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Friday, September 29, 2017

Suit for partition by mother against her son for her husband’s property after his death in to two equal shares – son produced will deed – claimed entire property – suit dismissed – High court set aside the trial court order and found that the Will Deed is no genuine – Pending appeal – Grand Son impleaded basing on will deed in the place of mother – High court impleaded basing on Will- but left open about the prove of Will by separate proceedings – Apex court confirmed the same.

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1046 OF 2017
(Arising out of SLP (C) No. 2230 of 2012)
CHITTIBABU ... Appellant
VERSUS
RAMAKRISHNAN & ORS. ... Respondents
O R D E R
Leave granted.
The appellant herein is the defendant No. 1 in the suit
O.S. No. 4 of 2002 (previously O.S. No. 57 of 1998). The
said suit was filed by the mother (Chandrakanthammal) of the
appellant herein claiming partition of the suit property into
two equal shares and one share be allotted to her. The suit
was filed by her on the ground that all properties of her
husband Raju Naidu were self acquired and as he died
intestate, she would get a share in the property of her
husband along with her son, i.e., the appellant herein.
Respondent Nos. 2-3 herein, who were impleaded as defendant
Nos. 2-3, are the subsequent purchasers of the property from
the appellant. The appellant as defendant No. 1 contested
the said suit projecting the will dated 10 th
February 1954,
purportedly executed by his father Raju Naidu, as per which,
the testator has bequeathed all the properties in favour of
the appellant. The Trial Court found the said will as
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Civil Appeal No. 1046/ 2017
genuine and therefore, dismissed the suit. The plaintiff
decided to file the appeal and during the pendency of the
appeal, she died on 01.06.2005. On her death, respondent No.
1 herein got himself impleaded in her place on the basis of
will dated 31.12.1997 allegedly executed by the plaintiff.
Respondent No. 1 is the grandson of the plaintiff and
according to him, the properties were bequeathed in his
favour by her grandmother to the exclusion of all. The High
Court accepted the aforesaid version on the basis of will
produced by respondent No.1 and proceeded to discuss the
issue which was involved in the suit, viz., whether the will
dated 10.02.1954 which was produced by the appellant herein
was genuine or not. The appeal has been allowed by the High
Court vide the impugned judgment setting aside the judgment
of the Trial Court and holding that the will dated 10.02.1954
was not genuine. It is this order of the High Court which is
the subject matter of the present appeal.
Insofar as the will dated 10.02.1994 which is produced
by the appellant herein and allegedly executed by Raju Naidu,
his father, is concerned, after going through the judgment of
the High Court, we find that the High Court has rightly held
that the validity of the said will was in doubt and should
not be believed. These are the finding of facts and we are
not inclined to interfere with the same.
It is, however, argued by the learned counsel for the
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Civil Appeal No. 1046/ 2017
appellant that the substitution of respondent No. 1 herein
was allowed by the High Court on the basis of Will dated
31.12.1997 which was produced by him, without going into its
validity and treating it as genuine. We make it clear that
insofar as properties of plaintiff (Chandrakanthammal) are
concerned, the respondent No. 1 may not be entitled to
succeed therein on the basis of the said Will dated
31.12.1997 unless the validity of the said Will is
established. We find that the High Court was conscious of
this fact inasmuch as in the penultimate para of the impugned
judgment, the High Court has observed as under: -
“........ It shall be sufficient to refer to the above
said observation made by this Court in the order dated
11.09.2009 passed in C.M.P. No. 871 of 2007 which
throws light on the position that the decision
rendered in that petition under Order XXII Rule 5 was
not a conclusive as to the inter se rights of the
parties claiming to be the legal heirs (either
testamentary or non-testamentary) of deceased
Chandrakanthammal. Thus, the said question has to be
necessarily kept open to be adjudicated in a separate
proceeding or in the final decree proceedings. It
shall be sufficient to held that the deceased
Chandrakanthammal was entitled to a decree for
partition directing division of her ½ share in the
suit properties and separate possession of the same
and that it is just and necessary to pass a
preliminary decree to the above said effect.”
Insofar as the suit filed by
plaintiff-Chandrakanthammal is concerned, it was filed by her
to claim the share in the properties left by her husband on
the ground that he died intestate. When Will dated
10.02.1954 produced by the appellant herein could not be
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Civil Appeal No. 1046/ 2017
proved, effect thereof would be that Raju Naidu died
intestate and his property would devolve on his legal heirs,
including his widow-Chandrakanthammal who would be entitled
to inherit half share in the properties left by Raju Naidu.
As far as properties of Chandrakanthammal are concerned,
succession thereto would be determined only after Will dated
31.12.1997 purportedly executed by her is established.
Since this question is kept open by the High Court
itself to be adjudicated upon in separate proceedings, no
further orders are required to be passed.
The appeal stands disposed of.
......................, J.
[ A.K. SIKRI ]
......................, J.
[ R.K. AGRAWAL ]
New Delhi;
January 27, 2017.
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Civil Appeal No. 1046/ 2017
ITEM NO.37 COURT NO.7 SECTION XII
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No. 2230/2012
(Arising out of impugned final judgment and order dated 28/06/2010
in AS No. 858/2002 passed by the High Court of Madras)
CHITTIBABU Petitioner(s)
VERSUS
RAMAKRISHNAN & ORS. Respondent(s)
(With interim relief and office report)
Date : 27/01/2017 This petition was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE R.K. AGRAWAL
For Petitioner(s)
Ms. N. Shoba, Adv.
Mr. Sri Ram J. Thalapathy, Adv.
Mr. V. Adhimoolam, Adv.
Mr. Shilp Vinod, Adv.

For Respondent(s)
Mr. K. S. Mahadevan, Adv.
Mr. Rajesh Kumar, Adv.

UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
The appeal stands disposed of in terms of the signed
order.

(Nidhi Ahuja) (Mala Kumari Sharma)
Court Master Court Master
[Signed order is placed on the file.]
5

Acquittal - with out passing judgment = What needs to be stated is that the learned trial Judge passed an order in the order sheet that recorded that the accused persons had been acquitted as per the judgment separately typed, signed and dated. = Mistakes made or errors committed are to be rectified by the appellate court in exercise of “error jurisdiction”. That is a different matter. But, when a situation like the present one crops up, it causes agony, an unbearable one, to the cause of justice and hits like a lightning in a cloudless sky. It hurts the justice dispensation system and no one, and we mean no one, has any right to do so.

Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 32-33 OF 2017
(@ S.L.P. (Crl.) Nos. 7694-7695 of 2016)
Ajay Singh and Anr and Etc. …Appellant(s)
Versus
State of Chhattisgarh and Anr. …Respondent(s)

J U D G M E N T
Dipak Misra, J.
Performance of judicial duty in the manner prescribed by law is
fundamental to the concept of rule of law in a democratic State. It has
been quite often said and, rightly so, that the judiciary is the protector
and preserver of rule of law. Effective functioning of the said
sacrosanct duty has been entrusted to the judiciary and that
entrustment expects the courts to conduct the judicial proceeding with
dignity, objectivity and rationality and finally determine the same in
accordance with law.
Errors are bound to occur but there cannot be
deliberate peccability which can never be countenanced. The plinth of
justice dispensation system is founded on the faith, trust and
confidence of the people and nothing can be allowed to contaminate
2
and corrode the same. A litigant who comes to a court of law expects
that inherent and essential principles of adjudication like adherence to
doctrine of audi alteram partem , rules pertaining to fundamental
adjective and seminal substantive law shall be followed and ultimately
there shall be a reasoned verdict. When the accused faces a charge in
a court of law, he expects a fair trial.
The victim whose grievance and
agony have given rise to the trial also expects that justice should be
done in accordance with law. Thus, a fair trial leading to a judgment is
necessitous in law and that is the assurance that is thought of on
both sides. The exponent on behalf of the accused cannot be
permitted to command the trial as desired by his philosophy of trial on
the plea of fair trial and similarly, the proponent on behalf of the
victim should not always be allowed to ventilate the grievance that his
cause has not been fairly dealt with in the name of fair trial. Therefore,
the concept of expediency and fair trial is quite applicable to the
accused as well as to the victim. The result of such trial is to end in a
judgment as required to be pronounced in accordance with law. And,
that is how the stability of the creditability in the institution is
maintained.
2. The above prefatory note has relevance, a significant one, to the
case at hand. To appreciate the controversy, certain facts are requisite
to be noted. The marriage between the appellant No. 1 and Ruby
3
Singh, the deceased, was solemnized according to Hindu rites on
22.06.1997. She committed suicide at her matrimonial home on
01.12.1998. Kameshwar Pratap lodged FIR No. 194/98 at Police
Station Lakhanpur, Distt. Sarguja against Ajay Singh (husband),
Sureshwar Singh (father-in-law), Dhanwanti Devi (mother-in-law) and
Kiran Singh (sister-in-law) for offences punishable under Section
304B, 34 of the Indian Penal Code (IPC) and other offences. After the
criminal law was set in motion, investigating agency after
commencement of investigation and after completion thereof laid
charge sheet under Sections 304B, 498A/34, 328 IPC read with
Section 3/4 of Dowry Prohibition Act, 1961 against the accused
persons before the Court of Chief Judicial Magistrate, Ambikapur,
who, in turn, committed the matter to the Court of Session and
eventually the matter was tried by Second Additional Sessions Judge,
Ambikapur. We are, in the present case, not concerned with how
many witnesses were examined by the trial court or how the trial
continued. What needs to be stated is that the learned trial Judge
passed an order in the order sheet that recorded that the accused
persons had been acquitted as per the judgment separately typed,
signed and dated.

