlawful custody, the complicity of theappellant could not be proved. Theprosecution has failed to prove the caseagainst the appellant."

33. In another case in the case ofMohtesham Mohd. Ismail Vs. SPL.Director, Enforcement Directorate andanother reported in (2007) 8 SupremeCourt Cases 254 Hon'ble the Apex Courthas held in paragraph no. 19 as under:-

"19. Apart therefrom the High Courtwas bound to take into consideration thefactum of retraction of the confession bythe appellant. It is now a well- settledprinciple of law that a confession of a co-accused person cannot be treated assubstantive evidence and can be pressedinto service only when the court isinclined to accept other evidence and feelsthe necessity of seeking for an assurancein support of the conclusion deducibletherefrom. [See Haricharan Kurmi etc. v.State of Bihar AIR 1964 SC 1184;Haroom Haji Abdulla v. State ofMaharashtra AIR 1968 SC 832; andPrakash Kumar alias Prakash Bhutto etc.v. State of Gujarat (2007) 4 SCC 266]."

34. In the case of Pancho Vs. Stateof Haryana reported in (2011) 10

Supreme Court Cases 165, Hon'ble theApex Court has placed reliance upon thepronouncement in the case of HaricharanKurmi and has observed in paragraph no.27 and 28 as under:-

"27. This Court in Haricharan caseAIR 1964 SC 1184 further observed thatSection 30 merely enables the court totake the confession into account. It is, notobligatory on the court to take theconfession into account. this Courtreiterated that a confession cannot betreated as substantive evidence against aco-accused. Where the prosecution reliesupon the confession of one accusedagainst another, the proper approach is toconsider the other evidence against suchan accused and if the said evidenceappears to be satisfactory and the court isinclined to hold that the said evidencemay sustain the charge framed against thesaid accused, the court turns to theconfession with a view to assuring itselfthat the conclusion which it is inclined todraw from the other evidence is right.

28. This Court in Haricharan caseAIR 1964 SC 1184 clarified that thoughconfession may be regarded as evidencein generic sense because of the provisionsof Section 30 of the Evidence Act, thefact remains that it is not evidence asdefined in Section 3 of the Evidence Act.Therefore, in dealing with a case againstan accused, the court cannot start with theconfession of a co-accused; it must beginwith other evidence adduced by theprosecution and after it has formed itsopinion with regard to the quality andeffect of the said evidence, then it ispermissible to turn to the confession inorder to receive assurance to theconclusion of guilt which the judicialmind is about to reach on the said otherevidence."


35. Perusal of the aforementionedcase laws makes it abundantly clear thatthe confession of co-accused cannot bemade basis for conviction. The reasonbehind is that the said confession wasrecorded by the police officer while themaker was in police custody. The secondreason is that the accused has noopportunity to test the same throughcross-examination nor evidence of suchmaker of the confession is recorded in hispresence. Thus so far as the fiveappellants (from whom or on whosepointing out no recovery has been made)are concerned, the trial court was swayedaway by the seriousness of the offenceand also by the fact that the appellantshave a very strong criminal background.But this, by itself, cannot be a ground tohold a person guilty. If the independentwitnesses would have cooperated theprosecution and would have supported thecase of the prosecution then the positionwould have been different. The apathy ofthe public in cooperating the prosecutionis a great hurdle in the effectiveadministration of criminal justice andbecause of this apathy of the public, thecourts are left with no option but to acquitthe hardened criminals accused of heinousoffences.

36. In the case of Dharam DeoYadav Vs. State of Uttar Pradesh reportedin (2014) 5 Supreme Court Cases 509,Hon'ble the Apex Court in paragraph no.30 has expressed its views on this aspectas under:-

"30. Criminal Judicial System in thiscountry is at crossroads, many a times,reliable, trustworthy, credible witnesses tothe crime seldom come forward to deposebefore the court and even the hardenedcriminals get away from the clutches of

law. Even the reliable witnesses for theprosecution turn hostile due tointimidation, fear and host of otherreasons. ............................"

37. Law is settled on the point thatno person can be convicted unless anduntil the prosecution succeeds in provingits case beyond reasonable doubt againstthe accsued persons. Since the onlyevidence available against the above-named five accused was either their ownconfession or confession of co-accused,therefore, keeping in view the legalpronouncement of Hon'ble the ApexCourt, mentioned above, the conviction ofthese five appellants, rendered by the trialcourt become unsustainable under law.Accordingly Criminal Appeal No. 552 of2009 preferred by Santosh alias NetaKhatik Criminal Appeal No. 550 of 2009preferred by appellant Pappu alias Fakku,Criminal Appeal No. 551 of 2009preferred by appellant Nankai, CriminalAppeal No. 327 of 2009 preferred byappellant Ramesh and Criminal AppealNo. 4596 of 2013 preferred by appellantRakesh deserve to be allowed.

38. So far as the second set ofaccused appellants, namely, Kallan andPhool Chandra is concerned, the propertyof the seven deceased persons wasrecovered from the possession ofappellant Kallan and on the basis of theinformation furnished by appellant Kallaninvolvement of appellant Phool Chandracame into light and he was arrested. Onhis pointing out, seven dead bodies wererecovered.

39. In the instant case, the police hastaken a very quick action. The F.I.R. waslodged at 1:00 p.m. Immediatelythereafter, a message was flashed through


R.T. Set and only after about ten hours ofthe registration of the F.I.R., appellantKallan was arrested along with 700sheeps and some other animals. Here it ispertinent to mention that appellant Kallanhas nowhere claimed the ownership of therecovered animals. The defence ofappellant Kallan was that the saidrecovery has been falsely planted againsthim. Submission of learned counsel forthe appellants was that PW-2 Bal Kishanand PW-9 Ram Raj have not supportedthe factum of recovery.

40. As stated earlier, thesewitnesses, namely, Bal Kishan andRamraj, have not supported the case ofthe prosecution but the evidence of hostilewitness, so far as it corroborates the caseof the prosecution, can be taken intoconsideration. Perusal of PW-12 NandKishore shows that on 13.6.2001, thecustody of the said recovered sheeps andother animals was transferred from PW-2Bal Kishan to this witness. This witnesshas not only supported this fact but hasalso produced the recovered animalsbefore the court during trial. This witnesshas also stated that prior to him therecovered sheeps and animals were in thecustody of Bal Kishan. Thus the statementof this witness gives corroboration to theevidence of PW-11 S.O. MadhusudanSingh that the sheeps were recoveredfrom the possession of appellants Kallanand were given in the custody of BalKishan on the date of recovery. Thisrecovery was made very promptly afterthe incident and it is a huge recovery. Itcannot be believed, by any stretch ofimagination, that the police personnelinstead of investigating this case madeefforts to collect such large number ofsheeps and animals to show a falserecovery. Apart from it, had it been so

then the original owner of the said sheepsmust have come forward to claim thecustody of these recovered sheeps andanimals but neither it has been so pleadedby the defence nor there is any evidencethat the recovered animals were theproperty of someone else. Thus on thispoint, the evidence of PW-11 S.O.Madhusudan Singh is found to be whollyreliable. The only submission of learnedcounsel for appellant Kallan, to discardthe evidence of this witness, was that he isa police officer but we have alreadydiscussed the legal proposition on thispoint wherein it has been observed thatthe evidence of police officer cannot bediscarded solely on the ground that hebelongs to the police force but hisevidence has to be considered as theevidence of any other witness. So aftergoing through the evidence of PW-11S.O. Madhusudan Singh, we are satisfiedthat the said evidence, regarding recoveryof sheeps and animals from the possessionof appellant Kallan is wholly reliable.

41. Now there remains the caseagainst appellant Phool Chandra.According to the evidence of theprosecution, appellant Kallan informedthe police regarding involvement of PhoolChandra and thereafter on the basis ofsecret information, appellant PhoolChandra was arrested. He, in hisconfession, has submitted that three of thedeceased persons were given blows withaxe and remaining were thrown into thewell alive. It has nowhere the case ofappellant Phool Chandra that he had seenany other person throwing the dead bodiesin the well or he came to know this factby some other means. But he has onlymade a bald denial that he has beenfalsely implicated and no such recoverieswere made on his pointing out. On this


point again there is evidence of PW-11S.O. Madhusudan Singh, which has beenchallenged on the ground that he is apolice officer. But as discussed earlier,this by itself is no ground to discard histestimony. Apart from it, the evidence ofPW-5 Sheetala Prasad also supports thefact of recovery of the dead bodies fromthe well. However, he has not stated thatappellant Phool Chandra was present atthe said time. But he has supported thefact recovery of the dead bodies from thewell as stated by PW-11 S.O.Madhusudan Singh. He was the personwho went inside the well and helped thepolice party in taking out the dead bodies.

(L v) Law regarding recovery madeunder Section 27 of the Indian EvidenceAct:

42. Before proceeding further, wewould like to discuss the law regardingthe recovery made under Section 27 of theIndian Evidence Act. In the case of Stateof Maharashtra Vs. Suresh reported in(2000) 1 Supreme Court Cases 471,Hon'ble the Apex Court in paragraph no.26 has held as under:-

"26. We too countenance threepossibilities when an accused points outthe place where a dead body or anincriminating material was concealedwithout stating that it was conceded byhimself. One is that he himself wouldhave concealed it. Second is that he wouldhave seen somebody else concealing it.And the third is that he would have beentold by another person that it wasconcealed there. But if the accuseddeclines to tell the criminal court that hisknowledge about the concealment was onaccount of one of the last two possibilitiesthe criminal court can presume that it wasconcealed by the accused himself. This is

because accused is the only person whocan offer the explanation as to how elsehe came to know of such concealment andif he chooses to refrain from telling thecourt as to how else he came to know ofit, the presumption is a well justifiedcourse to be adopted by the criminal courtthat the concealment was made byhimself. Such an interpretation is notinconsistent with the principle embodiedin Section 27 of the Evidence Act."

(emphasis added by us)

43. In the case of Pawan Kumaralias Monu Mittal Vs. State of UttarPradesh reported in (2015) 7 SupremeCourt Cases 148, Hon'ble the Apex Courtin paragraph no. 29 has held as under:-

"29. It is settled principle of law thatstatements made by an accused beforepolice official which amount toconfession is barred Under Section 25 ofthe Indian Evidence Act. This prohibitionis, however, lifted to some extent bySection 27 which reads thus:

27. How much of informationreceived from accused may be proved.--Provided that, when any fact is deposed toas discovered in consequence ofinformation received from a personaccused of any offence, in the custody ofa police officer, so much of suchinformation, whether it amounts to aconfession or not, as relates distinctly tothe fact thereby discovered, may beproved."

In the light of Section 27of theEvidence Act, whatever informationgiven by the accused in consequence ofwhich a fact is discovered only would beadmissible in the evidence, whether suchinformation amounts to confession or not.The basic idea embedded Under Section27 of the Evidence Act is the doctrine of


confirmation by subsequent events. Thedoctrine is founded on the principle that ifany fact is discovered in a search made onthe strength of any information obtainedfrom a prisoner, such a discovery is aguarantee that the information supplied bythe prisoner is true. The informationmight be confessional or non-inculpatoryin nature, but if it results in discovery of afact it becomes a reliable information (seeState of Maharashtra v. Damu (2000) 6SCC 269)

(underlined by us)

44. Keeping in view theaforementioned proposition of law, in ourconsidered opinion, it was not only therecovery of the seven dead bodies, whichbecomes admissible under the Act. Butappellant Phool Chandra had alsofurnished information that three of thedeceased persons were given blows withaxe. Submission of learned counsel forthe appellants was that lacerated woundwas found on the head of deceased. Butedge of the axe, used in the offence maynot be sharp enough to cause incisedwound or it might have been used by itsblunt side. But perusal of the injuriesclearly shows that said injuries werecaused by a heavy weapon and this factwas also discovered in the postmortem. Inour view, this fact was also discovered onthe basis of the information furnished bythe appellant. Apart from it, appellantPhool Chandra had also informed thatfour of the deceased persons were thrownalive in the well. Perusal of thepostmortem reports of these four personsshows that no mark of injury was foundon their bodies and cause of death wasasphyxia as a result of ante mortemdrowning and this fact, informed byappellant Phool Chandra was alsodiscovered and stands verified by the

postmortem reports of these four persons.Apart from it, other prosecution witnessPW-17 S.I. R.K. Mishra, who hadconducted the inquest proceedings ofseven deceased persons also proves thefact of recovery of dead bodies from thesaid well. The evidence of subsequentInvestigating Officer PW-13 S.I. RanveerSingh also shows that some of theaccused persons were arrested by him andthey have confessed their guilt. But asstated earlier, nothing incriminating isalleged to have been recovered from theirpossession. It is nowhere the defence ofappellant Phool Chandra that he had seensomeone else throwing the dead bodies inthe well or this fact came into hisknowledge by any other means. So thecase of Suresh (Supra) shall apply in fullforce in the fact of the instant case and thecourt can rightly presume that PhoolChandra was the person, who had thrownthe dead bodies into the well.

(M) Defence of appellant PhoolChandra:

45. As per evidence of D.W.-1 HeadMoharir Shiv Shankar Singh, one F.I.R.under Section 147, 148, 149, 364, 323,342, 302 and 201 I.P.C. was lodged byNankai son of Bindeshwari on 29.9.1996at 10:00 p.m. making allegation of anincident that took place on 24.9.1996.Circle Officer had investigated the caseand final report was filed afterinvestigation which was accepted by thecourt. Appellant Phool Chandra happensto be brother of Nankai. Appellant oughtto have filed F.I.R. of the said case whichwas lodged by Nankai against the thenS.O. of Police Station Hussainganj andlarge number of other police personnel. Ithas nowhere been pleaded by appellantPhool Chandra that any effort was madefrom his side to file any protest petition


against the said final report. Apart from it,this incident had taken place after aboutfive years of the registration of the saidF.I.R. So such a long gap, that too, afteracceptance of the final report by the courtmust have made this ground too stale tobe a reason for false implication ofappellant Phool Chandra. It has wherebybeen pleaded that any of the policepersonnel, who was made accused in thatcase was, in any manner, associated withthe incident of this case. Hence thedefence taken by appellant Phool Chandrawas not the least probable.

46. Thus in view of the discussionmade above, we are of the consideredview that recoveries of the seven deadbodieswere made on the basis of theinformation furnished by appellant PhoolChandra.

47. Now cumulative effect of thesetwo recoveries has to be considered.Appellant Phool Chandra had alsoinformed the Investigating Officer that hehad sent animals with Kallan and twoother persons to Nauwagaon. Though it istrue that before the said statement,recovery from the possession ofappellants Kallan have been made. Apartfrom it, appellant Kallan disclosed thefact that appellant Phool Chandra hadtaken seven abducted persons to disposeof them and subsequently on the basis ofthe information furnished by PhoolChandra, seven dead bodies wererecovered from the well. Though there isno direct evidence that all these personsassembled in the house of appellant PhoolChandra. But taking above twocircumstances together, the conclusion isirresistible that they acted, in prosecutionof their common object to take away theanimals of seven persons after killing

them, and both of them are responsible forthe death of seven persons. Though theother appellants have not been foundguilty but it does not mean that otherpersons were not involved in this offence.The prosecution story regardinginvolvement of several other persons inthis incident has not been disbelieved.Such an offence could not have beencommitted unless and until several personworked together in prosecution of theircommon object. The other appellants havebeen acquitted only on the ground as therewas no admissible and reliable evidenceagainst them. So their acquittal would notlend any help to these two appellantsagainst whom the case of the prosecutionstands proved. Therefore, appellants haverightly been convicted for the offencewith the aid of Section 149 I.P.C. Thuswe hold that Criminal Appeal No. 611 of2009 preferred by appellant Kallan andCriminal Appeal No. 282 of 2009preferred by appellant Phool Chandrasans merits, deserve to be dismissed.

Order

48. Criminal Appeal No. 552 of2009 preferred by Santosh alias NetaKhatik Criminal Appeal No. 550 of 2009preferred by appellant Pappu alias Fakku,Criminal Appeal No. 551 of 2009preferred by appellant Nankai, CriminalAppeal No. 327 of 2009 preferred byappellant Ramesh and Criminal AppealNo. 4596 of 2013 preferred by appellantRakesh are hereby allowed. The aforesaidfive appellants are hereby acquitted of thecharges levelled against them. They be setat liberty. At present, they are in custody.They shall be released forthwith, if notwanted in any other case.

49. Criminal Appeal No. 611 of2009 preferred by appellant Kallan and

3 All] Smt. Vijaya Jain Vs. State of U.P. & Ors. 1183

Criminal Appeal No. 282 of 2009preferred by appellant Phool Chandra arehereby dismissed. Both these appellantsare in custody. They shall serve out theirsentence awarded by the trial court.

50. Office is directed to communicatethis order to the court concerned forthwith toensure compliance and also to send back thelower court record.

--------APPELLATE JURISDICTION

CIVIL SIDEDATED: ALLAHABAD 01.09.2015

BEFORETHE HON'BLE DR. DHANANJAYAYESHWANT CHANDRACHUD, C.J.

THE HON'BLE YASHWANT VARMA, J.

Special Appeal Defective No. 598 of 2015

Smt. Vijaya Jain ...AppellantVersus

State of U.P. & Ors. ...Respondents

Counsel for the Appellant:Sri Aishwarya Pratap Singh

Counsel for the Respondents:C.S.C.

(A)Constitution of India. Art.-226-WritJurisdiction-dismissal on ground ofalternative remedy-additional demand ofstamp duty-without any material satisfactionabout deficit amount-order passed ex-parteeven recall application rejected-LearnedSingle Judge dismissed petition on groundagainst order impugned-provisions ofstatutory appeal or revision available-held-order passed ex parte without affordingopportunity of hearing-can not be relegatedto avail alternative remedy.

Held: Para-14In our opinion, therefore, since theproceedings had been taken ex parteagainst the appellant and in complete

violation of the rudimentaryrequirements of a fair hearing, her caseclearly fell in the first of the wellrecognized exceptions to a party beingrelegated to the alternative remedy.

(B)U.P. Stamp (Valuation of property)Rules 1997-Rule 4 and 7-circle rate fixedby D.M.-mere a guide line for valuation-but its potentiality should seen on dateof execution of sole deed- and not futureuse-order impugned quashed remainedfor fresh decision.

Held: Para-26The market value of the property is to bedetermined with reference to itscharacter on the date of execution of theinstrument and its potentiality as on thatdate.

(Delivered by Hon'ble Yashwant Varma, J.)

1. The original petitioner is in appealbefore us consequent to the order of thelearned Single Judge dismissing her writpetition on 17 August 2015 holding that thepetitioner had an equally efficaciousstatutory remedy of filing an appeal underSection 56 of the Indian Stamp Act 18991.

2. The writ petition laid challenge toan order dated 10 November 2014 passedby the Collector and District Magistrate,Gautambudh Nagar holding that the giftdeed executed in favor of the appellant on17 December 2012 was liable to besubjected to a levy of Rs.8,89,000/- asdeficit stamp duty together with penalty offour times the deficit stamp duty amountingto Rs.35,56,000/-. Thus a total amount ofRs.44,45,000/- was sought to be recoveredfrom the appellant. Apart from the above,the deficit amount of stamp duty was alsosubjected to a levy of interest at the rate of1.5 % per month on simple interest basisfrom the date of execution of the instrumenttill the date of actual recovery of the sums


aforementioned. Since the order of 10November 2014 was stated to have beenmade ex parte, the appellant sought recall ofthe same by moving an application beforethe second respondent. This applicationcame to be rejected on 03 August 2015 andthe original order of 10 November 2014was maintained. It was aggrieved by theaforesaid two orders that the appellant fileda writ petition before this Court.

3. Before we proceed further, wewould like to highlight here that the orderof the second respondent refers to theinstrument in question as a sale deed.However, a copy of the instrument, whichhas been produced before us and whichfact was also borne out from therepresentation submitted by the appellantbefore the second respondent shows that itis in fact a gift deed dated 17 December2012 executed by the husband of theappellant in her favour in respect of a plotdescribed as Khasra No. 786 area 0.7160hectare situate in village Surajpur,Pargana Dadri. The Collector proceededto pass the impugned orders holding thatthe instrument had come to be taxed atrates applicable to agricultural landwhereas in his opinion it was liable to betaxed treating the property comprised inthe instrument as residential. Heaccordingly proceeded to apply the circlerate applicable to residential plots andheld the Appellant liable to pay theamounts aforementioned.

4. The learned Single Judge hasproceeded to dismiss the writ petition asnoted above by holding that the appellanthas an equally efficacious statutoryremedy of filing an appeal under Section56 of the Act. It is apposite to note herethat the remedy of an appeal standsincorporated in Section 56 of the Act by

virtue of insertion of sub-section (1-A) inthe said provision in terms of U.P. ActNo. 38 of 2001. The amendment cameinto force with effect from 20 May 2002.The proviso to sub-section (1-A) ofSection 56 of the Act proceeds to imposea condition to the effect that noapplication for stay or recovery of anydisputed amount of stamp duty includinginterest thereon or penalty shall beentertained unless the applicant hasfurnished satisfactory proof of thepayment of not less than one-third of thedisputed amount. This condition,however, does not stand engrafted in sub-section (1) of Section 56 of the Act,which confers revisional power in theChief Controlling Revenue Authority.

5. The distinction in therequirements of the two provisions notedabove fell for consideration before a FullBench of this Court in Gaurav AseemAvej Vs. Chief Controlling RevenueAuthority U.P. Allahabad and others2 .The Full Bench answered the questionsframed for its consideration in thefollowing terms: -

"Conclusion:(1) In view of the foregoing

discussions, we are of the consideredopinion that sub-section (1) of section 56of the Indian Stamp Act, 1899 does notstand deleted by insertion of sub-section(1-A) in section 56 of the Act by the U.P.Act No. 38 of 2001 and both theprovisions of revision and appeal areavailable to an aggrieved person.

(2) If a revision is preferred undersub-section (1) of section 56 of the Actthen there is no requirement of deposit of1/3rd of the disputed amount of deficientstamp duty including interest or penalty,


if any while filing an application for grantof interim relief.

(3) The proviso of sub-section (1-A)of section 56 of the Act will apply only incases where an appeal is preferred undersub-section (1-A) and its scope isrestricted to appeal only.

(4) Sub-section (1-A) of section 56of the Act as inserted by the U.P. Act No.38 of 2001 is constitutionally valid."

6. We have, however, heard thelearned counsel for the parties even on theassumption that the remedy of a revision wasavailable to the appellant against the orderspassed by the second respondent andwhether in the facts and circumstances of thecase, the appellant was liable to be relegatedto the alternative remedy provided for underSection 56 of the Act.

7. The existence of an alternativestatutory remedy as has been consistentlyheld by the Courts is not a rule ofinflexible character nor is it an inviolablecondition. The Courts vested with thepower and jurisdiction under Article 226of the Constitution of India have alwaysviewed this rule as a self imposedrestriction rather than a rule which is to beblindly adhered to and which brooks of noexception. Some of the well settledexceptions to the rule of a petitioner beingrelegated to an alternative remedy arewhere the principles of natural justicehave been violated or where orders aremade without jurisdiction. Withoutburdening this judgment with precedent,we may refer to only two causes whichtravelled to the Supreme Court fromproceedings arising out of the Stamp Actsof the respective States.

8. In Government of AndhraPradesh and others Vs. Smt. P. Laxmi

Devi3 while considering the validity of aprovision requiring a pre-deposit forconsideration of a revision petitionagainst the order of the Collector, theSupreme Court observed as follows: -

"29. In our opinion in this situation itis always open to a party to file a writpetition challenging the exorbitantdemand made by the registering officerunder the proviso to Section 47-Aalleging that the determination made isarbitrary and/or based on extraneousconsiderations, and in that case it isalways open to the High Court, if it issatisfied that the allegation is correct, toset aside such exorbitant demand underthe proviso to Section 47-A of the StampAct by declaring the demand arbitrary. Itis well settled that arbitrariness violatesArticles 14 of the Constitution videManeka Gandhi vs. Union of India[(1978) 1 SCC 248]. Hence, the party isnot remediless in this situation."

9. A similar issue fell forconsideration before the Supreme Courtin Har Devi Asnani Vs. State ofRajasthan4. Considering the judgment ofthe High Court relegating the appellantsbefore it to the alternative remedy ofpreferring a revision under the provisionsof the Stamp Act as applicable inRajasthan, the Supreme Court held asfollows: -

"12. We are, however, inclined tointerfere with the order dated 21.10.2009of the learned Single Judge of the HighCourt in SB Civil Writ Petition No.1244of 2009 as well as the order dated22.03.2010 of the Division Bench of theHigh Court in D.B. Civil Appeal (Writ)No.1261 of 2009. The learned SingleJudge of the High Court and the Division


Bench of the High Court have taken aview that as the appellant has a right ofrevision under Section 65 (1) of the Act,the writ petition of the appellantchallenging the determination of the valueof the land at Rs.2,58,44,260/- and thedemand of additional stamp duty andregistration charges and penalty totalingto Rs.15,70,000/- could not be entertainedunder Article 226 of the Constitution. Thelearned Single Judge of the High Courtand the Division Bench of the High Courthave not considered whether thedetermination of market value and thedemand of deficit stamp duty wereexorbitant so as to make the remedy byway of revision requiring deposit of 50%of the demand before the revision isentertained ineffective. In Government ofAndhra Pradesh and others Vs. Smt. P.Laxmi Devi (supra) this Court, whileupholding the proviso to sub-section (1)of Section 47-A of the Indian Stamp Actintroduced by Andhra PradeshAmendment Act 8 of 1998, observed:

... ... ....13. In our view, therefore, the

learned Single Judge should haveexamined the facts of the present case tofind out whether the determination of thevalue of the property purchased by theappellant and the demand of additionalstamp duty made by the appellant by theAdditional Collector were exorbitant so asto call for interference under Article 226of the Constitution."

10. The law as authoritatively laiddown by the Supreme Court in theaforementioned two judgments clearlyestablishes that a petitioner before theHigh Court is not liable to be relegated tothe alternative remedy as a matter of rule.If in the facts of a particular case it isestablished that the principles of natural

justice have been violated or that theorder has been rendered withoutjurisdiction or if it is disclosed to theCourt that grave injustice has been causedto the petitioner and it is found that hisrelegation to the alternative remedy wouldperpetuate injustice and cause prejudice, itis always open to this Court to exercise itsprerogative constitutional powers and toissue an appropriate writ striking at theoffending action. This principle standsextended in light of the abovementionedprecedents to a case where the petitioneris foisted with an exorbitant and arbitrarydemand in which case his relegation tothe alternative remedy would not bejustified.

11. The first issue that therefore fallsfor consideration is whether the case ofthe appellant fell within the exceptionsreferred to above and whether the facts ofthe present case justified the appellantbeing relegated to the alternative remedy.

12. Pursuant to the initial notice thatwas issued to the appellant on 9September 2013, she filed a detailed replyfor consideration of the secondrespondent on 3 October 2013. By hercommunication dated 7 July 2014, theappellant wrote to the District Magistratethat she had not heard back from hisoffice subsequent to the reply beingsubmitted and therefore presuming thatthe notice itself had been withdrawn, sherequested the second respondent to send aletter or copy of the order which mayhave been passed confirming the above.The appellant does not appear to havereceived any reply from the office of thesecond respondent nor was she madeaware of the continuance of theproceedings. On 9 January 2015, sheagain wrote to the second respondent,


drawing his attention to the fact that herattempts to meet him had provedunsuccessful and that the staff of thecollectorate was most uncooperative. Sheaccordingly requested to be granted anappointment and a specific date of hearingto be fixed so that the controversy couldbe brought to a close.

13. It is apparent from the abovenarration of facts that the order of 10November 2014 had not been brought tothe notice of the appellant. The writpetition then recites that it was only on 31May 2015 when the Amin of the villagesought to serve upon her a recoverycertificate dated 29 May 2015, that shewas made aware of an adverse orderhaving been passed in the proceedings inquestion. She accordingly applied for acertified copy of the order passed on 10November 2014 and made arepresentation for recall of the said orderon 4 June 2015. The second respondentdid not proceed to reject the saidrepresentation dated 4 June 2015 outrightbut curiously enough issued acommunication to the Naib Tehsildar on 9June 2015 to submit a report afterundertaking a spot inspection. The NaibTehsildar in turn appears to haveinspected the plot in question on 17 July2015 and submitted a report of even date.On 3 August 2015, the second respondentrelying on this report of 17 July 2015,proceeded to reject the application dated 4June 2015 for recall and maintained theorder in original passed on 10 November2014.

14. From the above narration offacts, it is evident that the proceedingsagainst the appellant were taken ex parteand in violation of the principles ofnatural justice. The communications

addressed by the appellant to the secondrespondent clearly establish that she wasnot served with any notice nor madeaware of the proceedings which were atthat stage pending before the secondrespondent. Her application for recall ofthe original order was not dismissed onthe ground that the rules of natural justicehad been complied with or that she hadwillfully refused to cooperate in thedisposal of the proceedings. Theapplication dated 4 June 2015 for recall ofthe order dated 10 November 2014 cameto be rejected based upon the report of theNaib Tehsildar dated 17 July 2015 whichin the understanding of the secondrespondent fortified the conclusionswhich stood recorded in the original orderof 10 November 2014. In our opinion,therefore, since the proceedings had beentaken ex parte against the appellant and incomplete violation of the rudimentaryrequirements of a fair hearing, her caseclearly fell in the first of the wellrecognized exceptions to a party beingrelegated to the alternative remedy.

15. There is another aspect of thematter which the learned Single Judge inour opinion failed to bear in mind whilerelegating the appellant to the alternativeremedy.

16. As was noticed by us above, theproceedings taken by the DistrictMagistrate stood initiated and in factconcluded against the appellant on theground that the instrument executed in herfavour on 17 December 2012 had escapedpayment of stamp duty. The gift deeditself had been duly registered uponpayment of stamp duty of Rs.1,13,000/-and returned to the appellant. The amountpaid as stamp duty was found to be deficitby the second respondent and it was on


the above conclusion that the appellant washeld liable to pay in total a sum ofRs.44,45,000/-. In addition to the above, theappellant was further called upon to payinterest on the deficit stamp duty @ 1.5 %per month on simple interest basis from thedate of execution of the instruments till thedate of recovery of the amount mentionedabove. The demand therefore was anincrease of almost forty times the originalduty paid on the instrument. This in ouropinion was clearly an exorbitant demandwhich stood raised against the appellant andtherefore fell in the category of situationswhich were noticed by the Supreme Courtin P. Laxmi Devi (supra) and Har DeviAsnani (supra). For this reason also, we areof the opinion that the learned single Judgeclearly fell in error in relegating theappellant to the alternative remedy of anappeal under the Act.

17. Having arrived at the aboveconclusion we proceeded to hear thelearned counsels for parties at somelength on the merits of the issues raised inthe writ petition. From the discussion thatfollows we are clearly of the opinion thatthe orders impugned in the writ petitionwere clearly unsustainable. We proceed torecord our reasons hereinafter.

18. Before proceeding further,however, it would be relevant to note thesalient statutory provisions that would have abearing on the issues raised before us. Thepower of the Collector to move against aninstrument on the ground of deficit stampduty having been paid thereon is drawn fromthe provisions of Section 47-A of the Act.The relevant extracts of Section 47-A standextracted below: -

"[47-A. Under-valuation of theinstrument. -

(1) (a) If the market value of anyproperty which is the subject of anyinstrument, on which duty is chargeableon the market value of the property as setforth in such instrument, is less than eventhe minimum value in accordance withthe rules made under this Act, theregistering officer appointed under theRegistration Act, 1908, (Act no. 16 of1908), notwithstanding anythingcontained in the said Act, immediatelyafter presentation of such instrument andbefore accepting it for registration andtaking any action under Section 52 of thesaid Act, require the person liable to paystamp duty under Section 29, to pay thedeficit stamp duty as computed on thebasis of the minimum value determined inaccordance with the said rules and returnthe instrument for presenting again inaccordance with Section 23 of theRegistration Act, 1908.

(b) When the deficit stamp dutyrequired to be paid under clause (a) ispaid in respect of any instrument and theinstrument is presented again forregistration, the Registering Officer shallcertify by endorsement thereon, that thedeficit stamp duty has been paid inrespect thereof and the name and theresidence of the person paying them andregister the same.

(c) Notwithstanding contained in anyother provisions of this Act, the deficitstamp duty may be paid under clause (a)in the form of impressed stampscontaining such declaration as may beprescribed. 3

(d) If any person does not make thepayment of deficit stamp duty afterreceiving the order referred to in clause(a) and presents the instrument again forregistration, the registering officer shall,before registering the instrument refer thesame to the Collector, for determination


of the market value of the property andthe proper duty payable thereon.

(2) On receipt of a reference undersub- section (1), the Collector shall aftergiving the parties a reasonableopportunity of being heard and afterholding an enquiry in such manner as maybe prescribed by rules made under thisAct, determine the market value of theproperty which is the subject of suchinstrument and the proper duty payablethereon.

(3) the Collector may, suo motu, oron a reference from any Court or from theCommissioner of Stamps or an AdditionalCommissioner of Stamps or from aDeputy Commissioner of Stamps or froman Assistant Commissioner of Stamps orany officer authorized by the StateGovernment in that behalf, within fouryears from the date of registration of anyinstrument on which duty is chargeable onthe market value of the property, notalready referred to him under sub- section(1), call for an examine the instrument forthe purpose of satisfying himself as to thecorrectness of the market value, of theproperty which is the subject of suchinstrument and the duty payable thereon,and if, after such examination, he hasreason to believe that market value ofsuch property has not been truly set forthin such instrument, he may determine themarket value of such property and theduty payable thereon:

Provided that, with the priorpermission of the State Government, anaction under this sub-section may betaken after a period of four years butbefore a period of eight years from thedate of registration of the instrument onwhich duty is chargeable on the marketvalue of the property.

Explanation: The payment of deficitstamp duty by any person under any order

of registering officer under sub-section(1) shall not prevent the Collector frominitiating proceedings on any instrumentunder sub-section (3).

(4) If on enquiry under sub-section(2) and examination under subsection (3)the Collector finds the market value of theproperty-

(i) truly set forth and the instrumentduly stamped, he shall certify byendorsement that it is duly stamped andreturn it to the person who made thereference;

(ii) not truly set forth and theinstrument not duly stamped, he shallrequire the payment of proper duty or theamount required to make up thedeficiency in the same together with apenalty of an amount not exceeding fourtimes the amount of the proper duty or thedeficient portion thereof.

* [(4-A) The Collector shall alsorequire along with the deficit stamp dutyor penalty required to be paid underclause (ii) of sub-section (4), the paymentof a simple interest at the rate of one andhalf percent per mensem on the amount ofdeficit stamp duty calculated from thedate of the execution of the instrument tillthe date of actual payment:

Provided that the amount of interestunder the sub-section shall be recalculatedif the amount of deficit stamp duty isvaried on appeal or revision or by anyorder of a competent Court or Authority.

(4-B) The amount of interest payableunder sub-section (4-A) shall be added tothe amount due and be also deemed for allpurposes to be part of the amount requiredto be paid.

(4-C) Where realisation of the deficitstamp duty remained stayed by any orderof any Court or Authority and such orderof stay is subsequently vacated, theinterest referred to in sub-section (4-A)


shall be payable also for any periodduring which such order of stay remainedin operation.