3. A member of the State Bar Council sent a complaint to the
Registry of the High Court of Chhattisgarh, Bilaspur alleging that
4
learned trial judge had acquitted the accused persons but no
judgment had been rendered. The Registrar (Vigilance) of the High
Court issued a memorandum to the District and Sessions Judge,
Surguja at Ambikapur on 18.02.2008 to inquire into the matter and
submit a report. The concerned District and Sessions Judge submitted
the report to the High Court on the same date stating that no
judgments were found in the records of such cases
. It has also been
brought to the notice of the High Court that in sessions trials being
Sessions Trial No. 148 of 1999 and Sessions Trial No. 71 of 1995
though the same trial judge had purportedly delivered the judgments
but they were not available on record as the judgments had not
actually been dictated, dated or signed. Thereafter the matter was
placed before the Full Court of the High Court on 04.03.2008 on
which date a resolution was passed placing the concerned trial judge
under suspension in contemplation of a departmental inquiry. At the
same time, the Full Court took the decision to transfer the cases in
question from the concerned trial judge to the file of District and
Sessions Judge, Surguja at Ambikapur for rehearing and disposal. It
is worthy to note here that the concerned officer was put under
suspension and after completion of inquiry was imposed with the
punishment of compulsory retirement on 22.03.2011. We make it
clear that we are not concerned with the said punishment in the case.
5
4. After the decision was taken for transferring the cases by the Full
Court for rehearing, three writ petitions forming the subject matter of
Writ Petition (Criminal) Nos. 2796 of 2008, 2238 of 2008 and 276 of
2010 were filed. The accused in Sessions Trial No. 148 of 1999 filed
Writ Petition (Criminal) Nos. 2796 of 2008 and 2238 of 2008 and
accused in Sessions Trial No. 71 of 1995 filed the other writ petition,
that is, Writ Petition (Criminal) No. 276 of 2010.
5. The controversy really centers around two issues, namely,
whether the learned trial judge had really pronounced the judgment of
acquittal on 31.10.2007 and whether the High Court could have in
exercise of its administrative power treated the trial as pending and
transferred the same from the Court of Second Additional Sessions
Judge, Ambikapur to the Court of District and Sessions Judge,
Surguja at Ambikapur for rehearing and disposal.
6. It is urged by learned counsel for the appellants that the nature
of order passed by the learned trial judge would amount to a judgment
and in the absence of any appeal preferred by the State there could
not have been a direction for rehearing of the sessions case as such
action runs contrary to the provisions of CrPC. Learned counsel
would submit that the High Court in exercise of power of the
superintendence could not have transferred the case treating it as
pending on its administrative side. To bolster the said submission he
6
has placed reliance on Ouseph Mathai & others v. M. Abdul
Khadir 1
, Essen Deinki v. Rajiv Kumar 2
and Surya Dev Rai v. Ram
Chander Rai and others 3
.
7. Mr. C.D. Singh, learned counsel for the State submitted that the
approach of the High Court is absolutely infallible and does not
warrant any interference by this Court.
8. To appreciate the controversy, it is necessary to refer to the order
sheet in Sessions Trial No. 71 of 1995. The trial judge on 28.1.2008
had passed the following order:-
“ 28.1.2008 :
State represented by Shri Rajesh Tiwari, A.G.P.
Accused along with their Counsel Shri Arvind Mehta,
Advocate
The judgment has been typed separately. The same has
been dated, signed and announced.
Resultantly, Accused T.P. Ratre is acquitted of the charge
under Section 306 IPC.
A copy of this judgment be sent to the District Magistrate,
Surguja (Ambikapur) through A.G.P.
Proceedings completed.
The result be noted in the register and the record be sent to
the Record Room.”
Be it noted, in the other Sessions Trial, i.e., Sessions Trial No.
148 of 1999 almost similar order has been passed. Be it stated, apart
from the aforesaid order, as per the enquiry conducted by the learned
1 (2002) 1 SCC 319
2 (2002) 8 SCC 400
3 (2003) 6 SCC 675
7
District Judge, there was nothing on record. The trial judge had not
dictated the order in open court. In such a situation, it is to be
determined whether the judgment had been delivered by the trial
judge or not.
9. Chapter XVIII of CrPC provides for trial before a court of session.
Section 227 empowers the trial judge to discharge the accused after
hearing the submissions of the accused and the prosecution and on
being satisfied that there is no sufficient ground for proceeding against
the accused. The key words of the Section are “not sufficient ground
for proceeding against the accused”. Interpreting the said provision,
the Court in P. Vijayan v. State of Kerala and another 4
has held that the Judge is not a mere post office to frame the charge
at the behest of the prosecution, but has to exercise his judicial mind
to the facts of the case in order to determine whether a case for trial
has been made out by the prosecution. In assessing this fact, it is not
necessary for the court to enter into the pros and cons of the matter or
into a weighing and balancing of evidence and probabilities which is
really the function of the court, after the trial starts. At the stage of
Section 227, the Judge has merely to sift the evidence in order to find
out whether or not there is sufficient ground for proceeding against
the accused. In other words, the sufficiency of ground would take
4 (2010) 2 SCC 398
8
within its fold the nature of the evidence recorded by the police or the
documents produced before the court which ex facie disclose that
there are suspicious circumstances against the accused so as to frame
a charge against him.
10. Section 228 empowers the trial judge to frame the charge.
Section 229 provides if the accused pleads guilty, the Judge shall
record the plea and may, in his discretion, convict him thereon.
Section 230 provides for date for prosecution evidence. Section 231
deals with the evidence for prosecution. Section 232 provides that if,
after taking the evidence for the prosecution, examining the accused
and hearing the prosecution the defence on the point, the Judge
considers that there is no evidence that the accused committed the
offence, the Judge shall record an order of acquittal. Section 233
stipulates that where the accused is not acquitted under Section 232
he shall be called upon to enter on his defence and adduce any
evidence he may have in support thereof. Section 234 provides for
arguments. Section 235 which provides for judgment of acquittal or
conviction reads as follows:-
“ 235. Judgment of acquittal or conviction . – (1) After
hearing arguments and points of law (if any), the Judge
shall give a judgment in the case.
(2) If the accused is convicted, the Judge shall, unless he
proceeds in accordance with the provisions of section 360,
hear the accused on the question of sentence, and then
pass sentence on him according to law.”
9
11. Chapter XXIV provides for general provisions as to inquiries and
trials. Chapter XXVII deals with the judgment. Section 353 lays down
the procedure for pronouncement of the judgment. The said provision
reads as follows:-
“ 353. Judgment -
(1) The judgment in every trial in any Criminal Court of
original jurisdiction shall be pronounced in open Court by
the presiding officer immediately after the termination of the
trial or at some subsequent time of which notice shall be
given to the parties or their pleaders,-
(a) by delivering the whole of the judgment; or
(b) by reading out the whole of the judgment; or
(c) by reading out the operative part of the judgment and
explaining the substance of the judgment in a language
which is understood by the accused or his pleader.
(2) Where the judgment is delivered under clause (a) of
sub-section (1), the presiding officer shall cause it to be
taken down in short-hand, sign the transcript and every
page thereof as soon as it is made ready, and write on it the
date of the delivery of the judgment in open Court.
(3) Where the judgment or the operative part thereof is read
out under clause (b) or clause (c) of sub- section (1), as the
case may be, it shall be dated and signed by the presiding
officer in open Court, and if it is not written with his own
hand, every page of the judgment shall be signed by him.
(4) Where the judgment is pronounced in the manner
specified in clause (c) of sub-section (1), the whole judgment
or a copy thereof shall be immediately made available for
the perusal of the parties or their pleaders free of cost.
(5) If the accused is in custody, he shall be brought up to
hear the judgment pronounced.
(6) If the accused is not in custody, he shall be required by
the Court to attend to hear the judgment pronounced,
except where his personal attendance during the trial has
been dispensed with and the sentence is one of fine only or
he is acquitted: Provided that, where there are more
accused than one, and one or more of them do not attend
the Court on the date on which the judgment is to be
10
pronounced, the presiding officer may, in order to avoid
undue delay in the disposal of the case, pronounce the
judgment notwithstanding their absence.
(7) No judgment delivered by any Criminal Court shall be
deemed to be invalid by reason only of the absence of any
party or his pleader on the day or from the place notified for
the delivery thereof, or of any omission to serve, or defect in
serving, on the parties or their pleaders, or any of them, the
notice of such day and place.
(8) Nothing in this section shall be construed to limit in any
way the extent of the provisions of section 465.”
12. Section 354 provides for language and contents of the judgment.
The said provision reads as follows:-
“ 354. Language and contents of judgment.-
(1) Except as otherwise expressly provided by this Code,
every judgment referred to in section 353,-
(a) shall be written in the language of the Court;
(b) shall contain the point or points for determination, the
decision thereon and the reasons for the decision;
(c) shall specify the offence (if any) of which, and the section
of the Indian Penal Code (45 of 1860 ) or other law under
which, the accused is convicted and the punishment to
which he is sentenced;
(d) if it be a judgment of acquittal, shall state the offence of
which the accused is acquitted and direct that he be set at
liberty.
(2) When the conviction is under the Indian Penal Code (45
of 1860 ), and it is doubtful under which of two sections, or
under which of two parts of the same section, of that Code
the offence falls, the Court shall distinctly express the same,
and pass judgment in the alternative.
(3) When the conviction is for an offence punishable with
death or, in the alternative, with imprisonment for life or
imprisonment for a term of years, the judgment shall state
the reasons for the sentence awarded, and, in the case of
sentence of death, the special reasons for such sentence.
(4) When the conviction is for an offence punishable with
imprisonment for a term of one year or more, but the Court
11
imposes a sentence of imprisonment for a term of less than
three months, it shall record its reasons for awarding such
sentence, unless the sentence is one of imprisonment till
the rising of the Court or unless the case was tried
summarily under the provisions of this Code.
(5) When any person is sentenced to death, the sentence
shall direct that he be hanged by the neck till he is dead.
(6) Every order under section 117 or sub-section (2) of
section 138 and every final order made under section 125,
section 145 or section 147 shall contain the point or points
for determination, the decision thereon and the reasons for
the decision.”
13. Section 362 has the heading “Court not to alter judgment.” The
said provision is as follows:-
“ 362. Court not to alter judgment .―Save as otherwise
provided by this Code or by any other law for the time
being in force, no Court, when it has signed its judgment or
final order disposing of a case, shall alter or review the
same except to correct a clerical or arithmetical error.”
14. Interpreting the said provision in the context of exercise of
inherent power of the High Court under Section 482 CrPC this Court
in Smt. Sooraj Devi v. Pyare Lal and another 5
held thus:-
“ 5. The appellant points out that he invoked the inherent
power of the High Court saved by Section 482 of the Code
and that notwithstanding the prohibition imposed by
Section 362 the High Court had power to grant relief. Now it
is well settled that the inherent power of the court cannot
be exercised for doing that which is specifically prohibited
by the Code ( Sankatha Singh v. State of U.P . 6
). It is true that
the prohibition in Section 362 against the court altering or
reviewing its judgment is subject to what is “otherwise
provided by this Court or by any other law for the time
being in force”. Those words, however, refer to those
provisions only where the court has been expressly
5 (1981) 1 SCC 500
6 AIR 1962 SC 1208
12
authorised by the Code or other law to alter or review its
judgment. The inherent power of the court is not
contemplated by the saving provision contained in Section
362 and, therefore, the attempt to invoke that power can be
of no avail.”
We have referred to the aforesaid decision to illustrate that the
CrPC confers absolute sanctity to the judgment once it is pronounced.
It does not conceive of any kind of alteration.
15. Section 363 provides copy of judgment to be given to the accused
and other persons. Section 364 provides for the situation where the
judgment requires to be translated.
16. It is apposite to note that though CrPC does not define the term
“judgment”, yet it has clearly laid down how the judgment is to be
pronounced. The provisions clearly spell out that it is imperative on
the part of the learned trial judge to pronounce the judgment in open
court by delivering the whole of the judgment or by reading out the
whole of the judgment or by reading out the operative part of the
judgment and explaining the substance of the judgment in a language
which is understood by the accused or his pleader.
17. We have already noted that the judgment was not dictated in
open court. Code of Criminal Procedure provides reading of the
operative part of the judgment. It means that the trial judge may not
read the whole of the judgment and may read operative part of the
judgment but it does not in any way suggest that the result of the case
13
will be announced and the judgment would not be available on record.