(4-D) Any amount paid or depositedby or recovered from, or refundable to, aperson under the provision of this Act,shall first be adjusted towards the deficitstamp duty or penalty outstanding againsthim and the excess, if any, shall then beadjusted towards the interest, if any, duefrom him.]"

19. The State Government inexercise of its rule making power hasframed the Uttar Pradesh Stamp(Valuation of Property) Rules 19975.Rule 4 of the aforementioned rules,requires the Collector of the district to fixthe minimum value per hectare/sq. mtr ofagricultural and non agricultural land. Theminimum value which is fixed by theCollector in exercise of powers conferredby rule 4 is commonly known as the circlerate. Rule 7 provides and lays down theprocedure to be followed by the Collectorwhere he chooses to exercise the powerconferred upon him by virtue of Section47-A of the Act. Rule 7 reads as follows:

"7. Procedure on receipt of areference or when suo motu action isproposed under Section 47-A. (1) Onreceipt of a reference or where action isproposed to be taken suo motu underSection 47-A, the Collector shall issuenotice to parties to the instrument to showcause within thirty days of the receipt ofsuch notice as to why the market value ofthe property set forth in the instrumentand the duty payable thereon be notdetermined by him.

(2) The Collector may admit oral ordocumentary evidence, if any, producedby the parties to the instrument and callfor and examine the original instrument to

satisfy himself as to the correctness of themarket value of the subject matter of theinstrument and for determining the dutypayable thereon.

(3) The Collector may-(a) call for any information or record

from any public office, officer orauthority under the Government or a localauthority;

(b) examine and record the statementof any public officer or authority

under the Government or the localauthority; and

(c) inspect the property after duenotice to parties to the instrument.

(4) After considering therepresentation of the parties, if any, andexamining the records and other evidence,the Collector shall determine the marketvalue of the subject-matter of theinstrument and the duty payable thereon.

(5) If, as a result of such inquiry, themarket value is found to be fully and trulyset forth and the instrument duly stampedaccording to such value, it shall bereturned to the person who made thereference with a certificate to that effect.A copy of such certificate shall also besent to the Registering Officer concerned.

(6) If, as a result of inquiry, theinstrument is found to be under-valuedand not duly stamped, necessary actionshall be taken in respect of it according torelevant provisions of the Act."

20. Having extracted the relevantstatutory provisions above, the followingprinciples emerge therefrom. Sub-section(1) (a) of Section 47-A of the Actempowers the registering officer to callupon the person who has presented aninstrument for registration to pay deficitstamp duty. This power is exercisable bythe registering officer immediately afterpresentation of an instrument and before


accepting it for registration and taking anyaction under Section 52 of the Act. Thispower is liable to be exercised in asituation where the market value of theproperty as set forth in the instrument isless than even the minimum value fixedby the Collector in accordance with therules made under the Act. In distinction tothe above, the power under sub-section(3) of Section 47-A is exercised by theCollector either suo motu or on areference from any Court or from theCommissioner of Stamps or an AdditionalCommissioner of Stamps, DeputyCommissioner of Stamps, an AssistantCommissioner of Stamps or any officerauthorized in that behalf by the StateGovernment. This power confersjurisdiction and authority on the Collectorto call for and examine any instrument forthe purpose of satisfying himself as to thecorrectness of the market value of theproperty which forms the subject matterof the instrument and if upon suchexamination, he has reason to believe thatthe market value of such property has notbeen truly set forth in such instrument, hemay proceed to determine the marketvalue of such property and the dutypayable thereon. The first distinguishingfeature of sub section (3) is that it isavailable to be exercised even after theinstrument has been registered. Secondlythe Collector proceeds under sub section(3) upon finding that the "market value"of the property has not been truly set forthin the instrument as distinct from the"minimum value fixed by the Collector inaccordance with the rules made under theAct" which is the benchmark for initiationof action under sub section (1).

21. The manner in which the powerunder sub-section (3) of Section 47-A ofthe Act is to be exercised stands

encapsulated in rule 7 of the Rules. Sub-rule (1) thereof enjoins the Collector toissue notice to the parties to theinstrument to show cause as to why themarket value of the property set forth inthe instrument and the duty payablethereon be not determined by him. Thenotice to show cause comes to be issuedby the Collector on receipt of a referenceor where action is proposed to be takensuo motu, of course, upon being satisfiedthat the market value of the propertycomprised in the instrument has not beentruly set forth. In terms of sub-rule (2), theCollector is empowered to call for andexamine the original instrument to satisfyhimself as to the correctness of the marketvalue of the subject matter of theinstrument and for determining the dutypayable thereon. In terms of theprovisions of sub-rule (3), the Collector isempowered to call for any information,examine and record the statement of anypublic officer, or authority and inspect theproperty after due notice to the parties tothe instrument. Sub-rule (4) mandates thatafter examining the record and otherevidences, the Collector shall proceed todetermine the market value of the subjectmatter of the instrument and the dutypayable thereon. In terms of sub-rules (5)and (6), if as a result of such enquiry, themarket value is found to be fully and trulyset forth in the instrument and adequateduty paid thereon, the same is liable to bereturned to the person who made thereference with a certificate to that effect.If as a result of enquiry, the instrument isfound to be undervalued and not dulystamped, further action is liable to betaken in accordance with the relevantprovisions of the Act.

22. Admittedly the gift deedexecuted on 17 December 2012 was duly


registered and returned to the appellant.The instrument thereafter appears to havebeen scrutinized by the Sub Registrar,Gautambudh Nagar and the AssistantInspector General of Registration,Gautambudh Nagar who submittedconfidential memos to the secondrespondent on 4 January 2013 and 20February 2013 respectively. It was on theconsideration of the above confidentialmemos that the notice came to be issuedby the Collector, Gautam Budh Nagar on9 September 2013. The notice called uponthe appellant to show cause why deficitstamp duty of Rs. 8,89,000 be notrecovered from her.

23. From the provisions extractedabove, it is apparent that the Collectorproceeds under sub section (3) of Section47-A read with rule 7 when he has reasonto believe that the market value of theproperty comprised in the instrument hasnot been truly set forth and that in theopinion of the Collector, circumstancesexist warranting him to undertake theenquiry contemplated under rule 7. Whatwe however find from the notice dated 09September 2013 is that the Collector hasproceeded to record, albeit prima facie,that the instrument in question has beeninsufficiently stamped to the extent ofRs.8,89,000/-. The notice apart fromreferring to a note dated 20 May 2013,received from the Assistant InspectorGeneral of Registration neither carries nordiscloses any basis upon which theCollector came to the prima facieconclusion that the appellant was liable topay Rs. 8,89,000/ as deficit stamp duty. Inour opinion a notice of this nature mustnecessarily disclose to the personconcerned the basis and the reasons uponwhich the Collector has come to form anopinion that the market value of the

property has not been truly set forth. Inthe absence of a disclosure of evenrudimentary details on the basis of whichthe Collector came to form this opinion,the person concerned has no inkling of thecase that he has to meet. A notice in orderto be legally valid and be in compliancewith the principles of natural justice mustnecessarily disclose, though not in greatdetail, the case and the basis on whichaction is proposed to be taken against theperson concerned. Not only this and as isevident from a bare reading of rule 7, atthe stage of issuance of notice, theCollector has to proceed on the basis ofmaterial which may tend to indicate thatthe market value of the property has notbeen truly and faithfully disclosed in theinstrument. The stage of computation ofmarket value comes only after theprovisions of sub rules (2) (3) and (4) ofrule 7 come into play. At the stage ofissuance of notices, the Collector callsupon the person concerned to show cause"as to why the market value of theproperty.... be not determined by him".

24. In the facts of the present case,we find that the Collector had alreadyprejudged the issue by recording that theappellant had paid deficit stamp duty tothe extent of Rs.8,89,000/-. A reading ofthe order passed on 10 November 2014then shows that the Collector proceededto raise the demand against the appellantproceeding on the assumption that theproperty comprised in the instrument wasliable to be taxed not as an agriculturalland but as a residential plot. Heaccordingly proceeded to levy the circlerate for a residential plot to compute themarket value of the property. The order of10 November 2014 neither refers to norrelies upon any evidence to establish thatthe property was being used for a


residential purpose on the date ofexecution of the gift deed dated 17December 2012. It is settled law that themarket value of the property comprised inan instrument is liable to be computedwith reference to the date on which it wasexecuted.

25. A Full Bench of this Court inShri Ramesh Chandra Srivastava, RampurVs.State of U.P and others6 was calledupon to consider as to what should be thedate with reference to which the marketvalue of the property forming the subject-matter of the instrument is to bedetermined. Answering the above, theFull Bench explained the position of lawin the following terms:-

"38. The above observation dosupport the view which we are proposingto take in the present case i.e. the relevantdate for the purpose of determining themarket value on which the stamp duty ispayable is the date on which theinstrument in question is executed, or inother words when the taxable event takesplace.

xxx xxx xxx66. In view of the above discussion

we answer the second question by holdingthat the relevant date for determining themarket value of the property for beingsubject-matter of the sale deed is the thirdi.e. January 3, 1985 when the Courtexecuted the sale deed in question onbehalf of the vendors."

26. This Court on more than oneoccasion has held that the market value ofthe land is not liable to be determinedwith reference to the use to which a buyerintends to put it in future. The marketvalue of the property is to be determinedwith reference to its character on the date

of execution of the instrument and itspotentiality as on that date. We may inthis connection refer to what wasobserved by a learned Single Judge inVeer Bal Singh Vs. State of U.P. Andothers7: -

"11. In M/s. Maya Food andVanaspati Ltd. Co. V. Chief ControllingRevenue Authority (Board of Revenue)Allahabad, 1990 (90) RD 57, the Courtheld that the market value of the landcould not be determined with reference tothe use of the land to which the buyerintends to put in use. The Court held thata buyer may intend to establish anindustrial undertaking thereon and thatanother buyer may intend to use it foragricultural purposes and a third personmay intend to dedicate it for charitablepurposes and that these differentintentions of individual buyers may affectthat price of each of them would bewilling to pay for the property but themarket value would not depend uponwhat each individual would offer for theproperty in question and that the marketvalue would be that which a general buyerwould offer and what the ownerreasonably accepts for that property, theCourt held that in determining the marketvalue the potential of the land as on thedate of sale alone could be taken intoaccount in determining the market valueand that the potential value of the landthat could be put in use in future could notto be taken into consideration.

xxx xxx xxx14. The other limb of the argument is

that the market value of the land cannotbe determined with reference to use of theland to which buyer intends to put it inuse, has substance. The matter in depthhas been examined by this Court inShakumbari Sugar and Allied Industries


Ltd. v. State of U. P. And others, 2007 (5)ADJ 602. In this case, reliance has beenplaced on earlier judgment in M/s. MayaFoods and Vanaspati Ltd., Allahabad v.Chief Controlling Revenue Authority,1998 (4) AWC 636 wherein the followingpassage has been reproduced:

"Learned Chief Controlling RevenueAuthority has observed that the land waspurchased for an industrial purpose andthe Collector is not arbitrary in decidingthe price of the land on the basis of theproposed usage. This proposition islegally incorrect. The market value of theland cannot be determined with referenceto the use of the land to which buyerintends to put it. One buyer may intend toestablish an industrial undertakingthereon, another may intend to use it foragricultural purpose and a third personmay intend to dedicate it for charitablepurposes like leaving it open as pastureground or a cremation ground or aplayground. These different intentionsmay affect the price that each of themmay be willing to pay for the property andsuch prices have wide variations but themarket value is not what each suchindividual may offer for the property. Themarket value is what a general buyer mayoffer and what the owner may reasonablyexpect. In determining the market value,the potential of the land as on the date ofsale alone can be taken into account andnot what potential it may have in thedistant future."

xxx xxx xxx16. None of the authorities below

besides the report of the Sub-Registrar hasreferred any other material in support oftheir orders. In Ram Khelawan @ Bachhav. State of U. P. Through Collector,Hamirpur and another, 2005 (98) RD 511,it has been held that the report of theTehsildar may be a relevant factor for

initiation of the proceedings underSection 47-A of the Act, but it cannot berelied upon to pass an order under theaforesaid Section. In other words, the saidreport cannot form itself basis of the orderpassed under Section 47-A of the Act. Inthe case of Vijai Kumar v. Commissioner,Meerut Division, Meerut, 2008 (7) ADJ293 (para 17), the ambit and scope ofSection 47-A of the Act has beenconsidered with some depth. Taking intoconsideration the Division Benchjudgment of this Court in Kaka Singh v.Additional Collector and DistrictMagistrate (Finance and Revenue), 1986ALJ 49; Kishore Chandra Agrawal v.State of U. P. and others, 2008 (104) RD253 and various other cases it has beenheld that under Section 47-A (3) of theAct, the burden lay upon the Collector toprove that the market value is more thanminimum as prescribed by the Collectorunder the Rules. The report of the Sub-Registrar and Tehsildar itself is notsufficient to discharge that burden"

27. The above principles of lawenunciated in the aforementionedjudgments have been consistentlyfollowed by this Court. We however findthat the order of the Collector relies uponno evidence which would supportimposition of residential rates on aproperty which was stated to beagricultural on the date of execution ofthe instrument.

28. We further find that after theappellant had filed an application forseeking recall of the ex parte order dated10 November 2014, the Collector issuedorders on 9 June 2015, calling upon theNaib Tehsildar to undertake an inspection.The inspection report is submitted on 17June 2015. It records that the plot in


question falls within the embankment ofthe Hindon river and is flood affected. Itfurther records that the plot has beenfenced in and that while earlier one roomexisted, the same appeared to have beenremoved. It records that the plot is lyingvacant. It further records that around andin the vicinity of the plot in question,certain persons have indulged in plottingof land for the purposes of erectingresidential houses. This report forms thebedrock for the subsequent order passedby the Collector on 3 August 2015.Neither this report nor the ordersimpugned rely upon any evidence whichmay tend to indicate that the plot when itwas purchased or when it had been giftedwas being utilized for residentialpurposes. There is no material on recordto indicate that it is recorded as being forresidential use. More fundamentally, theinspection report in question records factsas existing in June 2015 when in fact theenquiry should have been with regard tothe nature of the plot as obtaining on thedate of execution of the instrument. Weare therefore of the opinion that the orderspassed by the Collector in the absence ofany material could not have taxed theinstrument proceeding on the mereassumption that the property comprisedtherein was residential.

29. The last issue which we musttake notice of is the levy of penalty.While it is true that sub section (4) ofsection 47-A empowers the Collector toimpose penalty not exceeding four timethe proper stamp duty, the same standsattracted in a case where it is found thatthe market value of the property was nottruly set forth. There must thereforenecessarily be an intention to evadepayment of duty, which entails the levy ofpenalty. Secondly the words "not

exceeding..." confer on the Collector adiscretion to levy penalty dependent uponthe facts of each individual case. Themere prescription of a maximum does notnecessarily mean that in each case apenalty equivalent to four times theproper duty is liable to be paid. In anyview of the matter, the imposition ofpenalty has serious civil consequencesand therefore must be preceded by dueapplication of mind and a consideration ofall relevant factors including whetherthere was an intention to evade paymentof duty. We find that the Collector hasfailed to advert to this aspect also whilepassing the impugned orders.

30. On an overall conspectus of theabove facts we find that the impugnedorders are rendered unsustainable being inviolation of the principles of naturaljustice, in breach of the procedureprescribed under the Act and evenotherwise suffering from the vice of nonapplication of mind to relevant facts andthe position of law as laid down by thisCourt. The Collector in our opiniontherefore must be commanded toreconsider the matter afresh in light of theobservations made hereinabove.

31. It has been submitted before usthat the circle rate which has been fixedby the Collector under the rules is only anaid or a guide for the registering officerand is not determinative of market value.It was therefore submitted that the samecould not form the basis for levy of stampduty. Referring to the Noida Master Plan,the learned counsel for the appellantsubmitted that no residential activity ispermitted in the area in question which isotherwise a flood zone and therefore alsothe imposition of additional stamp dutywas unjustified. We are of the opinion


that since the matter is being remittedback to the Collector it would be open tothe appellant to raise all such and otherpleas before the authority who would nowproceed in the matter in light of thedirections made hereinafter.

32. Accordingly, the Special Appealshall stand allowed. The judgment andorder of the learned Single Judge dated 17August 2015 shall stand set aside.Consequent to what has been held above,the orders of the Collector dated 3 August2015 and 10 November 2014 are herebyquashed. The matter shall stand remittedback to the Collector, Gautambudh Nagarfor passing appropriate orders inaccordance with law after affording dueopportunity of hearing to the appellant.

--------APPELLATE JURISDICTION

CRIMINAL SIDEDATED: ALLAHABAD 18.09.2015

BEFORETHE HON'BLE AMRESHWAR PRATAP SAHI, J.THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.

Criminal Appeal No. 1472 of 2012

Gullu & Ors. ...AppellantsVersus

State of U.P. ...Opp. Party

Counsel for the Appellants:Sri Sudist, Sri Janardan Singh Yadav

Counsel for the Respondents:A.G.A.

Criminal Appeal-offence under section 498-A, 304-B and ¾ D.P. Act-conviction of lifeimprisonment-keeping in view the object ofcriminal law-appropriate adequate andproportionate-considering gravity age ofmother-in-law-not expected to do suchthrashing of deceased-hence convictionreduced to 7 years-but the husband bound

by his moral duty to protect his wife-deserves appropriate punishment of 12years rigorous imprisonment.

Held: Para-30From the facts and circumstances of thecase it is clear that the appellants hadinitially no intention or premeditation formurder/ homicide and the deceased hadbeen inflicted grievous injuries on her legsonly. This possibility cannot be ruled outthat in a domestic quarrel the appellants,who are rustic villagers, had beaten thebahu (daughter-in-law) of the housesavagely due to which such injury or shockhad been caused that resulted in the deathof the victim. Appellants had no criminalhistory and they are in incarceration forabout more than five years. Their age is alsopertinent. Considering their age at the timeof their statement u/s 313 CrPC, the BalChand and Smt. Ramwati Devi are seniorcitizens, and their age at present is morethan 63 years and 60 years respectively. Inordinary course they are not expected to dosuch thrashing of the deceased. They maybe dealt with some leniency. But the age ofappellant Gullu is about 37-38 years atpresent, and being the husband of thedeceased it was his legal and moral duty toprotect his wife, but instead he wasinvolved in beating his wife to the extentthat she succumbed to her injuries. Hedeserves appropriate punishment withoutmuch leniency. When we apply the settledprinciple of law which has beenenumerated in the aforementioned cases,the sentence of life imprisonment of theappellants under Section 304 IPC appearsinappropriate. In the present case afterconsidering the circumstances presentedbefore the Sessions Judge and before usduring hearing of appeal, it appearsappropriate that, in the present case thesentences of appellants Bal Chand and Smt.Ramwati should not exceed more than 7years' imprisonment, but the sentence ofGullu should be 12 years.

Case Law discussed:(2008) 15 SCC 753; (2013) 9 SCC 516; (1994)6 SCC 727; (2015) 6 SCC 1; (1976) 1 SCC281; (2009) 15 SCC 635.

3 All] Gullu & Ors. Vs. State of U.P. 1197

(Delivered by Hon'ble Pramod KumarSrivastava, J.)

1. This appeal has been preferredagainst the conviction and punishmentdated 28.2.2012 passed in State Vs. Gulluand others relating to Case Crime No. 689of 2010, police station Mardah, districtGhazipur by which three accused Gullu,Bal Chand and Smt . Ramwati wereconvicted for charge under section 302/34IPC and were punished withimprisonment for life and fine of Rs.5000/- (in default of payment threemonths simple imprisonment).

2. Prosecution case in brief was thatTuliya Devi, daughter of informantBhullu Rajbhar (PW-1) was married toGullu 5 years ago. After marriage TuliyaDevi was treated with cruelty by herhusband Gullu, father-in-law Bal Chandand mother-in-law Ramwati for demandof dowry. For this reason these threeaccused had committed murder of TuliyaDevi on 8.5.2010 by inflicting injuries onher body at their house situate in villageChaubepur, police station- Mardah,district Ghazipur and tried to dispose ofher dead body. After receiving knowledgeof this incident, victim's father Bhullu(informant) had given a written report(Ex-Ka-1) to the police on the basis ofwhich case crime no. 689 of 2010 wasregistered.

3. In the aforesaid case inquest ofthe dead body was performed on08.05.2010 and postmortem of thedeceased was conducted the same eveningat 9:50 pm. In the postmortem reportseveral lacerated wounds and other marksof injuries were found on the dead bodyof the deceased. In postmortem (Ex-Ka-1)the doctor had opined that cause of death

was haemorrhage and shock as a result ofthe said ante-mortem injuries. In thisreport approximate time of death wasreported about 1 day from the time ofpostmortem. After completion ofinvestigation police had submitted charge-sheet against three accused Gullu, BalChand and Ramwati for offences undersection 498-A, 304-B IPC and undersection 3/4 Dowry Prohibition Act.

4. During trial all the accused werecharged for offences under section 498-A,304 B IPC and under section 3/4 DowryProhibition Act, alongwith alternativecharge framed later on for offence undersection 302 IPC. Accused had pleaded notguilty and claimed to be tried.

5. In support of charges prosecutionside examined PW-1, Bhullu (informant),PW-2 Barmati (mother of the deceased),PW-3 - Constable Sunil Kumar Singh(who prepared chik FIR and registerdcase), PW-4 - Dr. Krishna Kumar Verma(who performed the postmortem), PW-5Vinay Kumar Rai, Naib Tehsildar (forinquest report) and PW-6 Chrinjeev NathSinha (Investigation Officer). Thesewitnesses had proved documents of theprosecution marked as EX-Ka-1 to Ex-Ka-14.

6. After closure of prosecutionevidence statement of accused wererecorded in which they denied the facts ofcharge as well as evidence adducedagainst them, without any specificaverments. Defence side had examinedDW-1 Madan, r/o village Chaubeypur.

7. After receiving evidence from boththe sides and after affording opportunity ofhearing as well as considering the argumentof the parties, learned Addl. Sessions Judge


passed judgment dated 28.2.2012 by whichall the accused were acquitted from thecharges under section 498-A, 304-B IPC and3/4 Dowry Prohibition Act, but wereconvicted for the charge under section 302-IPC. Thereafter the trial court had affordedan opportunity of hearing on the point ofquantum of sentence to the accused andpassed orders of punishment as above.Aggrieved by this judgment dated 28.2.2012all the three accused have preferred thepresent appeal.

8. Sri Sudist and Sri Janardan SinghYadav appeared for appellants; and Statewas represented by Mrs. Usha Kiran,AGA.

9. A perusal of evidence adducedduring trial indicates that during post-mortem following ante-mortem injurieswere found on the dead body of thedeceased Tuliya Devi that were caused oroccurred approximately at the timementioned in the charge, i.e., anytime inthe night of 8/9-5-2010:

1.Lacerated wound left side chin 6cm x 1 cm mussel deep chin.

2.Lacerated wound from rightshoulder to just below right elbow 35 cmx 2 cm x bone deep.

3.Abrasion 5cm x 2 cm just laterac ofleft eye.

4.Abrasion on top of right shoulder 8cm x 4 cm.

5.Abrasion 20cm x 10 cm right sidechest.

6.brasion 8 cm x 2 cm right iliacchest.

7.Lacerated wound 5 cm x 3 cm atmiddle of front of right of leg underlyingbond was fractured.

8.Lacerated wound 6 cm x 3 cm justbelow right knee.

9.Lacerated wound 8 cm x 3 cmbelow front of left kneel under lying bonewas fractured.

10. PW-4 the doctor reported thatthe cause of death of victim-deceasedTuliya Devi was shock and haemmerhagedue to the above mentioned ante-morteminjuries. Although the defence hadadduced one witness to indicate that thecause of death of the deceased may beaccidental falling from the roof, and DW-1 Madan was examined in this regard butthese facts could not be substantiated inthe light of available evidence andcircumstances.

11. A perusal of the impugnedjudgment reveals that this finding oflearned Additional Sessions Judge iscorrect that deceased Tuliya Devi haddied due to injuries found on her body inthe house of the accused-appellants atabout the time mentioned in the charge,and the accused-appellants wereresponsible for causing such injuries toTuliya Devi. In these circumstances, thetrial court had rightly reached to theconclusion that due to the abovementioned deliberate caused injuriesTuliya Devi died, and accused-appellantsare responsible for inflicting thosehomicidal injuries.

12. Learned Additional SessionsJudge had considered facts andcircumstances including evidenceadduced and reached to the conclusionthat though there is no conclusiveevidence relating to dowry death anddemand of dowry, but injuries found onbody of the deceased were not accidental.Trial Court found that those injuries werehomicidal, for inflicting of which accusedpersons were responsible, because it were


only they who were present in their housewhen such injuries had occurred on thebody of the deceased Tuliya Devi.

13. Learned counsel appearing for theappellants fairly admitted the contents offacts relating to charge, namely victim TuliyaDevi having succumbed to the injuries foundon her body in the house of appellants. Heargued that he is not challenging the findingsof fact of the impugned judgment, but isquestioning the nature of the offence and thesections on which the accused-appellantswere charged and convicted and the quantumof sentences awarded. According to him,taking note of various factors including theage of the appellants-accused, their first guilt,the charged incident was committed withoutpremeditation in a sudden quarrel in the heatof passion, the injury being on the non-vitalpart of the body and the death was because ofsuch injuries which were not sufficient tocause death in ordinary course, the award oflife imprisonment and fine of Rs. 5000/- indefault, to further undergo RI for threemonths is excessive. He pointed out thatthese points were mentioned during thearguments and at the time of hearing on thepoint of quantum of sentence, but were notconsidered in the judgment of conviction andat the time of awarding punishment becausepunishment was being awarded for Section302 IPC in which life sentence is minimum.Learned counsel for the appellants contendedthat in this case conviction should be for theoffence under section 304 IPC, and for theaforesaid reasons punishment should not bethe maximum possible, and the said sentenceof punishment should be mitigated.

14. Learned A.G.A. appearing forthe respondent State submitted that theCourt had not erred in conviction oraward of punishment. He also contendedthat the Court has always the liberty to

impose an appropriate sentence as that ispermissible in law.

15. We have given our anxiousconsideration to the rival submissions andperused the material available on recordof the court below. The appeal is beingdisposed off with the consent of thelearned counsel for both sides dispensingwith the formality of availability of paperbooks.

16. After the perusal of originalrecord and the evidence available we areof the opinion that this finding of fact isnot erroneous that the three accused GulluRajbhar, Bal Chand and Smt. Ramwatihad been involved in causing suchinjuries. These injuries, due to whichTuliya Devi was seriously injured andlater died, were of course on non-vitalpart of the body of deceased, but she dieddue to haemorrhage and shock of theseinjuries. A minute scrutiny of the natureof injuries show that either there weresuperficial injuries of abrasions on thebody of victim or there were grievousinjuries on non-vital part of body (that istwo fractures on legs). Therefore, in suchcircumstances, it has to be considered asto whether the act causing injuries to thedeceased resulting in her death wasmurder or whether it was a culpablehomicide not amounting to murder.

17. Culpable homicide is murder ifthe act which causes death is done withthe intention of causing death or is donewith intention of causing a bodily injuryand injury intended to be inflicted issufficient in the ordinary course of natureto cause death. All murder is culpablehomicide but not vice versa. It is thedegree of probability of death whichdetermines whether a culpable homicide


is of the gravest, medium or the lowestdegree.

18. In "Kesar Singh v. State ofHaryana, (2008) 15 SCC 753" Hon'bleApex had held :

"To put it shortly, the prosecutionmust prove the following facts before itcan bring a case under Section 300"Thirdly":

First, it must establish, quiteobjectively, that a bodily injury is present;

Secondly, the nature of the injurymust be proved; these are purely objectiveinvestigations.

Thirdly, it must be proved that therewas an intention to inflict that particularbodily injury, that is to say, that it was notaccidental or unintentional, or that someother kind of injury was intended.

Once these three elements are provedto be present, the enquiry proceeds furtherand,

Fourthly, it must be proved that theinjury of the type just described made upof the three elements set out above issufficient to cause death in the ordinarycourse of nature. This part of the enquiryis purely objective and inferential and hasnothing to do with the intention of theoffender.

Once these four elements areestablished by the prosecution (and,indisputably, the burden is on theprosecution throughout) the offence ismurder under Section 300 "Thirdly". Itdoes not matter that there was nointention to cause death. It does not matterthat there was no intention even to causean injury of a kind that is sufficient tocause death in the ordinary course ofnature (not that there is any realdistinction between the two). It does noteven matter that there is no knowledgethat an act of that kind will be likely to

cause death. Once the intention to causethe bodily injury is actually found to beproved, the rest of the enquiry is purelyobjective and the only question iswhether, as a matter of purely objectiveinference, the injury is sufficient in theordinary course of nature to cause death.No one has a licence to run aroundinflicting injuries that are sufficient tocause death in the ordinary course ofnature and claim that they are not guiltyof murder. If they inflict injuries of thatkind, they must face the consequences;and they can only escape if it can beshown, or reasonably deduced that theinjury was accidental or otherwiseunintentional."

19. In the matter in hand it is provedfrom the evidence that the charged act wascommitted by appellants without intentionof murder, without use of any formalweapon and without any pre-planning.From the evidence, it appears probable thatthe appellants had willfully caused injuresto the deceased and these injures wereinflicted without properly knowing as towhether they may cause death or not.Though two of the injuries caused by themwere grievous but there was everypossibility of the deceased's survival, asthey were fractures of leg. The grievousinjuries were on non-vital part of the body.Other injuries were simple and superficial.Apparently knowing these facts fully wellthe appellants had inflicted blows at thedeceased. This matter therefore comeswithin exception 1 of Section 300 IPC.Therefore the appellants are found guilty ofact of culpable homicide not amounting tomurder which is punishable under section304 IPC.

20. The maximum punishment forthe offence u/s 304 IPC is imprisonment


for life. It has to be be considered as towhether sentence of life imprisonmentawarded in the present case by the trialcourt is appropriate. It is settled law thatthe courts are obliged to respect thelegislative mandate in the matter ofawarding of sentences in all such cases. In"Hazara Singh v. Raj Kumar, (2013) 9SCC 516" Hon'b'e Apex Curt had heldthat :

"it is clear that the maximumpunishment provided therein isimprisonment for life or a term whichmay extend to 10 years. Although Section307 does not expressly state the minimumsentence to be imposed, it is the duty ofthe courts to consider all the relevantfactors to impose an appropriate sentence.The legislature has bestowed upon thejudiciary this enormous discretion in thesentencing policy, which must beexercised with utmost care and caution.The punishment awarded should bedirectly proportionate to the nature andthe magnitude of the offence. Thebenchmark of proportionate sentencingcan assist the Judges in arriving at a fairand impartial verdict."

"17. We reiterate that in operatingthe sentencing system, law should adoptthe corrective machinery or deterrencebased on factual matrix. The facts andgiven circumstances in each case, thenature of the crime, the manner in whichit was planned and committed, the motivefor commission of the crime, the conductof the accused, the nature of weaponsused and all other attending circumstancesare relevant facts which would enter intothe area of consideration. We alsoreiterate that undue sympathy to imposeinadequate sentence would do more harmto the justice system to undermine thepublic confidence in the efficacy of law. It

is the duty of every court to award propersentence having regard to the nature ofthe offence and the manner in which itwas executed or committed. The courtmust not only keep in view the rights ofthe victim of the crime but also thesociety at large while considering theimposition of appropriate punishment."

21. Only because Section 304 IPCprovides for life imprisonment as themaximum sentence, does not mean thatthe Court should mechanically proceed toimpose the maximum sentences, moreparticularly when the incident hadoccurred suddenly, during the heat andpassion of any domestic quarrel, withoutpre-meditation or pre-planning.

22. In Hem Chand v. State ofHaryana, (1994) 6 SCC 727 Hon'ble ApexCourt had held that :

"As mentioned above, Section 304-BIPC only raises presumption and laysdown that minimum sentence should beseven years but it may extend toimprisonment for life. Therefore awardingextreme punishment of imprisonment forlife should be in rare cases and not inevery case."

23. In Devidas RamachandraTuljapurkar v. State of Maharashtra,(2015) 6 SCC 1 Hon'ble Apex Court hadheld :

"While we see no reason to differwith the concurrent findings recorded bythe trial court and the High Court, we dosee some substance in the argument raisedon behalf of the appellants that keeping inview the prosecution evidence, theattendant circumstances, the age of theaccused and the fact that they have


already been in jail for a considerableperiod, the Court may take lenient view asfar as the quantum of sentence isconcerned. The offences having beenproved against the accused and keeping inview the attendant circumstances, we areof the considered view that ends of justicewould be met, if the punishment awardedto the appellants is reduced."

24. In 'Ramashraya Chakravarti v.State of M.P., (1976) 1 SCC 281' Hon'bleApex Court had observed :

"To adjust the duration ofimprisonment to the gravity of a particularoffence is not always an easy task.Sentencing involves an element ofguessing but often settles down to practiceobtaining in a particular court withinevitable differences arising in thecontext of the times and events in the lightof social imperatives. It is always a matterof judicial discretion subject to anymandatory minimum prescribed by law."

"In judging the adequacy of asentence the nature of the offence, thecircumstances of its commission, the ageand character of the offender, injury toindividuals or to society, effect of thepunishment on the offender, eye tocorrection and reformation of theoffender, are some amongst many otherfactors which would be ordinarily takeninto consideration by courts trial courts inthis country already overburdened withwork have hardly any time to set apart forsentencing reflection. This aspect ismissed or deliberately ignored by theaccused lest a possible plea for reductionof sentence may be considered asweakening his defence. In a good systemof administration of criminal justice pre-sentence investigation may be of greatsociological value."

25. One of the prime objectives ofcriminal law is imposition of anappropriate, adequate, just andproportionate sentence commensuratewith the nature and gravity of the crimeand the manner in which the crime isdone. For sentencing an accused on proofof crime the courts have evolved certainprinciples; the twin objective of thesentencing policy is deterrence andcorrection. It lies within the discretion ofthe court to choose a particular sentencewithin the available range from minimumto maximum. What sentence would meetthe ends of justice depends on the factsand circumstances of each case and thecourt must keep in mind the gravity of thecrime, motive for the crime, nature of theoffence and all other attendantcircumstances.

26. In considering the adequacy ofthe sentence which should neither be toosevere nor too lenient the court has,therefore, to keep in mind the motive andmagnitude of the offence, thecircumstances in which it was committedand the age and character (including hisantecedents) and situation in life of theoffender.

27. In Gurmukh Singh v. State ofHaryana, (2009) 15 SCC 635 Hon'bleApex Court had discussed points to betaken into account before passingappropriate sentence as under :

"23. These are some factors whichare required to be taken into considerationbefore awarding appropriate sentence tothe accused. These factors are onlyillustrative in character and notexhaustive. Each case has to be seen fromits special perspective. The relevantfactors are as under:


(a) Motive or previous enmity;(b) Whether the incident had taken

place on the spur of the moment;(c) The intention/knowledge of the

accused while inflicting the blow orinjury;

(d) Whether the death ensuedinstantaneously or the victim died afterseveral days;

(e) The gravity, dimension andnature of injury;

(f) The age and general healthcondition of the accused;

(g) Whether the injury was causedwithout premeditation in a sudden fight;

(h) The nature and size of weaponused for inflicting the injury and the forcewith which the blow was inflicted;

(i) The criminal background andadverse history of the accused;

(j) Whether the injury inflicted wasnot sufficient in the ordinary course ofnature to cause death but the death wasbecause of shock;

(k) Number of other criminal casespending against the accused;

(l) Incident occurred within thefamily members or close relations;

(m) The conduct and behaviour ofthe accused after the incident. Whetherthe accused had taken the injured/thedeceased to the hospital immediately toensure that he/she gets proper medicaltreatment?