Non- availability of judgment, needless to say, can never be a
judgment because there is no declaration by way of pronouncement in
the open court that the accused has been convicted or acquitted. A
judgment, as has been always understood, is the expression of an
opinion after due consideration of the facts which deserve to be
determined. Without pronouncement of a judgment in the open court,
signed and dated, it is difficult to treat it as a judgment of conviction
as has been held in Re. Athipalayan and Ors 7
. As a matter of fact,
on inquiry, the High Court in the administrative side had found there
was no judgment available on record. Learned counsel for the
appellants would submit that in the counter affidavit filed by the High
Court it has been mentioned that an incomplete typed judgment of 14
pages till paragraph No. 19 was available. The affidavit also states
that it was incomplete and no page had the signature of the presiding
officer. If the judgment is not complete and signed, it cannot be a
judgment in terms of Section 353 CrPC. It is unimaginable that a
judgment is pronounced without there being a judgment. It is gross
illegality. In this context, we may refer to a passage from State of
Punjab and others v. Jagdev Singh Talwandi 8
wherein expressing
the opinion for the Constitution Bench, Chandrachud, C.J. observed
7 AIR 1960 Mad 507
8 (1984) 1 SCC 596
14
thus:-
“ 30. We would like to take this opportunity to point out that
serious difficulties arise on account of the practice
increasingly adopted by the High Courts, of pronouncing
the final order without a reasoned judgment. It is desirable
that the final order which the High Court intends to pass
should not be announced until a reasoned judgment is
ready for pronouncement. Suppose, for example, that a final
order without a reasoned judgment is announced by the
High Court that a house shall be demolished, or that the
custody of a child shall be handed over to one parent as
against the other, or that a person accused of a serious
charge is acquitted, or that a statute is unconstitutional or,
as in the instant case, that a detenu be released from
detention. If the object of passing such orders is to ensure
speedy compliance with them, that object is more often
defeated by the aggrieved party filing a special leave petition
in this Court against the order passed by the High Court.
That places this Court in a predicament because, without
the benefit of the reasoning of the High Court, it is difficult
for this Court to allow the bare order to be implemented.
The result inevitably is that the operation of the order
passed by the High Court has to be stayed pending delivery
of the reasoned judgment.
31. It may be thought that such orders are passed by this
Court and therefore there is no reason why the High Courts
should not do the same. We would like to point out
respectfully that the orders passed by this Court are final
and no appeal lies against them. The Supreme Court is the
final court in the hierarchy of our courts. Besides, orders
without a reasoned judgment are passed by this Court very
rarely, under exceptional circumstances. Orders passed by
the High Court are subject to the appellate jurisdiction of
this Court under Article 136 of the Constitution and other
provisions of the concerned statutes. We thought it
necessary to make these observations in order that a
practice which is not very desirable and which achieves no
useful purpose may not grow out of its present infancy.”
15
18. We have reproduced the aforesaid two passages as the larger
Bench has made such observations with regard to unreasoned
judgments passed by the High Courts. The learned Chief Justice had
noted that the practice is not desirable and does not achieve any
useful purpose and it should not grow out of its present infancy.
Despite the said observations, sometimes this Court comes across
judgments and orders where the High Courts have announced the
result of the case by stating “reasons to follow”. We can only reiterate
the observations of the Constitution Bench.
19. Having stated that, as is evincible in the instant case, the
judgment is not available on record and hence, there can be no
shadow of doubt that the declaration of the result cannot tantamount
to a judgment as prescribed in the CrPC. That leads to the inevitable
conclusion that the trial in both the cases has to be treated to be
pending.
20. The next issue that emerges for consideration is whether the
High Court on its administrative side could have transferred the case
from the Second Additional Sessions Judge, Ambikapur to the Court
of District and Sessions Judge, Surguja at Ambikapur . In this regard,
it is suffice to understand the jurisdiction and authority conferred
under the Constitution on the High Court in the prescription of power
of superintendence under Article 227. Article 227 of the Constitution
16
reads as follows:-
“ 227 . Power of superintendence over all courts by the
High Court:- (1) Every High Court shall have
superintendence over all courts and tribunals throughout
the territories in relation to which it exercises jurisdiction.
(2) Without prejudice to the generality of the foregoing
provisions, the High Court may-
(a) call for returns from such courts;
(b) make and issue general rules and prescribe forms for
regulating the practice and proceedings of such courts; and
(c) prescribe forms in which books, entries and accounts
shall be kept by the officers of any such courts
(3) The High Court may also settle tables of fees to be
allowed to the sheriff and all clerks and officers of such
courts and to attorneys, advocates and pleaders practising
therein:
Provided that any rules made, forms prescribed or tables
settled under clause (2) or clause (3) shall not be
inconsistent with the provision of any law for the time being
in force, and shall require the previous approval of the
Governor
(4) Nothing in this article shall be deemed to confer on a
High Court powers of superintendence over any court or
tribunal constituted by or under any law relating to the
Armed Forces.”
The aforesaid Article confers power of superintendence on the
High Court over the courts and tribunals within the territory of the
State. The High Court has the jurisdiction and the authority to
exercise suo motu power.
21. In Achutananda Baidya v. Prafullya Kumar Gayen and
others 9
a two-Judge Bench while dealing with the power of
superintendence of the High Court under Article 227 has opined that
the power of superintendence of the High Court under Article 227 of
9 (1997) 5 SCC 76
17
the Constitution is not confined to administrative superintendence
only but such power includes within its sweep the power of judicial
review. The power and duty of the High Court under Article 227 is
essentially to ensure that the courts and tribunals, inferior to High
Court, have done what they were required to do. Law is well settled by
various decisions of this Court that the High Court can interfere under
Article 227 of the Constitution in cases of erroneous assumption or
acting beyond its jurisdiction, refusal to exercise jurisdiction, error of
law apparent on record as distinguished from a mere mistake of law,
arbitrary or capricious exercise of authority or discretion, a patent
error in procedure, arriving at a finding which is perverse or based on
no material, or resulting in manifest injustice.
22. We have already stated that the Division Bench while concurring
with the opinion of the learned single Judge has also quashed the
order by the learned trial judge on the ground that there was no
judgment on record. There is no dispute about the fact that the Full
Court of the High Court after coming to a definite conclusion that the
learned trial judge had really not passed any judgment, resolved that
the matter should be heard by the learned Sessions Judge and
accordingly the Registrar General of the High Court communicated the
decision to the concerned learned Sessions Judge. The submission of
the learned counsel for the appellant is that such a power could not
18
have been exercised by the Full Court on the administrative side, for
in exercise of administrative authority, the High Court cannot transfer
the case. The contention is that High Court can only transfer the case
in exercise of power under Section 407 and that too on the judicial
side. Our attention has also been drawn to Section 194 of CrPC.
Section 194 empowers the Additional and Assistant Sessions Judges
to try cases made over to them. The said provision reads as follows:-
“ 194. Additional and Assistant Sessions Judges to try
cases made over to them .― An Additional Sessions Judge
or Assistant Sessions Judge shall try such cases as the
Sessions Judge of the division may, by general or special
order, make over to him for trial or as the High Court may,
by special order, direct him to try.”
23. It is argued that Section 194 can be exercised on the
administrative side before the commencement of the trial and not
thereafter, whereas Section 407 can be taken recourse to on the
judicial side and a case can be transferred on the basis of parameters
laid down for transfer of a criminal trial. In this regard, we may
usefully refer to the authority in Ranbir Yadav v. State of Bihar 10
wherein under certain circumstances the High Court had transferred
the sessions trial from the court of one Additional Sessions Judge to
another by an administrative order at a stage when the trial had
commenced. It was contended before this Court that the trial that
took place before the transferee court was wholly without jurisdiction
10 (1995) 4 SCC 392
19
and consequently the conviction and sentence recorded by that court
were null and void and were not curable under Section 465 CrPC. To
sustain the said proposition of law, reliance was placed in A.R.
Antulay v. R.S. Nayak and another 11
. The two-Judge Bench
perusing the material on record came to the conclusion that the order
was passed by the High Court in its administrative jurisdiction.
Thereafter, it proceeded to opine thus:-
“ Under Article 227 of the Constitution of India every High
Court has superintendence over all courts and tribunals
throughout the territories in relation to which it exercises
jurisdiction and it is trite that this power of
superintendence entitles the High Court to pass orders for
administrative exigency and expediency. In the instant case
it appears that the High Court had exercised the power of
transfer in the context of the petition filed by some of the
accused from jail complaining that they could not be
accommodated in the courtroom as a result of which some
of them had to remain outside. It further appears that the
other grievance raised was that the court was so crowded
that even clerks of the lawyers were not being allowed to
enter the courtroom to carry the briefs. Such a situation
was obviously created by the trial of a large number of
persons. If in the context of the above facts, the High Court
exercised its plenary administrative power to transfer the
case to the 5th Court, which, we assume had a bigger and
better arrangement to accommodate the accused, lawyers
and others connected with the trial no exception can be
taken to the same, particularly by those at whose instance
and for whose benefit the power was exercised.”
Proceeding further, the Court held that:-
“ So long as power can be and is exercised purely for
administrative exigency without impinging upon and
prejudicially affecting the rights or interests of the parties to
11 (1988) 2 SCC 602
20
any judicial proceeding we do not find any reason to hold
that administrative powers must yield place to judicial
powers simply because in a given circumstance they
coexist. On the contrary, the present case illustrates how
exercise of administrative powers were more expedient,
effective and efficacious. If the High Court had intended to
exercise its judicial powers of transfer invoking Section 407
of the Code it would have necessitated compliance with all
the procedural formalities thereof, besides providing
adequate opportunities to the parties of a proper hearing
which, resultantly, would have not only delayed the trial but
further incarceration of some of the accused. It is obvious,
therefore, that by invoking its power of superintendence,
instead of judicial powers, the High Court not only
redressed the grievances of the accused and others
connected with the trial but did it with utmost dispatch.”
24. The Court distinguished the authority in A.R. Antulay case
(supra) on the basis that in the said case the Court was dealing with a
situation where this Court had transferred the case to the High Court
which was not authorized by law and the Court could not have
conferred the jurisdictions on the High Court as it did not possess
such jurisdiction under the scheme of the Criminal Law Amendment
Act, 1952. The controversy the two-Judge Bench was dealing with
pertained to transfer of the case to the learned Additional Sessions
Judge who was competent under the CrPC to conduct the sessions
trial and, therefore, the Court in Ranbir Yadav ’s case (supra) ruled
that the order of transfer to another court did not suffer from any legal
infirmity.
25. In the case at hand, the High Court on the administrative side
21
had transferred the case to the learned Sessions Judge by which it has
conferred jurisdiction on the trial court which has the jurisdiction to
try the sessions case under CrPC. Thus, it has done so as it has, as a
matter of fact, found that there was no judgment on record. There is
no illegality. Be it noted, the Division Bench in the appeal preferred at
the instance of the present appellants thought it appropriate to quash
the order as there is no judgment on record but a mere order-sheet. In
a piquant situation like the present one, we are disposed to think that
the High Court was under legal obligation to set aside the order as it
had no effect in law. The High Court has correctly done so as it has
the duty to see that sanctity of justice is not undermined. The High
Court has done so as it has felt that an order which is a mere
declaration of result without the judgment should be nullified and
become extinct.
26. The case at hand constrains us to say that a trial Judge should
remember that he has immense responsibility as he has a lawful duty
to record the evidence in the prescribed manner keeping in mind the
command postulated in Section 309 of the CrPC and
pronounce the judgment as provided under the Code. A Judge in
charge of the trial has to be extremely diligent so that no dent is
created in the trial and in its eventual conclusion.
Mistakes made or
errors committed are to be rectified by the appellate court in exercise

22
of “error jurisdiction”. That is a different matter. But, when a
situation like the present one crops up, it causes agony, an
unbearable one, to the cause of justice and hits like a lightning in a
cloudless sky. It hurts the justice dispensation system and no one,
and we mean no one, has any right to do so.
The High Court by
rectifying the grave error has acted in furtherance of the cause of
justice. The accused persons might have felt delighted in acquittal
and affected by the order of rehearing, but they should bear in mind
that they are not the lone receivers of justice. There are victims of the
crime. Law serves both and justice looks at them equally. It does not
tolerate that the grievance of the victim should be comatosed in this
manner.
27. Consequently, appeals are dismissed. The trial court to whom the
cases have been transferred is directed to proceed in accordance with
law.
.............................J.
[Dipak Misra]
New Delhi; .............................J.
January 06, 2017 [Amitava Roy]
23
ITEM NO.1A COURT NO.2 SECTION IIC
(For Judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal Nos.32-33/2017
AJAY SINGH AND ANR. AND ETC. Appellant(s)
VERSUS
STATE OF CHHATTISGARH AND ANR. Respondent(s)
Date : 06/01/2017 These appeals were called on for pronouncement
of Judgment today.
For Appellant(s) Dr. Rajesh Pandey, Adv.
Mr. Baijnath Patel, Adv.
Mr. Praveen Chaturvedi, AOR