These are some of the factors whichcan be taken into consideration whilegranting an appropriate sentence to theaccused.

24. The list of circumstancesenumerated above is only illustrative andnot exhaustive. In our considered view,proper and appropriate sentence to theaccused is the bounded obligation andduty of the court. The effort of the courtmust be to ensure that the accused

receives appropriate sentence, in otherwords, sentence should be according tothe gravity of the offence. These are someof the relevant factors which are requiredto be kept in view while convicting andsentencing the accused."

28. Now the matter is limited tosentence for offence u/s 304 IPC, and wehave to consider about the appropriatesentence for the appellants in this case.For it aggravating circumstances relatingto the crime while mitigatingcircumstances relating to the criminal hasto be considered.

29. So far as aggravatingcircumstances relating to the crime isconcerned, from the evidence of the caseit is clear that the appellants haddeliberately been instrumental in causinginjuries on the whole body of deceasedwho was a young lady, without anysatisfactory explanation, and had tried toconceal their guilt by adducing evidenceto prove it to be a case of accident by fallfrom roof.

30. From the facts and circumstancesof the case it is clear that the appellants hadinitially no intention or premeditation formurder/ homicide and the deceased hadbeen inflicted grievous injuries on her legsonly. This possibility cannot be ruled outthat in a domestic quarrel the appellants,who are rustic villagers, had beaten thebahu (daughter-in-law) of the housesavagely due to which such injury or shockhad been caused that resulted in the deathof the victim. Appellants had no criminalhistory and they are in incarceration forabout more than five years. Their age isalso pertinent. Considering their age at thetime of their statement u/s 313 CrPC, theBal Chand and Smt. Ramwati Devi are


senior citizens, and their age at present ismore than 63 years and 60 yearsrespectively. In ordinary course they arenot expected to do such thrashing of thedeceased. They may be dealt with someleniency. But the age of appellant Gullu isabout 37-38 years at present, and being thehusband of the deceased it was his legaland moral duty to protect his wife, butinstead he was involved in beating his wifeto the extent that she succumbed to herinjuries. He deserves appropriatepunishment without much leniency. Whenwe apply the settled principle of law whichhas been enumerated in theaforementioned cases, the sentence of lifeimprisonment of the appellants underSection 304 IPC appears inappropriate. Inthe present case after considering thecircumstances presented before theSessions Judge and before us duringhearing of present case the sentences ofappellants Bal Chand and Smt. Ramwatishould not exceed more than 7 years'imprisonment, but the sentence of Gullushould be 12 years.

31. In view of above facts anddiscussion, the order of conviction u/s 302IPC imposed on the each appellants ishereby modified u/s 304 IPC, and thesentence of imprisonment for life ismodified for appellants Bal Chand andSmt. Ramwati to rigorous imprisonmentfor seven years each. The sentence ofappellant Gullu Rajbhar is modified torigorous imprisonment for twelve years.With these modifications of conviction,punishment and sentence, the appealstands disposed off.

32. Let the copy of this judgment besent to Sessions Judge, Ghazipur ofensuring compliance.

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ORIGINAL JURISDICTIONCIVIL SIDE

DATED: ALLAHABAD 10.09.2015BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.THE HON'BLE MRS. VIJAY LAKSHMI, J.

Criminal Misc. Writ Petition No. 4357 of 2015

Vinod Valmiki ...PetitionerVersus


Counsel for the Petitioner:Sri Vikas Chandra Tiwari, Sri SudhirMehrotra

Counsel for the Respondents:A.G.A., Sri Brij Lal, Sri Vikas ChandraTiwari, Sri Vijay Mishra

National Security Act-Section-3(3)-Detentionon ground of taking part in illegalactivities detenue already in jail-withoutrecording satisfaction of being enlargedon bail can repeat offence-such omissionvitiated the impugned-order.

Held: Para-16In the present case the detaining authorityhas merely mentioned in the ground ofdetention that the bail application filed bythe petitioner before the Chief JudicialMagistrate-Ist, Ghaziabad was rejected andthereafter the petitioner had moved his bailapplication before the Sessions Judge,Ghaziabad and there was possibility of thepetitioner's indulging in similar activitiesprejudicial to the maintenance of publicorder on his being enlarged on bail. He hasnot recorded his satisfaction in theimpugned order that there was realpossibility of his being released on bailwhich omission in our opinion has totallyvitiated the impugned order.

Case Law discussed:(1975) 3 SCC 198; 1990 (27) ACC 621.

(Delivered by Hon'ble Bala KrishnaNarayana, J.)

3 All] Vinod Valmiki Vs. State of U.P. & Ors. 1205

1. Heard learned counsel for thepetitioner, learned A.G.A. for the Stateand Sri Brij Lal, learned counsel for theUnion of India.

2. The petitioner has been detainedby the District Magistrate, Ghaziabad videhis order dated 20.09.2014 passed by himin the exercise of his power under Section3(3) of the National Security Act(hereinafter referred to as the 'Act').

3. The relevant facts giving rise tothis writ petition as narrated in thegrounds of detention under Section 8 ofthe Act which were served upon thepetitioner along with the detention orderon 20.09.2014 while he was in DistrictJail, Ghaziabad on account of his beingaccused in Case Crime no. 2233 of 2014,P.S. Loni, district-Ghaziabad are thatfollowing lodging of an F.I.R. at P.S.Loni, district-Ghaziabad under Section354(B) and 506 I.P.C. by one Smt. KishanKumari against one Sayeed Mohammadalleging there in that aforesaid SayeedMohammad had committed rape of herminor daughter Rakhi, aged about tenyears, which was later converted underSection 376(2) (D) I.P..C and Section 4The Protection of Children From SexualOffences Act and aforesaid SayeedMohammad being arrested and sent tojail, the petitioner along with hisassociates, with the object of giving acommunal complexion to the wholeincident and disturb communal harmonystarted indulging in hooliganism againstthe muslim community as a result fearand terror prevailed amongst the publiccausing a stampede with people runninghelter-skelter leaving behind their shoesand slippers on the road and hidingthemselves in their houses and shops byclosing the doors of their houses and

downing the shutters of their shops. Apartfrom the aforesaid, the movement ofvehicles deployed for supplying milk andvegetables to Baghpat, ambulance andvehicles engaged in supplying gas wastotally disturbed. However the situationwas brought under control by the policeforce which had reached the place ofoccurrence.

4. The grounds of detention furtherreveal that on 28.8.2014 the petitioneralong with his associates (about 150 innumber) with the common intention ofdisturbing the communal harmonyreached Sunita Vihar shouting slogans of'Jai Sri Ram' and organised a road blockat no.2. Bus Station Indrapuri on Loni-Delhi Saharanpur National Highway.Upon being informed about the activitiesof the petitioner and his companionsGorakh Nath Yadav, Inspector Incharge,PS Loni reached the place of road blockwith his force and tried to coax andpersuade the petitioner and his associatesto lift the road block but instead oflistening to him they became agitated andstarted firing at the police force andcreated obstruction in the performance oftheir official duties by the police officersand the members of the police force. Theyalso set ablaze old tyres and woodenbenches of the shops of public by pouringkerosene oil thereon and indulged in arsonand looting in the nearby shops.Government vehicles of the policeofficers who had reached the spot werealso damaged. Not only this the petitionerand his associates had pelted stones atMustafa Masjid and Ek Minar Masjidsituate in Mangal Bazar, Sunita Vihar 100fit road and Saraswati Vihar (Kirti Vihar)respectively and shouted anti-muslimslogans which caused a commotionforcing shop keepers to close their shops.


Fear and terror prevailed all over andcommunal harmony was totally disturbedand public order shattered.

5. People were prevented fromgoing to their offices and establishmentsand an atmosphere of undeclared curfewprevailed Additional forces had to berequisitioned from other police stationsand adjoining districts after SeniorSuperintendent of Police, Ghaziabad wascompelled to enforce Red Scheme and itwas only after three or four hours thatsituation could be brought under controlon the arrival of additional police forces.The aforesaid incident had causedtremendous resentment amongst themuslim community. On the basis of F.I.R.of the aforesaid incident lodged by theInspector Incharge Gorakh Nath Yadav atpolice station-Loni Case Crime no. 2235of 2014, under sections 147, 148, 149,436, 341, 336, 332, 353, 153A, 395, 397,307 and 427 I.P.C. and section ¾Prevention of Damages to Public PropertyAct and section 7 Criminal LawAmendment Act was registered againstthe petitioner and his associates.

6. Grounds of detention also indicatethat complicity of the petitioner and hisassociates in the commission of theaforesaid offences was fully establishedfrom the statements of the witnessesrecorded during free and fair investigationof the aforesaid incident and aftercompletion of investigation charge sheetwas submitted against the petitioner andall his associates under the aforesaidoffences. News of the aforesaid incidentwas published in several national levelnews papers. The petitioner who was inGhaziabad District Jail had moved anapplication for being released on bailbefore the Sessions Judge, Ghaziabad

after his bail application was rejected bythe Chief Judicial Magistrate-Ist,Ghaziabad and there was real possibilityof petitioner indulging in similar activitiesprejudicial to the public order on hisbeing enlarged on bail.

7. On account of the above thedetaining authority was satisfied thatdetention of the petitioner under the Actwas essential for preventing the petitionerfrom indulging in activities prejudicial tomaintenance of public order. Thedetention order dated 20.09.2014, groundsof detention under Section 8 of the Actand other relevant papers were sent by therespondent no. 2 through a specialmessenger to the State Government on thesame day which were received in theHome Department of the StateGovernment on 21.09.2012. Petitionerwas produced before the U.P. AdvisoryBoard on 13.10.2014. After the detentionorder was approved by the U.P. AdvisoryBoard, the report of the U.P. AdvisoryBoard and the record of the case weretransmitted to the State Government alongwith a letter of Registrar, U.P. AdvisoryBoard (detention) dated 30.10.2014 whichwas received in the concerned section ofthe State Government on 03.11.2014. Onreceipt thereof the State Government tooka decision on 07.11.2014 to confirm thedetention order and keep the petitionerunder detention for a period of twelveyears from the date of passing of the orderof detention on 20.09.2014.

8. Learned counsel for the petitionersubmitted that the District Magistrate,Ghaziabad has not applied his mind to thefacts of the case and the material onrecord and he has passed the impugnedorder in a routine manner on the reportsubmitted to him by the police authorities.

3 All] Vinod Valmiki Vs. State of U.P. & Ors. 1207

The detention authority has failed torecord any satisfaction in the impugnedorder that there was real possibility of thepetitioner, who was already in judicialcustody, being released on bail. Furtherthe material before the detaining authoritywas not sufficient to satisfy him that afterbeing released on bail the petitioner shallagain indulge in activities prejudicial tothe public order and hence, the impugnedorder which is per-se illegal may be setaside and the petitioner be set at libertyforthwith.

9. Per contra, learned A.G.A.submitted that the impugned order hasbeen passed by the detaining authority onthe basis of petitioner's involvement intwo incidents which had taken place on27.08.2014 and 28.8.2014 in Ghaziabadcity along with his associates(approximately 150 in number). TheF.I.R. of the aforesaid incident which waslodged by the Inspector Incharge GorakhNath Yadav was registered as Case Crimeno. 2235 of 2014, under Section 354(B)and 506 I.P.C. against the petitioner andhis associates at police station-Loni,district-Ghaziabad. The allegationsagainst the petitioner were that he alongwith his associates had indulged inactivities on both the aforesaid dateswhich had the effect of totally disturbingthe communal harmony and shatteringpublic order as they had tried to givecommunal complexion to an isolatedincident which had taken place on27.08.2014, in which a minor girl Rakhiaged about ten years was raped by oneSayeed Mohammad although on the basisof the first information report lodged bythe mother of the victim Case Crime no.2233 of 2014, was registered at PS-Loni,district-Ghaziabad initially under section354(B) & 506 IPC against the aforesaid

Sayeed Mohammad which was laterconverted into section 376(2)(D) andSection 4 of POCSO Act and aforesaidSayeed Mohammad was arrested and sentto jail. There was no inaction or any laxityon the part of the local police in takingnecessary action against the accusedwarranting the activities in whichpetitioner and his associates had indulgedon 27.8.14 & 28.8.14 which had totallydisturbed the public order and tranquility.

10. Learned A.G.A. furthersubmitted that in the aforesaid incidentsthe petitioner and his associates had notonly indulged in acts of arson and lootingbut had also illegally blocked the Loni-Delhi-Saharanpur highway disrupting themovement of the vehicles deployed forsupplying vegetables and milk to Hapurand supplying gas and ambulance servicesas well. Not only this the petitioner andhis associates had fired at the policeofficers and the members of the policeforce, who had reached the place ofincident and tried to persuade him and hisassociates to stop their activities and theyhad also caused damage the governmentvehicles.

11. Learned A.G.A. lastly submittedthat detaining authority had passed theimpugned order after being fully satisfiedon the basis of the material producedbefore him that on being released on bailthe petitioner may again indulge inactivities prejudicial to the public orderand the same does not suffer from anyillegality or infirmity, hence the presentwrit petition which is devoid of anymerits is liable to be dismissed.

12. After having very carefullyexamined the submissions made bylearned counsel for the parties and


perused the impugned order as well as theother material brought on record, we findthat the only issue involved in this writpetition is that whether the failure of theDistrict Magistrate to record in theimpugned order that there was strongpossibility of the petitioner, who wasalready in judicial custody on account ofhis being accused in Case Crime no. 2235of 2014, under sections 147, 148, 149,436, 341, 336, 332, 353, 153A, 395, 397,307 and 427 I.P.C. and section ¾Prevention of Damages to Public PropertyAct and section 7 Criminal LawAmendment Act being released on bailhas vitiated the impugned order andwhether the subsequent recording of hissatisfaction that on being released on bailthere was possibility of the petitioner'sindulging in similar activities which wereprejudicial to the public order on hisbeing enlarged on bail would validate theimpugned order.

13. The Hon'ble Supreme Court ofIndia in paragraph 35 of its judgmentrendered in the case of Haradhan Saha &Another vs The State Of West Bengal &Ors. reported in (1975) 3SCC 198observed that where the concerned personis actually in jail custody at the time whenthe order of detention is passed againsthim, and is not likely to be released for afairly long time, it may be possible tocontend that there could be no satisfactionon the part of the detaining authority as tothe likelihood of such a person indulgingin the activities which would jeoparadisethe security of the State or the publicorder.

14. The Hon'ble Supreme Court haslaid down the principles as to when adetention order can be passed with regardto a person already in judicial custody in

the case of Kamarunnissa vs. Union ofIndia and another reported in 1990(27)ACC 621 SC and in paragraph 13 of theaforesaid case the The Hon'ble SupremeCourt has held as hereunder :-

"13. From the catena of decisionsreferred to above, it seems clear to us thateven in the case of a person in custody adetention order can validly be passed(1) ifthe authority passing the order is aware ofthe fact that he is actually in custody; (2)if he has reason to believe on the basis ofreliable material placed before him(a) thatthere is real possibility of his beingreleased on bail, and (b) that on being soreleased he would in all probabilityindulge in prejudicial activity; and (3) if itis felt essential to detain him to preventhim from so doing. If the authority passesan order after recording his satisfaction inhis behalf, such an order can not be struckdown on the ground that the proper coursefor the authority was to oppose the bailand if bail is granted notwithstanding suchopposition to question of before a higherCourt."

15. What follows from the above isthat a valid preventive detention orderpassed against a person in judicial custodymust fulfill the conditions spelt out hereinabove by the Apex Court and one suchessential condition is that there should bereal possibility of the person beingreleased on bail.

16. In the present case the detainingauthority has merely mentioned in theground of detention that the bailapplication filed by the petitioner beforethe Chief Judicial Magistrate-Ist,Ghaziabad was rejected and thereafter thepetitioner had moved his bail applicationbefore the Sessions Judge, Ghaziabad and

3 All] Smt. Manju Devi & Ors. Vs. Motor Accident Claims Tribunal/Spl. Judge/A.D.J. Muzaffar Nagar 1209

there was possibility of the petitioner'sindulging in similar activities prejudicialto the maintenance of public order on hisbeing enlarged on bail. He has notrecorded his satisfaction in the impugnedorder that there was real possibility of hisbeing released on bail which omission inour opinion has totally vitiated theimpugned order.

17. The writ petition accordinglysucceeds and is allowed. The impugnedorder dated 20.09.2014 passed by DistrictMagistrate, Ghaziabad is hereby quashed.

18. Let the petitioner, VinodValmiki be released from jail forthwith, ifhe is not wanted in any other case. Thereshall be however, no order as to costs.

--------ORIGINAL JURISDICTION


BEFORETHE HON'BLE MANOJ KUMAR GUPTA, J.

C.M.W.P. No. 4714 of 2015(Matters under Article 227)

Smt. Manju Devi & Ors. ...PetitionersVersus

Motor Accident Claims Tribunal/Spl.Judge/A.D.J. Muzaffar Nagar ...Respondents

Counsel for the Petitioners:Sri Onkar Singh

Counsel for the Respondents:---

Constitution of India, Art.-227-Applicationto with draw half of amount-invested infixed deposit-Accident Claim Tribunalrejected saying ruse to withdraw theamount by claimant-held-Tribunal oughtto have approach the problems ofclaimant-who were indebted by Bank

loan-order not sustainable-quashed-direction to reduce the amount byforthwith.

Held: Para-9 & 119. Thus, once the application forwithdrawal of money is filed by theclaimants, the Tribunal has to apply itsmind whether it would be in the interest ofthe widow, or illiterate, or minor claimantsto release the amount or not. While takingdecision in that regard, the Tribunal has toapproach the problem from the view pointof the claimants.

11. As regard the shares of petitioner no.1, it is noticeable that there are twodemand notices brought on record by her.The first notice dated 29.4.2014 byAllahabad Bank requires her to pay a sumof Rs.59,339/- as the amount due andpayable towards loan taken by her latehusband Dhamendra Mohan. The secondnotice of even date refers a loan taken byher on 22.10.2012, wherein she is requiredto pay Rs.37,611/- alongwith interest.Thus, there was sufficient material beforethe Tribunal to establish that the claimantswere indebted to the bank and were inneed of money.

Case Law discussed:(1994) 2 SCC 176; 2012 ACJ 698.

(Delivered by Hon'ble Manoj KumarGupta, J.)

1. Heard learned counsel for thepetitioners.

2. The petitioners alongwith one Smt.Vedvati made a claim for grant ofcompensation under the provisions of theMotor Vehicles Act, 19881 on account ofdeath of Dharmendra Mohan in a motoraccident. The petition was registered as claimpetition no. 401 of 2011. DharmendraMohan, who died in a road accident, was thehusband of petitioner no.1, father ofpetitioners no.2 and 3 and son of Smt.


Vedvati. The Motor Accident ClaimsTribunal by an award dated 31.10.2012allowed the claim petition in part anddirected for payment of compensation ofRs.3,19,000/- to the claimant alongwithinterest @ 6% per annum, since 19.4.2011,the date on which the claim petition wasfiled. The award passed by the MotorAccident Claims Tribunal further providesthat petitioner no.1 would become entitled tohalf of amount of compensation awarded bythe Tribunal and the remaining claimantswould each get 1/6 of the total amount. Afurther direction was issued that the amountcoming to the share of the petitioner no.1 andSmt.Vedvati would be released only to theextent of half of the amount and theremaining amount would be invested in afixed deposit of a nationalised bank for aperiod of three years. In respect of petitionersno. 2 and 3, there was a specific direction forpayment of entire amount coming to theirshare by means of a crossed cheque.

3. In compliance of the award, it is notin dispute that a sum of Rs.3,44,000/- wasdeposited in Indian Bank by a cheque dated5/2/2014. The Tribunal by order dated9.4.2014 directed the bank to apportion theamount deposited in favour of the claimantsin the following manner :-

half of the amount alongwith interestto be deposited in favour of the petitionerno.1, 1/6 each in favour of petitioner no.2and 3 and the remaining 1/6 in favour ofSmt. Vedvati. A further direction wasissued to the bank that half of the amountcoming to the share of each of theclaimant would be paid to them andremaining half would be deposited infixed deposit for a period of three years.

4. Evidently, the direction issued bythe Tribunal for payment of only half of

the amount coming to the share ofpetitioner no. 2 and 3 and for deposit ofremaining half in a fixed deposit wascontrary to the direction given in theaward dated 31.10.2012, whereunder theentire amount coming to their share wasto be paid by means of a cheque.

5. The petitioners moved anapplication dated 11.2.2014 with a requestto the Tribunal to permit prematureencashment of fixed deposit receipts. Itwas stated in the application that thedeceased Dharmendra Mohan had takenloan from the bank under KSY schemeand to liquidate the debt, a sum ofRs.59,339/- was to be paid. Alongwith theapplication, various notices issued by theAllahabad Bank calling upon thepetitioners to deposit the remainingamount due and payable under KSYscheme, failing which legal action wouldbe taken against them, were duly filed.The first notice dated 29.4.2014 callsupon petitioner no.1 to pay a sum ofRs.59,339/-, the second notice dated29.4.2014 requires petitioner no.1 to pay asum of Rs. 37,611/-, notices of even daterequires petitioner nos. 3 and 4 to depositRs.57,960/- and Rs.37,386/- respectively.

6. The Motor Accident ClaimsTribunal by impugned order dated22.4.2014 rejected the application filed bythe petitioners for premature encashmentof the fixed deposit receipts. The Tribunalhas held that it appears from the noticethat the aforesaid loan was taken by themin the year 2012 whereas, under the awardof the Motor Accident Claims Tribunal,sufficient amount was paid to them on9.4.2014. As such, they could haveappropriated the said amount towardspayment of the loan liability but it seemsthat the same was not done and thus the

3 All] Smt. Manju Devi & Ors. Vs. Motor Accident Claims Tribunal/Spl. Judge/A.D.J. Muzaffar Nagar 1211

application is merely a ploy employed bythe claimant to withdraw the money.

7. Learned counsel for thepetitioners submitted that the impugnedorder passed by the Tribunal is manifestlyillegal and contrary to the guidelines, laiddown by the Supreme Court in the case ofGeneral Manager, Kerala State RoadTransport Corporation vs SusammaThomas2. It is further urged that theTribunal has failed to apply its mind tothe genuine need of money on part of thepetitioners to liquidate the loan liability.The Tribunal, it is urged, has failed totake into consideration the fact that theonly person in the family who wasearning, had expired and therefore, certainamount was also required for dailyexpenses and thus, it cannot be said thatthe application filed by them was a ployto get the fixed deposit receipts encashedprematurely.

8. The Supreme Court in the case ofSusamma Thomas (supra) has issuedcertain guidelines in order to "safeguardthe feed from being frittered away by thebeneficiaries owing to ignorance,illiteracy and susceptibility toexploitation". However, even according tothe guidelines given in the said judgment,the Tribunal is required to apply its mindto the need of the claimants. It has beenheld in the said decision that in case themoney is required for expending anyexisting business or for purchase ofproperty for earning the livelihood, theTribunal can release the whole amount ofcompensation to the claimant.

9. The directions given by theSupreme Court in the aforesaid decisionhave since been incorporated by carryingout amendment in the U.P. Motor Vehicle

Rules, 2008, by inserting section 220-B,relevant extract whereof is as under :-

"(i).The Claims Tribunal should, inthe case of minors, invariably orderamount of compensation awarded to theminor invested in long term fixed depositsat least till the date of the minor attainingmajority. The expenses incurred by theguardian or next friend may, however, beallowed to be withdrawn;

(v). In the case of widows the ClaimsTribunal should invariably follow theprocedure set out in (i) above;

(viii). In all cases Tribunal shouldgrant to the claimants liberty to apply forwithdrawal in case of an emergency. Tomeet with such a contingency, if theamount awarded is substantial, the ClaimsTribunal may invest it in more than oneFixed Deposit so that if need be one suchF.D.R. can be liquidated."

Thus, once the application forwithdrawal of money is filed by theclaimants, the Tribunal has to apply itsmind whether it would be in the interestof the widow, or illiterate, or minorclaimants to release the amount or not.While taking decision in that regard, theTribunal has to approach the problemfrom the view point of the claimants.

10. In the instant case,the first thingwhich the Tribunal failed to notice is thatin the original award, direction was forpayment of entire compensation comingto the share of the petitioners no. 2 and 3directly to them by means of a crossedcheque. No part of the amount coming totheir share was to be deposited in fixeddeposit. However, contrary to thedirection in the award dated 31.10.2012,the Tribunal vide its order dated 9.4.2014required the bank to invest 50% of the


amount coming to their shares in fixeddeposit. Thus, the direction for deposit of50% of the amount coming to the share ofpetitioner no.2 and 3 being contrary to thedirections given in the award dated31.10.2012, cannot be sustained and ishereby set aside.

11. As regard the shares of petitionerno. 1, it is noticeable that there are twodemand notices brought on record by her.The first notice dated 29.4.2014 byAllahabad Bank requires her to pay a sumof Rs.59,339/- as the amount due andpayable towards loan taken by her latehusband Dhamendra Mohan. The secondnotice of even date refers a loan taken byher on 22.10.2012, wherein she isrequired to pay Rs.37,611/- alongwithinterest. Thus, there was sufficientmaterial before the Tribunal to establishthat the claimants were indebted to thebank and were in need of money.

12. A supplementary affidavit hasbeen filed by learned counsel for thepetitioners stating that a sum ofRs.88,000/- was paid to petitioner no.1and an equal amount was deposited infixed deposit in her name. It is not indispute that Dharmendra Mohan, thebread earner for the family had died. Insuch situation, it should have beenvisualised by the Tribunal that there areseveral other liabilities apart from dailyexpenses which the claimants were tomeet. In such view of the matter, therequest for release of additional sumwhich is in fixed deposit cannot be said tobe unreasonable or arbitrary or a mereruse to withdraw the amount. TheTribunal while deciding the applicationhas approached the controversy in alopsided manner, without appreciating theview point of the claimants.

13. In the case of A. V. Padma andothers vs. R. Venugopal and others3, theSupreme Court permitted withdrawal ofmoney deposited in fixed deposit infavour of widow to enable her to providea dwelling unit to her second daughterwho is co-owner in the house, but wasresiding in a rented accommodation onexorbitant rent. It is held that the widowwas obliged to provide shelter to herdaughter, and if the money remainslocked in fixed deposit, it would onlyyield paltry interest, whereas, thedaughter would be compelled to payexorbitance rent. It was held that thedecision of the Tribunal to invest theamount in fixed deposit was a result ofrigid and mechanical approach. Thedecision fully supports the case of thepetitioner herein.

14. In view of the discussions madeabove, the impugned order passed by theTribunal dated 22.4.2012 is set aside. Theapplication filed by the petitioners paperno. 13-Ga shall stand allowed. Thetribunal shall permit prematureencashment of the FDR in favour of thepetitioners, leaving alone the FDRs in thename of Smt. Vedvati, for which norequest for premature encashment wasmade.

15. The Tribunal shall ensure thatcompliance of this order is made within aperiod of three weeks from date ofproduction of certified copy of this order,by the petitioners, before the Tribunal.

16. The petition stands allowedaccordingly.



3 All] Muntjir Vs. General Manager, PNB Metlife India Insurance Co. Ltd. & Ors. 1213

BEFORETHE HON'BLE MANOJ KUMAR GUPTA, J.

C.M.W.P. No. 5490 of 2015(Mattes under Article 227)

Muntjir ...PetitionerVersus

General Manager, PNB Metlife IndiaInsurance Co. Ltd. & Ors. Respondents

Counsel for the Petitioner:Sri V.C. Dixit

Counsel for the Respondents:------

Constitution of India, Art.-226-Jurisdiction-writ of certiorari-order passed bypermanent lok adalat-stamp reporter-objected to convert petition under Art.-227-in view of Radhey Shyam case-held-misconceived order passed by Tribunalstand on different footing-Tribunal-notwithin perview of Civil Court-held-writpetition under Art.-226-maintainable.

Held: Para-7Thus, it is clear that the judgment in thecase of Radhey Shyam (supra) lays downthe law only in relation to the orders ofcivil courts and it does not extend to theorders passed by inferior tribunals orcourts, which are not civil courts.

Case Law discussed:(2015) 5 SCC 423; (2003) 6 SCC 675; AIR1967 SC 1

(Delivered by Hon'ble Manoj KumarGupta, J.)

1. This petition as originally draftedunder Article 226 of the Constitution isfor quashing of the order passed by thePermanent Lok Adalat constituted underthe provisions of the Legal ServicesAuthorities Act, 1987. It is pointed out bylearned counsel for the petitioner that theStamp Reporter refused to accept the

petition on the ground that a petitionunder Article 226 would not bemaintainable, and the petitioner can onlyfile a petition under Article 227 of theConstitution. It is further pointed out bylearned counsel for the petitioner that hepersonally went to the Stamp Reporterand requested him to accept the petition,as framed, inasmuch as, there is no legalembargo in maintaining a petition underArticle 226 of the Constitution,challenging the order of a tribunal.

2. He also placed reliance on thejudgment of the Supreme Court in thecase of Radhey Shyam & another VsChhabi Nath & Others1 wherein,according to him, the legal embargo inmaintaining a petition under Article 226of the Constitution, is in respect of orderspassed by the Civil Courts and not inrespect of the order passed by a tribunal.He points out that Stamp Reporter refusedto accept the petition and therefore, hewas compelled to change the provision oflaw under which, the petition is beingfiled from that under Article 226 toArticle 227 of the Constitution.

3. He further submitted that thepetitioner is still seeking a writ ofcertiorari and a writ of mandamus, as thepetition is directed against the order ofPermanent Lok Adalat, which is acting asa tribunal and not a civil court.

4. The submission made by learnedcounsel for the petitioner appears to haveforce. In the case of Radhey Shyam(supra), the Supreme Court wasconsidering the reference made to it by atwo judge bench, expressing doubts aboutcorrectness of the law laid down in SuryaDev Rai vs Ram Chander Rai and others2in so far as it held that interference with


the judicial orders of civil courts ispermissible by issuing a writ of certiorari.In paragraph 27 of the referring order,reliance was placed on paragraph 63 ofthe Constitutional Bench judgment of 9judges in the case of Naresh ShridharMirajkar and others vs State ofMaharashtra3. Paragraph 27 of thereferring order is extracted herein below:-

"It is clear from the law laid down inMirajkar in para 63 that a distinction hasbeen made between judicial orders ofinferior courts of civil jurisdiction andorders of inferior tribunals or court whichare not civil courts and which can not passjudicial orders. Therefore, judicial orderspassed by civil courts of plenaryjurisdiction stand on a different footing inview of the law pronounced in para 63 inMirajkar. The passage in the subsequentedition of Halsbury (4th Edn.) which hasbeen quoted in Surya Dev Rai does notshow at all that there has been any changein law on the points in issue pointed outabove."

(emphasis supplied)

5. Thus, while referring the matter toa Larger Bench, their Lordships of theSupreme Court, drew a distinctionbetween the orders passed by the inferiorcourts of civil jurisdiction and the order ofinferior tribunals or courts, which are notcivil courts. Thus, the reference to thelarger bench was confined only to theconsideration of the question regardingscope of a writ of certiorari in relation tothe orders of civil courts and not those ofinferior tribunals.

6. The Supreme Court whileanswering the reference held that theorders of the civil courts are not amenableto writ jurisdiction under Article 226 of

the Constitution. But the said dictum oflaw, as noted above, is confined only tojudicial orders of civil courts and notthose of the tribunals, which as notedabove, stand on a different footing. This isalso clear from the following observationsmade by the Supreme Court whileanswering, the reference:-

"... All courts in the jurisdiction of aHigh Court are subordinate to it andsubject to its control and supervisionunder Article 227. Writ jurisdiction isconstitutionally conferred on all HighCourts. Broad principles of writjurisdiction followed in England areapplicable to India and a writ of certiorarilies against patently erroneous or withoutjurisdiction orders of Tribunals orauthorities or courts other than judicialcourts. There are no precedents in Indiafor High Courts to issue writs tosubordinate courts. Control of working ofsubordinate courts in dealing with theirjudicial orders is exercised by way ofappellate or revisional powers or power ofsuperintendence under Article 227.Orders of civil court stand on differentfooting from the orders of authorities orTribunals or courts other thanjudicial/civil courts......"

(emphasis supplied)

7. Thus, it is clear that the judgmentin the case of Radhey Shyam (supra) laysdown the law only in relation to the ordersof civil courts and it does not extend tothe orders passed by inferior tribunals orcourts, which are not civil courts.

8. In such view of the matter, thisCourt is of the opinion that the objectionbeing raised by the Stamp Reporter inrelation to petitions filed under Article226 of the Constitution, challenging

3 All] State of U.P. & Ors. Vs. Raj Karan & Anr. 1215

orders of tribunal is not correct.Accordingly, the petitioner is permitted toconvert this petition into that underArticle 226 of the Constitution, as it wasoriginally drafted.

9. The office is directed to treat thepetition, as one under Article 226 and toplace it before the appropriate court hearingsuch matters, after registering as a petitionunder Article 226 of the Constitution, ifpossible as fresh case on 29.9.2015.

10. This order be placed before theStamp Reporter, for its guidance inmatters coming to it for reporting.



BEFORETHE HON'BLE SUNEET KUMAR , J.

Writ-C No. 6108 of 2004

State of U.P. & Ors. ...PetitionersVersus

Raj Karan & Anr. ...Respondents

Counsel for the Petitioner:S.C.

Counsel for the Respondents:S.K. Srivastava, Amit Yadav, Anil Yadav,S.C., S.K. Chaubey, Shyam Narain,Sudhanshu Narain

U.P. Industrial Dispute Act-1947-Section-6-N- Retirement of Daily wagers-working forlast 11 years-retaining juniors-terminationwithout retrenchment compensation-or onemonth salary in lieu thereof-held-illegal-direction of reinstatement with 50% backwages-proper-warrant no interference byWrit Court.

Held: Para-18

The respondent was removed fromservice unceremoniously by theemployer without any valid or cogentreason despite the workman having putin eleven years of service. The conduct ofthe petitioner-employer tantamounts tounfair labour practice as provided underthe VIth schedule to the IndustrialDisputes Act, by employing the workmenas temporaries and to continue them forsuch years with the object of deprivingthem of the status and privileges ofpermanent workmen.

Case Law discussed:1990 (83) FLR 497; [2000 (86) FLR 649];[2013 (139) FLR 541]; (1979) 2 SCC 80;(2007) 2 SCC 433; (2014) 7 SCC 177; (2007) 5SCC 755; (2006) 4 SCC 1; (2009) 8 SCC 556;(2014) 7 SCC 190; [2005] 5 SCC 591; (2014)11 SCC 85.

(Delivered by Hon'ble Suneet Kumar, J.)

1. The petitioner/employer is assailingthe award dated 05 March 2003 published on15 October 2003 in Adjudication Case No.528 of 1992 passed by Labour Court,Gorakhpur. State Government on 27 August1992 referred the following dispute:

"Whether the termination of serviceof the workman Shri Raj Karan by itsemployer w.e.f. 01.12.1991 is legal andjustified? If not, the relief workman isentitled to get?"

2. The case of the respondent/workmanis that he was engaged as Beldar by theIrrigation Department of the State since 1980,worked for more than 240 days in a calanderyear but without notice or retrenchmentcompensation, was terminated by theemployer on 01 December 1991.

3. The petitioner in their objection/writtenstatement denied the allegations contenting thatthe respondent/workman was engaged on


dailywage basis for intermittent period onavailability of work and funds. Therespondent never worked for more than 240days in a year. The Labour Court held thatthe workman had put in 240 days in a year,the provisions of 6N of the U.P. IndustrialDisputes Act, 1947 was not complied,accordingly ordered reinstatement of therespondent/workman with 50% backwageswith continuity of service.

4. Contention of learned counsel forthe petitioner is that it is admitted that therespondent/workman was a dailywager, wasengaged intermittently, accordingly theLabour Court erred in awardingreinstatement with 50% backwages, furtherthe Irrigation Department not being an'industry' within the meaning of the Act, theLabour Court would have no jurisdiction.

5. The Labour Court uponconsidering the muster roll, extracts of themuster roll register, the statement ofwitness (EW-1), the seniority listfurnished by the workman concluded thatthe workman worked for more than 240days. Admittedly, the provisions of theAct were not followed, retrenchmentcompensation or salary in lieu of noticewas not paid to the workman, therefore, inmy opinion there is no perversity in thefinding recorded by the Labour Court thatthe workman was removed withoutcomplying the provision of law.

6. This Court in State of U.P. VersusPresiding Officer, Industrial Tribunal (V),Meerut and another1, held IrrigationDepartment to be an industry within themeaning of the Act which was followedsubsequently in State of U.P. State VersusLabour Court, Dehradun and another2, Iam, therefore not inclined to take adifferent view.

7. The only question for determinationis as to whether the Labour Court erred indirecting reinstatement of the workmanwith 50% backwages.

8. The Supreme Court in DeepaliGundu Surwase Versus Kranti JuniorAdhyapak and others3, considered caseson the subject of reinstatement and culledout the propositions to be followed whileconsidering the cases where reinstatementwith continuity of service and back wagescan be ordered:

"33. The propositions which can beculled out from the aforementionedjudgments are:

i) In cases of wrongful termination ofservice, reinstatement with continuity ofservice and back wages is the normal rule.

ii) The aforesaid rule is subject to therider that while deciding the issue of backwages, the adjudicating authority or theCourt may take into consideration thelength of service of theemployee/workman, the nature ofmisconduct, if any, found proved againstthe employee/workman, the financialcondition of the employer and similarother factors.

iii) Ordinarily, an employee orworkman whose services are terminatedand who is desirous of getting back wagesis required to either plead or at least makea statement before the adjudicatingauthority or the Court of first instance thathe/she was not gainfully employed or wasemployed onlesser wages. If the employerwants to avoid payment of full backwages, then it has to plead and also leadcogent evidence to prove that theemployee/workman was gainfullyemployed and was getting wages equal tothe wages he/she was drawing prior to thetermination of service. This is so because


it is settled law that the burden of proof ofthe existence of a particular fact lies onthe person who makes a positiveaverments about its existence. It is alwayseasier to prove a positive fact than toprove a negative fact. Therefore, once theemployee shows that he was notemployed, the onus lies on the employerto specifically plead and prove that theemployee was gainfully employed andwas getting the same or substantiallysimilar emoluments.

iv) The cases in which the LabourCourt/Industrial Tribunal exercises powerunder Section 11-A of the IndustrialDisputes Act, 1947 and finds that eventhough the enquiry held against theemployee/workman is consistent with therules of natural justice and / or certifiedstanding orders, if any, but holds that thepunishment was disproportionate to themisconduct found proved, then it willhave the discretion not to award full backwages. However, if the LabourCourt/Industrial Tribunal finds that theemployee or workman is not at all guiltyof any misconduct or that the employerhad foisted a false charge, then there willbe ample justification for award of fullback wages.

v) The cases in which the competentCourt or Tribunal finds that the employerhas acted in gross violation of thestatutory provisions and/or the principlesof natural justice or is guilty ofvictimizing the employee or workman,then the concerned Court or Tribunal willbe fully justified in directing payment offull back wages. In such cases, thesuperior Courts should not exercise powerunder Article 226 or 136 of theConstitution and interfere with the awardpassed by the Labour Court, etc., merelybecause there is a possibility of forming adifferent opinion on the entitlement of the

employee/workman to get full back wagesor the employer's obligation to pay thesame. The Courts must always be kept inview that in the cases of wrongful / illegaltermination of service, the wrongdoer isthe employer and sufferer is theemployee/workman and there is nojustification to give premium to theemployer of his wrongdoings by relievinghim of the burden to pay to theemployee/workman his dues in the formof full back wages.

vi) In a number of cases, the superiorCourts have interfered with the award ofthe primary adjudicatory authority on thepremise that finalization of litigation hastaken long time ignoring that in majorityof cases the parties are not responsible forsuch delays. Lack of infrastructure andmanpower is the principal cause for delayin the disposal of cases. For this thelitigants cannot be blamed or penalised. Itwould amount to grave injustice to anemployee or workman if he is deniedback wages simply because there is longlapse of time between the termination ofhis service and finality given to the orderof reinstatement. The Courts should bearin mind that in most of these cases, theemployer is in an advantageous positionvis-à-vis the employee or workman. Hecan avail the services of best legal brainfor prolonging the agony of the sufferer,i.e., the employee or workman, who canill afford the luxury of spending moneyon a lawyer with certain amount of fame.Therefore, in such cases it would beprudent to adopt the course suggested inHindustan Tin Works Private Limited v.Employees of Hindustan Tin WorksPrivate Limited4.

vii) The observation made in J.K.Synthetics Ltd. v. K.P. Agrawal5 (supra)that on reinstatement theemployee/workman cannot claim


continuity of service as of right iscontrary to the ratio of the judgments ofthree Judge Benches referred tohereinabove and cannot be treated as goodlaw. This part of the judgment is alsoagainst the very concept of reinstatementof an employee/workman."

9. The Supreme Court in B.S.N.L.Versus Bhurumal6, held that the ordinaryprinciple of grant of reinstatement withfull back wages, when the termination isfound to be illegal is not appliedmechanically in all cases. While that maybe a position where services of aregular/permanent workman areterminated illegally and/or malafideand/or by way of victimization, unfairlabour practice etc. However, when itcomes to the case of termination of a dailywage worker and where the termination isfound illegal because of proceduraldefect, namely in violation of Section 25-F of the Industrial Disputes Act, the Courtis consistent in taking the view in suchcases reinstatement with back wages isnot automatic and instead the workmanshould be given monetary compensationwhich will meet the ends of justice.Rationale for shifting in this direction isobvious. (para 34 & 35)

"34. The reasons for denying therelief of reinstatement in such cases areobvious. It is trite law that when thetermination is found to be illegal becauseof non-payment of retrenchmentcompensation and notice pay asmandatorily required under Section 25-Fof the Industrial Disputes Act, even afterreinstatement, it is always open to themanagement to terminate the services ofthat employee by paying him theretrenchment compensation. Since such aworkman was working on daily wage

basis and even after he is reinstated, hehas no right to seek regularization (See:State of Karnataka Versus Umadevi (3).Thus when he cannot claim regularizationand he has no right to continue even as adaily wage worker, no useful purpose isgoing to be served in reinstating such aworkman and he can be given monetarycompensation by the Court itselfinasmuch as if he is terminated again afterreinstatement, he would receive monetarycompensation only in the form ofretrenchment compensation and noticepay. In such a situation, giving the reliefof reinstatement, that too after a long gap,would not serve any purpose.

35.We would, however, like to add acaveat here. There may be cases wheretermination of a daily wage worker isfound to be illegal on the ground it wasresorted to as unfair labour practice or inviolation of the principle of last come firstgo viz. while retrenching such a workerdaily wage juniors to him were retained.There may also be a situation that personsjunior to him wee regularized under somepolicy but the concerned workmanterminated. In such circumstances, theterminated worker should not be deniedreinstatement unless there are some otherweighty reasons for adopting the courseof grant of compensation instead ofreinstatement. In such cases,reinstatement should be the rule and onlyin exceptional cases for the reasons statedto be in writing, such a relief can bedenied."

10. The Supreme Court in U.P.Power Corporation Ltd. Versus BijliMazdoor Sangh7, applied the principlesof the Constitution Bench judgment inState of Karnataka Versus Umadevi (3)8by observing that the question as regardsthe effect of the industrial adjudicators'


powers was not directly in issue inUmadevi case. But the foundation logic inUmadevi case is based on Article 14 ofthe Constitution of India. Though theindustrial adjudicator can vary the termsof the contract of the employment, itcannot do something which is violative ofArticle 14. If the case is one which iscovered by the concept of regularization,the same cannot be viewed differently.Therefore, the Court held that since theworkman never worked as a pumpoperator, but was engaged as daily wagebasis, who did not possess the requisitequalification. Looked at from any angle,the direction for regularization, as given,could not have been given in view of whathas been stated in Umadevi case.

11. Supreme Court in MaharashtraSRTC Versus Casteribe Rajya ParivahanKarmchari Sanghatana9, held thatUmadevi does not denude the Industrialand Labour Courts of their statutorypower under Section 30 read with Section32 of the MRTU and PULP Act to orderpermanency of the workers who havebeen victims of unfair labour practice onthe part of the employer under Item 6 ofSchedule IV where the posts on whichthey have been working exist. Umadevicannot be held to have overridden thepowers of the Industrial and LabourCourts in passing appropriate order underSection 30 of the MRTU and PULP Act,once unfair labour practice on the part ofthe employer under Item 6 of Schedule IVis established.

12. The legal position is enshrined inparagraph 41 which reads as follows:-

"41. Thus, there is no doubt thatcreation of posts is not within the domainof judicial functions which obviously

pertains to the executive. It is also truethat the status of permanency cannot begranted by the Court where no such postsexist and that executive functions andpowers with regard to the creation ofposts cannot be arrogated by the courts."

13. Supreme Court in Hari NandanPrasad Versus Food Corporation ofIndia10, upon considering theaforementioned judgments as to whetherthe principles enshrined in Umadevi (3)case is applicable observed as follows:-

"34. A close scrutiny of the twocases, thus, would reveal that the law laiddown in those cases is not contradictoryto each other. In U.P. Power Corporation,this Court has recognized the powers ofthe Labour Court and at the same timeemphasized that the Labour Court is tokeep in mind that there should not be anydirection of regularization if this offendsthe provisions of Article 14 of theConstitution, on which judgment inUmadevi is primarily founded. On theother hand, in Bhonde case, the Court hasrecognized the principle that havingregard to statutory powers conferred uponthe Labour Court/Industrial Court to grantcertain reliefs to the workmen, whichincludes the relief of giving the status ofpermanency to the contract employees,such statutory power does not getdenuded by the judgment in Umadevi'scase. It is clear from the reading of thisjudgment that such a power is to beexercised when the employer hasindulged in unfair labour practice by notfilling up the permanent post even whenavailable and continuing to workers ontemporary/daily wage basis and taking thesame work from them and making themsome purpose which were performed bythe regular workers but paying them much


less wages. It is only when a particularpractice is found to be unfair labourpractice as enumerated in Schedule IV ofMRTP and PULP Act and it necessitatesgiving direction under Section 30 of thesaid Act, that the Court would give such adirection."

14. The Court in Hari Nandan Prasadcase (supra) observed that keeping in mindthat industrial disputes are settled byindustrial adjudicator on principles of fairplay and justice concluded as follows:-

"39. On harmonious reading of the twojudgments discussed in detail above, we areof the opinion that when there are postsavailable, in the absence of any unfair labourpractice the Labour Court would not givedirection for regularization only because aworker has continued as daily wageworker/adhoc/temporary worker for numberof years. Further, if there are no postsavailable, such a direction for regularizationwould be impermissible. In the aforesaidcircumstances giving of direction toregularize such a person, only on the basis ofnumber of years put in by such a worker asdaily wager etc. may amount to backdoorentry into the service which is an anathemato Art. 14 of the Constitution. Further, such adirection would not be given when theconcerned worker does not meet theeligibility requirement of the post in questionas per the Recruitment Rules. However,wherever it is found that similarly situatedworkmen are regularized by the employeritself under some scheme or otherwise andthe workmen in question who haveapproached Industrial/Labour Court are atpar with them, direction of regularization insuch cases may be legally justified,otherwise, non-regularization of the left overworkers itself would amount to invidiousdiscrimination qua them in such cases and

would be violative of Art. 14 of theConstitution. Thus, the Industrial adjudicatorwould be achieving the equality by upholdingArt. 14, rather than violating this constitutionalprovision.

40. The aforesaid examples are onlyillustrative. It would depend on the factsof each case as to whether order ofregularization is necessitated to advancejustice or it has to be denied if giving ofsuch a direction infringes upon theemployer's rights"

15. A three-Judge Bench of theSupreme Court in Haryana RoadwaysVersus Rudhan Singh11, considered thequestion whether back wages should beawarded to the workman in each andevery case of illegal retrenchment.

"8. There is no rule of thumb that inevery case where the Industrial Tribunalgives a finding that the termination of servicewas in violation of Section 25-F of the Act,entire back wages should be awarded. A hostof factors like the manner and method ofselection and appointment i.e. whether afterproper advertisement of the vacancy orinviting applications from the employmentexchange, nature of appointment, namely,whether ad hoc, short term, daily wage,temporary or permanent in character, anyspecial qualification required for the job andthe like should be weighed and balanced intaking a decision regarding award of backwages. One of the important factors, whichhas to be taken into consideration, is thelength of service, which the workman hadrendered with the employer. If the workmanhas rendered a considerable period of serviceand his services are wrongfully terminated,he may be awarded full or partial back wageskeeping in view the fact that at his age andthe qualification possessed by him he may

3 All] Zila Panchayat Balrampur Vs. Commissioner Devi Patan Division & Anr. 1221

not be in a position to get anotheremployment. However, where the totallength of service rendered by a workman isvery small, the award of back wages for thecomplete period i.e. from the date oftermination till the date of the award, whichour experience shows is often quite large,would be wholly inappropriate. Anotherimportant factor, which requires to be takeninto consideration is the nature ofemployment. A regular service of permanentcharacter cannot be compared to short orintermittent dailywage employment thoughit may be for 240 days in a calendar year."

16. The Supreme Court in BhuvneshKumar Dwivedi Versus Hindalco IndustriesLtd.12, on the facts of that case, the Courtheld that the workman was subjected tovictimization, therefore, the award passed bythe Labour Court reinstating with backwageswas justified. The judgment and order of theHigh Court granting compensation wasreversed.

17. Applying the law on the facts ofthe present case, the workman in thewritten statement had clearly stated that hewas engaged in 1980 as Beldar againstpermanent vacancy, had continuouslyworked till 1 December 1991. Thereupon,service was terminated by the employerwithout complying the terms contemplatedunder Section 6-N of the Act. It wasfurther pleaded that the juniors to therespondent-workman are continuing,despite there being work, respondent wasremoved on the directions of the higherofficials, the workman was not gainfullyemployed after removal, is prepared torender any service under the petitionerdepartment.

18. In support, petitioner filed theseniority list, document dated 15

September 1990 regarding payment ofbonus for 1987-88. Seniority list wouldshow that the daily wagers employed until1989 have continued in service. Therefore,the undisputed facts that emerges is that therespondent was appointed in 1980, theemployer was taking regular work from therespondent, it is not the case of thepetitioner that they did not require theservice of dailywage employees on regularbasis, persons junior to the respondent werecontinued in service. The respondent wasremoved from service unceremoniously bythe employer without any valid or cogentreason despite the workman having put ineleven years of service. The conduct of thepetitioner-employer tantamounts to unfairlabour practice as provided under the VIthschedule to the Industrial Disputes Act, byemploying the workmen as temporaries andto continue them for such years with theobject of depriving them of the status andprivileges of permanent workmen.

19. In the result, the writ petitionfails and is accordingly dismissed.

20. No order as to costs.--------


DATED: LUCKNOW 26.10.2015

BEFORETHE HON'BLE AMRESHWAR PRATAP SAHI, J.THE HON'BLE ATTAU RAHMAN MASOODI, J.

Misc. Bench No. 7716 of 2015

Zila Panchayat Balrampur ...PetitionerVersus

Commissioner Devi Patan Division & Anr....Respondents

Counsel for the Petitioner:Mohd. Aslam Khan, Atul Kumar Singh,Ripu Daman Shahi


Counsel for the Respondents:C.S.C., Prashant Kumar

U.P. Kshetra Panchayat and Zila PanchayatAdhiniyam, 1961-Section 225 and 228-Power of District Magistrate-exceptsupervision upon Zila Parishad-if anyirregularity found-can send recommendationto State Government-but can not pass anyrestrain order-upon the decision of Parishad.

Held: Para-28 & 3228. We are, therefore, of the opinion forthe aforesaid reasons that the DistrictMagistrate / Collector could not haveexercised powers for restraining the ZilaPanchayat from opening of the tenderspursuant to the resolution dated27.12.2014 nor could the said resolutionhave been declared to be illegal. Thusthe same also suffers from malice in law.

32. The District Magistrate also hasemergency powers for urgent work as perSection 229 but such powers nowhereclothe him / her with powers of Section228 which are exclusively with thePrescribed Authority who under thenotification is the Commissioner.

Case Law discussed:W.P. No. 9505 (M/B) 2014; JT 1991 (3) 268;(1991) 4 SCC 139; 2008 (26) LCD 987; 2013(96) ALR 872

(Delivered by Hon'ble Amreshwar PratapSahi, J.)

1. Heard Sri Mohd. Arif Khan, learnedSenior Counsel for the petitioner and Smt.Sangeeta Chandra, learned Additional ChiefStanding Counsel III for the State.

2. Supplementary counter affidavitfiled on behalf of respondent no. 2, istaken on record.

3. This petition has been filed by ademocratically elected local body ZilaPanchayat, Balrampur through its

Chairperson, Smt. Huma Rizwan assailing theorder dated 23.09.2015 as well as the ordersdated 08.08.2015 and 10.08.2015 whereby thetender proceedings for the purpose ofexecution of certain work pursuant to aresolution passed by the Zila Panchayat havebeen annulled by the DistrictMagistrate/Collector, Balrampur on theground of irregularities with a further directionto re-invite tenders as stipulated therein.

4. The matter had been heard earlierby us and the learned Counsel for theState had been called upon to file anappropriate affidavit relating to anyfurther developments in the matter.

5. Today an affidavit has been filed incompliance of our earlier order dated27.10.2015 bringing on record the orderdated 26.10.2015 whereby the impugnedorder dated 23.09.2015 has been annulledand withdrawan. The affidavit has beentaken on record. Thus one of the main reliefsclaimed by the petitioner stands exhaustedwith the withdrawal of the said order.

6. Sri Mohd. Arif Khan, learnedSenior Counsel for the petitioner,however vehemently urges thatwithdrawal of the said order does notsuffice inasmuch as the secondrespondent namely Collector / DistrictMagistrate, Balrampur has malafidelyexercised powers by restraining theopening of tenders and as such the ordersdate 08.08.2015 and 10.08.2015 stayingthe tender process also deserves to bequashed, keeping in view the nature of thewithdrawal order dated 26.10.2015 that ina guarded way proposes an action to betaken by the learned Commissioner.

7. While proceeding with the matter,we called upon the learned Counsel to


address the Court on the availability ofthe powers with the District Magistrateand the Prescribed Authority ascontemplated under Sections 225 and 228of the U.P. Kshettra Panchayats and ZilaPanchayats Adhiniyam, 1961 to resolvethe jurisdictional issue. It appearsrealising the impact of the same, thesecond respondent passed the withdrawalorder dated 26.10.2015.

8. Learned Additional ChiefStanding Counsel for the respondent-Staterelied upon a Division Bench judgment inthe case of Smt. Gajala Chaudhary vs.State of U.P. and others rendered in WritPetition No. 9505 (M/B) of 2014, on23.09.2014 to contend that the saidDivision Bench judgment clearlyindicates the powers being available to theDistrict Magistrate and as such thecontention raised on behalf of thepetitioner does not conform to theaforesaid legal proposition as laid down inthe said judgment.

9. She also submits that evenotherwise the present writ petition hasbecome academic and as a matter of facthas become infructuous with thewithdrawal of the impugned order dated23.09.2015.

10. It is on this issue that we have toconsider the rival submissions as towhether the District Magistrate possessedany such power for restraining theopening of tenders as has been attemptedthrough the impugned communicationsdated 08.08.2015 and 10.08.2015 thathave not been withdrawn by her.

11. The background in which thedispute arose appears to be the availabilityof a huge amount of funds for the Zila

Panchayat from the State FinanceCommission through the communicationdated 27.02.2015. The Zila Panchayat hadalready passed resolution nos. 4 and 5 on27.12.2014 for utilization of the grantsthat were proposed to be made availableto the Zila Panchayat for seventy eightprojects. Part of the grant was utilized onbeing approved after following the dueprocess of tender and award of contracts.For the other projects, the tenders andcontracts are stated to have been approvedby the Chairman where after anadvertisement was published in two localnewspapers as well as other newspapersof repute inviting tenders / bids.Permission was sought from thecompetent authority through properchannel namely the Chief DevelopmentOfficer and during this period a query wasmade by the respondent no. 2 i.e. theCollector in relation to publishing of suchtenders and award of contracts.

12. The petitioner urges that evenbefore any reply could be submitted to thequery, the District Magistrate passed anorder sitting in office on a secondSaturday i.e. 08.08.2015, that is officiallynot a working day, alleging that she hadreceived some complaints that the fundsare to be misutilized for award of suchcontracts which have already beingexecuted by adopting dubious methods ofsplitting the amount of such contracts.She therefore imposed a restraint on theopening of the tenders through the orderdated 08.08.2015 and 10.08.2015,appointing a three member committee toenquire into the said allegations.

13. A three member committee wasaccordingly appointed to make a factfinding inquiry with regard to the saidprocess having been adopted upon which


the matter was inquired into and a reportis said to have been submitted. It is in thisbackground that the Upper MukhyaAdhikari sent a letter dated 10.08.2015stopping the entire tender processpursuant to the impugned orders of theDistrict Magistrate.

14. A representation was filed by theChairperson alleging that this was beingdone on account of an alleged politicalrivalry and personal malice, as theChairperson had contested the electionagainst Sri Rakesh Yadav, son of aminister in the State Government Sri S.P.Yadav and, therefore, in order to impedethe functioning and carrying out of theexecution work of the Zila Panchayat, thismethod was adopted and the DistrictMagistrate / Collector surrendered herjurisdiction in favour of such persons soas to annul the aforesaid tender process.

15. This writ petition was filed andan interim order for holding the tenders incustody was passed by the DivisionBench that had entertained the writpetition on 01.09.2015. The petitionproceeded on the aforesaid allegationsand affidavits were exchanged. When thematter appeared before us, upon hearing,learned Counsel and the Court were facedwith the question with regard to theavailability of the power with the DistrictMagistrate to proceed in the matter asindicated in our order dated 15.10.2015. Itis in the said light that the matter washeard by us and the questions so arisingwere framed to be answered vide ourorder dated 27.10.2015.

16. It is in the aforesaid context thatthe matter now remains alive forconsideration, as the powers of theDistrict Magistrate to intervene and stay

the tender process that was an outcome ofthe resolution dated 27.12.2014 is stillsurviving for challenge. The reason is thatwhile withdrawing the order dated23.09.2015 on 26.10.2015, the DistrictMagistrate / Collector has proceeded tomake further recommendations to theCommissioner of the division who is thePrescribed Authority to take appropriateaction in the matter and has left the ordersdated 08.08.2015 and 10.08.2015 intact.

17. Sri Mohd. Arif Khan, learnedSenior Counsel submits, in our opinionrightly so, that in the said background thematter does not remain merely academicon the issue involved as to whether theDistrict Magistrate continues to have thepower to either restrain the tender processor even make a recommendation to theCommissioner for taking any appropriateaction in exercise of powers under Section225 or Section 228 of the Act.

18. Before we deal with this matterit would be appropriate to first considerthe impact of the Division Benchjudgment in the case of Smt. GajalaChaudhary (supra), where the Court hasproceeded to presume that the powerunder Section 228 of the Act can beexercised by the District Magistrate /Collector as well. With all due respect tothe ratio of the Division Bench judgmentthe same is not an authority for theproposition involved herein as what wefind is that neither the comparativeassessment of Section 225 and Section228 of the Act relating to the specificscope and powers of the Collector /District Magistrate and that of thePrescribed Authority have been taken intoconsideration, nor the distinction of thestatus of the two authorities have beennoticed or discussed as they appear to


have neither been pointed out nor does itappear to have been a matter of debate orconsideration.

19. The Prescribed Authority asunder Section 225 and 228 of the Act isan authority as defined under Section 2(20) of the 1961 Act, the same isreproduced below:-

(20) "Prescribed Authority" meansany person or authority notified by theState Government in the Gazettee asprescribed authority for any purposeunder this Act;

20. Thus the District Magistrate andthe Prescribed Authority are notinterchangeable synonymous terms or asubstitute for each other. They enjoyconcurrent powers under Section 225 butunder Section 228 the powers to beexercised are exclusively vested in thePrescribed Authority only and not in theDistrict Magistrate. This distinction isclearly evident from the notification dated13.02.1963 that has been placed on recordwhich categorically notifies thePrescribed Authority to be aCommissioner who is a higher authoritythan the District Magistrate / Collector.This statutory notification has completelygone unnoticed in the Division Benchjudgment of Smt. Gajala Chaudhary(supra). The question before us is as towhether the judgment at all applies in thiscase on account of such an omission inthe judgment viz-a-viz the aforesaidprovisions.

21. Sri Khan, learned SeniorCounsel for the petitioner, submits that itwould not be necessary to refer thematter, as, the per incuriam rule is clearlyattracted and the said Division Bench

decision, therefore, cannot be treated to bea binding precedent. Sri Khan relied uponon three judgments for the saidproposition. The first is in the case ofState of U.P. & another vs. M/s Syntheticsand Chemical Ltd. & another reported inJT 1991 (3) 268 and also reported in(1991) 4 SCC 139 and the other judgmentis by the full Bench of this Court reportedin 2008 (26) LCD 987 in the case ofTuples Educational Society and anotherversus State of U.P. and another. Anotherdecision of a full Bench of this Courtreported in 2013 (96) ALR 872 in the caseof Arun Kumar Singh and others vs. Stateof U.P. and others has also been placedbefore us.

22. Learned Counsel has invited theattention of the Court to paragraphs 19 to27 of the case reported in Arun KumarSingh (supra) and urged that applying theprinciples that have been consistentlyfollowed in the aforesaid decisions, theDivision Bench judgment in the case ofSmt. Gajala Chaudhary (supra) is perincuriam. With due and respectfuldeference to the judgment in Smt. Gajala'scase, we are inclined to accept the saidarguments of Sri Khan having noticed theprovisions discussed herein above. TheDivision Bench judgment in the case ofSmt. Gajala Chaudhary (supra) does notapply on the facts of this case as alsobecause it completely omits to notice thedistinction between the powers of thePrescribed Authority and the DistrictMagistrate as well as the notificationdated 13.02.1963.

23. The question as to whether theDistrict Magistrate / Collector enjoys thepower to restrain the opening of thetenders is still a hurdle. Section 225 of the1961 Act is extracted here under:-


225. Powers of inspections, etc. ofprescribed authority or District Magistrateover Parishad.

(1) The prescribed authority or theDistrict Magistrate may, with the limits ofits or his jurisdiction or district, as thecase may be -

(a) inspect, or cause to be inspected,any movable property used or occupiedby a Zila Panchayat or any Committee orjoint Committee thereof, or any work inprogress under the direction of any ofthem;

(b) by order in writing call for andinspection a book or documents in thepossession or under the control of a ZilaPanchayat or any Committee or jointCommittee thereof;

(c) by order in writing require a ZilaPanchayat, or any Committee or jointCommittee thereof to furnish suchstatements, accounts, reports (includingmonthly reports of progress) or copies ofdocuments, relating to its proceedings orduties as he thinks fit to call for; and

(d) record in writing, for theconsideration of Zila Panchayat, or anyCommittee or joint Committee thereofany observations he thinks proper inregard to its proceedings or duties.

(2) Every officer appointed by theState Government in this behalf may,within the limits of this jurisdiction,exercise, the powers conferred upon theprescribed authority or District Magistrateby sub-section (1) in respect of any matteraffecting his department and may inspector cause to be inspected, theadministration of a Zila Panchayat inrespect of such matter."

24. A perusal of the said provisionsclearly indicates the scope and extent ofthe powers of the District Magistrate who

can upon assessment after inspection ofsuch matters as are mentioned therein,record his opinion in writing and callupon the Zila Panchayat to consider thesame for rectification of any such actwhich may require to be done inaccordance with law.

25. The said powers of the DistrictMagistrate are supervisory in nature but atthe same time when it comes tointerfering with any incorrect exercise ofpower by the Zila Panchayat then thecontrolling authority is the PrescribedAuthority under Section 228, which isextracted hereunder:-

"228 Powers of Prescribed authorityto suspended action under the Act-

(1) The prescribed authority may,within the limits of its jurisdiction by order inwriting, prohibits the execution or furtherexecution of a resolution or order passed ormade under this or any other enactment by aZila Panchayat, or Committee of a ZilaPanchayat, or a joint committee, or servant ofa Zila Panchayat or a Committee, if in itsopinion such resolution or order is patentlyillegal or ultra vires or inconsistent with anyorder or direction given by the StateGovernment under this Act or is of a natureto cause or tend to cause obstruction,annoyance or injury to the public or to anyclass or body or person lawfully employed,or danger to human life, health or safety, or ariot or affray and may prohibit the doing orcontinuance by any person of any act inpursuance of or under cover of suchresolution or order.

(2) Where an order is made undersub-section (1) a copy thereof, with astatement of the reasons for making it,shall forthwith be forwarded by theprescribed authority to the State


Government which may, after calling foran explanation from the Zila Panchayatand considering the explanation, if any,made by it, rescind, modify or confirm theorder.

(3) Where the execution or furtherexecution of a resolution or order isprohibited by an order made under sub-section (1) and continuing in force, it shall bethe duty of the Zila Panchayat or theCommittee of the Zila Panchayat or the jointcommittee or any officer or Servant of theZila Panchayat or of the Committee of theZila Panchayat or of the joint committee, ifso required by the authority making the orderunder the said sub-section, to take any actionwhich it would have been entitled to take, ifthe resolution or order had never been madeor passed, and which is necessary forpreventing any person from doing orcontinuing to do anything under cover of theresolution or order of which the furtherexecution is prohibited."

26. Thus there is a clear distinctionbetween the scope and powers of thePrescribed Authority and the DistrictMagistrate viz aforesaid two sections. Theaforesaid issue also does not appear to havebeen either argued or dealt with in theDivision Bench judgment in the case of Smt.Gajala Chaudhary (supra). TheCommissioner only has the power to annulthe action taken by the Zila Panchayat in hiscapacity as the Prescribed Auhoritiy. There isyet another reason for the same, namely, theZila Panchayat is a democratically electedlocal body constituted under the statute andthe resolution passed by the Zila Panchayat isan expression of the will of the electedrepresentatives of the public large at thedistrict level. In such a situation the controlover Zila Panchayat obviously was intendedto be by an authority higher than the DistrictMagistrate / Collector and it is for this reason

that the Commissioner was notified as thePrescribed Authority by virtue of anotification.

27. The said control for annulling aresolution passed by the Zila Panchayat isthus in terms of the aforesaid statutoryprovisions where the Collector does notappear to have any role to play. If that is theposition, then in that event, if the Collector /District Magistrate does not have the powerto exercise any such authority as envisagedunder Section 228, then the authority to passan interim order is also out of questioninasmuch as what cannot be permitted to bedone directly, cannot also be permitted to bedone indirectly. The Collector neither has thepower to pass final orders nor can the samebe done by virtue of an interim direction.

28. We are, therefore, of the opinionfor the aforesaid reasons that the DistrictMagistrate / Collector could not haveexercised powers for restraining the ZilaPanchayat from opening of the tenderspursuant to the resolution dated27.12.2014 nor could the said resolutionhave been declared to be illegal. Thus thesame also suffers from malice in law.

29. The third question is that can theCollector/District Magistrate be said to bea toothless tiger even if the ZilaPanchayat transgresses the norms withinwhich it is entitled to function.

30. It is here that we may observethat the power to inspect and to indicate inwriting for the consideration of ZilaPanchayat under Section 225 comes intoplay. The District Magistrate / Collector,therefore, in our opinion if arrives at theconclusion that the Zila Panchayat hasacted deviantly he / she can always makeits recommendations to the Commissioner


for taking an appropriate action if the ZilaPanchayat does not respond to therecommendations made by the DistrictMagistrate as per the provisions ofSection 225 of the 1961 Act.

31. This in our opinion, would be apurposive interpretation of the powersavailable in the hands of the Collector /District Magistrate in order to supervisethe functioning of the Zila Panchayat andmake such recommendations to the ZilaPanchayat that may be necessary fordischarge of its obligations under the1961 Act.

32. The District Magistrate also hasemergency powers for urgent work as perSection 229 but such powers nowhereclothe him / her with powers of Section228 which are exclusively with thePrescribed Authority who under thenotification is the Commissioner.

33. Consequently for all the aforesaidreasons, the District Magistrate / Collector onthe basis of any material that may be relevantfor consideration of Commissioner forexercise powers under Section 228 can makesuch recommendations for an independentassessment . This can also be preceded by apreliminary fact finding enquiry.

34. Sri Khan, learned counselcontends that in the instant case, this isthe second round of harassing thepetitioner as in the previous year the ZilaPanchayat had been harassed in a samefashion and the repeated action ismalafide. He further submits that so far assetting up of a three member committee isconcerned by the Collector even thatcommittee has not adversely reportedagainst the petitioner. Thus there was nomaterial for the Collector to make any

recommendations to the Commissioner ashas now been done under thecommunication dated 26.10.2015. In ouropinion it is upon the Commissioner totake an independent decision if there is noadverse material against the petitioner.

35. We, therefore, allow this petitionand we also strike down the orders dated08.08.2015 and 10.08.2015 passed by theCollector restraining the Zila Panchayatfrom opening of the tenders. This shouldnot be construed as the tenders beingapproved by us and shall however besubject to any action which may be takenby the Commissioner in exercise of thepowers under Section 228 of the 1961 Actor any other provisions under the Act ifpermissible without prejudice to the rightsof the Zila Panchayat and its authorities totake appropriate lawful steps in respect ofthe tenders. The tenders shall be forthwithhanded over to the Executive Officer ofthe Zila Panchayat that is in the custodyof a Magistrate as per the orders of thisCourt.

36. The writ petition is allowed.--------



BEFORETHE HON'BLE SUNEET KUMAR, J.

Writ-A No. 8068 of 2011

Sunil Kumar Gupta ...PetitionerVersus


Counsel for the Petitioner:Vatsal Srivastava, Ashok Khare, V.Srivastava

Counsel for the Respondents:

3 All] Sunil Kumar Gupta Vs. State of U.P. & Ors. 1229

C.S.C., H.N. Singh, Somveer Singh

Constitution of India, Art.-311(1)-Dismissal of Senior Assistant-working indistrict employment office Mathura-appointed and promoted by Director-beingappointing authority under Rule 3(a) ofU.P. Training and employment ministerialservice Rules 1981-whether the Regionalemployment officer empowered to passimpugned dismissal?-held-'No' reasonsdiscussed.