For Respondent(s) Mr . C. D. Singh, AOR
Ms. Sakshi Kakkar, Adv.
Hon'ble Mr. Justice Dipak Misra pronounced the
judgment of the Bench comprising His Lordship and Hon'ble
Mr. Amitava Roy.
The appeals are dismissed in terms of the signed
reportable judgment.
(Chetan Kumar)
Court Master (H.S. Parasher)
Court Master
(Signed reportable judgment is placed on the file)

Misapplication of apex court Nar Singh’s case- judgment - Remand applies only when the accused questioned prejudice due to non following of procedure in trial court - but not suo moto - In our view, the High Court has not properly appreciated Nar Singh’s case where this Court laid down that the appellate court can order for fresh trial from the stage of examination under Section 313 Cr.P.C., only in cases where failure to question the accused on certain incriminating evidence has resulted in serious prejudice to the accused. The High Court, in our view, has not properly appreciated the ratio laid down in Nar Singh’s case and erred in applying the same to the present case. - When the accused prefers an appeal against their conviction and sentence, the appellate court is duty bound to consider the evidence on record and independently arrive at a conclusion. In our considered view, the High Court erred in remitting the matter back to the trial court for fresh trial and the impugned order cannot be sustained.

CRL. APPEAL NOS. 119-122 OF 2017
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 119-122 OF 2017
AJAY KUMAR GHOSHAL ETC. …Appellant
Versus
STATE OF BIHAR & ANR. ...Respondent
J U D G M E N T
R. BANUMATHI, J.
These appeals are directed against the common final order dated
28.08.2015 passed by the High Court of Judicature at Patna in Criminal
Appeal (SJ) No.230 of 2015, Criminal Appeal (SJ) No.275 of 2015,
Criminal Appeal (SJ) No.232 of 2015 and Criminal Appeal (SJ) No.243 of
2015 setting aside the judgment of the trial court and directing the retrial of
Session Trial No.14 of 2008/637 of 2008 against the appellants.
2. Briefly stated, case of the prosecution is that on 15.05.2007, Asim
Kumar Chatarjee (PW-5) filed a complaint before the Officer-in-Charge,
Tilakmanjhi, stating that his sister Bandhavi @ Bani Ghoshal was married
to Raj Kumar son of Ajay Kumar Ghoshal on 03.02.2007 and at the time of
her marriage, the complainant gave cash and ornaments as per his
capacity and all the usual gifts given in a marriage to the
accused-appellants. PW-5 asserted that the husband, father-in-law and
mother-in-law (Munmun Ghoshal) kept demanding dowry from his
1
CRL. APPEAL NOS. 119-122 OF 2017
deceased sister and upon his inability to fulfill their demands, they in turn
tortured Bandhavi Ghoshal mentally and physically. The complainant
stated that on 15.05.2007, he received information from Bhagalpur about
the death of his sister deceased Bandhavi @ Bani Ghoshal in her
matrimonial home, in suspicious circumstances and he went to Bhagalpur.
The complainant stated that he saw the dead body of his sister and noticed
that her wrist veins were cut and her body had the marks of hanging,
assault and electrocution. On the basis of aforesaid, FIR was registered
under Section 304 (B), Section 34 IPC at Kotwali (Tilkamanjhi) P.S. Case
No.281 of 2007. After completion of investigation, the charge-sheet was
filed against the appellants under Sections 302, 304B, 201, 498A, 120B
IPC and Sections 3 and 4 of Dowry Prohibition Act.
3. In order to prove guilt of the accused, the prosecution has examined
twelve witnesses and exhibited documents and material objects. Upon
consideration of evidence, the trial court vide judgment dated 06.04.2015,
held that the prosecution has proved the guilt of the accused beyond
reasonable doubt and convicted all the appellants/accused persons, by
judgment dated 09.04.2015. For conviction under Section 304B read with
Section 120B IPC, the trial court imposed sentence of imprisonment for ten
years on each of the appellants. The appellants were convicted under
Section 201 IPC and were sentenced to undergo rigorous imprisonment for
five years as well as fine of Rs.10,000/- each with default sentence and
2
CRL. APPEAL NOS. 119-122 OF 2017
rigorous imprisonment for two years for the conviction under Section 4 of
Dowry Prohibition Act.
4. Being aggrieved by the verdict of conviction and the sentence
imposed upon them, the appellants/accused preferred separate appeals
before the High Court. Upon consideration of the contentions of the
parties, the High Court in paras (29) and (30) of its judgment pointed out
certain lapses on the part of Investigating Officer/trial court and held that
the trial court failed to take appropriate action on the lapses. After quoting
relevant extracts from the judgments in Mina Lalita Baruwa vs. State of
Orissa and Ors. (2013) 16 SCC 173 and Nar Singh vs. State of Haryana
(2015) 1 SCC 496, the High Court set aside the judgment of the conviction
and sentence recorded by the trial court and the matter was remitted back
to the trial court to proceed afresh in accordance with law. Being
aggrieved, the accused-appellants have preferred these appeals.
5. Learned counsel for the appellants submitted that the High Court
being the First Appellate Court should have appreciated the evidence on
its own merits; instead it erred in remitting the matter back to the trial court
to proceed afresh and the order for de novo trial would cause serious
prejudice to the accused-appellants.
6. We have heard the learned counsel for the State as well as counsel
for the complainant i.e. brother of the deceased Asim Kumar Chatarjee.
3
CRL. APPEAL NOS. 119-122 OF 2017
Both of them submitted that the evidence available on record is sufficient to
sustain the conviction of the accused-appellants.
7. We have carefully considered the rival contentions and perused the
impugned order and other materials on record. The question falling for
consideration is whether there was serious irregularities in the prosecution
case thereby necessitating retrial and whether the irregularities pointed out
by the High Court are such as resulting in miscarriage of justice thereby
constraining the High Court to set aside the judgment of the Sessions
Court and direct for retrial.
8. In para (29) of its judgment, the High Court pointed out certain
lapses; but has not stated as to how such alleged lapses has resulted in
miscarriage of justice necessitating retrial. Certain lapses either in the
investigation or in the ‘conduct of trial’ are not sufficient to direct retrial. The
High Court being the First Appellate Court is duty bound to examine the
evidence and arrive at an independent finding based on appraisal of such
evidence and examine whether such lapses actually affect the prosecution
case; or such lapses have actually resulted in failure of justice. The
circumstances that should exist for warranting retrial must be such that
whether the trial was undertaken by the court having no jurisdiction or trial
was vitiated by serious illegality or irregularity on account of misconception
of nature of proceedings or that irregularity has resulted in miscarriage of
justice.
4
CRL. APPEAL NOS. 119-122 OF 2017
9. The High Court copiously extracted the judgment in case of Nar
Singh vs. State of Haryana ( 2015) 1 SCC 496 to remit the matter to the trial
court for proceeding afresh. In Nar Singh’s case , some of the important
questions like Ballistic Report and certain other incriminating evidence
were not put to the accused and the same was not raised in the trial court
or in the High Court. It was felt that the accused should have been
questioned on those incriminating evidence and circumstances; or
otherwise prejudice would be caused to the accused. In such peculiar
facts and circumstances, Nar Singh’s case was remitted to the trial court
for proceeding afresh from the stage of Section 313 Cr.P.C. Be it noted
that in Nar Singh’s case , this Court has referred to a catena of other
judgments holding that omission to put certain questions to the accused
under Section 313 Cr.P.C. would not cause prejudice to the accused. It
depends upon facts and circumstances of each case and the nature of
prejudice caused to the accused. In our view, the High Court has not
properly appreciated Nar Singh’s case where this Court laid down that the
appellate court can order for fresh trial from the stage of examination under
Section 313 Cr.P.C., only in cases where failure to question the accused
on certain incriminating evidence has resulted in serious prejudice to the
accused. The High Court, in our view, has not properly appreciated the
ratio laid down in Nar Singh’s case and erred in applying the same to the
present case.

5
CRL. APPEAL NOS. 119-122 OF 2017
10. Section 386 Cr.P.C. deals with the powers of the appellate court. As
per Section 386 (b) Cr.P.C, in an appeal from a conviction, the appellate
court may:- (i) reverse the finding and sentence and acquit or discharge
the accused, or order him to be re-tried by a Court of competent
jurisdiction subordinate to such Appellate Court or committed for trial, or (ii)
alter the finding, maintaining the sentence, or (iii) with or without altering
the finding, alter the nature or the extent, or the nature and extent, of the
sentence, but not so as to enhance the same.
11. Though the word “retrial” is used under Section 386(b)(i) Cr.P.C., the
powers conferred by this clause is to be exercised only in exceptional
cases, where the appellate court is satisfied that the omission or
irregularity has occasioned in failure of justice. The circumstances that
should exist for warranting a retrial must be such that where the trial was
undertaken by the Court having no jurisdiction, or trial was vitiated by
serious illegality or irregularity on account of the misconception of nature of
proceedings. An order for retrial may be passed in cases where the
original trial has not been satisfactory for some particular reasons such as
wrong admission or wrong rejection of evidences or the Court refused to
hear certain witnesses who were supposed to be heard.
12. ‘ De novo’ trial means a “new trial” ordered by an appellate court in
exceptional cases when the original trial failed to make a determination in
a manner dictated by law. The trial is conducted afresh by the court as if
6
CRL. APPEAL NOS. 119-122 OF 2017
there had not been a trial in first instance. Undoubtedly, the appellate court
has power to direct the lower court to hold ‘ de novo’ trial. But the question
is when such power should be exercised. As stated in Pandit Ukha Kolhe
vs. State of Maharashtra (1964) SCR 926, the Court held that:
“ An order for retrial of a criminal case is made in exceptional cases,
and not unless the appellate court is satisfied that the Court trying
the proceeding had no jurisdiction to try it or that the trial was
vitiated by serious illegalities or irregularities or on account of
misconception of the nature of the proceedings and on that account
in substance there had been no real trial or that the Prosecutor or an
accused was, for reasons over which he had no control, prevented
from leading or tendering evidence material to the charge, and in the
interests of justice the appellate Court deems it appropriate, having
regard to the circumstances of the case, that the accused should be
put on his trial again. An order of re-trial wipes out from the record
the earlier proceeding, and exposes the person accused to another
trial which affords the prosecutor an opportunity to rectify the
infirmities disclosed in the earlier trial, and will not ordinarily be
countenanced when it is made merely to enable the prosecutor to
lead evidence which he could but has not cared to lead either on
account of insufficient appreciation of the nature of the case or for
other reasons.”
13. This Court, while dealing with the question whether the High Court
should have quashed the trial proceedings only on account of declaration
of the legal position made by the Supreme Court concerning the
procedural aspect about the cases involving offences under the SC/ST Act,
this Court stated, “a de novo trial should be the last resort and that too only
when such a course becomes so desperately indispensable; it should be
limited to the extreme exigency to avert ‘a failure of justice’. Observing
that any omission or even the illegality in the procedure which does not
affect the core of the case is not a ground for ordering a de novo trial”. In
7
CRL. APPEAL NOS. 119-122 OF 2017
State of M.P. vs. Bhooraji and Ors. (2001) 7 SCC 679, the Court went on to
say further as follows:
“ 8….This is because the appellate court has plenary powers for
revaluating and reappraising the evidence and even to take
additional evidence by the appellate court itself or to direct such
additional evidence to be collected by the trial court. But to replay
the whole laborious exercise after erasing the bulky records relating
to the earlier proceedings, by bringing down all the persons to the
court once again for repeating the whole depositions would be a
sheer waste of time, energy and costs unless there is miscarriage of
justice otherwise. Hence, the said course can be resorted to when it
becomes unpreventable for the purpose of averting “a failure of
justice”. The superior court which orders a de novo trial cannot
afford to overlook the realities and the serious impact on the
pending cases in trial courts which are crammed with dockets, and
how much that order would inflict hardship on many innocent
persons who once took all the trouble to reach the court and
deposed their versions in the very same case. To them and the
public the re-enactment of the whole labour might give the
impression that law is more pedantic than pragmatic. Law is not an
instrument to be used for inflicting sufferings on the people but for
the process of justice dispensation.”
14. In Bhooraji’ s case , the Court referred to Chapter XXXV of the Code
and, particularly, Sections 461, 462 and 465 (1). After noticing the above
provisions, the Court observed in paragraphs (15) and (16) of the order as
follows:
“ 15. A reading of the section makes it clear that the error, omission
or irregularity in the proceedings held before or during the trial or in
any enquiry were reckoned by the legislature as possible
occurrences in criminal courts. Yet the legislature disfavoured axing
down the proceedings or to direct repetition of the whole
proceedings afresh. Hence, the legislature imposed a prohibition
that unless such error, omission or irregularity has occasioned “a
failure of justice” the superior court shall not quash the proceedings
merely on the ground of such error, omission or irregularity.
16. What is meant by a failure of justice occasioned on account of
such error, omission or irregularity? This Court has observed
in Shamnsaheb M. Multtani vs. State of Karnataka {2001 (2) SCC
577} thus:
“ 23. We often hear about failure of justice and quite
often the submission in a criminal court is accentuated
with the said expression. Perhaps it is too pliable or
8
CRL. APPEAL NOS. 119-122 OF 2017
facile an expression which could be fitted in any
situation of a case. The expression failure of justice
would appear, sometimes, as an etymological
chameleon (the simile is borrowed from Lord Diplock
in Town Investments Ltd. v. Deptt. of the Environment,
1977 (1) All E.R. 813). The criminal court, particularly
the superior court should make a close examination to
ascertain whether there was really a failure of justice
or whether it is only a camouflage.”
15. In Gopi Chand vs. Delhi Administration AIR 1959 SC 609, a
Constitution Bench of this Court was concerned with the criminal appeals
wherein plea of the validity of the trial and of the orders of conviction and
sentence was raised by the appellant. That was a case where the
appellant was charged for three offences which were required to be tried
as a warrant case by following the procedure prescribed in the Code of
Criminal Procedure, 1860 but he was tried under the procedure prescribed
for the trial of a summons case. The procedure for summons case and
warrants case was materially different. The Constitution Bench held that
having regard to the nature of the charges framed and the character and
volume of evidence led, the appellant was prejudiced; accordingly, set
aside the orders of conviction and sentence and the Constitution Bench
held as under:-
“ 29. ….the offences with which the Appellant stands charged are of
a very serious nature; and though it is true that he has had to
undergo the ordeal of a trial and has suffered rigorous imprisonment
for some time that would not justify his prayer that we should not
order his retrial. In our opinion, having regard to the gravity of the
offences charged against the Appellant, the ends of justice require
that we should direct that he should be tried for the said offences de
novo according to law. We also direct that the proceedings to be
taken against the Appellant hereafter should be commenced without
delay and should be disposed as expeditiously as possible.”
9
CRL. APPEAL NOS. 119-122 OF 2017
16. In Zahira Habibulla H. Sheikh and Anr. vs. State of Gujarat and Ors.
(2004) 4 SCC 158, [ Best Bakery case ] being an extraordinary case, the
Supreme Court was convinced that the witnesses were threatened to keep
themselves away from the Court and in such facts and circumstances of
the case, not only the Court directed a ‘ de novo’ trial but made further
direction for appointment of the new prosecutor and retrial was directed to
be held out of the State of Gujarat. The law laid down in Best Bakery case
for retrial was in the extraordinary circumstances and cannot be applied for
all cases.
17. After considering the question a “speedy trial” and “fair trial” to a
person accused of a crime and after referring to a catena of decisions and
observing that guiding factor for retrial must always be demand of justice,
in Mohd. Hussain @ Julfikar Ali vs. State (Govt. of NCT of Delhi) (2012) 9
SCC 408, this Court held as under:-
“ 41. ‘Speedy trial’ and ‘fair trial’ to a person accused of a crime are
integral part of Article 21. There is, however, qualitative difference
between the right to speedy trial and the accused’s right of fair trial.
Unlike the accused’s right of fair trial, deprivation of the right to
speedy trial does not per se prejudice the accused in defending
himself. The right to speedy trial is in its very nature relative. It
depends upon diverse circumstances. Each case of delay in
conclusion of a criminal trial has to be seen in the facts and
circumstances of such case. Mere lapse of several years since the
commencement of prosecution by itself may not justify the
discontinuance of prosecution or dismissal of indictment. The
factors concerning the accused’s right to speedy trial have to be
weighed vis-à-vis the impact of the crime on society and the
confidence of the people in judicial system. Speedy trial secures
rights to an accused but it does not preclude the rights of public
justice. The nature and gravity of crime, persons involved, social
impact and societal needs must be weighed along with the right of
10
CRL. APPEAL NOS. 119-122 OF 2017
an accused to speedy trial and if the balance tilts in favour of the
former the long delay in conclusion of criminal trial should not
operate against the continuation of prosecution and if the right of
accused in the facts and circumstances of the case and exigencies
of situation tilts the balance in his favour, the prosecution may be
brought to an end. These principles must apply as well when the
appeal court is confronted with the question whether or not retrial of
an accused should be ordered.
42. The appellate court hearing a criminal appeal from a judgment of
conviction has power to order the retrial of the accused under
Section 386 of the Code. That is clear from the bare language of
Section 386(b). Though such power exists, it should not be
exercised in a routine manner. A ‘de novo trial’ or retrial is not the
second trial; it is continuation of the same trial and same
prosecution. The guiding factor for retrial must always be demand
of justice. Obviously, the exercise of power of retrial under Section
386(b) of the Code, will depend on the facts and circumstances of
each case for which no strait jacket formula can be formulated but
the appeal court must closely keep in view that while protecting the
right of an accused to fair trial and due process, the people who
seek protection of law do not lose hope in legal system and the
interests of the society are not altogether overlooked.”
18. As discussed earlier, the High Court has not shown as to how the
alleged lapses pointed out by the High Court have resulted in miscarriage
of justice. When the accused prefers an appeal against their conviction
and sentence, the appellate court is duty bound to consider the evidence
on record and independently arrive at a conclusion. In our considered
view, the High Court erred in remitting the matter back to the trial court for
fresh trial and the impugned order cannot be sustained.

19. In the result, the impugned judgment of the High Court is set aside
and these appeals are allowed. The matter is remitted back to the High
Court for consideration of the matter afresh. The High Court shall afford
sufficient opportunity to the accused-appellants and the prosecution and
also to the informant Asim Kumar Chatarjee-brother of the deceased (in
11
CRL. APPEAL NOS. 119-122 OF 2017
terms of Section 301 Cr.P.C.) and proceed with the matter afresh in
accordance with law. We make it clear that we have not expressed any
opinion on the merits of the matter.
...………………………. J.
[DIPAK MISRA]
.………………………..J.
[R. BANUMATHI]
New Delhi;
January 31, 2017
12
ITEM NO.1A COURT NO.2 SECTION IIA
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 119-122/2017
AJAY KR. GHOSHAL ETC Appellant(s)
VERSUS
STATE OF BIHAR Respondent(s)
Date : 31/01/2017 These appeals were called on for judgment today.
For Appellant(s) Mr. Smarhar Singh, AOR
Ms. Kusum Pandey, Adv.

For Respondent(s) Mr. Gopal Singh, AOR
Ms. Vimla Sinha, Adv.
Mr. Manish Kumar, Adv.
Mr. Rituraj Biswas, Adv.
Mr. Shivam Singh, Adv.
Mr. Aditya Raina, Adv.
Mr. Shreyas Jain, Adv.
Ms. Varsha Poddar, Adv.
Mr. Kumar Milind, Adv.
Mr. Advitiya Awasth, Adv.
Mr. Vikram Singh, Adv.

Hon'ble Mrs. Justice R. Banumathi has pronounced the judgment
of the Bench consisting of Hon'ble Mr. Justice Dipak Misra and Her
Ladyship.
T he impugned judgment of the High Court is set aside and the
appeals are allowed in terms of the signed reportable judgment.
The matter is remitted back to the High Court for consideration of
the matter afresh. The High Court shall afford sufficient
opportunity to the accused-appellants and the prosecution and also
to the informant Asim Kumar Chatarjee-brother of the deceased (in
terms of Section 301 Cr.P.C.) and proceed with the matter afresh
in accordance with law. We make it clear that we have not
expressed any opinion on the merits of the matter.
(Gulshan Kumar Arora) (H.S. Parasher)
Court Master Court Master
(Signed reportable judgment is placed on the file)