Held: Para-29The clarification so furnished is in sync withthe position of law as noted herein above.Hence, the stand taken by the respondentsthat the Regional Employment Officer is theperson who appointed the petitioner onpromotion is not borne out from the materialbrought on record, rather the record wouldreflect that appointment and promotioncould have been made at the Directoratelevel alone, as the circular notedhereinabove, would provide. Therespondents in practice have followed thecircular for a prolonged period withoutamending the statutory Rules 1981. Eventaking a case, otherwise, the order ofpromotion was admittedly passed and issuedby the Director who being an higher officerthan the appointing authority RegionalEmployment Officer, the impugned order ofremoval could not have been passed by theRegional Employment Officer nor it couldhave been cured in appeal by the Director.

Case Law discussed:AIR 1964 SC 449; AIR 1957 All 439; AIR 1949 PC112; AIR 1955 SC 70 (73); AIR 1970 SC 679;AIR 1982 SC 1407; AIR 1957 MP 126 (128); AIR1962 Raj. 258; (1969) 2 SCC 108; AIR 1970 SC1255 (1262); AIR 1967 SC 459 (462); (2003) 4SCC 753, 757 (para-8); AIR 1977 SC 747 (para13); AIR 1977 SC 1233 (paras 10, 13); (2006) 12SCC 373, 375 (para 7); AIR 1982 SC 1394 (para4); AIR 1977 SC 747 (paras 14-15).

(Delivered by Hon'ble Suneet Kumar, J.)

1. The triable question raised by thecontesting parties is as to whether the

Regional Employment Officer, AgraRegion, Agra was competent toremove/dismiss the petitioner, holding thepost of Senior Assistant in the office ofthe District Employment Office, Mathura,being an authority subordinate to that bywhich the petitioner was appointed.

2. The service condition of thepetitioner is governed under U.P. Trainingand Employment Ministerial ServiceRules 19811.

3. The facts of the case, briefly is, thatthe petitioner was appointed Lower DivisionClerk2 in the office of Government IndustrialTraining Institute (G.I.T.I.), Mathura,subsequently, was promoted to the post ofSenior Assistant on 06 December 2006 bythe second respondent, Director, Trainingand Employment, Lucknow3. The petitionerwhile working at Mathura, was placed undersuspension on 06 August 2009, chargesheeted on 04 November 2009 containingeight charges issued by the Enquiry Officer,Regional Employment Officer, Jhansi, whichwas countersigned by the third respondent,Regional Employment Officer, AgraDivision, Agra in the capacity of appointingauthority/disciplinary authority. Uponconclusion of the enquiry, the thirdrespondent, Regional Employment Officer,Agra Division, Regional EmploymentOffice, Agra by the impugned order dated 24July 2010 imposed major penalty ofdismissal upon the petitioner.

4. Aggrieved, petitioner preferred anappeal before the second respondent,Director, which was rejected on 13December 2010. The petitioner isassailing the aforementioned orders solelyon the ground that the third respondent,Regional Employment Officer, Agra isnot the appointing authority, the second


respondent, Director being the appointingauthority, could have removed thepetitioner, therefore, the order of dismissalis void ab initio.

5. The contention of Sri Ashok Khare,learned Senior counsel appearing for thepetitioner is that the entire enquiry standsvitiated as the disciplinary proceedings wereinitiated by an officer subordinate to that ofthe appointing authority/disciplinaryauthority. The petitioner admittedly waspromoted on the post of Senior Assistant bythe Director. Pursuant thereof, petitioner wasposted at District Employment Office. Thesuspension order, the charge sheet and theimpugned dismissal order which was passedby the third respondent, RegionalEmployment Officer, who being subordinatein rank and status to that of the Directorcould not have removed the petitioner.

6. In rebuttal, Sri H.N. Singh,learned senior counsel appearing for fifthrespondent, Regional EmploymentOfficer, Agra Division, Agra and thelearned Standing Counsel appearing forthe State respondents would submit thatthe petitioner was promoted on the post ofUpper Division Clerk4 which wassubsequently redesignated SeniorAssistant under the Rules 1981. Theappointing authority of Upper DivisionClerk under the Rules 1981 is theRegional Employment Officer, thepetitioner being an officer under FieldStaff and not an officer of the Directorate,the Regional Employment Officer was thecompetent authority, therefore, wouldurge there is no illegality or infirmity inthe impugned order. The order is intravires of Article 311.

7. Rival submissions fall forconsideration.

8. It is admitted between the partiesthat the petitioner is an officer of the FieldStaff and not of the Directorate. As towho is the appointing authority of thepetitioner, the Rules 1981 governing thepetitioner needs to be examined. Sub-clause (a) of Rule 3 defines 'appointingauthority' which means an authoritymentioned in Appendix 'A' to the Rules.The 'Directorate' means the head quartersoffice of the Director. Sub-clause (f) ofRule 3 defines 'Field Staff' which meansthe ministerial staff, other than theheadquarter staff, working in the fieldoffices; sub-clause (g) defines 'FieldOffice'; which means an office other thanthe Directorate but functioning under theadministrative control of the Director.Sub-clause (j) defines 'Headquarters Staff'which means the ministerial staff of theDirectorate.

9. Part III of the Rules 1981 providefor 'Recruitment', Rule 5 specifies thesource of recruitment. The staff underRule 5 are divided in two heads: (i)Headquarter Staff and (ii) Field Staff.Sub-clause (xi) under 'headquarter staff'refers to Senior Assistant and otherequivalent posts/position and providestheir source of recruitment. Sub-clause(xi) reads as follows:-

"Senior Assistant/Noter andDrafter/Assistant Accountant/UpperDivision clerk/Inspector of AccountsStock Verifier-By promotion fromamongst permanent CompilationAssistants, Junior Noter and Drafters,Record Keepers and Accounts Clerk:"

10. Under the 'Field Staff', Sub-clause (viii) provides the source ofrecruitment for Head clerk/ UDC, whichis extracted:-


(viii) Accountant/Accountant-cum-Cashier/ Head Clerk/Upper DivisionClerk/Store Keeper (RegionalEmployment Exchange of Kanpur).- Bypromotion from amongst permanentLower Division Clerks/ Guides/Typists/Career Room Guides."

11. The petitioner admittedly beinga field staff and not a headquarter staff,was promoted from the post of LDC tothe post of Senior Assistant as is reflectedfrom the promotion order passed by theDirector. The Rules 1981 referredhereinabove, would reveal that under thehead of Field Staff, there is no post ofSenior Assistant. LDC gets promoted tothe post of UDC/Head Clerk. In Appendix'A' to the Rules 1981, the appointingauthority for the post of SeniorAssistant/UDC under 'Headquarter Staff'is the Director, whereas, Head Clerk/UDCunder the Field Staff, the appointingauthority is the Regional EmploymentOfficer/Principal. There is no post ofSenior Assistant under the Field Staff.The pay scales of both the post, SeniorAssistant under the Headquarter staff andHead Clerk/UDC under the Field Staff aredifferent. The pay scale of SeniorAssistant is higher as compared to that ofthe UDC working under the Field Staff,probably, therefore, the appointingauthority are different officers.

12. Learned counsel for the partieswould not dispute that subsequently thepay scale of the Senior Assistant andUDC were brought at par, at the time ofpromotion the pay scales were equal butthe appointing authority continued to bedistinct.

13. In view of the position asemerges upon examining the Rule 1981,

Sri H.N. Singh, Senior Counsel wouldsubmit that the petitioner being a LDCunder the Field Staff, was promoted to thepost of UDC which subsequently wasdesignated Senior Assistant, therefore, theappointing authority of the SeniorAssistant/UDC at the Head Quarter is theDirector/Joint Director, whereas, theappointing authority of UDC for FieldStaff being the Regional EmploymentOfficer, hence, would urge there is noillegality or infirmity in the impugnedorder.

14. The principle enshrined in Sub-clause (1) of Article 311 is that no personwho is a member of the civil service orholds a civil post under the Union or Stateshall be dismissed or removed by anyauthority subordinate to that by which hewas appointed. The parties do not disputethat the petitioner is holding a civil post.

15. The clause applies only if thefollowing conditions are satisfied.

"(a) That the person whose servicesare terminated is a member of a civilservice or holds a civil post.

(b) That such termination amounts to'dismissal' or 'removal5. Thus, Clause (1)need not be complied with where a personis discharged in terms of conditions of hiscontract of service6. Similarly, where thepenalty awarded is other than dismissal orremoval, e.g., reduction in rank, orsuspension, it may be awarded by anauthority who is empowered in that behalfby the Rules even though he is not the'appointing authority'."

16. A dismissal by an officersubordinate to the appointing authority isnull and void. The defect goes to the rootof the order of dismissal and is not cured


even if that order is confirmed on appealby the 'appointing authority' or some othersuperior authority7.

17. On the other hand, this clausedoes not require that the dismissal orremoval must be ordered by the very sameauthority who made the appointment or byhis direct superior. There is a compliancewith the clause if the dismissing authority isnot lower in rank or grade than theappointing authority8. It follows thatdismissal by an authority superior to theappointing authority is not bad.

18. The dismissal is not invalidwhere the order of dismissal is passed bythe appointing authority but the order ismerely communicated by somesubordinate officer.

19. It is for the Government servantto plead and prove who was his'appointing authority' and also that thedismissing authority is lower in rank thanthe appointing authority9. 'Subordinate'refers to subordinate in rank10 and not inrespect of function11.

20. Therefore, where the order ofdismissal is made by an authoritysubordinate to the appointing authority,the unconstitutionality is not cured by thefact that the order of dismissal isconfirmed, on appeal by the properauthority. On the same principle, theappointing authority cannot delegate hispower of dismissal of removal to asubordinate, so as to destroy theprotection afforded by the Constitution,unless the Constitution itself authorisessuch delegation by other provisions12. Itis not possible for the proper authority tovalidate an order made withoutjurisdiction, with retrospective effect.13

21. If the dismissing authority is notsubordinate in rank to the appointingauthority, any difference in designation isnot material14. Thus in order to ascertainwho was the 'appointing authority' for thepurposes of application of Art. 311(1), theformal document on the basis of whichthe civil servant holds his appointmentmust be looked into.

22. Hence, when a person is, in fact,appointed by an authority superior to theauthority who is entitled, under theDepartmental Rules, to appoint thatperson, he can be dismissed only by thatauthority who had, in fact, ordered thatappointment and not the authorityempowered by the Rules. Where a personis confirmed in a higher post in which hewas officiating it is the officer who issuesthe order of confirmation who becomeshis 'appointing, authority' and not thehigher officer who may have selected himfor such confirmation.15

23. Where the power to appoint isvested by a statutory provision in oneauthority, to be exercised on the advice ofanother, it is the former who is to beregarded as the 'appointing authority'.16Recommending/approving authority doesnot thereby become the appointingauthority.17

24. Where the conditions of servicewere kept intact by the StatesReorganisation Act, 1956, an employee,who was appointed prior to suchreorganisation, cannot be dismissed, afterreorganisation, by any authority lowerthan the authority who had appointed him,or an authority equivalent to or co-ordinate in rank with the appointingauthority. Thus, where the employee wasappointed by the then Head of the


Department, he cannot be dismissed byanybody subordinate to the correspondingHead of the Department, afterreorganisation;18 nor can a personappointed by the Rajpramukh bedismissed by a Financial Commissioner(who is subordinate to the Governor),except with the previous approval of theCentral Government.19

25. The departmental proceedingcan be initiated by a person lower in rankthan the appointing authority but the finalorder can be passed only by theappointing authority or an authorityhigher than it.20

26. The onus of producing allrelevant papers to show that thedismissing authority was lower in rankthan the appointing authority is upon thepetitioner.21

27. Dismissal order passed by asubordinate is void ab initio.22 Hence, thefact that such order was subsequentlyconfirmed in appeal by the Head of theDepartment will not cure the initialdefect.23

28. Having considered the legalposition and binding precedent, applying itto the facts of the case. The record wouldreveal that in reply sought under the Rightto Information Act dated 06 January 2011,respondent informed that the petitioner waspromoted as Senior Assistant, thedesignation of the post came on therecommendation of the Fourth PayCommission in 1986, petitioner waspromoted by the Director. The informationso furnished is also reflected from the othermaterial brought on record. Promotion is amode of appointment. The order ofpromotion was issued by the Director,

therefore, the appointing authority of thepetitioner for the purpose of Article 311would be the Director, who vide letter dated6 October 2011 sought an explanation fromthe Regional Employment Officer that underwhat circumstances he had passed the orderof dismissal when admittedly the promotionwas issued by the Director. But the secondrespondent, Director, while deciding theappeal of the petitioner accepted the viewtaken by the Regional Employment Officerthat under Rules 1981 it is the RegionalEmployment Officer who is the appointingauthority of the UDC and placing reliance onthe Government Order dated 19 February1988 rejected the plea of the petitioner. TheGovernment Order dated 19 February 1988(at Annexure 46) of the record was dealingwith a situation, where a superior authoritymade the appointment/promotion,subsequently the confirmation order waspassed by the appointing authority who islower in rank, the question that arose forclarification was as to who is the competentauthority to exercise power under Article311(1). The Government Order clarified thatit would be the officer who appointed theGovernment servant though he may not bethe designated appointing authority under theRules.

29. The clarification so furnished is insync with the position of law as noted hereinabove. Hence, the stand taken by therespondents that the Regional EmploymentOfficer is the person who appointed thepetitioner on promotion is not borne out fromthe material brought on record, rather therecord would reflect that appointment andpromotion could have been made at theDirectorate level alone, as the circular notedhereinabove, would provide. Therespondents in practice have followed thecircular for a prolonged period withoutamending the statutory Rules 1981. Even


taking a case, otherwise, the order ofpromotion was admittedly passed and issuedby the Director who being an higher officerthan the appointing authority RegionalEmployment Officer, the impugned order ofremoval could not have been passed by theRegional Employment Officer nor it couldhave been cured in appeal by the Director.

30. Therefore, the appellate authoritywhile passing the impugned order dated 24July 2010 misread the Government Orderdated 19 February 1988, further theDirectorate by Circular dated 31 August1989 addressed to all the RegionalEmployment Officer/District Officerclarified that upon enforcement of the newstaff proposed promotion, absorption andappointment of all senior clerks would,henceforth be made at the Directorate level.The circular in irrevocable terms wouldprovide that promotion from the LDC toSenior Assistant shall not be made at theRegional level, in the eventuality of anysuch promotion being made it shall betreated to be void, consequently theemployee shall not receive any benefitpursuant to such promotion. It is relevant tonote that the initiation for promotion to thepost of Senior Assistant was undertaken bythe Directorate vide letter dated 02November 2006, the name of the petitionerfinds place at Serial No. 8. Petitioner inappeal before the second respondent,Director, raised the issue that the RegionalEmployment Officer was not competent tohave initiated disciplinary proceedings orremoved him from service. The relevantdocuments were placed before the Directorwho inspite of being aware that theRegional Employment Officer was notcompetent to initiate or promote an officerto the post of Senior Assistant/UDCdeliberately had taken recourse to theunamended Rules 1981 to justify the illegal

order passed by the Regional EmploymentOfficer.

31. The counter affidavits filed bythe respondents are prima facie falseaffidavits, the averments made therein donot correspond to the circulars/lettersissued by the Director.

32. For the reasons and law statedherein above, the writ petition succeeds andis accordingly allowed. The impugnedorders dated 24 July 2010 passed by thethird respondent, Regional EmploymentOfficer, Agra Division, Agra and orderdated 13 December 2010 passed by thesecond respondent, Director, Training andEmployment, Lucknow, respectively arequashed. The petitioner shall be entitled toall consequential benefits including lostwages from the due date.

33. I would like to record myappreciation for Sri Aishwarya Krishna,Law Clerk for research work undertakenby him in the assistance of this case.

34. The cost of litigation assessed atRs. 50,000/-, to be paid to the petitioner bythe second respondent, Director, Trainingand Employment, Lucknow within sixweeks.


CIVIL SIDEDATED: LUCKNOW 08.10.2015

BEFORETHE HON'BLE DINESH MAHESHWARI, J.THE HON'BLE RAKESH SRIVASTAVA, J.


Asok Pande [PIL] ...PetitionerVersus

Union of India & Ors. ..Respondents

3 All] Asok Pande [PIL] Vs. Union of India & Ors. 1235

Counsel for the Petitioner:Asok Pande (In person)

Counsel for the Respondents:C.S.C., A.S.G., U.N. Mishra

Bar Council of India, Rules 1975-Chapter IPart VI-Advocates Act 1961-Section 16-Restriction on appearance pleading,consolidation with clients directory-withoutassistance of roll advocate-as such a senioradvocate can not be appointed as SolicitorGeneral of India or Advocate General-held-misconceived-in absence of specificprohibition-can not be disturbed fromfunctioning.

Held: Para-14This being the position of a Senior Advocate,in our view, the Union Government and theState Government are clearly entitled toconsider and offer them appointment as LawOfficers so as to ensure effectiverepresentation before the Courts. Thesuggestions as made by the petitioner, ifaccepted, would lead to an entirelyunacceptable position that the StateGovernment and the Union Government cannever take the services of the Advocates ofeminence for their purposes once they getdesignated as Senior Advocates. Thesuggestions, as made by the petitioner, arerequired to be and are rejected.

(Delivered by Hon'ble Dinesh Maheshwari, J.)

1. By way of this petition, framed andstyled as Public InterestLitigation, thepetitioner, a practicing Advocate in this Court,hasattempted to raise the question as towhether a designated SeniorAdvocate couldfunction as a Law Officer of the Union or ofthe State. Besides the others, the petitioner hasarrayed the present AttorneyGeneral for Indiaas respondent no. 3; the present SolicitorGeneral ofIndia as respondent no. 4; andpresent Advocate General and two AdditionalAdvocate Generals for the State of UttarPradesh as respondent nos. 5 to 7 respectively.

2. The petitioner would submit inparagraph no. 4 of the petition that he isbringing the following substantialquestion of law for consideration of thisCourt :

"Whether a senior advocate canfunction as a state law officer or the lawofficer of the Union of India by whatevername/designation their called?" (sic.)

3. The petitioner has submitted in thispetition that Section 16 of the AdvocatesAct, 1961 ('the Act of 1961') provides fortwo classes of Advocates i.e., SeniorAdvocate and other Advocates; and theSupreme Court and the High Courts areauthorized to designate the Senior Advocateswith their consent and to frame the rules inthat regard. The petitioner has furtherreferred to Sections 16 (3) and 49 (1) (g) ofthe Act of 1961 authorising the Bar Councilof India to frame the rules governing theAdvocates as well as Senior Advocates andthen, has referred to the Bar Council of IndiaRules, 1975, particularly Chapter 1 of Part-VI thereof, laying down restrictions onSenior Advocates. With reference to theseRules of the Bar Council of India, thecontention of the petitioner is that when aSenior Advocate cannot appear directly,cannot accept instructions to draft pleadingor affidavits, cannot give advice on evidence,cannot do any drafting work of analogouskind, cannot be approached by a clientdirectly and cannot be briefed or instructedby the client to appear directly in the Court,and is to pay reasonable fee to his assistingcounsel, he cannot function as a Law Officerof the State because these restrictions cannotbe adhered to by the Senior Advocate, ifappointed by the Government. Withreference to the above Rules and particularlyclauses (b) (i), (c), (d) and (f) thereof, thepetitioner would argue that in view of such


specific prohibitions against drafting,advising and accepting briefs directly, aSenior Advocate cannot function as a LawOfficer of the State; and he cannot functionas Attorney-General, Advocate-General orAdditional Advocate-General. It is furthersubmitted that when a Senior Advocatecannot appear without an Advocate onRecord in the Supreme Court or without anAdvocate in Part II of the State Roll in anyCourt or Tribunal, appointment of a SeniorAdvocate as Advocate-General or AdditionalAdvocate-General entails extra liability onthe State to engage an assisting counsel whois to be paid fees by the Senior Advocate asrequired by clause (f) of the Rules aforesaid.The petitioner has also referred to the namesof two Advocates, who were earlier holdingthe office of Chief Standing Counsel, butthey resigned after being designated asSenior Advocate. The petitioner hassubmitted that the question of appearance ofone of the Senior Advocates as AdditionalAdvocate General in the Court on behalf ofthe State was raised in Writ Petition No.4618 (M/B) of 2015 and as he was asked tofile a proper application, hence is filing thepresent petition. The petitioner has prayed forthe following reliefs :

a) To issue a writ of mandamusdirecting the respondent no. 1 Union of Indiato remove the respondent no. 3 and 4 fromthe office of attorney General for India andSolicitor General of India respectively and todirect the respondent no. 2 State of UttarPradesh to remove the respondent no. 5,6and 7 from the post of Advocate General andAdditional Advocate Generals as being asenior advocate, these persons cannotfunction as law officer of the Union or theState.

b) To issue a writ of certiorari forquashing the appointment of the

respondent no. 3 to 7 after summoning thesame from the concerned respondents.

c) Issue any other writ, order ordirection which this Hon'ble Court deemfit, proper and reasonable regarding thismatter."

4. On taking up this matter andhaving gone through the record, we haveposed a query to the petitioner appearing inperson as to the specific prohibitionwhereby and wherefor a Senior Advocatecannot hold the office of the AttorneyGeneral, the Advocate General or anyother office so as to represent theGovernment concerned before the Court?In response, the petitioner franklysubmitted that such a prohibition is notstated in specific words in the concernedRules but contended that a conjoint readingof various clauses appearing in Chapter 1of Part-VI of Bar Council of India Rulesleads to the deduction that a SeniorAdvocate cannot be a Law Officer of theState. The petitioner has submitted thatonly for the want of specific words ofprohibition that this writ petition isnecessitated and by appropriateinterpretation, the deduction would be thatthe Senior Advocate cannot be appointedas Law Officer of the State. The petitionerhas also referred to certain privileges andfacilities as extended and allowances aspaid to the Law Officers of the State.According to the petitioner, in the presentset up of Rules, the Senior Advocatedesignated by the Court cannot function asLaw Officer of the State and, therefore,this writ petition deserves consideration.

5. Having given thoughtfulconsideration to the submissions madeand having examined the record, we arenot persuaded to entertain this petition.


6. Article 76 of the Constitution ofIndia provides for an Attorney General ofIndia in the following terms:

"76. Attorney-Geneal for India.-(1)The President shall appoint a person whois qualified to be appointed a Judge of theSupreme Court to be Attorney-Generalfor India.

(2) It shall be the duty of theAttorney-General to giveadvice to theGovernment of India upon such legalmaters, and to perform such other dutiesof a legal character, as may from time totime be referred or assigned to him by thePresident, and to discharge the functionsconferred on him by or under thisConstitution or any other law for the timebeing in force.

(3) In the performance of his dutiesthe Attorney-General shall have right ofaudience in all courts in the territory ofIndia.

(4) The Attorney-General shall holdoffice during the pleasure of thePresident, and shall receive suchremuneration as the President maydetermine."

7. Article 165 of the Constitution ofIndia provides for Advocate General forthe State in the following terms :

"165. Advocate-General for theState. -(1) The Governor of each Stateshall appoint a person who is qualified tobe appointed a Judge of a High Court tobe Advocate-General for the State.

(2) It shall be the duty of theAdvocate-General to give advice to theGovernment of the State upon such legalmatters, and to perform such other dutiesof a legal character, as may from time totime be referred or assigned to him by theGovernor, and to discharge the functions

conferred on him by or under thisConstitution or any other law for the timebeing in force.

(3) The Advocate-General shall holdoffice during the pleasure of theGovernor, and shall receive suchremuneration as the Governor maydetermine."

8. The relevant part of Section 16 ofthe Act of 1961 providing for Senior andother Advocates could also be taken noteof as under:-

"16. Senior and other advocates .—(1) There shall be two classes ofadvocates, namely, senior advocates andother advocates.

(2) An advocate may, with hisconsent, be designated as senior advocateif the Supreme Court or a High Court isof opinion that by virtue of his abilitystanding at the Bar or special knowledgeor experience in law he is deserving ofsuch distinction.

(3) Senior advocates shall, in thematter of their practice, be subject to suchrestrictions as the Bar Council of Indiamay, in the interest of the legalprofession, prescribe.

--- --- ---- --- "

9. Bar Council of India Rules asreferred by the petitioner read as under :

"Senior Advocates shall, in thematter of their practice of the professionof law mentioned in Section 30 of the Act,be subject to the following restrictions:

(a) A Senior Advocate shall not file avakalatnama or act in any Court, orTribunal, or before any person or otherauthority mentioned in Section 30 of theAct.


Explanation : "To act" means to filean appearance or any pleading orapplication in any court or Tribunal orbefore any person or other authoritymentioned in Section 30 of the Act, or todo any act other than pleading requiredor authorised by law to be done by aparty in such Court or Tribunal or beforeany person or other authorities mentionedin the said Section either in person or byhis recognised agent or by an advocate oran attorney on his behalf.

(b)(i) A Senior Advocate shall notappear without an Advocate on Record inthe Supreme Court or without anAdvocate in Part II of the State Roll inany court or Tribunal or before anyperson or other authorities mentioned inSection 30 of the Act.

(ii) Where a Senior Advocate hasbeen engaged prior to the coming intoforce of the rules in this Chapter, he shallnot continue thereafter unless anadvocate in Part II of the State Roll isengaged along with him. Provided that aSenior Advocate may continue to appearwithout an advocate in Part II of the SateRoll in cases in which he had been briefedto appear for the prosecution or thedefence in a criminal case, if he was sobriefed before he is designated as a senioradvocate or before coming into operationof the rules in this Chapter as the casemay be.

(c) He shall not accept instructionsto draft pleading or affidavits, advice onevidence or to do any drafting work of ananalogous kind in any Court or Tribunalor before any person or other authoritiesmentioned in Section 30 of the Act orundertake conveyancing work of any kindwhatsoever. This restriction howevershall not extend to settling any suchmatter as aforesaid in consultation withan advocate in Part II of the State Roll.

(cc)A Senior Advocate shall,however, be free to make concessions orgive undertaking in the course ofarguments on behalf of his clients oninstructions from the junior advocate.

(d) He shall not accept directly froma client any brief or instructions toappear in any Court or Tribunal or beforeany person or other authorities in India.

(e) A Senior Advocate who had actedas an Advocate (Junior) in a case, shallnot after he has been designated as aSenior Advocate advise on grounds ofappeal in a Court of Appeal or in theSupreme Court, except with an Advocateas aforesaid.

(f) A Senior Advocate may inrecognition of the services rendered by anAdvocate in Part-II of the State Rollappearing in any matter pay him a feewhich he considers reasonable."

10. It is not in dispute that so far thisCourt is concerned, the Senior Advocatesare designated under the Rules framedunder Designation of Senior AdvocateRules, 1999 which provide, inter alia, thata Senior Advocate shall be subject to suchrestriction as the High Court or BarCouncil of India or the Bar Council ofState may prescribe. It has not been statedthat the High Court or the Bar Council ofthe State has placed any such prohibitionon any Senior Advocate against hisaccepting engagement as a Law Officer ofthe State or the Union.

11. We are unable to accept theinterpretation, as sought to be put anddeduction as sought to be drawn by thepetitioner on the Rules aforesaid. True itis that a Senior Advocate cannot appear inthe Court without an assisting counsel asper the requirement of the Rules but thatby itself cannot be considered prohibitive


on the Union or the State againstappointing a Senior Advocate as its LawOfficer. As to how the appearance of sucha Senior Advocate as Law Officer of theUnion or State in the Court is to beensured is again a matter for considerationof the Government and Advocateconcerned but it is too far-stretched tosuggest that the Senior Advocate cannotbe a Law Officer of the State.

12. So far the restrictions in clause(c) aforesaid are concerned, it is but clearthat the restrictions are put on SeniorAdvocate that he would not acceptinstructions to draft pleadings oraffidavits and he cannot do any draftingwork of analogous kind in any Court orTribunal or authorities mentioned inSection 30 of the Advocates Act orconveyancing work of any kindwhatsoever. The Senior Advocate,however, is still entitled to settle anymatter in consultation with an Advocatein Part II of the State Roll. SeniorAdvocate is not to advice on evidence butit is difficult to accept that the SeniorAdvocate is otherwise prohibited fromgiving the necessary advice on legalmatters. So far the pleadings areconcerned, it is for the Union or the Stateto arrange its affairs as to the manner inwhich the pleadings are drafted andplaced in the Court; and, even in thatregard, a Senior Advocate is entitled tosettle the pleadings.

13. So far clause (d) is concerned,the Senior Advocate has been put underrestriction against accepting directly anybrief or instructions to appear in anyCourt or Tribunal or before any person orauthority. However, it is again too far-stretched to suggest that the prohibitionagainst accepting directly any brief or

instructions to appear in a Court on behalfof client could prohibit a Senior Advocatefrom taking any instructions whatsoeverfrom the client.

14. We need not to dilate muchfurther for the simple reason that under theRules aforesaid, no such prohibition ofaccepting engagement by the SeniorAdvocate as a Law Officer of the State isseen. It is noteworthy that under Section 16of the Act of 1961, an Advocate with hisconsent is designated as a Senior Advocateonly when the Supreme Court or the HighCourt is of the opinion that by virtue of hisability, standing at Bar, or specialknowledge or experience in the law he isdeserving of such distinction. In the Rulesof 1999, as framed by this Court, thestanding at Bar has been defined as theposition of eminence attained by anAdvocate at Bar by virtue of his seniority,legal acumen and high ethical standardsmaintained by him both inside and outsidethe Court. It is, thus, clear that an Advocategets designation as Senior Advocate by theCourt in recognition of his ability, acumenand standard. This being the position of aSenior Advocate, in our view, the UnionGovernment and the State Government areclearly entitled to consider and offer themappointment as Law Officers so as to ensureeffective representation before the Courts.The suggestions as made by the petitioner,if accepted, would lead to an entirelyunacceptable position that the StateGovernment and the Union Governmentcan never take the services of the Advocatesof eminence for their purposes once they getdesignated as Senior Advocates. Thesuggestions, as made by the petitioner, arerequired to be and are rejected.

15. So far the suggestion of anyparticular resignation by any particular


Advocate or any particular officer from anyoffice is concerned, that by itself cannot beconsidered binding on any other SeniorAdvocate or the Government. Theprivileges and concessions, as given to theLaw Officers by virtue of their officeconcerned, is again a matter between theGovernment and Law Officer and thathardly correlates with the issue sought to beraised in this petition. Such submissionsseem to be entirely irrelevant.

16. In view of the above, the petitionfails and stands dismissed.

17. The petitioner has prayed forcertificate under Article 132 of theConstitution of India.

18. The prayer stands rejected.--------


DATED: LUCKNOW 26.10.2015

BEFORETHE HON'BLE AMRESHWAR PRATAP SAHI, J.THE HON'BLE ATTAU RAHMAN MASOODI, J.


Prem Singh ...PetitionerVersus

The State Consumer Dispute RedressalCommission Lko & Ors. ...Respondents

Counsel for the Petitioner:Lalji Prasad Shukla

Counsel for the Respondents:----

Constitution of India, Art.-226-Petition-seeking direction for expeditiousdisposal of Appeal-argument undersection 13(4) and (A) District ConsumerForum-shall be deemed to Civil court-direction can be issued-held-such

direction can be issued under Art.-227-before Single Judge-petition consignedto record-with liberty to invokeappropriate jurisdiction.

Held: Para-6This being the position and the manner inwhich the State Commission is to function,we are clearly of the opinion that if adirection is required to be given forexpeditious disposal of an appeal then theState Consumer Dispute RedressalCommission would also fall within thesuperintendence of the High Court underArticle 227 of the Constitution of India.Consequently, a writ petition ought to befiled under Article 227 of the Constitutionof India, which shall obviously beentertainable by a learned Single Judge.

(Delivered by Hon'ble Amreshwar PratapSahi, J.)

1. Heard learned counsel for thepetitioner.

2. The petitioner prays for amandamus for an early disposal of theappeal filed before the State ConsumerForum. The petitioner has relied on aDivision Bench order in Writ Petition No.511 (MB) of 2014: Bala Devi versus TheState Consumer Dispute RedressalCommission, U.P. and others. dated22.1.2014 to contend that such a directionfor expeditious disposal of the appeal can beissued by this Court.

3. The status of a District ConsumerForum and a State Consumer DisputeRedressal Commission which is hearingan appeal is to be gathered from thenature of the composition of such forumand the jurisdiction exercised by it. TheDistrict Consumer Forum is chaired by aperson who has held the rank of a DistrictJudge, whereas the State ConsumerDispute Redressal Commission is chaired

3 All] Prem Singh Vs. The State Consumer Dispute Redressal Commission Lko & Ors. 1241

by a person who has held the office ofJudge of a High Court. It is thus, clear thatthese forums are chaired by the personshaving occupied judicial offices. TheConsumer Protection Act in sub-sections(4) to sub-section (7) of Section 13 clearlyprovides that the District Consumer Forumshall be deemed to be a civil court for thepurpose of Section 195, and Chapter XXVIof the Code of Criminal Procedure, 1973.The provisions of Code of the CivilProcedure, to the extent indicated therein,have been made applicable.

4. An appeal is preferred against anyorder passed by the District ConsumerForum to the State Commission. TheState Commission has jurisdiction,powers and authority which are to beexercised by the Benches as constitutedunder Section 16. The jurisdiction underSection 17 is against appeals as alsoagainst the complaints where the value ofthe goods or services and compensation,if any, claimed exceeds rupees twentylakhs but does not exceed rupees onecrore.

5. The power to be exercised by theState Commission while deciding anappeal also indicates that all such powersare available in appeal which are availableto the District Forum and, therefore, thestatus is that of the forums, which beginswith the district level organisation, thathas been described under Section 13 (5)as being a civil court. Consequently, theState Consumer Dispute RedressalCommission is the appellate court of theDistrict Forum.

6. This being the position and themanner in which the State Commission isto function, we are clearly of the opinionthat if a direction is required to be given

for expeditious disposal of an appeal thenthe State Consumer Dispute RedressalCommission would also fall within thesuperintendence of the High Court underArticle 227 of the Constitution of India.Consequently, a writ petition ought to befiled under Article 227 of the Constitutionof India, which shall obviously beentertainable by a learned Single Judge.

7. The writ petition, therefore, isconsigned to records with liberty to thepetitioner to invoke the appropriatejurisdiction of this Court for redressal ofany such grievance.



BEFORETHE HON'BLE V.K. SHUKLA, J.

THE HON'BLE ARVIND KUMAR MISHRA-I, J.

Criminal Misc. Writ Petition No. 11158 of 2015

Gyanesh Rai & Anr. ...PetitionersVersus


Counsel for the Petitioners:R.P. Singh, Dhirendra Singh

Counsel for the Respondents:Govt. Advocate

Constitution of India, Art.-226-custodiantorture-in spite of direction given underSection 156(3) Cr.P.C.-no FIR lodged-Court expressed its serious concern withdirection to lodge FIR and completeinvestigation by Officer not below inrank of Circle Officer-petition allowed.

Held: Para-24Coupled with this, in the present case,once such is the factual situation that isso emerging that prima-facie there hasbeen custodial violence, then FIR ought


to have been lodged and investigationought to have been carried out. Here, wefind that despite application underSection 156(3) Cr.P.C. being moved andSuperintendent of Police, Mau beingaware of the entire situation, till date,FIR has not been lodged and no actionhas been taken by undertaking free, fairand impartial investigation, in view ofthis, we proceed to pass an order askingSuperintendent of Police, Mau toforthwith ensure that FIR is lodgedagainst erring police incumbents as perthe law laid down by Apex Court, in thecase of Lalita Kumari vs. Government ofU.P. 2014 (2) SCC 1 and theinvestigation in question is carried outunder his supervision by an officer notbelow the rank of Circle Officer, who willproceed to carry out investigation infree, fair and transparent manner.