Sunday, September 24, 2017

the High Court affirmed the order passed by the Collector, Haridwar on 12 May 2003 holding that the property in dispute stands vested in the government under Section 29 of the Hindu Succession Act, 1956. This finding has been premised on the basis that there exists no heir to succeed to the property following the death of Mohan Lal. = Uttar Pradesh Zamindari Abolition and Land Reforms Act, sec. “167 (1). The following consequences shall ensue in respect of every transfer which is void by virtue of Section 166, namely- (a) the subject-matter of transfer shall, with effect from the date of transfer, be deemed to have vested in the State Government free from all encumbrances; (b) the trees, crops and wells existing on the land on the date of transfer shall, with effect from the said date, be deemed to have vested in the State Government free from all encumbrances; and (c) the transferee may remove other moveable property or the materials of any immovable property existing on such land on the date of transfer within such time as may be prescribed.”- “167 (2). Where any land or other property has vested in the State Government under sub section (1) it shall be lawful for the Collector to take over possession over such or other property and to direct that any person occupying such land or other property be evicted therefrom. From the purposes of taking over such possession or evicting such unauthorised occupants, the Collector may use or cause to be used such force as may be necessary.” =The power conferred upon the Collector by Sub-section 2 of Section 167 can be exercised only in the circumstances set out in Sub-Section 1. In the present case, the provision was clearly not attracted.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 3878 OF 2009
KUTCHI LAL RAMESHWAR ASHRAM
TRUST EVAM ANNA KSHETRA
TRUST THR. VELJI DEVSHI PATEL ....APPELLANT
Versus
COLLECTOR, HARIDWAR & ORS. .....RESPONDENTS
J U D G M E N T
Dr D Y CHANDRACHUD, J
1 This appeal has arisen from a judgment rendered on 15 May 2007 by a
Division Bench of the High Court of Uttarakhand at Nainital. Finding no substance
in the writ petition filed under Article 226 of the Constitution, the High Court affirmed
the order passed by the Collector, Haridwar on 12 May 2003 holding that the
property in dispute stands vested in the government under Section 29 of the Hindu
Succession Act, 1956. This finding has been premised on the basis that there exists
no heir to succeed to the property following the death of Mohan Lal.
2
2 The petitioner claims to be a public trust registered under the Bombay Public
Trusts Act, 1950. The Trust claims to have a vast amount of property at Haridwar
which is being used for charitable purposes including (i) arranging for the stay of
pilgrims and saints who visit Haridwar and providing food and other facilities to
them; and (ii) performing and organizing religious functions. The petitioner conducts
a Sanskrit Vidyalaya as well as a dispensary.
3 Swamy Udhav Das Ji Maharaj was visually challenged. On 28 November
1955, he is stated to have purchased land admeasuring two bighas and fifty khewat
at Haridwar in the name of his chela, Mohan Lal. According to the petitioner, the
Swamy founded the Kutchi Lal Rameshwar Ashram Trust. He is stated to have
executed a will on 22 October 1956 nominating some individuals who would
manage and administer his properties, including the property in question, after his
lifetime. According to the petitioner, this was a second registered will executed by
the Swamy since some of those who were nominated in an earlier registered will
were not inclined to accept the responsibility.
4 On 13 January 1957, the Swamy died. The Trust is stated to have been
registered on 11 November 1957. Among the objects of the Trust, are the following:
“4. The main purpose for which the Ashram was established
at Haridwar under the inspiration of Mahrajshri Odhavdasji has
been to provide a centre and shelter for those Kutchi people in
particular and others in general who go to the Holy Shrines at
Haridwar, for the purposes of devotion and their peace of mind
and the same shall continue to be the main objective and
purposes of the Trust along with any other objective which might
further the main object such as religious education prayers etc.
5. It was the cherished object of the revered Maharajshri
Odhavdasji that the Ashram should provide both shelter and
3
food to the deserving and this is being done within the limitation
of the resources at the disposal of the Trust. Many people have
expressed their desire to donate moneys for the purposes of
running an “Anna Kshetra” as desired by their late Guru
Maharaj.”
According to the petitioner, all the movable and immovable properties were vested in
the Trust. On 23 March 1958, an unregistered declaration is stated to have been
executed by Mohan Lal stating that though the property was purchased in his name
by the late Swamy, neither he nor his legal heirs would have any rights in the
property. The whereabouts of Mohan Lal are not known since 1958.
5 On 10 July 2001, a suit1
was instituted by the petitioner seeking an injunction
against the third respondent (an individual by the name of Swamy Mahanand
Awdhut Tatambri) described in these proceedings as :
“Chela Swamy Brahmchari Ji Awdhut, Resident of Tatambri
Ashram, Sapt Sarovar Road, Bhoopat Wala, Haridwar,
Uttarakhand.”
The suit for injunction appears to have been instituted on the ground that the third
respondent was attempting to make a construction on some part of the property in
dispute. A few months after the institution of the suit, the third respondent filed a
complaint on 15 October 2001 before the Collector alleging that the property
belonged to Mohan Lal. According to him, a Patta was executed on 28 November
1955 in favour of Mohan Lal by Govind Ram and Shiv Ram. According to the
complaint, Mohan Lal had died and there being no legal heir, the property stands
vested in the state government under Section 29 of the Hindu Succession Act 1958.
1 Suit 225 of 2011
4
6 The Collector issued a notice to the petitioner following receipt of the
complaint. A reply was filed before the Collector on 13 November 2001. The reply
traces the acquisition of the property by the late Swamy in the name of his disciple
Mohan Lal on 28 November 1955 and adverted to the will executed and registered
by the Swamy on 22 November 1956. The reply relied upon the declaration by
Mohan Lal on 23 March 1958 stating that he had no right or interest in the property.
The reply adverted to the construction carried upon the property by the Kutchi Lal
Rameshwar Ashram Trust after plans were duly sanctioned by Haridwar
Development Authority. The reply also referred to the fact that the property has been
assessed to municipal taxes in the name of the Trust. The Trust claims to have built
upon the property and to be in occupation without interruption for forty-five years.
Moreover, it was stated that a suit before the Civil Judge, Haridwar was instituted by
the Trust since Swamy Mahanand Awdhut Tatambri who had recently purchased the
adjoining property had carried out certain unauthorized constructions that affected
the rights of the Trust. The petitioner claimed that the complaint against it was
instituted before the Collector as a reprisal for the dispute with the adjoining owner
which had led to the institution of a suit before the Civil Court.
7 On 12 May 2003, the Collector at Haridwar adjudicated upon the notice to
show cause issued by him. The Collector held that a patta of the property was
secured by Mohan Lal on 15 July 1955 and on 28 November 1955. According to the
Collector, the Trust had not submitted any documentary evidence from which it could
be deduced that the property had been purchased in the name of Mohan Lal from
5
the funds of Swamy Udhav Das. According to the Collector, the alleged admission
deed of 23 March 1958 by Mohan Lal could not be relied upon, since he was shown
to be a resident of Reha Kuch (presently Chandrakela) whereas the person in
whose favour the patta had been executed was a resident of village Ishwar Nagar.
According to the Collector, the Swamy died before 11 November 1957. The Trust, in
the view of the Collector, had failed to submit evidence in respect of the heirs of
Mohan Lal. The Collector proceeded to draw an inference of the death of Mohan Lal
since he was not heard of for seven years. On this basis, the Collector arrived at the
conclusion that the property vested in the State Government by the operation of law.
The City Magistrate at Haridwar was directed to take immediate action for taking
over the possession of the property.
8 Aggrieved by the order of the Collector, Haridwar, which held that the property
had vested in the state government by the operation of Section 29 of the Hindu
Succession Act, 1956, and directing the City Magistrate to take over possession, the
petitioner challenged the decision in a writ petition under Article 226 of the
Constitution before the High Court of Uttarakhand. The Trust claimed to be in the
management of the property for over forty-five years and submitted that the only
manner in which action adverse to it could have been taken was on the basis of a
title action pursued through the Administrator General or through a Civil Court. The
Collector, in the submission of the Trust, could not assume the power to decide a
question of title in the manner in which he had purported to do.
6
9 Certain developments took place after the Trust instituted writ proceedings
before the High Court of Uttarakhand in May 2003. The third respondent had filed an
appeal against an order of interim injunction passed in favour of the Trust in the suit
instituted by it in the Civil Court. The appeal was dismissed by the Additional District
Judge, Haridwar on 24 December 2003. On 9 May 2005, a Division Bench of the
High Court admitted the writ petition of the trust challenging the order of the
Collector. The High Court stayed the order on the ground, prima facie, that the
Collector had no jurisdiction to do so. On 10 April 2007, a writ petition filed by the
trust was dismissed (erroneously according to the petitioner on the basis of the facts
of another case). The petitioner filed a review petition. The review was allowed by a
Division Bench of the High Court on 15 May 2007 and the earlier order was recalled.
Eventually, it was by its Judgment and Order dated 15 May 2007 that the Division
Bench upheld the decision of the Collector.
10 The High Court held that the deed of acceptance alleged to have been
executed by Mohan Lal on 23 March 1958 is not a registered document. Moreover, it
has been stated that the executor of the deed of acceptance appears to be a person
different from the person by the name of Mohan Lal who was the owner of the
disputed land. According to the High Court, there was nothing to indicate that Mohan
Lal had died prior to the preparation of the Deed of Trust on 11 November 1957. The
High Court further held that the land was purchased by Mohan Lal in whose favour
the original pattas were executed but there was no evidence to indicate that the
funds were provided by the late Swamy. The findings of the High Court are in the
following terms:
7
“10 Undisputedly the land in question was purchased by Mohan
Lal through pattas dated 28 November 1955 and 15 July 1955
whereas the appellant’s claim is that the land was purchased by
Mahant Udhav Das in the name of Mohan Lal, but no evidence
has been adduced on behalf of the appellant showing that the
land was purchased from the money of Mahant Udhav Das Ji.
The appellant has not been able to establish that Mohan Lal on
whose name the land was purchased and the Mohan Lal who
had executed the acceptance deed is the same and one person.
The appellant trust has not claimed itself the legal heir of Mohan
Lal, the owner of the disputed property, but it has claimed the
ownership on the basis of the will dated 22 October 1956 which
was not executed by Mohan Lal. The owner of the land, Mohan
Lal has no legal heir, therefore, the disputed land was liable to
be devolved in the State Government in view of the provision of
Section 29 of the Hindu Succession Act. We do not find any
infirmity in the order passed by the Collector in this matter.”
11 Leave has been granted in these proceedings on 12 May 2009, when an
order of status quo was issued.
12 On behalf of the appellants, it has been submitted by Mr Aryama Sundaram,
learned Senior Counsel that :
(i) The Collector has acted without jurisdiction, in assuming the powers of the civil
court and adjudicating on the vesting of the property in the state by escheat
under Section 29 of the Hindu Succession Act, 1956;
(ii) In view of the clear dispute, involving the setting up of rival titles – the
government claiming under Section 29 and the Trust setting up a contrary title, it
was not open to the Collector to act as a judge in his own cause in his capacity
as a representative of the state government;
8
(iii) Where a dispute of title or in regard to the absence of legal heirs within the
meaning of Section 29 arises, it is only a civil court which can exercise
jurisdiction; and
(iv) Assuming that the property belonged to Mohan Lal, the Collector ought not to
have proceeded in the matter without due notice to him and hence the inference
that Mohan Lal was dead, as not having been heard of for seven years, is
fallacious.
13 On the other hand, it has been submitted on behalf of the state government