Case Law discussed:1997 (1) SCC 416; 1980 (3) SCC 70; 1985 (1)SCC 552; 1993 (2) SCC 746; 1997 (1) SCC416; 2003 (7) SCC 749; 2006(3) SCC 178;2012 (1) SCC 10; 2012 (3) SCC Cr. 733; 2014(10) SCC 635.

(Delivered by Hon'ble V.K. Shukla, J.)

1. Gyanesh Rai s/o Ganga PrasadRai through the next friend his fatherGanga Prasad Rai and Ganga Prasad Rais/o Raj Narayan Rai have approached thisCourt, complaining of custodial violenceand requesting therein for payment ofcompensation for physical sufferings andmental agony as well as for initiation ofaction against erring police personnel.

2. Factual matrix of the case is thatpetitioner no.1-Gyanesh Rai is a youngman and claims that he had applied for thepost of Constable in I.T.B.P. (CentralForce) and qualified the physical test heldin Dehradun on 23rd February, 2015 andafter qualifying the physical test, he wasbusy in preparation of written

examination scheduled to be held in May,2015 and in between, petitioners submitthat, police personnel from police stationDoharighat, came to petitioners' houseand petitioner no.1 was informed that hewas required for interrogation. Petitionerssubmit that petitioner no.1 was taken tothe police station on 9th April, 2015 at 5pm and in the name of carrying outinterrogation, petitioner no.1 was detainedat police station uptil 16th April, 2015 andduring this period, petitioners' grievanceis that petitioner no.1 has been subjectedto brutal police torture by using thirddegree methods like electric shock, severebeating and insertion of aluminium wiresthrough his mouth.

3. Petitioners' submit thatimmediately thereafter, petitioner no.2proceeded to send information to each andevery responsible official inclusive ofHon'ble the Chief Justice of this Court,District Magistrate, Mau, State HumanRights Commission, Lucknow and others.Petitioner no.1 was taken to hospital inthe city of Mau in serious condition wherehe was admitted by the police andthereafter he was shifted to Varanasi andat Varanasi x-ray was conducted at SinghMedical Research Centre whereinaluminium wire has been seen in thethroat and abdomen of petitioner no.1.Petitioner no.1, thereafter, was taken toBanaras Hindu University but as therewas no reference letter he was notadmitted there and thereafter he was takento P.M.C. Hospital, Durga Kund,Varanasi and thereafter, as his conditionwas very serious, he was referred toK.G.M.C. Lucknow where he wasadmitted on 18th April, 2015 andthereafter after getting operated upon,petitioner no.1 has been released.Petitioners have contended that petitioner

3 All] Gyanesh Rai & Anr. Vs. State of U.P. & Ors. 1243

no.1 has been subjected to custodialtorture and thereafter for the reliefmentioned above, present writ petition inquestion has been filed.

4. As complaint before this Courthas been that third Degree method hasbeen applied by police officials namelyrespondent no.3 to 9 in complete violationof directives issued by the Apex Court inD.K. Basu vs. State of West Bengal 1997(1) SCC 416, this Court on 6th May, 2015proceeded to ask Superintendent ofPolice, Mau to file counter affidavitwithin four days and thereafter on12.05.2015, a short counter affidavit wasfiled and this Court was of the opinionthat the short counter affidavit is not at allin consonance with the directives issuedby this Court and this Court took seriousnote of the matter and askedSuperintendent of Police, Mau to file hispersonal affidavit.

5. Pursuant to order dated 12th May,2015, detailed counter affidavit has beenfiled appending therein the report of theinquiry officer as well as the report ofpreliminary inquiry and the action that hasbeen so taken. To the said counteraffidavit, rejoinder affidavit has been filedgiving therein details of the dischargetickets dated 18th May, 2015.

6. After pleadings mentioned abovehave been exchanged, present writpetition has been taken up for finalhearing and disposal.

7. Shri R.P. Singh, Advocateappearing for the petitioners submittedwith vehemence that this is a glaring casewherein petitioner no.1 has beensubjected to custodial violence byadopting third degree methods and the

brutality in question is much morecompounded from the fact that wire inquestion has been put in in his body andwithout maintaining any records for sixdays, he has been confined at the policestation and till today, departmental actionthat has been proposed to be taken, sameis an eye-wash and no criminal action hasbeen taken whereas the police officials onthe face of record have proceeded tomisuse their position, and have committedcriminal offence, in view of this,compensation be awarded and directivesbe issued for lodging of FIR againsterring police personnels.

8. Shri Vimlendu Tripathi, learnedA.G.A., on the other hand, has contendedthat there has been no excess on the partof the police personnel and the totality ofthe circumstance would speak for itself,as here anxiety of police personnel hasbeen to crack the serious offence of lootand murder, that has shocked the entiresociety.

9. Police atrocities in India is notnew and same has always been a subjectmatter of controversy and debate inconsonance with the provisions of Article21 of the Constitution of India, as anyform of torture or criminality in human ordegrading treatment is inhibited. Tortureis not at all permitted whether it occursduring investigation, interrogation orotherwise. Custodial violence is in effectdirect invasion of human rights. Torturein custody flouts the basic rights ofcitizens recognized by the IndianConstitution and is affront to humandignity. "Custodial Torture" is acalculated assault on human dignity andnothing can be more dehumanizing as theconduct of police in practising torture ofany kind on a person in their custody.


Mahatma Gandhi in one of his quoteshas said as follows:

"I object to violence because when itappears to do good, the good is onlytemporary, the evil it does is permanent."

10. By resorting to custodial torture,for the time being, police with a view tosecure evidence or confession mayachieve their goal but in long run, policewill have to substantiate and will have toface the scrutiny of Court, as to whetherevidence secured or confession made wasvoluntary or same has been sheer outcomeof custodial violence inflicted upon.Evidences and Confessions that comethrough the route of custodial violence, inlong run, do no good and prosecution hasto pay heavy price for the same, on suchfacts being substantiated, otherwise policewould be accomplishing behind theirclosed doors precisely what the demandsof our legal order forbid.

11. Time and again custodial torturehas been at the radar of the Apex Courtand Apex Court, at all point of time, hasviewed custodial torture with allseriousness.

12. Apex Court in the case ofRaghbir Singh vs. State of Haryana 1980(3) SCC 70 proceeded to mention thatState at the highest administrative andpolitical levels would organize specialstrategies to prevent and punish brutalityby police methodology, otherwise, thecredibility of the rule of law in ourRepublic vis-a-vis the people of thecountry will deteriorate. Relevant extractof said judgement is as follows:

"We are deeply disturbed by thediabolical recurrence of police torture

resulting in a terrible scarce in the mindsof common citizens that their lives andliberty are under a new peril when theguardians of the law gore human rights todeath. The vulnerability of human rightsassumes a traumatic, torture somepoignancy when violent violation isperpetrated by the police arm of the Statewhose function is to protect the citizenand not to commit gruesome offencesagainst them as has happened in this case,Police lock-up if reports in newspapershave a streak of credence, are becomingmore and more awesome cells. Thisdevelopment is disastrous to our humanrights awareness and humanistconstitutional order.

The State, at the highestadministrative and political levels, wehope, will organise special strategies toprevent and punish brutality by policemethodology. Otherwise, the credibilityof the rule of law in our Republic vis-a-vis the people of the country willdeteriorate.

We conclude with the disconcertingnote sounded by Abraham Lincoln:

'If you once forfeit the confidence ofyour fellow citizens you can never regaintheir respect and esteem. It is true thatyou can fool all the people some of thetime, and some of the people all the time,but you cannot fool all the people all thetime.'

These observations have becomenecessary to impress upon' the Statepolice echelons the urgency of stampingout the vice of 'third degree' from theinvestigative armoury of the police."

13. Apex Court in the case of Stateof Uttar Pradesh vs. Ram Sagar Yadavand others 1985 (1) SCC 552 hasproceeded to took a note of the fact that atthe point of time when a person is in


custody and he is subjected to anyatrocity, then, at the said point of time,police officials alone and none else, cangive evidence as regards thecircumstances in which a person in theircustody comes to receive injuries while intheir custody. Relevant extract of saidjudgement is as follows:

"Police Officers alone, and none else,can give evidence as regards thecircumstances in which a person in theircustody comes to receive injuries while intheir custody. Bound by ties of a kind ofbrotherhood, they often prefer to remainsilent in such situations and when theychoose to speak, they put their own glossupon facts and pervert the truth. Theresult is that persons, on whom atrocitiesare perpetrated by the police in thesanctum sanctorum of the police station,are left without any evidence to provewho the offenders are."

14. Apex Court, in the case ofNilabati Behera @ Lalit Behera vs. Stateof Orissa and others, 1993 (2) SCC 746proceeded to take view that even convicts,prisoners and undertrials have right underArticle 21 and once an incumbent is takeninto custody and there are injuries on hisbody, then State will have to explain, as tohow he sustained the injuries, andcompensation can be awarded underpublic law remedy.

15. Apex Court in the case of D.K.Basu vs. State of West Bengal 1997 (1)SCC 416, has dealt with the issue ofcustodial violence, and has clearly ruled,interrogation through essential must be onscientific principles, third degree methodsare impermissible, balanced approachshould be there so that criminals don't goscot free. Various guidelines have been

issued and same are holding the field,even as on date, in addition toconstitutional and statutory safeguards.Relevant extract of said judgment is asfollows:

"The importance of affirmed rights ofevery human being need no emphasis and,therefore, to deter breaches thereof becomesa sacred duty of the Court, as the custodianand protector of the fundamental and thebasic human rights of the citizens. Custodialviolence, including torture and death in thelock ups, strikes a blow at the Rule of Law,which demands that the powers of theexecutive should not only be derived fromlaw but also that the same should be limitedby law. Custodial violence is a matter ofconcern. It is aggravated by the fact that it iscommitted by persons who are supposed tobe the protectors of the citizens. It iscommitted under the shield of uniform andauthority in the four walls of a police stationor lock-up, the victim being totally helpless.The protection of an individual from tortureand abuse by the police and other lawenforcing officers is a matter of deep concernin a free society. These petitions raiseimportant issues concerning police powers,including whether monetary compensationshould be awarded for establishedinfringement of the Fundamental Rightsguaranteed by Articles 21 and 22 of theConstitution of India. The issues arefundamental.

"Torture" has not been defined inConstitution or in other penal laws.'Torture' of a human being by anotherhuman being is essentially an instrumentto impose the will of the 'strong' over the'weak' by suffering. The word torturetoday has become synonymous wit thedarker side of human civilisation.

"Torture is a wound in the soul sopainful that sometimes you can almost


touch it, but it is also so intangible thatthere is not way to heal it. Torture isanguish squeezing in your chest, cold asice and heavy as a stone paralyzing assleep and dark as the abyss. Torture isdespair and fear and rage and hate. It is adesire to kill and destroy includingyourself."

-Adriana P. BartowNo violation of any one of the human

rights has been the subject of so manyConventions and Declarations as 'torture'-all aiming at total banning of it in allforms, but inspite of the commitmentsmade to eliminate torture, the fact remainsthat torture is more widespread not thatever before, "Custodial torture" is a nakedviolation of human dignity anddegradation with destroys, to a very largeextent, the individual personality. IT is acalculated assault on human dignity andwhenever human dignity is wounded,civilisation takes a step backward-flag ofhumanity must on each such occasion flyhalf-mast.

In all custodial crimes that is of realconcern is not only infliction of body painbut the mental agony which a personundergoes within the four walls of policestation or lock-up. Whether it is physicalassault or rape in police custody, theextent of trauma a person experiences isbeyond the purview of law.

"Custodial violence" and abuse ofpolice power is not only peculiar to thiscountry, but it is widespread. It has beenthe concern of international communitybecause the problem is universal and thechallenge is almost global. The UniversalDeclaration of Human Rights in 1984,which market the emergency ofworldwide trend of protection andguarantee of certain basic human rights,stipulates in Article 5 that "No one shallbe subjected to torture or to curel,

inhuman or degrading treatment orpunishment." Despite the piousdeclaration, the crime continues unabated,though every civilised nation shows itsconcern and takes steps for its eradication.

Fundamental rights occupy a place ofpride in the India Constitution. Article 21provides "no person shall be deprived ofhis life or personal liberty expectaccording to procedure established bylaw". Personal liberty, thus, is a sacredand cherished right under theConstitution. The expression "life ofpersonal liberty" has been held to includethe right to live with human dignity andthus it would also include within itself aguarantee against torture and assault bythe State or its functionaries. Article 22guarantees protection against arrest anddetention in certain cases and declaresthat no person who is arrested shall bedetained in custody without beinginformed of the grounds of such arrestand the shall not be denied the right toconsult and defend himself by a legalpractitioner of his choice. Clause (2) ofArticle 22 directs that the person arrestedand detained in custody shall be producedbefore the nearest Magistrate within aperiod of 24 hours of such arrest,excluding the time necessary for thejourney from the place of arrest to thecourt of the Magistrate. Article 20(3) ofthe Constitution lays down that a personaccused of an offence shall not becompelled to be a witness against himself.These are some of the constitutionalsafeguard provided to a person with aview to protect his personal liberty againstand unjustified assault by the State, Intune with the constitutional guarantee anumber statutory provisions also seek toproject personal liberty, dignity and basichuman rights of the citizens. Chapter V.of Criminal Procedure Code, 1973 deals


with the powers of arrest of a person andthe safeguard which are required to befollowed by the police to protect theinterest of the arrested person. Section 41,Cr. P.C. confers powers on any policeofficer to arrest a person under thecircumstances specified therein withoutany order or a warrant of arrest from aMagistrate. Section 46 provides themethod and manner of arrest. Under thisSection no formality is necessary whilearresting a person. Under Section 49, thepolice is not permitted to use morerestraint than is necessary to permitted touse more restraint than is necessary toprevent the escape of the person. Section50 enjoins every police officer arrestingany person without warrant tocommunicate to him the full particulars ofthe offence for which he is arrested andthe grounds for such arrest. The policeofficer is further enjoined to inform theperson arrested that he is entitled to bereleased on bail and he may arrange forsureties in the event of his arrest for anon-bailable offence. Section 56 containsa mandatory provision requiring thepolice officer making an arrest withoutwarrant to produce the arrested personbefore a Magistrate without unnecessarydelay and Section 57 echoes Clause (2) ofArticle 22 of the Constitution of India.There are some other provisions also likeSection 53, 54 and 167 which are aimedat affording procedural safeguards to aperson arrested by the police. Whenever aperson dies in custody of the police,Section 176 requires the Magistrate tohold and enquiry into the cause of death.

However, inspite of theconstitutional and statutory provisionsaimed at safeguarding the personal libertyand life of a citizen, growing incidence oftorture and deaths in police custody hasbeen a disturbing factor. Experience

shows that worst violations of humanrights take place during the course ofinvestigation, when the police with a viewto secure evidence or confession oftenresorts to third degree methods includingtorture and adopts techniques of screeningarrest by either not recording the arrest ordescribing the deprivation of libertymerely as a prolonged interrogation. Areading of the morning newspapersalmost everyday carrying reports ofdehumanising torture, assault, rape anddeath in custody of police or othergovernmental agencies is indeeddepressing. The increasing incidence oftorture and death in custody has assumedsuch alarming proportions that it isaffecting the creditibility of the Rule ofLaw and the administration of criminaljustice system. The community rightlyfeels perturbed. Society's cry for justicebecomes louder.

Custodial death is perhaps one of theworst crimes in a civilised society governedby the Rule of Law. The rights inherent inArticles 21 and 22(1) of the Constitutionrequired to be jealously and scrupulouslyprotected. We cannot wish away theproblem. Any form of torture of cruel,inhuman or degrading treatment would fallwithin the inhibition of Article 21 of theConstitution, whether it occurs duringinvestigation, interrogation or otherwise. Ifthe functionaries of the Government becomelaw breakers, it is bound to breed contemptfor law and would encourage lawlessnessand every man would have the tendency tobecome law unto himself thereby leading toanarchanism. No civilised nation can permitthat tp happen. Does a citizen shed off hisfundamental right to life, the moment apoliceman arrests him? Can the right to lifeof a citizen be put in abeyance on his arrest?These questions touch the spinal court ofhuman rights jurisprudence. The answer,


indeed, has to be an emphatic 'No'. Theprecious right guaranteed by Article 21 of theConstitution of India cannot be denied toconvicted undertrials, detenues and otherprisoners in custody, except according to theprocedure established by law by placing suchreasonable restrictions as are permitted bylaw.

Instances have come to out noticewere the police has arrested a personwithout warrant in connection with theinvestigation of an offence, withoutrecording the arrest, and the arrest personhas been subjected to torture to extractinformation from him for the purpose offurther investigation or for recovery ofcase property or for extracting confessionetc. The torture and injury caused on thebody of the arrestee has sometime resultedinto his death. Death in custody is notgenerally shown in the records of the lock-up and every effort is made by the police todispose of the body or to make out a casethat the arrested person died after he wasreleased from custody. Any complaintagainst such torture or death is generallynot given any attention by the policeofficers because of ties of brotherhood. Nofirst information report at the instance ofthe victim or his kith and kin is generallyentertained and even the higher policeofficers turn a blind eye to suchcomplaints. Even where a formalprosecution is launched by the victim orhis kith and kin, no direct evidence isavailable to substantiate the charge oftorture or causing hurt resulting into deathas the police lock-up where generallytorture or injury is caused is away from thepublic gaze and the witnesses are eitherpolice men or co- prisoners who are highlyreluctant to appear as prosecution witnessdue to fear of letaliation by the superiorofficers of the police. It is often seen thatwhen a complaint is made against torture,

death or injury, in police custody, it isdifficult to secure evidence against thepolicemen responsible for resorting to thirddegree methods since they are incharge ofpolice station records which they do notfind difficult to manipulate. Consequently,prosecution against the delinquent officersgenerally results in acquittal. State ofMadhya Pradesh Vs. Shyamsunder Trivedi& Ors. [ 1995 (3) Scale, 343 =] is an aptcase illustrative of the observations madeby us above. In that case, Nathu Bnjarawas tortured at police station, Rampuraduring the interrogation. As a result ofextensive injuries caused to him he died inpolice custody at the police station. Thedefence set up by the respondent policeofficials at the trial was that Nathu Banjarahad been released from police custody atabout 10.30 p.m. after interrogation13.10.1986 itself vide entry EX. P/22A inthe Roznamcha and that at about 7.00 a.m.on 14.10.1981, a death report Ex. P/9 wasrecorded at the police station, Rampura, atthe instance of Ramesh respondent No. 6,to the effect that he had found "oneunknown person" near a tree by the side ofthe tank riggling with pain in his chest andthat as a soon as respondent No. 6 reachednear him, the said person died. The furthercase set up by SI Trivedi, respondent No.1, incharge of the police station was thatafter making a Roznamcha entry at 7.00a.m. about his departure from the policestation he (respondent No. 1- ShyamsunderTrivedi) and Constable Rajaramrespondent proceeded to the spot where thedead body was stated to be lying forconducting investigation under Section 174Cr.P.C. He summoned Ramesh Chandraand Goverdhan respondents to the spot andin their presence prepared a panchnamaEX. P/27 of the dead body recording theopinion therein to the effect that no definitecause of death was known.


Police is, no doubt, under a legalduty and has legitimate right to arrest acriminal and to interrogate him during theinvestigation of a an offence but it mustbe remembered that the law does notpermit use of third degree methods ortorture of accused in custody duringinterrogation and investigation with thatview to solve the crime. End cannotjustify the means. The interrogation andinvestigation into a crime should be intrue sense purpose full to make theinvestigation effective. By torturing aperson and using their degree methods,the police would be accomplishing behindthe closed doors what the demands of ourlegal order forbid. No. society can permitit.

How do we check the abuse of policepower? Transparency of action andaccountability perhaps are tow possiblesafeguards which this Court must insistupon. Attention is also required to be paidto properly develop work culture, trainingand orientation of police force consistentwith basic human values. Trainingmethodology of the police needsrestructuring. The force needs to beinfused with basic human values andmade sensitive to the constitutional ethos.Efforts must be made to change theattitude and approach of the policepersonal handling investigations so thatthey do not sacrifice basic human valuesduring interrogation and do not resort toquestionable form of interrogation. With aview to bring in transparency, thepresence of the counsel of the arrestee atsome point of time during theinterrogation may deter the police fromusing third degree methods duringinterrogation.

There is one other aspect also whichneeds out consideration, We are consciousof the fact that the police in India have to

perform a difficult and delicate task,particularly in view of the deteriorating lawand order situation, communal riots,political turmoil, student unrest, terroristactivities, and among others the increasingnumber of underworld and armed gangs andcriminals, Many hard core criminals likeextremist, the terrorists, drug peddlers,smugglers who have organised gangs, havetaken strong roots in the society. It is beingsaid in certain quarters that with more andmore liberalisation and enforcement offundamental rights, it would lead todifficulties in the detection of crimescommitted by such categories of hardenedcriminals by soft peddling interrogation. Itis felt in those quarters that if we lay tomuch of emphasis on protection of theirfundamental rights and human rights suchcriminals may go scot-free withoutexposing any element or iota or criminalitywith the result, the crime would gounpunished and in the ultimate analysis thesociety would suffer. The concern isgenuine and the problem is real. To dealwith such a situation, a balanced approach isneeded to meet the ends of justice. This allthe more so, in view of the expectation ofthe society that police must deal with thecriminals in an efficient and effectivemanner and bring to book those who areinvolved in the crime. The cure cannot,however, be worst than the disease itself.

There can be no gain saying thatfreedom of an individual must yield to thesecurity of the State. The right ofpreventive detention of individuals in theinterest of security of the State in varioussituations prescribed under differentstatures has been upheld by the Courts.The right to interrogate the detenues,culprits or arrestees in the interest of thenation, must take precedence over anindividual's right to personal liberty. Thelatin maxim salus populi est supreme lex


(the safety of the people is the supremelaw) and salus republicae est suprema lex(safety of the state is the supreme law) co-exist an dare not only important andrelevant but lie at the heart of the doctrinethat the welfare of an individual mustyield to that of the community. The actionof the State, however must be "right, justand fair". Using any form of torture forextracting any kind of information wouldneither be 'right nor just nor fair' and,therefore, would be impermissible, beingoffensive to Article 21. Such a crime-suspect must be interrogated - indeedsubjected to sustained and scientificinterrogation determined in accordancewith the provisions of law. He cannot,however, be tortured or subjected to thirddegree methods or eleminated with a viewto elicit information, extract confession ordrive knowledge about his accomplices,weapons etc. His Constitutional rightcannot be abridged except in the mannerpermitted by law, though in the verynature of things there would be qualitativedifference in the methods of interrogationof such a person as compared to anordinary criminal. Challenge of terrorismmust be met wit innovative ideas andapproach. State terrorism is not answer tocombat terrorism. State terrorism is noanswer to combat terrorism. Stateterrorism would only provide legitimacyto 'terrorism'. That would be bad for theState, the community and above all for theRule of Law. The State must, therefore,ensure that various agencies deployed byit for combating terrorism act within thebounds of law and not become law untothemselves. that the terrorist has violatedhuman rights of innocent citizens mayrender him liable for punishment but itcannot justify the violation of this humanrights expect in the manner permitted bylaw. Need, therefore, is to develop

scientific methods of investigation andtrain the investigators properly tointerrogate to meet the challenge.

We therefore, consider itappropriate to issue the followingrequirements to be followed in all cases ofarrest or detention till legal provisions aremade in that behalf as preventivemeasures :

(1) The police personnel carrying outthe arrest and handling the interrogationof the arrestee should bear accurate,visible and clear identification and nametogs with their designations. Theparticulars of all such police personnelwho handle interrogation of the arresteemust be recorded in a register.

(2) That the police officer carryingout the arrest of the arrestee shall preparea memo of arrest at the time of arrest asuch memo shall be attested by atleast onewitness. who may be either a member ofthe family of the arrestee or a respectableperson of the locality from where thearrest is made. It shall also be countersigned by the arrestee and shall containthe time and date of arrest.

(3) A person who has been arrestedor detained and is being held in custody ina police station or interrogation centre orother lock-up, shall be entitled to haveone friend or relative or other personknown to him or having interest in hiswelfare being informed, as soon aspracticable, that he has been arrested andis being detained at the particular place,unless the attesting witness of the memoof arrest is himself such a friend or arelative of the arrestee.

(4) The time, place of arrest andvenue of custody of an arrestee must benotified by the police where the nextfriend or relative of the arrestee livesoutside the district or town through thelegal Aid Organisation in the District and


the police station of the area concernedtelegraphically within a period of 8 to 12hours after the arrest.

(5) The person arrested must bemade aware of this right to have someoneinformed of his arrest or detention as soonhe is put under arrest or is detained.

(6) An entry must be made in thediary at the place of detention regardingthe arrest of the person which shall alsodisclose the name of he next friend of theperson who has been informed of thearrest an the names and particulars of thepolice officials in whose custody thearrestee is.

(7) The arrestee should, where he sorequests, be also examined at the time ofhis arrest and major and minor injuries, ifany present on his/her body, must berecorded at that time. The "InspectionMemo" must be signed both by thearrestee and the police officer effectingthe arrest and its copy provided to thearrestee.

(8) The arrestee should be subjectedto medical examination by trained doctorevery 48 hours during his detention incustody by a doctor on the panel ofapproved doctors appointed by Director,Health Services of the concerned Stare orUnion Territory. Director, Health Servicesshould prepare such a penal for all Tehsilsand Districts as well.

(9) Copies of all the documentsincluding the memo of arrest, referred toabove, should be sent to the illagaMagistrate for his record.

(10) The arrestee may be permittedto meet his lawyer during interrogation,though not throughout the interrogation.

(11) A police control room should beprovided at all district and stateheadquarters, where informationregarding the arrest and the place ofcustody of the arrestee shall be

communicated by the officer causing thearrest, within 12 hours of effecting thearrest and at the police control room itshould be displayed on a conspicuousnotice board."

16. Apex Court in the case ofShakila Abdul Gafar Khan vs. VasantRaghunath Dhoble and another 2003 (7)SCC 749 has proceeded to make amention that who are at the helm ofaffairs who proclaim from rooftops to bethe defenders of democracy andprotectors of people's rights and do nothesitate to condescend behind the screento let loose their men in uniform to settlepersonal scores, reigning ignorance ofwhat happens and pretending to be peace-loving puritans and saviours of citizens'rights. Relevant extract of said judgementis as follows:

"If it is assuming alarmingproportions, now a days, all around it ismerely on account of the devilish devicesadopted by those at the helm of affairswho proclaim from roof tops to be thedefenders of democracy and protectors ofpeoples' rights and yet do not hesitate tocondescend behind the screen to let loosetheir men in uniform to settle personalscores, feigning ignorance of whathappens and pretending to be peaceloving puritans and saviours of citizens'rights.

Article 21 which is one of theluminary provisions in the Constitution ofIndia, 1950 (in short the 'Constitution')and is a part of the scheme forfundamental rights occupies a place ofpride in the Constitution. The Articlemandates that no person shall be deprivedof his life and personal liberty exceptaccording to the procedure established bylaw. This sacred and cherished right i.e.


personal liberty has an important role toplay in the life of every citizen. Life orpersonal liberty includes a right to livewith human dignity. There is an inbuiltguarantee against torture or assault by theState or its functionaries. Chapter V of theCode of Criminal Procedure, 1973 (forshort the 'Code') deals with the powers ofarrest of persons and the safeguardsrequired to be followed by the police toprotect the interest of the arrested person.Articles 20(3) and 22 of the Constitutionfurther manifest the constitutionalprotection extended to every citizen andthe guarantees held out for making lifemeaningful and not a mere animalexistence. It is therefore difficult tocomprehend how torture and custodialviolence can be permitted to defy therights flowing from the Constitution. Thedehumanizing torture, assault and death incustody which have assumed alarmingproportions raise serious questions aboutthe credibility of rule of law andadministration of criminal justice system.The community rightly gets disturbed.The cry for justice becomes louder andwarrants immediate remedial measures.This Court has in a large number of casesexpressed concern at the atrocitiesperpetuated by the protectors of law.Justice Brandies's observation which havebecome classic are in following immortalwords:

"Government as the omnipotent andomnipresent teacher teaches the wholepeople by its example, if the Governmentbecomes a law breaker, it breedscontempt for law, it invites every man tobecome a law into himself". (in (1928)277 U.S. 438, quoted in (1961) 367 U.S.643 at 659)."

The diabolic recurrence of policetorture resulting in a terrible scare in theminds of common citizens that their lives

and liberty are under a new andunwarranted peril because guardians oflaw destroy the human rights by custodialviolence and torture and invariablyresulting in death. The vulnerability ofhuman rights assumes a traumatic torturewhen functionaries of the State whoseparamount duty is to protect the citizensand not to commit gruesome offencesagainst them, in reality perpetrate them.The concern which was shown inRaghubir Singh's case (supra) more thantwo decades back seems to have fallen toleaf ears and the situation does not seemto be showing any noticeable change. Theanguish expressed in Gauri ShankerSharma v. State of U.P. (AIR 1990 SC709), Bhagwan Singh and Anr. v. State ofPunjab (1992 (3) SCC 249), Smt. NilabatiBehera @Lalita Behera v. State of Orissaand Ors. (AIR 1993 SC 1960), PratulKumar Sinha v. State of Bihar and Anr.(1994 Supp. (3) SCC 100), Kewal Pati(Smt.) v. State of U.P. and Ors. (1995 (3)SCC 600), Inder Singh v. State of Punjaband Ors. (1995(3) SCC 702), State ofM.P. v. Shyamsunder Trivedi and Ors.(1995 (4) SCC 262) and by nowcelebrated decision in Shri D.K. Basu v.State of West Bengal (JT 1997 (1) SC 1)seems to have caused not even anysoftening attitude to the inhumanapproach in dealing with persons incustody.

Rarely in cases of police torture orcustodial death, direct ocular evidence ofthe complicity of the police personnelalone who can only explain thecircumstances in which a person in theircustody had died. Bound as they are bythe ties of brotherhood, it is not unknownthat the police personnel prefer to remainsilent and more often than not evenpervert the truth to save their colleagues -and the present case is an apt illustration -


as to how one after the other policewitnesses feigned ignorance about thewhole matter."

17. Apex Court in the case of SubeSingh vs. State of Haryana and others2006 (3) SCC 178 has taken note ofcustodial violence to be torture and thirddegree methods used by police duringinterrogation and has discussed in detailthe reasons behind such practice and hasalso given preventive measures as to howsuch violence can be tackled. Relevantextract of said judgement is as follows:

"Unfortunately, police in the countryhave given room for an impression in theminds of public, that whenever there is acrime, investigation usually means roundingup all persons concerned (say all servants inthe event of a theft in the employer's house,or all acquaintances of the deceased, in theevent of a murder) and subjecting them tothird-degree interrogation in the hope thatsomeone will spill the beans. Thisimpression may not be correct, but instancesare not wanting where police have resortedto such a practice. Lack of training inscientific investigative methods, lack ofmodern equipment, lack of adequatepersonnel, and lack of a mindset respectinghuman rights, are generally the reasons forsuch illegal action. One other main reason isthat the public (and men in power) expectresults from police in too short a span oftime, forgetting that methodical andscientific investigation is a time consumingand lengthy process. Police are branded asinefficient even when there is a short delayin catching the culprits in serious crimes.The expectation of quick results in high-profile or heinous crimes builds enormouspressure on the police to somehow 'catch'the 'offender'. The need to have quickresults tempts them to resort to third degree

methods. They also tend to arrest"someone" in a hurry on the basis ofincomplete investigation, just to ease thepressure. Time has come for an attitudinalchange not only in the minds of the police,but also on the part of the public.Difficulties in criminal investigation and thetime required for such investigation shouldbe recognized, and police should be allowedto function methodically withoutinterferences or unnecessary pressures. Ifpolice are to perform better, the publicshould support them, government shouldstrengthen and equip them, and men inpower should not interfere or belittle them.The three wings of the Government shouldencourage, insist and ensure thoroughscientific investigation under proper legalprocedures, followed by prompt andefficient prosecution. Be that as it may.

Custodial violence requires to betackled from two ends, that is, by takingmeasures that are remedial andpreventive. Award of compensation is oneof the remedial measures after the event.Effort should be made to remove the verycauses, which lead to custodial violence,so as to prevent such occurances.Following steps, if taken, may prove to beeffective preventive measures:

a) Police training should be re-oriented, to bring in a change in themindset and attitude of the Policepersonnel in regard to investigations, sothat they will recognize and respecthuman rights, and adopt thorough andscientific investigation methods.

b) The functioning of lower levelPolice Officers should be continuouslymonitored and supervised by theirsuperiors to prevent custodial violenceand adherence to lawful standard methodsof investigation.

c) Compliance with the elevenrequirements enumerated in D.K. Basu


(supra) should be ensured in all cases ofarrest and detention.

d) Simple and fool-proof proceduresshould be introduced for promptregistration of first information reportsrelating to all crimes.

e) Computerization, video-recording,and modern methods of recordsmaintenance should be introduced toavoid manipulations, insertions,substitutions and ante-dating in regard toFIRs, Mahazars, inquest proceedings,Port-mortem Reports and Statements ofwitnesses etc. and to bring in transparencyin action.

f) An independent investigatingagency (preferably the respective HumanRights Commissions or CBI) may beentrusted with adequate power, toinvestigate complaints of custodialviolence against Police personnel and takestern and speedy action followed byprosecution, wherever necessary.

The endeavour should be to achievea balanced level of functioning, wherepolice respect human rights, adhere tolaw, and take confidence buildingmeasures (CBMs), and at the same time,firmly deal with organized crime,terrorism, white-collared crime,deteriorating law and order situation etc."

18. Apex Court in the case ofPrithipal Singh and others vs. State ofPunjab and another 2012 (1) SCC 10 hasconsidered that the State has to protect thevictim of torture and State cannot bepermitted to negate such a right. Relevantextract of said judgement is as follows:

"Police atrocities in India had alwaysbeen a subject matter of controversy anddebate. In view of the provisions ofArticle 21 of the Constitution, any form oftorture or cruel, inhuman or degrading

treatment is inhibited. Torture is notpermissible whether it occurs duringinvestigation, interrogation or otherwise.The wrong-doer is accountable and theState is responsible if a person in custodyof the police is deprived of his life exceptin accordance with the procedureestablished by law. However, when thematter comes to the court, it has tobalance the protection of fundamentalrights of an individual and duties of thepolice. It cannot be gainsaid that freedomof an individual must yield to the securityof the State. Latin maxim salus populi estsuprema lex - the safety of the people issupreme law; and salus reipublicaesuprema lex - safety of the State issupreme law, 14 co-exist. However, thedoctrine of the welfare of an individualmust yield to that of the community.

The right to life has rightly beencharacterised as "`supreme' and `basic'; itincludes both so-called negative andpositive obligations for the State". Thenegative obligation means the overallprohibition on arbitrary deprivation oflife. In this context, positive obligationrequires that State has an overridingobligation to protect the right to life ofevery person within its territorialjurisdiction. The obligation requires theState to take administrative and all othermeasures in order to protect life andinvestigate all suspicious deaths.

The State must protect victims oftorture, ill-treatment as well as the humanrights defender fighting for the interest ofthe victims, giving the issue seriousconsideration for the reason that victimsof torture suffer enormous consequencespsychologically. The problems of acutestress as well as a post-traumatic stressdisorder and many other psychologicalconsequences must be understood incorrect perspective. Therefore, the State


must ensure prohibition of torture, cruel,inhuman and degrading treatment to anyperson, particularly at the hands of anyState agency/police force.

In addition to the protection providedunder the Constitution, the Protection ofHuman Rights Act, 1993, also provide forprotection of all rights to every individual. Itinhibits illegal detention. Torture andcustodial death have always beencondemned by the courts in this country. Inits 113th report, the Law Commission ofIndia recommended the amendment to theIndian Evidence Act, 1872 (hereinaftercalled "Evidence Act"), to provide that incase of custodial injuries, if there is evidence,the court may presume that injury wascaused by the police having the custody ofthat person during that period. Onus to provecontrary is on the police authorities. Lawrequires for adoption of a realistic approachrather than narrow technical approach incases of custodial crimes."

19. Apex Court, in the case ofMehmood Nayyar Azam vs. State ofChattisgarh and others 2012 (3) SCCCr.733, has extensively dealt with theissue of custodial humiliation and mentaltorture and the way and manner in whichcompensation can be awarded underpublic law remedy.

20. Apex Court in the case of People'sUnion for Civil Liberties and another vs.State of Maharashtra and others 2014 (10)SCC 635 has clearly mentioned that Article21 of Constitution of India guarantees "rightto live with human dignity" and any violationof human rights is viewed seriously.Relevant extract of said judgement is asfollows:

"Article 21 of the Constitution ofIndia guarantees "right to live with human

dignity". Any violation of human rights isviewed seriously by this Court as right tolife is the most precious right guaranteedby Article 21 of the Constitution. Theguarantee by Article 21 is available toevery person and even the State has noauthority to violate that right.

In some of the countries when apolice firearms officer is involved in ashooting, there are strict guidelines andprocedures in place to ensure that whathas happened is thoroughly investigated.In India, unfortunately, such structuredguidelines and procedures are not in placewhere police is involved in shooting anddeath of the subject occurs in suchshooting. We are of the opinion that it isthe constitutional duty of this Court to putin place certain guidelines adherence towhich would help in bringing to justicethe perpetrators of the crime who take lawin their own hands.

Article 21 of the Constitution provides"no person shall be deprived of his life orpersonal liberty except according toprocedure established by law". This Courthas stated time and again that Article 21confers sacred and cherished right under theConstitution which cannot be violated,except according to procedure establishedby law. Article 21 guarantees personalliberty to every single person in the countrywhich includes the right to live with humandignity.

In line with the guarantee providedby Article 21 and other provisions in theConstitution of India, a number ofstatutory provisions also seek to protectpersonal liberty, dignity and basic humanrights. In spite of Constitutional andstatutory provisions aimed at safeguardingthe personal liberty and life of a citizen,the cases of death in police encounterscontinue to occur. This Court has beenconfronted with encounter cases from


time to time. In Chaitanya Kalbagh3, thisCourt was concerned with a writ petitionfiled under Article 32 of the Constitutionwherein the impartial investigation wassought for the alleged killing of 299persons in the police encounters. TheCourt observed that in the facts andcircumstances presented before it, therewas an imperative need of ensuring thatthe guardians of law and order do in factobserve the code of discipline expected ofthem and that they function strictly as theprotectors of innocent citizens.

We are not oblivious of the fact thatpolice in India has to perform a difficultand delicate task, particularly, when manyhardcore criminals, like, extremists,terrorists, drug peddlers, smugglers whohave organized gangs, have taken strongroots in the society but then suchcriminals must be dealt with by the policein an efficient and effective manner so asto bring them to justice by following ruleof law. We are of the view that it wouldbe useful and effective to structureappropriate guidelines to restore faith ofthe people in police force. In a societygoverned by rule of law, it is imperativethat extra-judicial killings are properlyand independently investigated so thatjustice may be done."

21. Consistent message has beensent to the members of police force thatan incumbent in custody cannot be put totremendous psychological pressure bycruel, inhuman and degrading treatment,and police officers should have greatestregard for personal liberty of citizens asthey are the custodians of law and orderand hence, they should not flout the lawby stooping to bizarre act of lawlessness.

22. On all these parameters, the casein hand is being looked into and what we

find, in the present case, is that it reflectsa sorry state of affairs as the factualsituation that is so emerging that inreference of investigation of Case CrimeNo.185 of 2015 under Sections 394 and302 IPC, the petitioner has been up pickedfor investigation and thereafter withoutmaintaining any record whatsoever, hehas been detained at the police stationw.e.f. 9th April, 2015 upto 15th April,2015 and during this period, the conditionof petitioner no.1 has deteriorated and hehas been taken to various hospitals and inthe x-ray report that has been so broughton record, wire has been found in thebody of petitioner no.1 and in MagisterialEnquiry that has been so conducted on18th June, 2015, this much fact has beenrecorded that without any record beingmaintained, petitioner no.1 has beenillegally detained at the police station andin the Magisterial Enquiry positiveopinion has not been given and on thesurmises and conjectures, it has beenmentioned that it cannot be said withsurety as to whether he has inserted thewire himself or police personnel has donethe same. There is no occasion orconvincing reason to believe this theorythat petitioner no.1 would insert wire onhis own. Once petitioner no.1 has been inpolice custody, then it was the obligationof police officials to explain, as to fromwhere the wire has come in the body ofpetitioner no.1. Finding recorded that hehas been illegally detained at the policestation and in his body wire has beenfound is fully supported from thedocumentary evidence maintained atpolice station as well as from the medicalevidence available on record.

23. Once such is the factual situationthat is so emerging in the present case thatpetitioner no.1 has been subjected to

3 All] Raj Narain Vs. Union of India & Ors. 1257

torture by police taking recourse toviolence, then, in the facts of the case, therequest that has been made by the petitionerfor awarding him compensation beingvictim of custodial violence has to beaccepted, inasmuch as, petitioner no.1 hasbeen forced to suffer lot of physical andmental agony as is reflected from thephotograph at page 46 of paper book andfor number of days he has been forced tospent in hospital. Awarding ofcompensation is demand of the situation,looking to the agony that a young man hasto undergo, and the fact that his career tojoin I.T.B.P. has been withered away.Treatment meted to petitioner is purelyinhuman, that has inflicted immense mentalpain leading to sense of insecurity andhelplessness in him. In this background, weproceed to award compensation of Rs.5 lacsto petitioner no.1 to be paid by the StateGovernment within two months from thedate of receipt of certified copy of thisorder. In case petitioners have a strongfeeling that they are entitled for much morequantum of damages, they can alwaysinvoke common law remedy for additionalcompensation.

24. Coupled with this, in the presentcase, once such is the factual situation thatis so emerging that prima-facie there hasbeen custodial violence, then FIR ought tohave been lodged and investigation oughtto have been carried out. Here, we findthat despite application under Section156(3) Cr.P.C. being moved andSuperintendent of Police, Mau beingaware of the entire situation, till date, FIRhas not been lodged and no action hasbeen taken by undertaking free, fair andimpartial investigation, in view of this, weproceed to pass an order askingSuperintendent of Police, Mau toforthwith ensure that FIR is lodged

against erring police incumbents as perthe law laid down by Apex Court, in thecase of Lalita Kumari vs. Government ofU.P. 2014 (2) SCC 1 and the investigationin question is carried out under hissupervision by an officer not below therank of Circle Officer, who will proceedto carry out investigation in free, fair andtransparent manner.

25. With theseobservations/directions, writ petition isallowed.



BEFORETHE HON'BLE ARUN TANDON, J.THE HON'BLE SHASHI KANT. J.

C.M.W.P. No. 12239 of 2003

Raj Narain ...PetitionerVersus

Union of India & Ors. ...Respondents

Counsel for the Petitioner:Sri W.H. Khan, Sri J.H. Khan

Counsel for the Respondents:S.S.C., B.N. Singh, Sri H.C. Dubey

Constitution of India, Art.-226-Backwages-dismissal on criminal prosecution-FIR lodged by employer-if conviction-altered in appeal or fair acquittal-held-entitled for full back wages for the periodnot allowed to work-the employer has toface the consequences-to the extent theorder by Tribunal stand modified.

Held: Para-15According to the petitioner, theobservation made in the judgment that ifthe criminal proceeding ultimatelyresulted in acquittal of the employeeconcerned where included at the behest


of the employer, perhaps differentconsiderations may arise clearly appliesto the facts of the present case in asmuch as the petitioner was required toundergo criminal trial in pursuance to afirst information report by an employer.Once the employee has been acquitted ofthe criminal offence, the employershould bear the consequences andpetitioner must be paid full salary for theperiod he was kept out of employment.

Case Law discussed:2014 (4) AWC 3643 (SC); JT 2015 (3) SC 344;(2004) 1 SCC 121; (1996) 11 SCC 603.

(Delivered by Hon'ble Arun Tandon, J.)

1. Heard learned counsel for theparties and perused the record.

2. The Petitioner before this Court wasemployed as Sorting Assistant in RailwayMail Service. He was suspected to beinvolved in racket of payment of bogus heavyvalue money orders. An FIR was lodged. Thecriminal trial with reference to the firstinformation report resulted in conviction ofthe petitioner for offences under Sections419,420, 467, as per order of the AdditionalChief Judicial Magistrate, Varanasi dated29.1.1997 passed in Criminal Case No. 509 of1996. Because of the conviction of thepetitioner in the criminal case under Sections419, 420, 467 I.P.C., the railways had no otheroption but to dismiss the petitioner from theservice vide order dated 28.2.1997 in exerciseof power under Rule-9(1) of Central CivilServices (Classification, Control and Appeal)Rules, 1965.

3. The petitioner, preferred anappeal against the order of convictionbeing Appeal No. 14 of 1997, which wasfinally allowed under judgment and orderof the District and Sessions Judge,Varanasi dated 31.8.2001. The petitioner

was not reinstated, he filed OriginalApplication No. 907 of 2002 before theCentral Administrative Tribunal. Theoriginal application was allowed videorder dated 11.12.2002 and in pursuancethereof he was reinstated.

4. There is no dispute with regard tothe payment of salary and other allowancesto the petitioner subsequent to reinstatementin terms of the order of the Tribunal referredto above on behalf of the petitioner-employee. He is however, not satisfied withthe part of the order of the Tribunalwhereunder the Tribunal has held that thepetitioner will not be entitled to back wagesi.e. for the period from the date of dismissaltill the date of reinstatement. Challengingthe order so passed, the petitioner hasapproached this Court.

5. On behalf of the petitioner, it iscontended that once it has been found thatthe criminal offence as alleged against thepetitioner was not made out and he has beenacquitted by the criminal court, he becomesentitled for full salary for the period, he waskept out of employment. It is submitted thatthe FIR was lodged by the employer and theentire proceeding had been taken at thebehest of the employer.

6. Counsel for the petitioner insupport of his plea has placed relianceupon the judgment of the Apex Court inthe case of Tapash Kumar Paul Vs. BSNLand Anr., reported in 2014 (4) AWC 3643(SC), paragraphs-10, 11 and 12. He hasalso placed reliance upon the judgment ofthe Apex Court in the case of State ofU.P. Vs. Charan Singh, reported in JT2015(3)SC 344, paragraph-16 as well asparagraph 18 of the said judgment. It islastly stated that the Apex Court itself inthe case of Union of India and others Vs.

3 All] Raj Narain Vs. Union of India & Ors. 1259

Jaipal Singh, reported in (2004) 1 SCC121, has explained that if the prosecutionwhich ultimately resulted in acquittal ofthe employee concerned was at the behestof or by the department itself, perhapsdifferent considerations may arise. Hesubmits in the facts of the case theprosecution had been initiated at thebehest of the employer and therefore, thejudgment in the case of RanchhodjiChaturji Thakore Vs. SuperintendentEngineer, Gujarat Electricity Board,Himmatnagar (Gujarat) and Another,reported in (1996) 11 SCC 603 will notapply.

7. Counsel for the respondentshowever, with reference to the judgmentof the Apex Court in the case ofRannchhodji Chaturji Thakore (supra)submits that the Supreme Court had madea distinction in the matter of payment ofback wages in respect of employees whoare proceeded departmentally and thendismissed from service vis a vis theemployees, who are dismissed fromservice after convicting by the competentcourt of law. The Supreme Court has heldthat the employer has no other option, butto dismiss an employee once he is heldguilty of criminal offence. In thesecircumstances, the employer could notobtaine the services of the employeeconcerned because of the law applicable,therefore, question of payment of backwages would not arise. He further submitsthat the judgment in the case ofRannchhodji Chaturji Thakore (supra) hasbeen approved by the Supreme Court inthe case of Union of India and others Vs.Jaipal Singh (supra).

8. We have heard learned counselfor the parties and have examined therecords of the case.

9. There is hardly any dispute on thefacts between the parties.

10. So far as the judgments reliedupon by the counsel for the petitioner in thecases of Union of India and others Vs.Jaipal Singh (supra), Tapash Kumar PaulVs. BSNL and Anr (supra) and State ofU.P. Vs. Charan Singh (supra), areconcerned, we find that they deal with adispute pertaining to the dismissal of anemployee after departmental enquiry andthe Apex Court in the said judgments hasopined that unless there are exceptionalcircumstances, the normal award byIndustrial Tribunal should be ofreinstatement with back wages once thedismissal is found to be unjustified.

11. But these judgments in ouropinion, will have no application in the caseat hand in as much as the Apex Court in thecase of Rannchhodji Chaturji Thakore(supra) has clearly made a distinction in thematter of dismissal of an employee becauseof conviction for a criminal offence vis a visdismissal after departmental enquiry.

12. The Apex Court has held thatwhere dismissal is a result of a conviction ina criminal case, then the employer is dutybound under law to dismiss the employeeconcerned and in that circumstance, theemployer is denied the service of theemployee concerned, therefore, the questionof back wages could not be agitated. It hasbeen explained that the question of backwages would be considered only if therespondents have taken action by way ofdisciplinary proceedings and the action wasfound to be unsustainable in law.

13. The facts of the present case aremore alein to the facts in the case ofRannchhodji Chaturji Thakore (supra).


14. This takes the Court to thejudgment in the case of Jaipal Singh(supra), the Apex Court has held that ifconviction of the employee concernedwas at the behest of employer differentconsideration may arise.

15. According to the petitioner, theobservation made in the judgment that ifthe criminal proceeding ultimately resultedin acquittal of the employee concernedwhere included at the behest of theemployer, perhaps different considerationsmay arise clearly applies to the facts of thepresent case in as much as the petitionerwas required to undergo criminal trial inpursuance to a first information report byan employer. Once the employee has beenacquitted of the criminal offence, theemployer should bear the consequencesand petitioner must be paid full salary forthe period he was kept out of employment.

16. Sri Ashok Mehta, counsel for theemployer submits that the Apex Courtwhile making the observation thatdifferent consideration may prevail, hadnot laid down any such proposition thatthe employee would be entitled to fullsalary, if he is acquitted in the appeal inall cases where FIR was registered by theemployer.

17. Having considered thejudgments of the Apex Court in the caseof Rannchhodji Chaturji Thakore (supra)and Union of India and others Vs. JaipalSingh (supra), we find that although thereis an observation passed by the ApexCourt that different considerations mayresult if the criminal case was instituted atthe behest of the employer but what willbe these considerations have not beenspelled out in the said judgment of JaipalSingh (supra).

18. We may record that unless anduntil it is established that the FIR wasregistered for malafide intentionsdeliberate motive to keep the employeeout of employment, there cannot be anydifference in the considerations whichfollow in the matter of dismissal becauseof conviction in a criminal trial andultimate acquittal thereof vis a vis a casewhere the FIR was registered by anindependent person. The observations ofthe Supreme Court in respect of differentconsiderations need be examined, in lightof the facts leading to the FIR.

19. In the facts of this case, there ishardly any pleading of malafide againstthe employer in the matter of lodging ofthe FIR.

20. In our opinion, general principleas laid down in the case of RannchhodjiChaturji Thakore (supra), that theemployer has no other option but todismiss the employee, if he is held guiltyin criminal offence, because of which theemployer is deprived of the service of theemployer in view of statutory provisionhas to be applied in this case. Theemployer cannot be directed to pay backwages for the period, the employer wasout of employment.

21. But we are conscious of the factthat the Apex Court in the case of Unionof India and others Vs. Jaipal Singh(supra) has laid down that the theemployee would be entitled to his backwages from the date he is acquitted of thecriminal charges.

22. In view of the aforesaid, we holdthat the petitioner would be entitled to hisfull back wages from the date of the orderof the acquittal i.e. 30.8.2001. Therefore,the order of the Director in so far as it

3 All] Bandhu Prasad Vs. State of U.P. & Ors. 1261

refuses back wages for the period between30.8.2001 till date of reinstatement cannotbe legal and is hereby quashed. The orderof the Tribunal dated 11.12.2002 to thatextent is set aside.

23. It is held that the petitionerwould be entitled to back wages for theperiod commencing from 30.8.2001, tillthe date of reinstatement with allconsequentil benefits The amount in thatregard may be computed within twomonths and be paid to the petitionerwithin a further period of two months.

24. The writ petition is disposed ofaccordingly.



BEFORETHE HON'BLE VIVEK KUMAR BIRLA, J.

C.M.W.P. No. 14756 of 2009

Bandhu Prasad ...PetitionerVersus


Counsel for the Petitioner:Sri Nasiruddin Warsi, Sri R.P.L. Srivastava,Sri S.C. Srivastava


Civil Services Regulation 378 (ii)-qualifyingperiod of Service-for pension purpose-workcharge employes-whether period of workcharge can be considered for pension afterregularization?-held-'No'-in view of DivisionBench case of Jai Prakash as well as of ApexCourt-in Punjab State Electricity Vs. NarataSingh-in absence of any rule or policy-functioning of work charge can not betaken into consideration-petition dismissed.

Held: Para-13In view of the aforesaid decision of theDivision Bench in the case of Jai Prakash(Supra) wherein it has been categoricallyheld that the workcharge employeesare not entitled to the benefit which arepermissible to regular employee underthe Rules, which was further affirmed byHon'ble the Apex Court holding thatthere is nothing on record to suggest anyrule or scheme framed by the State tocount the work charge period for thepurpose in the regular establishment. Inabsence of any such Rules or Scheme theHon'ble Apex Court did not find anymerit to interfere with the impugnedjudgement and the Special LeavePetition was dismissed. In the presentcase also there are no Rules or Schemeproviding for grant of pension in workcharge establishment.

Case Law discussed:Writ-A No. 17150 of 2015; Special AppealDefective No. 264 of 2013; Special LeavePetition-C No. 22271 of 2013; (2010) 4 SCC317; (ADJ) 382 (DB).

(Delivered by Hon'ble Vivek KumarBirla, J.)

1. Heard learned counsel for thepetitioner and learned Standing Counsel.

2. The present petition has been filedfor order or direction in the nature ofmandamus directing the respondents torelease the pension of the petitioner duefrom the date of his retirement forthwith.

3. According to the petition, thepetitioner was initially appointed on thepost Beldar on 1.12.1969. Thereafter hewas appointed as Telephone Operatorfrom 1.10.1982 and worked till 1.7.1996.On 1.7.1996 he was promoted to the postof Seench Pal and worked till 31.1.2006and he has thus completed 37 years ofcontinue work without any break


4. The averments made in paragraphs6,7 and 8 of the counter affidavit is quoted asunder:-

''6. That it is stated that the petitionerBandhu Prasad was employed in the office ofthe answering respondent as Daily-wagesemployee from 1.12.1996 to 31.12.1974, andthereafter, the petitioner worked for the postof Beldar in the Work Charge Establishmentfrom 1.1.1975 to 30.6.1996. it is furtherstated that the petitioner's services have beenregularized in the regular establishment byan order dated 29.6.1996 issued by therExecutive Engineer, Irrigation Divison, Ist,Deoria and in pursuance thereof, thepetitioner joined his duties on 1.7.1996 andcontinued to work as Sinchpal andsuperannuated from the said post of Sinchpalon 31.1.2006. A true copy of the order dated29.6.1996 issued by the Executive Engineer,Irrigation Divison, Ist, Doria, is being filedherewith and marked as Annexure No.CA.1to this counter affidavit.

7. That the answering respondentfurther submits that as per the CivilServices Regulation, 370, as applicable inU.P./Services, rendered by the employeein the Work Charge Establishment, shallnot be counted for the purpose of pension. The petitioner has worked in the regularestablishment for the post of Sinchpalfrom 1.7.1996 to 31.12.2006, andtherefore, he has served the departmentfor 9 years and 7 months, as such, he isnot qualified to be granted regularpension, because the petitioner has notcompleted 10 years of regular services inthe department, which is conditionprecedent. It is further stated that as perthe Government Order dated 1.7.1989,the petitioner is not entitled for thepension, because before his service havebeen regularized in the regularestablishment, the petitioner was working

in the Work Charge Establishment, asBeldar from 1.1.1975 to 30.6.1996. Theanswering respondent further submits thatthe gratuity for the period of servicesrendered by the petitioner in WorkCharge Establishment has already beenpaid by an order dated 21.6.2007 and theamount of Rs.32,907/- has been paid tothe petitioner. A true copy of theGovernment Order dated 1.7.1989, and atrue copy of the order dated 21.6.2007,are being filed herewith and marked asAnnexure Nos. CA.2 and CA.3 to thisCounter affidavit.''

8. That it is relevant to mention herethat the gratuity amount of Rs. 38,190/-relating to the services rendered by thepetitioner in the regular establishment hasalso been paid on 12.7.2006. A true copy ofthe forwarding letter by Joint Director,Treasury and Pension, Gorakhpur Divisonto the Treasury Officer, Kushinagar is beingfiled herewith and marked as AnnexureNo.CA.4 to this counter affidavit.

5. Thus, the case of respondent isthat the petitioner has served in thedepartment for 9 years and 7 months andas such, he could not be granted regularpension because the petitioner has notcompleted 10 years in regular servicetherefore has not been given any pension.

6. Learned counsel for the petitioner hasplaced various judgement of this Court tocontend that the petitioner is entitled forpension. He has referred various decision ofthis Court rendered in Writ -A No.17150 of2015, Kedar Ram Vs. State of U.P. and 4others and Special Appeal (Defective) No.264of 2013, State of U.P Vs. Prem Chandradecided on 13.5.2013 against which SpecialLeave Petition- C No.22271 of 2013, State ofU.P. Vs. Prem Chandra was dismissed on17.1.2014 with the following orders.

3 All] Bandhu Prasad Vs. State of U.P. & Ors. 1263

" Delay condoned.Special leave petition is dismissed."

7. He further placed reliance ondecision of Hon'ble Division Bench in SpecialAppeal No.1891 of 2013, Parmatma Ram Vs.State of U.P. and other against which SpecialLeave Petition (C) No.2255 of 2015, State ofU.P. Vs. Parmatma Ram, was dismissed on30.2.2015 with the following order:-

"Delay condoned.The special leave petition is

dismissed.The question of law is kept open."

8. He further relied on a decision ofHon'be Apex Court in Punjab StateElectricity Board Vs. Narata Singh (2010)4 SCC 317.

9. The submission is that the servicerendered as work charge employee is liableto be counted for the purpose of completing10 years service and granting pension.

10. However, in the judgementrendered by Hon'ble Division Bench of thisCourt in Jai Prakash Vs. State of U.P, 2014(ADJ) 382 (DB), wherein the judgement ofHon'ble Single Bench, whereby the writpetition which was filed for quashing theorder denying the benefit of service renderedby the appellant in a work chargeestablishment for computing the qualifyingservice for grant of pension was dismissed,was under challenge. While dismissing thespecial appeal the Hon'ble Division Benchobserved as under:-

'' It, therefore, follows from theaforesaid judgements of the SupremeCourt that the work charged employeesconstitute a distinct class and they cannotbe equated with regular employees andthat the work charged employees are not

entitled to the services benefits which areadmissible to regular employees underthe relevant rules. .''

(Emphasis supplied)

11. In this case decision of PunjabState Electricity Vs. Narata Singh (Supra)was also considered by Hon'ble DivisionBench.

''We are conscious that in SpecialAppeal Defective No.842 of 2013 (State ofU.P. & Ors. Vs. Panchu) that was decidedon 2 December 2013, a Division Bench,after taking notice of the judgment of theSupreme Court in Narata Singh (supra),observed that the rationale whichweighed with the Supreme Court shouldalso govern the provisions of the CivilService Regulations, but what we findfrom a perusal of the aforesaid judgmentof the Division Bench is that the decisionsof the Supreme Court in Jagjiwan Ram(supra), Jaswant Singh (supra) and KunjiRaman (supra) as also the Full Benchjudgment of this Court in Pavan KumarYadav (supra) had not been placed beforethe Court. These decisions of the SupremeCourt and the Full Bench of this Courtleave no manner of doubt that in view ofthe material difference between anemployee working in a work chargedestablishment and an employee workingin a regular establishment, the servicerendered in a work charged establishmentcannot be clubbed with service in aregular establishment unless there is aspecific provision to that effect in therelevant Statutes. Article 370(ii) of theCivil Service Regulations specifically, onthe contrary, excludes the period ofservice rendered in a work chargedestablishment for the purposes of paymentof pension and we have in the earlier part


of this judgment held that the decision ofthe Supreme Court in Narata Singh(supra), which relates to Rule 3.17(i) ofthe Punjab Electricity Rules, does notadvance the case of the appellant. In thisview of the matter, the appellant is notjustified in contending that the period ofservice rendered from 1 October 1982 to5 January 1996 as a work chargedemployee should be added for the purposeof computing the qualifying service forpayment of pension."

12. The aforesaid judgement waschallenged by the appellant Jai Prakashbefore Hon'ble the Apex Court by meansof filing Special Leave to Appeal (C)No.12648 of 2014, Jay Prakash Vs. Stateof U.P and others which was dismissedwith the following order dated 5.9.2014.

'There is nothing on the record tosuggest that any Rule or Scheme framedby the State to count the work-chargeperiod for the purpose of pension in theregular establishment. In absence of anysuch Rule or Scheme, we find no merit tointerfere with the impugned judgement.

The special leave petition isdismissed.'

(Emphasis supplied)

13. In view of the aforesaid decisionof the Division Bench in the case of JaiPrakash (Supra) wherein it has beencategorically held that the work- chargeemployees are not entitled to the benefitwhich are permissible to regularemployee under the Rules, which wasfurther affirmed by Hon'ble the ApexCourt holding that there is nothing onrecord to suggest any rule or schemeframed by the State to count the work

charge period for the purpose in theregular establishment. In absence of anysuch Rules or Scheme the Hon'ble ApexCourt did not find any merit to interferewith the impugned judgement and theSpecial Leave Petition was dismissed. Inthe present case also there are no Rules orScheme providing for grant of pension inwork charge establishment.

14. The other two decisions ofHon'ble Apex Court, simply dismissing theSpecial Leave Petition against thejudgements of this Court leaving thisquestion of law open, are of no help to thepetitioner in as much as this question as towhether work charge period for the purposeof pension in regular establishment as ondate stood affirmed by Hon'ble DivisionBench in the case of Jai Prakash ( Supra)and S.L.P.-C No.12648 of 2014, Jai PrakashVs. State of U.P. as noted above.

15. During course of arguments thelearned counsel for the petitioner has alsosupplied a copy of this letter dated 7.1.2015written by the Chief Engineer IrrigationDepartment,Lucknow to ExecutiveEngineer Work Charge Establishment. Thesame is taken on record. This letter indicatesonly this much that this demand to countwork charge period for grant of pension isunder consideration. Moreover it alsoestablishes that on the date of retirement ofthe petitioner i.e 31.1.2001 no such Rules orScheme framed by the State to count thework charge period for the purpose ofpension in the regular establishment was inexistence. Perhaps the same is still not inexistence. Be that as it may, at present nosuch relief can be granted to the petitioner.

16. The petition lacks merit and isdismissed.

--------

3 All] Fahim Baig Vs. State of U.P. & Ors. 1265



BEFORETHE HON'BLE PANKAJ MITHAL, J.

C.M.W.P. No. 16982 of 2012

Fahim Baig ...PetitionerVersus


Counsel for the Petitioner:Sri Dinesh Kr. Yadav, Sri A.R. Nadiwal

Counsel for the Respondents:C.S.C., Sri Amit Kumar Asthana, Sri KripaShanker Yadav, Sri M.N. Singh, SriYatindra, Sri R.J. Shahi

U.P.Z.A. & L.R Act-Section 123-B-Punishmentfor occupation of Gaon Sabha land-no evictionproceeding ever initiated-against petitioner-no question of re occupies-provisions ofSection 123-B not applicable-order quashed.

Held: Para-9In other words, the punishment and theprocedure prescribed under Section 123-B ofthe Act is to be followed after the proceedingsfor eviction under Section 122-B have beencompleted. Secondly, the provisions ofSection 123-B of the Act are applicable only ifa person re-occupies the land of the GaonSabha after his eviction therefrom. It is notthe provision for punishment or eviction ofunauthorized occupant in first instance.

(Delivered by Hon'ble Pankaj Mithal, J.)

1. Heard learned counsel for thepetitioner and learned Standing Counselappearing for respondents No.1 to 4. Noticeon behalf of respondent No.6 has beenaccepted by Sri M.N. Singh.

2. The petitioner by means of thiswrit petition has challenged the order

dated 17.3.2012 passed by the Up-Ziladhikari,Sadar, Azamgarh. The said order directs thepetitioner to vacate part of Arazi No.106which is in his unauthorized occupation forthe last two months failing which he would bedispossessed from the same and the expensesfor his dispossession shall be recovered fromhim as arrears of revenue and a firstinformation will be lodged against him underSection 3/5 of the Prevention of Damage toPublic Property Act, 1984.

3. On the basis of the pleadingsexchanged between the parties on record,the aforesaid land is the land of GaonSabha recorded as manure pit whichcannot be occupied by any personotherwise than with the permission of theGaon Sabha. The said land is not allottedto the petitioner and that he is inunauthorized occupation of the same.

4. Learned Standing Counsel has filedsupplementary counter affidavit stating thatno proceedings under Section 122-B of theU.P. Zaminari Abolition and Reformed Act,1950 (hereinafter referred to as the 'Act')were ever drawn against the petitioner for hiseviction from the said land. He also submitsthat the petitioner was never evicted from thesaid land earlier.

5. The impugned order is said tohave been passed by the authority concernin purported exercise of power underSection 123-B of the Act. The aforesaidprovision provides for punishment foroccupation of the Gaon Sabha land andfor summary eviction of person who hasre-occupied Gaon Sabha land after hiseviction. Section 123-B of the Act for thesake of convenience is reproduced below:

"123-B. Punishment for occupationof Gaon Sabha land. - (1) Where any


person has been evicted under this Actfrom any land vested in a Gaon Sabha,and such person or any other person,whether claiming through him orotherwise, thereafter occupies such landor any part thereof without lawfulauthority, such occupant shall bepunishable with imprisonment for a termwhich may extend to three years or withfine or with both.

(2) Any Court convicting a personunder sub-section (1) may make an orderfor evicting the person summarily fromsuch land and such person shall be liableto such eviction, without prejudice to anyother action that may be taken against himunder any law for the time being in force.

(3) Without prejudice to theprovisions of sub-section (1) and (2), theCollector may, whether or not aprosecution is instituted under sub-sectionand may for that purpose, use or cause tobe used such force as may be necessaryfor evicting any person found inoccupation thereof."

6. It provides that where any personhas been evicted under the Act from anyland vested in Gaon Sabha and suchperson or any other person claimingthrough him occupies the said landwithout any lawful authority, he can bepunished with imprisonment or fine orboth. It further provides that the courtapart from convicting the person asaforesaid may also make order for hissummary eviction and that the Collector isauthorised to retake the possession ofsuch land.

7. The manner of eviction of aperson in unauthorized occupation of theGaon Sabha land has been provided underSection 122-B of the Act. It provides for

initiation of proceedings by the AssistantCollector and for passing order of evictionof such unauthorized occupant.

8. A simple reading of Section 122-B and 123-B of the Act reveals that it isonly after an order of eviction is passedagainst the unauthorized occupant of theGaon Sabha land and he is so evictedtherefrom under Section 122-B of the Actthat when he again occupies the GaonSabha land, he can be punished withimprisonment or fine or both and may besummarily directed to be evicted from theGaon Sabha land under Section 123-B ofthe Act.

9. In other words, the punishmentand the procedure prescribed underSection 123-B of the Act is to be followedafter the proceedings for eviction underSection 122-B have been completed.Secondly, the provisions of Section 123-Bof the Act are applicable only if a personre-occupies the land of the Gaon Sabhaafter his eviction therefrom. It is not theprovision for punishment or eviction ofunauthorized occupant in first instance.

10. In view of the aforesaid legalposition, as it is no once case that thepetitioner after eviction under Section122-B of the Act has reoccupied the GaonSabha land, no order against him couldhave been passed under Section 123-B ofthe Act.

11. In view of the aforesaid factsand circumstances, the impugned orderdated 17.3.2012 is not only illegal but isalso without jurisdiction and isaccordingly quashed.

12. The writ petition is allowed.--------

3 All] Committee of Management, BDSUM Vidyalaya, Ballia & Anr. Vs. State of U.P. & Ors. 1267




C.M.W.P. No. 17261 of 2015

Committee of Management, BDSUMVidyalaya, Ballia & Anr. ...Petitioner

VersusState of U.P. & Ors. ...Respondents

Counsel for the Petitioner:Sri Gopal Ji Rai


Constitution of India, Art.-226-Principleof Natural Justice-refusal of grant in aid-impugned order passed by adoptingunique method talking on mobile phone-held-not fair-principle of Natural Justiceviolated-order quashed.

Held: Para-14In view of the aforesaid facts andcircumstances, as the Principal Secretarydeviced a noval method of hearing which iscompletely alien to the legal jurisprudence;failed to give any notice to the parties forhearing fixing a date; and proceeded to talkabout the matter with the parties on mobilephone in the absence of the other, it is plainand simple that he acted in utter violationof the principles of natural justice andagainst the doctrine of fair play in passingthe impugned order.


1. The institution of the petitionershas been refused grant in aid by theimpugned order dated 15.09.2010.

2. The said order has been passed byPrincipal Secretary, Sanskrit ShikshaAnubhag, U.P. Shasan, in pursuance of

the directions of this Court contained inthe order dated 03.04.2014 passed in Writ-C No. 15335 of 2014, C/M Sri DeenaNath Tiwari Sanskrit UchchattarMadhyamik Vidyalaya and another.

3. In disposing of the above writpetition this Court, had directed therespondent no. 1 of the said writ petitionto consider the grievance of thepetitioners with regard to entitlement ofgrant in aid after hearing the petitioners.

4. One of the ground on which theabove order has been assailed is that withouthearing the petitioners no order could legallybe passed on the basis of talk on thetelephone/mobile with the parties concern.

5. Learned Standing Counsel wasdirected to file counter affidavit withinfour weeks on 01.04.2015, but till date nocounter affidavit has been filed.

6. Learned Standing Counsel aftergoing through the impugned order is himselfsurprised and submits that there appears to beno hearing in the matter and the AdjudicationAuthority had simply talked with the partieson mobile. In such circumstances, the Courtmay quash the order and sent the matter backfor reconsideration.

7. The Court is surprised at the mannerin which the impugned order has been passedby non else than a Senior Officer of theIndian Administrative Service holding thepost of the Principal Secretary.

8. The principles of natural justice arethe backbone of the anyadministrative/judicial system. No order ofany administrative authority or the court oflaw can be sustained until and unless it has


been passed following the principles ofnatural justice. It is a cardinal principle oflaw that no one can be condemned unheard.Therefore, it is fundamental to giveopportunity of hearing to the litigating partiesbefore adjudicating their civil rights. Thisopportunity of hearing to the parties is not anempty formality and has to be an opportunityin real sense.

9. In this context, it is pertinent tonote that the purpose of givingopportunity of hearing is to give priornotice to the parties of the date fixed sothat the party affected may preparehimself on facts and the proposition oflaw to answer the contention of the otherparty or the queries raised by the Court orauthority. No party can be taken by asurprise and asked to make submissionwithout allowing sufficient time to enablehim to prepare on the subject.

10. In addition to the above, it iscardinal to the principles of natural justicethat the hearing of any matter has to be inpresence of the respective parties. Theadjudicating authority must ensure thatthe contesting parties are present beforehim when one of them is being heard toenable the other party to listen and makeeffective reply. Any hearing in the matterin the absence of the other party wouldagain not be an effective hearing in truespirit of the principles of natural justice.

11. In the instant case, a plainreading of the impugned order, as has alsobeen accepted by the learned StandingCounsel, reveals that the adjudicatingauthority had not given any notice to theparties fixing any date of hearing in thematter; rather he has simply chosen toconverse with the parties on their mobile.It is only on the basis of the aforesaid talk

with the parties on mobile that heproceeded to pass the impugned order.

12. The conversation he had with theparties on mobile was not in presence ofthe other party. The said party could nothave any idea or estimation of theconversation that took place betweenadjudicating authority and the other partyputting him to a loss to reply in defence.In this way, in effect no properopportunity of hearing was given to theparties.

13. The Court hastens to add that anadjudicating authority in all fairness is notsupposed to talk or discuss any matterwhich is before him for adjudication withany party much less the litigating partyoutside the office or in the absence of theother party.

14. In view of the aforesaid factsand circumstances, as the PrincipalSecretary deviced a noval method ofhearing which is completely alien to thelegal jurisprudence; failed to give anynotice to the parties for hearing fixing adate; and proceeded to talk about thematter with the parties on mobile phone inthe absence of the other, it is plain andsimple that he acted in utter violation ofthe principles of natural justice andagainst the doctrine of fair play in passingthe impugned order.

15. Accordingly, the impugnedorder dated 28.10.2014 passed by theSecretary, Sanskrit Shiksha Anubhag,U.P., Lucknow is hereby quashed and awrit of certiorari is accordingly directed tobe issued with liberty to him to pass afresh order in accordance with law, asexpeditiously as possible, preferablywithin a period of six weeks from the date

3 All] Arvind & Anr. Vs. State of U.P. & Ors. 1269

of production of a certified copy of thisorder.

16. The writ petition is allowed withno orders as to costs.



BEFORETHE HON'BLE V.K. SHUKLA, J.

THE HON'BLE ARVIND KUMAR MISHRA-I, J.

Criminal Misc. Writ Petition No. 19074 of2015

Arvind & Anr. ...PetitionersVersus


Counsel for the Petitioners:Faizan Ahmad, S.F.A. Naqvi, Sri M.M.Tripathi, Sri N.S. Mishra, Sri P.C. Dwivedi

Counsel for the Respondents:A.G.A., Sri Anurag Khanna, Sri SumitDaga

Constitution of India, Art.-226-quashing ofFIR-offence under section 420; 467, 468,471, 406 IPC-argument that allegationrelates Civil in nature-no offence forcriminal prosecution made out courtexplained difference between civil andcriminal wrong-further apprehension ofharassment and foul investigation-SSPconcern shall look into the matter-petitiondismissed-till credible evidence there or tillsubmission of charge sheet-arrest stayed.

Held: Para-20The difference between civil wrong andcriminal wrong turns on two differentobjects, for civil wrong, the wrong doeris not punished rather contrarily thesuffers gets a definite benefit from thelaw, whereas for criminal wrong themain object of law is to punish thewrong doer. In the present case, there is

prima facie amalgam of both, that thefirm in question has been put to loss andhas been cheated.

Case Law discussed:1992 (1) SCC 1; 2011 (7) SCC 59; (1996) 5SCC 591; 2008 (9) SCC 677; [2014 (4) SCC453]; [1994 (4) SCC 260].

(Delivered by Hon'ble V.K. Shukla, J.)

1. Petitioners who are two in numberare before this Court with a request toquash the FIR dated 16.07.2015,registered as Case Crime No. 362 of2015, under Sections 420, 467 ,468, 471,406 IPC, Police Station Parta pur,District Meerut and for sommanding theRespondents not to harass the petitioners.

2. Petitioners before this Court arestating that they are partners of M/s A.M.Associates, a partnership firm thatfunctions in the name and style of M/sO.S.G. Exim Services Private Limited.Said firm is engaged in providing anduploading all the required documents andinformation of the export and bankrealization details on the DGFT websiteand generate an application for obtainingthe Licenses and acting as a liaison agent.Petitioners submit that Sharda Exportsexecuted power of attorney in the name ofits employees namely Prabhash ChandraSharma, the Manager as well as GurnamSingh, Senior Executive to be theauthorised signatory for signing ofapplication, Bank Realisation Certificates,shipping bills and other documentsrequired for issuance and obtaining of theFocus Product Licenses and to make andto make necessary amendments andchanges in the document. Petitioners arestating that whatever activity has beencarried out by them, same has been at theinstruction and directives of Prabash


Chandra Sharma, Manager and GurnamSingh, Senior Executive and ShardaExport has proceeded to lodge FIR bymentioning that petitioner nos. 1 and 2who are allegedly operating a firm in thename and style of A.M. Associates inconnivance with Gurnam Singh, sold 56licences within a period of 5 years i.e.from 2009-2014 and by such activityRs.4.50 Crores has been swindled as saidamount has been distributed amongst therelative of Gurnam either incash or intheir accounts, whereas said amount wasliable to be deposited in the account ofSharda Exports, but the same wasmisappropriated. In the FIR it has beenmentioned that sum of Rs. 60.35 lacs hasbeen paid back to the informant by thepetitioners. Petitioners' submission is thatwhatever transaction has been undertaken,same are valid transaction and in case firstinformant has any grievance, hisgrievance should be with Gurnam Singhand as far as petitioners are concern,unnecessarily in designed manner theyhave been arrayed as an accused in thepresent case and under threat they havebeen forced to make payment of Rs. 60.35lacs.

3. Supplementary affidavit has beenfiled on 14.08.2015 and therein onceagain same set of facts have been repeatedthat petitioners have nothing to do withthe affair of Gurnam Singh, who isactually employee of respondent no.4. Inthe said affidavit in question, statement ofaccount have been appended to show thatregularly Sharda Exports made paymentsto the petitioners firm and amount wasdebited that was paid on behalf of ShardaExports relating to fee and miscellaneouscharges etc. It has been further mentionedtherein that Sharda Exports is partnershipfirm, changes its character every five

years by just changing sequences ofpartners/directors or by adding some newnames by deleting previous names.Petitioners have proceeded to mentionthat no amount had been transferred un-authorizedly, but on the directive ofauthorised representative said exercise hasbeen undertaken.

4. Supplementary affidavit has beenfiled on 25.08.2015 appending thereincopy of the account of A.M. Associatesand copy of the account of KotakMahindra Bank Pvt. Ltd. and in the saidsupplementary affidavit, it has beensubmitted that there has been various cashtransaction and on the asking for amounthas been deposited.

5. Another supplementary affidavithas been filed on 28.08.2015 mentioningtherein that 40 licenses have been sold bythe petitioners and details of transactionhas also been sought to be provided forgiving therein net payable amount by thepetitioner is sum of Rs. 3.5 Crores,whereas amount that has been paid is overand excess to the same.

6. Counter affidavit has been filedon 07.09.2015 and therein it has beenmentioned that under the powersconferred by Section 5 of the ForeignTrade (Development & Regulation) Act,1992 (No. 22 of 1992), the CentralGovernment periodically notifies theForeign Trade Policy, for a period of 5years. The Foreign Trade Policy for 2009-2014 (hereafter as ("FTP") came intoeffect on 27.08.2009. The DirectorGeneral of Foreign Authority is anauthority established under the Ministryof Commerce & Industry, created underthe above mentioned Act. It has beenfurther mentioned that in order to promote


export and boost the Indian industry, theCentral Government runs variouspromotional schemes. Sharda Exports iseligible for incentive, called the DutyCredit Slip, under two such schemes,namely , Vikas Krishi and Gram UdyogYojna and Focus Product scheme. Thesaid Duty Credit Slip, also called FocusProduct License, is issued by the DirectorGeneral of Foreign Trade (hereinafter("DGFT"), after submission of documentsand verification. The license is issued onthe basis of the goods exported and thevalue of such exports. The benefit oradvantage which accrues to the Licenseholder under the Vikas Krishi and GramUdyog Yojna and Focus Product Schemeis that the value/amount mentioned in theLicense can be utilized for payment ofimport duty, as provided in paragraph3.17.5 of the FTP. Further, the saidlicences can also be utilised to payadditional Customs Duty, as provided inparagraph 3.17.6 of the FTP. The saidLicenses are freely transferable, accordingto the provisions of FTP in paragraph3.17.4. It has been further mentioned thatthere are two modes in which the FocusProduce License can be obtained from theoffice of DGFT, as prescribed in theHandbook of Procedures, Vol. 1(a part ofFTP)- first, a self addressed envelope withaffixed stamps to be provided by theApplicant and second, an identity card isissued toproprietor/partner/director/authorisedemployee of the exporter. The completeprocess for issuance and obtaining saidLicense from the office of DGFT is asfollows:

On export, a Commercial Invoice isgenerated by Sharda Exports, on the basisof which the Custom House Agent(authorised by Central Board of Excise &

Customs) is required to furnished andupload details on the website of CentralBoard of Excise and Customs, after whicha Shipping Bill is generated, in triplicate.

After the produce is exported, aExport Promotion copy of Shipping Bill isissued to the exporter by the Departmentof Customs.

A Bank Realisation Certificate issussed by the banker once exportremittances are received in foreigncurrency.

Thereafter, an application forobtaining the said License is generatedon-line through the DGFT website, afterfiling required details of the export andbank realization, and uploading ofnecessary documents.

The said application is required to besigned by the authorised signatory afterwhich a copy of all the above mentioneddocuments along with the duly signedapplication form and a covering letter, isrequired to be submitted in the DGFToffice.

Subsequent to verification ofdocuments and issuance of the License bythe DGFT, only the authorised personnelin whose favour an identity card is issuedby the DGFT )as mentioned above) cancollect license from the office of theDGFT after presenting his identity card.

7. It has been further mentioned thatthe license issued by the DGFT containsthe value of the license and the name inwhose favour the said license is issued. Ithas also mentioned that A.M Associateswas a liaison agent and its role was toprovide and upload all the requireddocuments and information of the exportand bank realization details on the DGFTwebsite and generate an application forobtaining the Licenses. Sharda Exportsexecuted a power of Attorney (annexed as


Annexure No. 2 of the writ petition) infavour of Gurnam Singh, SeniorExecutive and Mr. Prabhash Chandra,Manager to be the authorised signatoryfor signing of Applications, BankRealisation Certificates, Shipping Billsand other documents required for issuanceand obtaining of the Focus ProduceLicenses, and to make necessaryamendments and changes in the saiddocument. The exporter in whose namethe said Focus Produce License is issuedcan transfer the license to any person. Thefollowing documents are required totransfer the said license.

1. Physical/printed Focus ProduceLicense.

2. An invoice, wherein thepercentage of face value at which thelicense is being sold at , is mentioned bythe transferor, and

3. A Transfer Letter duly signed bythe Director/Partner/Proprietor of theexporter, in whose favour the license wasissued. ( The signature of such person onthe transfer letter is to be duly attested bythe banker of the transferor)

8. It has been mentioned that in thepresent case, after obtaining the FocusProduce Licenses, Gurnam Singhfraudulently obtained signature of thepartner of Sharda Exports on blanktransfer letters, which he alongwith thepetitioners, used to commit cheating andother illegal activities. Further in thenormal course of effecting transfer oflicenses, the License number of the FocusProduce License being transferred istyped in the Transfer letter, after whichthe said Transfer Letter is printed andthereafter signed by the Partner. However,with respect to the 56 illegally soldlicenses, as has been found in the illegally

sold licenses arranged from third partiesthat the License number is manuallywritten by hand, in the transfer letters,which clearly shows foul play and unfairdealing. It has been mentioned that afterfraudulently obtaining signatures on theblank transfer letters, Gurnam Singhforwarded the same to A.M. Associates.Thereafter, A.M. Associates created afalse invoice (third document required fortransferring Licenses) showing A.M.Associates as the seller of the License,thereby fraudulently and illegally havingall the documents required for selling ofthe Licenses. It is pertinent to mentionthat the wrongful consideration receivedby selling of licenses in illegal andfraudulent manner, was received in theaccounts of A.M. Associates, even thoughSharda Exports were the rightful ownersof the Licenses. After receiving the illegalconsideration, petitioners distributed themoney amongst themselves, by givingGurnam Singh's share to him in cash alsovia bank transfer to Gurnam Singhaccount and in the accounts of GurnamSingh's relatives. The details of suchdistribution and bank transfer are stated indetail in the FIR. It is important tomention that it is an admitted fact that thepetitioners have paid Rs. 60,35.000(Rupees Sixty Lakhs Thirty FiveThousand) to Sharda Exports. It issubmitted that this act of returning thesaid amount by the petitioners is anadmission of guilt. There is absolutely noreason for the petitioners to give such abig amount of money to Sharda Exports,other than return the money which theyhave illegally and fraudulently taken fromSharda Exports. On the contrary, innormal course of business, it is the firmwhich has to pay A.M. Associates for itsservices. This, it is abundantly certain thatpetitioners have engaged in illegal


activities, have returned Rs. 60,35,00/-out of guilt and for no other reason.

9. Para wise reply has also beengiven therein same set of fact has beenrepeated, and the averments mentioned inthe writ petition has been disputed.

10. After pleadings mentionedabove, have been exchanged, thereafter,present writ petition has been taken up forfinal hearing/disposal with the consent ofthe parties.

11. Sri Madhu Mukul Tripathi,learned counsel for the petitionerscontended with vehemence that in thepresent case as far as petitioners areconcern, they have not committed anyoffence worth name and unnecessarilypetitioners' names have been dragged inthe FIR and based on the same petitionershave been forced to pay sum of Rs.60,35,00/- and in case grievance of thefirst informant that any amount is due tobe paid to him, then there is alternativeremedy of filing Suit, and lodging of FIRis misuser of criminal forum and as suchthis Court should come to the rescue ofpetitioners by protecting their personalinterest.

12. Averments made on behalf ofthe petitioners, has been resisted bylearned A.G.A. by contending that FIRdoes discloses cognizable offence, as suchthere is no occasion for this Court toentertain the request of petitioners.

13. Sri Anurag Khanna, SeniorAdvocate, assisted by Sri Sumit Daga,Advocate on the other hand contendedthat this is glaring case of fraud andmanipulation made by the petitioners'firm in active collusion with the employee

of the first informant company, and onceclear cut offence is made out from thereading of the FIR, no interference shouldbe made.

14. We have proceeded to examinethe pleadings in question along withcontents of FIR and as far as FIR goes itclearly contains categorical statement offact that first informant firm has beenengaged in the business of CarpetExports, in the name and style of ShardaExports. In the said firm Gurnam Singhhad been performing and discharging hisduty as Senior Executive and saidGurnam Singh in active collusion with thepetitioners, who are running the firm inthe name and style of A.M. Associateshave illegally proceeded to sell 56licenses and has swindled Rs. 4,50,00,000Lacs based on the fictitious document andsaid amount has been transferred in theaccount of A.M. Associates. Thereafter,entire amount has been transferred in thename of Gurnam Singh and his relative,whereas Gurnam Singh has no authority.Once such fact has been mentioned in theFIR then the FIR on its face value doesdisclose prima facie cognizable offence.

15. The other side of the storynarrated by petitioners is that ShardaExports had proceeded to issue "Transferof Debiting Credit EntitlementCertificate" and Focus Product License,authorising the petitioners. In the saidcertificate in question clear cut mentionwas made that said certificate has notbeen transferred to anybody else and samewill be property of said transferee andSharda Exports will have no rightwhatsoever on the above, it is irrevocableconfirmation certifications is also there,that full and final compensation has beenreceived and Sharda Export will have no


lien over the same. Submission of thepetitioners is that once said documentshas been issued and said documents havebeen acted upon, then to say that anyoffence is committed, is too for fetched.

16. From the side of first informant,it has been sought to be contended thatafter such Transfer of Debiting CreditEntitlement Certificate and Focus ProductLicense is prepared, and in case it is to betransferred, then it has to be preceded byinvoice certificate, wherein full detailswould be given such as License number,value of licence and part of registrationetc. and thereafter, consignee is entitled toget the same en-cashed. Here in thepresent case no invoice certificate hasbeen issued in favour of any consignee toget aforementioned 56 licences, rather itis reflected from the record in questionthat A.M. Associates proceeded toprepare debit note and based on the sametransfer in question have been acted upon.

17. As far as appending of signatureon documents namely Transfer ofDebiting Credit Entitlement Certificateand Focus Product License are concern,same has been accepted, but an attempthas been made to dis-own the same bycontending that Gurnam Singh hasfraudulently obtained transfer letter of 56licences. Thus, this much fact is admittedthat on 56 licenses that has been soissued, there is signature of partner thathas been got obtained by Gurnam Singhand as to whether said Gurnam Singh haspractised fraud, certainly same has to besubject matter of investigation.

18. Once such is the factual situationthat is so emerging from the reading ofFIR that transfer letter bears signature ofpartner of Sharda Exports, and it has also

been stated that blank transfer letters weregot signed, and they have been misusedby Gurnam Singh in active collusion ofpetitioners, as the name of parties inwhose favour transfer has been effectedupon has been filled subsequently, byhand, and said transfer letter could havegone out of Sharda Export alongwithinvoice, and here admittedly no invoicenote had been issued, rather saidcertificate in question along with debitnote of A.M. Associates has beentransferred in favour of other company.Consequently, once the first informant isaccepting this fact that said transfercertificate bears signature of member ofpartner of Sharda Exports, but as it hasbeen alleged that Gurnam Singh hassucceeded in getting signature on blanktransfer letter and said document has beenpassed on by Gurnam Singh to thepetitioners and thereafter under coveringdebt note, same has been transferred. Inview of this, once element of cheating,misappropriation and diversion of fundhas been attributed to Gurnam Singh thenthe matter has to be investigated and whathas been the actual role played by thepetitioners would also be reflected oncefree/fair/transparent investigation iscarried out.

19. Once such is the factual situationi.e. so emerging from the reading of FIRthat 56 licenses have been sold and thismuch is also clear that said amount hasnot reached in the account of companyand defence of petitioners is that saidamount has been transferred in theaccount as has been asked for by GurnamSingh, who has been dealing with thepetitioners, then as to whether there hasbeen any dis-honesty and petitioners havebeen acting bonafide or not, certainly hasto be matter of investigation.


20. The case in hand has prima faciecriminal taint, and does not fall in any ofthe category enumerated in the case ofState of Haryana Vs. Bhajan Lal 1992 (1)SCC 1, for exercising authority to quashthe FIR in quesdtion For recovery of theamount Suit can always be filed, and casein hand cannot be said to be dealing withpure civil wrong, as has been in the case ofJoseph Salvaraj A Vs. State of Gujrat2011(7) SCC 59, wherein appellant failedto pay sum of Rs. 10 Lacs as promised andsuit for recovery of money had alreadybeen filed. Here monetary loss has beenallegedly caused to the firm, for recoveringthe said amount suit is the remedy. Thedifference between civil wrong andcriminal wrong turns on two differentobjects, for civil wrong, the wrong doer isnot punished rather contrarily the suffersgets a definite benefit from the law,whereas for criminal wrong the mainobject of law is to punish the wrong doer.In the present case, there is prima facieamalgam of both, that the firm in questionhas been put to loss and has been cheated.Apex Court in the case of CBI Vs.Duncans Agro Industries Ltd. (1996) 5SCC 591 and Nikhil Merchant Vs. CBI2008(9) SCC 677 came to hold "that in agiven case, a civil proceeding and acriminal proceeding can proceedsimultaneously. Bank is entitled to recoverthe amount of loan given to the debtor. Ifin connection with obtaining the said loan,criminal offences have been committed bythe person accused thereof including theofficials of the Bank, criminal proceedingsindisputably be maintainable". Once suchis the factual situation i.e. so emergingfrom the reading of FIR, then to say that nooffence is made out, cannot be accepted, inview of this, request made for quashing ofFIR is turned down and certainly matterhas to be investigated.

21. Petitioners' counsel has alsoexpressed apprehension, that local policehas not been acting fairly, as they havebeen illegally detained w.e.f. 11.11.2014to 14.11.2014 and were forced to pay Rs.60.35 lacs. Petitioners have stated thatthey have already requested forfree/fair/transparent investigation.

22. Accordingly, in the facts of the case,we proceed to ask Senior Superintendent ofPolice, District Meerut, for ensuringfree/fair/impartial investigation, to nominate aofficer of the rank of Dy. S.P. to supervise theon going investigation, so that truth comes onsurface and the role played by petitioners inthe transaction in questioned is also clear.

23. Learned counsel for thepetitioners next contended that in the factsof the case as criminal forum is beingmisused the arrest of petitioners be stayedby this Court.

24. Apex Court in the case of HemaMishra Vs. State of U.P. and others [2014(4) SCC 453] has considered the matterand has clearly ruled therein that oncerequest for quashing of the FIR is turneddown then second prayer for accordinginterim order of staying arrest should notbe accorded. In view of this, request thathas been so made on behalf of petitionersto stay the arrest cannot be accepted bythis Court.

25. Petitioners' counsel nextcontended that petitioners would bemechanically arrested in the present caseeven without there being any credibleevidence, connecting them with the crimein question.

26. Apex Court in the case ofJoginder Kumar Vs. State of U.P. [1994


(4) SCC 260] has mentioned that law ofarrest is one of balancing individualrights, liberties and individual rights onone hand and individual duties,obligations and responsibilities on otherhand. The existence of power is one thingand justification for exercise thereof isanother. Arrest cannot be made in routinemanner. Para 20 of the aforesaidjudgment is quoted below:

"No arrest can be made because it islawful for the police officer to do so. Theexistence of the power to arrest is onething. The justification for the exercise ofit is quite another. The police officer mustbe able to justify the arrest apart from hispower to do so. Arrest and detention inpolice lock-up of a person can causeincalculable harm to the reputation andself-esteem of a person. No arrest can bemade in a routine manner on a mereallegation of commission of an offencemade against a person. It would beprudent for a police officer in the interestof protection of the constitutional rights ofa citizen and perhaps in his own interestthat no arrest should be made without areasonable satisfaction reached after someinvestigation as to the genuineness andbona fides of a complaint and areasonable belief both as to the person'scomplicity and even so as to the need toeffect arrest. Denying a person of hisliberty is a serious matter. Therecommendations of the PoliceCommission merely reflect theconstitutional concomitants of thefundamental right to personal liberty andfreedom. A person is not liable to arrestmerely on the suspicion of complicity inan offence. There must be somereasonable justification in the opinion ofthe officer effecting the arrest that sucharrest is necessary and justified. Except in

heinous offences, an arrest must beavoided if a police officer issues notice toperson to attend the Station House and notto leave the Station without permissionwould do."

27. Registration of FIR underSection 154 Cr.P.C. and arrest of accusedperson under Section 41 are two entirelydifferent concepts. Apex Court inCriminal Writ Petition No. 68 of 2008Lalita Kumar vs. Government of U.P.decided on 12.11.2013 has clearly ruledthat it is not correct to say that justbecause FIR is registered, the accusedperson can be arrested immediately. In thesaid judgment itself, as to why legislaturehas consciously used the expressioninformation in Section 154(1) of the Codeas against the expression used in Section41(1)(a) and (g) where the expressionused for arresting person without warrantis "reasonable complaint" or "credibleinformation" has been dealt with as theexpression under Section 154(1) of Codeis not qualified by the prefix "reasonable"or "credible". In the matter of arrestvarious safeguards have been providedand once again Joginder Kumar (Supra)has been reiterated in paragraph 99.

28. Authority to arrest withoutwarrant has been conferred with thepolice officer under Chapter V Section 41of the Code of Criminal Procedure, and itis for the police officer to decide as towhat action is required to be taken whileeffectuating arrest and certainly thisdecision has to be taken on the basis ofmaterial/information. In cognizableoffences where maximum sentence is 7years, arrest is not to be made in routinemanner, and provisions of Section 41 (1)(b) and 41-A has to be complied with, andin cases when there is credible

3 All] Akash Sharma Vs. State of U.P. & Ors. 1277

information of committing cognizableoffence punishment with imprisonment ofterm for more than 7 years whether orwithout fine or with death sentence andthe police officer has reason to believethat such person has committed the saidoffence arrest can be effectuatedstraightway. In reference of the offencecommitted, information received, it is thepolice officer, who has to decide as towhat offence has been committed by theaccused and as to whether arrest iswarranted in the facts of the case, and asto what criteria is to be adhered to. In caseany infringement of law is there ineffectuating arrest, the Magistrateconcerned, before whom accused isproduced for remand, can remedy thegrievance, so raised by the arrestedperson, at the point of time of accordingremand under Section 167 Cr.P.C.

29. Consequently, keeping in viewthe peculiar facts and circumstances of thecase and the factum alleged that nocredible evidence worth name is availableagainst petitioners, we proceed to pass anorder that investigation may go on andpetitioners shall extend full cooperation inthe investigation and shall not hamperwith the investigation, but pursuant toimpugned FIR dated 16.07.2015,registered as Case Crime No. 362 of2015, under Sections 420, 467, 468, 471,406 IPC, Police Station Partapur, DistrictMeerut, petitioners may not be arrestedtill credible evidence is collected or tillsubmission of police report under Section173 (2) Cr.P.C., whichever is earlier.

30. With these observations, writpetition is disposed of.


CIVIL SIDE



Writ-C No. 20863 of 2015

Akash Sharma ...PetitionerVersus


Counsel for the Petitioner:Jeet Bahadur Singh


U.P. Intermediate-Education Act 1921,Chapter-III-Regulation-7-Rectificationof date of birth-petitioner appeared inHigh School examination 2007-incertificates cum mark sheet date of birthrecorded 01.01.90-while school recordshow 01.01.93-rejected on time barredground-held-illegal-limitation is providedfor candidate-and not for authoritiesconcern-by exercising inherent power-such clerical mistake ought to havecorrected-order impugned base uponwithout application of mind-quashed.

Held: Para-19The Regional Secretary of the Board hassimply rejected the application of thepetitioner on the ground of limitationwithout application of mind to the factsand circumstances of the case. Thus, hefailed in discharge the pious obligationto rectify the mistake occurring in thepublic record which are supposed tomaintain correctly.

Case Law discussed:(1998) 7 SCC 123


1. Heard learned counsel for thepetitioner and learned Standing Counselfor the respondents no. 1 and 2.


2. The petitioner by means of this writpetition is seeking a direction upon therespondents to correct his date of birth asappearing in his High School Certificate of2007. He has also prayed for quashing ofthe order dated 21.10.2014 issued by theRegional Secretary, Madhyamik ShikshaParishad, Regional Office, Meerut, refusingto correct his date of birth in the HighSchool Certificate on the ground oflimitation.

3. The facts are not in dispute thatthe petitioner appeared in the High SchoolExamination of the year 2007 as a regularstudent of Shrimad Brahmanand InterCollege, Ramghat Road, Aligarhconducted by the Board of High Schooland Intermediate Education U.P.

4. The certificate-cum-mark-sheet ofthe said examination was issued to thepetitioner on 05.06.2007. The saidcertificate mentions 01.01.90 as the dateof birth of the petitioner.

5. The petitioner after passing HighSchool obtained Transfer Certificate aswell as Character Certificate from theabove institution. Both the abovecertificates mentions 01.01.93 as his dateof birth. The petitioner, thereafter, passedIntermediate from Dharam SamajCollege, Aligarh, and took TransferCertificate for the purposes of furtherstudies from that institution also. His dateof birth in the said certificate is againmentioned as 01.01.1993.

6. The institution, from where thepetitioner appeared in the High SchoolExamination has certified that the correctdate of birth of the petitioner is01.01.1993 as per the record of theschool.

7. In the background of the aforesaidfacts, the contention of the petitioner isthat his actual date of birth is 01.01.1993and it also appears in the records of theSchool/College as well. The Board ofHigh School and Intermediate EducationU.P., however, in issuing the certificate-cum-mark-sheet to the petitioner hascommitted a clerical mistake inmentioning it to be 01.01.90. Therefore,the date of birth of the petitioner asappearing in the High School Certificateis liable to be corrected, accordingly.

8. The application of the petitionerfor correction of his date of birth in theHigh School Certificate has been rejectedon the ground that it has been moved aftermore than two years of the issuance of thecertificate.

9. Learned Standing Counselsubmits as the Regulation provides forapplying for the correction of thecertificate within a period of 2 years ofthe issue of the certificate, there is noillegality in rejecting the application ofthe petitioner.

10. It is not disputed that thepetitioner had not applied for correctionof his date of birth as appearing in theHigh School Certificate immediately onreceipt of the certificate, rather theapplication was filed on 01.10.2012, i.e.,after about five years of issuance of thecertificate.

11. Regulation-7 of Chapter-III ofthe Regulations framed under theIntermediate Education Act, 1921provides for a limitation of two years forseeking correction in the High SchoolCertificate which has now been increasedto three years. The said Regulation as in

3 All] Akash Sharma Vs. State of U.P. & Ors. 1279

existence at the relevant time reads asunder:-

fofu;e &-7lfpo ifj"kn dh vksj ls lQy mEehnokjksa dks

ifj"kn dh ijh{kk esa mRrh.kZ gksus dk izek.k&i=fofgr izi= esa nsxk vkSj ckn esa mldh izfof"V;ksa esadksbZ 'kqf) djsxk] c'krsZ fd izek.k&i= esa fdlh ,slhxyr izfof"V fdlh vfopkfjr fyfidh; Hkwy ;k yksids dkj.k ;k fdlh ,slh fyfidh; Hkwy ds dkj.k dhx;h gks] tks vlko/kkuh ls ifj"kn ds Lrj ds ;k mllaLFkk ds tgkWa ls vfUre ckj f'k{kk izkIr dh gks Lrjij vfHkys[k esaa gks xbZ g¨A- ;g 'kqf) lfpo }kjkmlh fLFkfr esa dh tk ldsxh] tcfd vH;FkhZ uslEcfU/kr ijh{kk ds izek.k&i= ifj"kn }kjk fuxZeudh frfFk ls nks o"k± ds vanj gh fyfidh; =qfV dhvksj /;ku vkd̀"V djrs gq;s lEcfU/kriz/kkukpk;Z@dsUnz O;oLFkkid dks =qfV ds la'kks/kugsrq izkFkZuk&i= izLrqr dj fn;k gks vkSj mldh izfriathdr̀ Mkd ls lfpo] ifj"kn dks Hkh izsf"kr dh gksA

12. A bare reading of aboveRegulation indicates that the clericalmistake occurring in the certificate, issuedby the High School and IntermediateEducation Board U.P. is rectifiableprovided the candidate applies for itscorrection within a period of two yearsfrom the date of issuance of thecertificate.

13. It is important to note that it isnot the case of any party that the mistakeof date of birth appearing in the HighSchool Certificate of the petitioner hadoccurred due to any mistake on the part ofthe petitioner or that his correct date ofbirth is not 01.01.93 as appears in therecords of the School/College, meaningthereby the correct date of birth of thepetitioner is 01.01.93 and not 01.01.90 asmentioned in the High School Certificate.

14. An authority vested with thejurisdiction to issue a certificate and tomaintain record of it has inherent power

to rectify the mistake, if any, that mayoccur in the certificate so issued providethe mistake is genuine and the personconcern has no role attached to it.Therefore, any mistake of a clerical natureaccruing in the certificates can be rectifiedon the application of the candidateconcern or even by the authority concernin suo motu exercise of its inherent powerwhenever the mistake comes to its notice.In other words, any mistake in the HighSchool Certificate can always be rectifiedeither on an application by the personconcern or by the authority/Board itself insuo- motu exercise of its inherent power.

15. The limitation of moving anapplication for rectification of the mistakeof a clerical nature appearing in the HighSchool Certificate is for the candidatesand not for the Board to take suo-motuaction in exercise of inherent power.

16. The law of limitation is foundedon public policy so as to limit the lifespan of a litigation or the legal remedy. Itdoes not aims to defeat the rights of theparties. In the case of N. Balakrishnan vs.M. Krishnamurthy,; (1998) 7 SCC 123 theSupreme Court of India observed if theremedy availed by the party who has beenwronged does not smack of malafides oris not by way of dilatory tactics, theCourts must show utmost consideration tothe suitor. In other words, a bonafidedelay may not by itself be treated assufficient to debar the remedy particularlywhere the record exfacie showsmiscarriage of justice.

17. In the instant case, there is nodispute that the correct date of birth of thepetitioner is 01.01.1993 and that in theHigh School Certificate it has beenincorrectly mentioned as 01.01.90.


18. The limitation of two yearsprovided in applying for rectification ofthe certificate is applicable to thecandidates but there is no limitation forthe Board to exercise its inherent power tocorrect the certificate issued by it. Thus,the Board certainly in exercise of its suomotu inherent power is authorised tocorrect a clerical mistake or errorappearing in the High School Certificateonce it is brought to its notice. It isincumbent duty of the Board to ensurethat the certificates issued by it are correctand does not suffer from any error ormistake. Therefore, in order to put itsrecords straight, the Board is under anobligation to correct all certificates issuedby it irrespective of the limitation placedunder Regulation-7 of Chapter-III of theRegulation in exercise of its inherentpower in the particular facts andcircumstances of the each case. The lawof limitation cannot be pressed intoservice by the Board while exercising itsinherent power so as to defeat the right ofthe petitioner to have his incorrect date ofbirth recorded in the High SchoolCertificate rectified.

19. The Regional Secretary of theBoard has simply rejected the applicationof the petitioner on the ground oflimitation without application of mind tothe facts and circumstances of the case.Thus, he failed in discharge the piousobligation to rectify the mistake occurringin the public record which are supposed tomaintain correctly.

20. Accordingly, even if theapplication of the petitioner was beletedthe Board ought to have corrected themistake in exercise of suo-mottojurisdiction. The Regional Secretary ofthe Board has failed to exercise the

jurisdiction so vested in him in law inpassing the order dated 21.10.2014. Thusthe said order is quashed and the writpetition is allowed with a direction to theSecretary, Board of High Schools andIntermediate Education U.P. to verify therecord and, to correct the High SchoolCertificate of 2007 as issued to thepetitioner by mentioning his correct dateof birth therein in exercise of his inherentpower within a period of three monthsfrom the date of production of a certifiedcopy of this order.

21. The writ petition is allowed butthe parties shall bear their own costs.

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