that the order passed by the Collector constitutes a valid exercise of jurisdiction. It
was urged that the Collector had justifiably come to the conclusion that Mohan Lal
had not been succeeded by any heir, upon which the property must be regarded as
having vested in the state under Section 29 of the Hindu Succession Act, 1956. It
may be noted that in the counter affidavit which has been filed in these proceedings,
the first and second respondents have adverted to the source of power of the
Collector being traceable to Section 29 of the Hindu Succession Act, 1956, besides
which reliance has been placed on Section 167 (2) of the Uttar Pradesh Zamindari
Abolition and Land Reforms Act, 1950 in its application to the State of Uttarakhand.
14 Shri M N Rao, learned Senior Counsel appearing on behalf of the third
respondent has adopted the submission which was urged before the Collector by his
client as complainant. Learned Senior Counsel however urged that it was for the
Collector and the state to sustain the order which has been passed.
9
15 Before we deal with the merits of the rival contentions, an issue needs to be
addressed at the threshold. Initially, on 16 July 2007, notice was issued “confined to
the question as to whether the Collector has power to pass an order under Section
29 of Hindu Succession Act, 1956 in view of the provisions of the
Administrators-General Act, 1963”. Leave was granted on 12 May 2009. Relying
upon the initial order, which confined the notice to a specific issue, learned Counsel
for the state submitted that the grant of leave subsequently should not be regarded
as having expanded the scope of the controversy to all the issues raised in the
appeal. Hence, the submission is that the only issue which ought to be addressed is
that which was adverted to when notice was issued.
16 While addressing the preliminary issue, it would, in our view, be inappropriate
and, perhaps even unsafe, to lay down a broad generalisation. The constitutional
jurisdiction which is conferred upon this Court has its basis in the advancement of
justice. The power of the court to render justice should not be constricted by a
narrow approach to its mandate. In the context of a criminal case, a Bench of two
Judges of this Court in Yomeshbhai Pranshankar Bhatt v State of Gujarat2
considered a situation where a conviction under Section 302 of the Penal Code had
been affirmed by the High Court. Initially, this Court issued notice confined only to
the question as to whether the accused was guilty of the commission of an offence
under any of the parts of Section 304 and not under Section 302. The issue was
whether the ambit of the appeal was confined to what was stated in the notice
2 (2011) 6 SCC 312
10
initially issued. In this context, the Court adverted to the Supreme Court Rules, 1966
which have been framed under Article 145 of the Constitution. Order XLVII Rule 6 of
the rules of procedure of this Court provides as follows:
“6. Nothing in these Rules shall be deemed to limit or otherwise
affect the inherent powers of the Court to make such orders as
may be necessary for the ends of justice or to prevent abuse of
the process of the Court.”
Article 142 of the Constitution enables this Court, in the exercise of its jurisdiction, to
pass such decrees and make such orders as is necessary for doing complete justice
in any case or matter pending before it. After adverting to Article 142, this Court held
as follows :
“18. It is, therefore, clear that the Court while hearing the matter
finally and considering the justice of the case may pass such
orders which the justice of the case demands and in doing so,
no fetter is imposed on the Court's jurisdiction except of course
any express provision of the law to the contrary, and normally
this Court cannot ignore the same while exercising its power
under Article 142. An order which was passed by the Court at
the time of admitting a petition does not have the status of an
express provision of law. Any observation which is made by the
Court at the time of entertaining a petition by way of issuing
notice are tentative observations. Those observations or orders
cannot limit this Court's jurisdiction under Article 142.”
Hence, the Court observed that at the time of final hearing, it would not be precluded
from considering the controversy “in its entire perspective” and while doing so, it is
not “inhibited by any observation, any order made at the time of issuing the notice”.
A similar view was taken in an earlier decision in State of Uttaranchal v Alok
Sharma3
. In Indian Bank v Godhara Nagrik Cooperative Credit Society
3 (2009) 7 SCC 647
11
Limited4
, a Bench of two Judges of this Court held that though a limited notice was
issued initially, leave having been granted thereafter, “all the contentions of the
parties are now open”.
17 We respectfully reiterate and adopt this view which is based on a sagacious
approach to the constitutional powers that are conferred upon the Court. Article 142
embodies the fundamental principle that the jurisdiction of the court is to render
complete justice and as an incident of it, the court may pass such decrees or orders
as it considers fit. When the court initially issues a limited notice but subsequently
grants leave, the scope of the appeal does not raise a matter of jurisdiction but of
judicial discretion. Since it constitutes a matter of discretion and not of jurisdiction,
the guiding principle has to be the advancement of substantial justice.
18 Section 29 of the Hindu Succession Act, 1956 has been invoked by the
Collector. Section 29 provides as follows:
“29. Failure of heirs- if an intestate has left no heir qualified to
succeed to his or her property in accordance with the provisions
of this Act, such property shall devolve on the Government and
the Government shall take the property subject to all the
obligations and liabilities to which an heir would have been
subject.”
Section 29 embodies the principle of escheat. The doctrine of escheat postulates
that where an individual dies intestate and does not leave behind an heir who is
qualified to succeed to the property, the property devolves on government. Though
the property devolves on government in such an eventuality, yet the government
4 (2008) 12 SCC 541
12
takes it subject to all its obligations and liabilities. The state in other words does not
take the property “as a rival or preferential heir of the deceased but as the lord
paramount of the whole soil of the country”, as held in State of Punjab v Balwant
Singh5
. This principle from Halsbury’s Laws of England6
was adopted by this
Court while explaining the ambit of Section 29. Section 29 comes into operation only
on there being a failure of heirs. Failure means a total absence of any heir to the
person dying intestate. When a question of escheat arises, the onus rests heavily on
the person who asserts the absence of an heir qualified to succeed to the estate of
the individual who has died intestate to establish the case. The law does not readily
accept such a consequence. In State of Bihar v Radha Krishna Singh7
, a Bench
of three Judges of this Court formulated the principle in the following observations :
“272. It is well settled that when a claim of escheat is put forward by
the Government the onus lies heavily on the appellant to prove
the absence of any heir of the respondent anywhere in the
world. Normally, the court frowns on the estate being taken by
escheat unless the essential conditions for escheat are fully and
completely satisfied. Further, before the plea of escheat can be
entertained, there must be a public notice given by the
Government so that if there is any claimant anywhere in the
country or for that matter in the world, he may come forward to
contest the claim of the State. In the instant case, the States of
Bihar and Uttar Pradesh merely satisfied themselves by
appearing to oppose the claims of the plaintiffs-respondents.
Even if they succeed in showing that the plaintiffs were not the
nearest reversioners of the late Maharaja, it does not follow as a
logical corollary that the failure of the plaintiffs' claim would lead
to the irresistible inference that there is no other heir who could
at any time come forward to claim the properties.” (id at p. 216)
Mulla’s Hindu Law8
succinctly summarises the position thus :
“Where the Crown or Government claims by escheat, the onus
5 (1992) Suppl (3) SCC 108
6 4
th Ed. Vol 17, para 1439
7 (1983) 3 SCC 118
8 Twenty – second edition, pp. 1260-1261
13
lies on it to show that the owner of the estate died without heirs.
An estate taken by escheat is subject to the trusts, charges and
legal obligations (if any) previously affecting the estate, e.g.,
mortgages and other encumbrances. This section rules that in
case of failure of all the heirs recognised under the Act, on the
death of the owner intestate, his or her property devolves on the
Government. The Government takes the property subject to all
legal obligations and liabilities to which an heir would have been
subject if the property had devolved upon the heir by
succession. The word ‘failure’ used in the section is very clear
and indicative of the fact that there must be a absence of heirs
of the intestate.”
In Rambir Das v Kalyan Das9
a Bench of two learned Judges of this Court dealt
with a case of Shebaitship. Citing the authority of Justice B K Mukherjea’s
celebrated Tagore Law Lectures with approval, this Court took note of the position
of law elucidated in the lectures :
“As shebaitship is property, it devolves like any other property
according to the ordinary Hindu law of inheritance. If it remains
in the founder, it follows the line of founder's heirs; if it is
disposed of absolutely in favour of a grantee, it devolves upon
the heirs of the latter in the ordinary way and if for any reason
the line appointed by the donor fails altogether, shebaitship
reverts to the family of the founder.”
On the question of escheat, Justice B K Mukherjea observes thus :
“As there is always an ultimate reversion to the founder or his
heirs, in case the line of Shebaits is extinct, strictly speaking no
question of escheat arises so far as the devolution of
shebaitship is concerned. But cases may be imagined where
the founder also has left no heirs, and in such cases the
founder's properties may escheat to the State together with the
endowed property. In circumstances like these, the rights of the
State would possibly be the same as those of the founder
himself, and it would be for it to appoint a Shebait for the
debutter property. It cannot be said that the State receiving a
dedicated property by escheat can put an end to the trust and
treat it as secular property.”
In other words, even in a situation where a founder or his line of heirs is extinct, and
the properties escheat to the state, the state which receives a dedicated property is
9 (1997) 4 SCC 102
14
subject to the trust and cannot treat it in the manner of a secular property. In fact, we
may note, Section 29 expressly stipulates that the state “shall take the property
subject to all the obligations and liabilities to which an heir would have been
subject.”
19 In deciding this case, this Court must also bear in mind the settled principle
that unless the founder of a math or religious institution has laid down the principle
governing succession to the endowment, succession is regulated by the custom or
usage of the institution. This principle was enunciated over six decades ago by this
Court in Mahant Sital Das v Sant Ram10, rendered by Justice B K Mukherjea,
speaking for a Bench of four judges :
“10. In the appeal before us the contentions raised by the parties
primarily centre round the point as to whether after the death of
Kishore Das, the plaintiff or Defendant 3 acquired the rights of
Mahant in regard to the Thakardwara in dispute. The law is well
settled that succession to Mahantship of a Math or religious
institution is regulated by custom or usage of the particular
institution, except where a rule of succession is laid down by the
founder himself who created the endowment. As the Judicial
Committee laid down [ Vide Genda Puri v. Chhatar Puri, 13 IA
100, 105] in one of the many cases on this point; “in determining
who is entitled to succeed as Mohunt, the only law to be
observed is to be found in the custom and practice, which must
be proved by testimony, and the claimant must show that he is
entitled according to the custom to recover the office and the
land and property belonging to it…. Mere infirmity of the title of
the defendant, who is in possession, will not help the plaintiff”.
20 The basic issue which has to be addressed in the light of the above principles
is whether the Collector had jurisdiction to decide a question of title by assuming to
himself the power of an adjudicatory forum. The order of the Collector indicates that
10 AIR 1954 SC 606
15
the issue as to whether the property would vest in the state government as a result
of a failure of heirs within the meaning of Section 29 was a seriously disputed issue
turning upon an adjudication of conflicting claims. In the process of determining the
issue purportedly under Section 29, the Collector has adjudicated upon various
factual matters including (i) whether the property was purchased in 1955 by Mohan
Lal with the funds provided by Swamy Udhav Das; (ii) the legality of the registered
will stated to have been executed by the Swamy on 22 October 1956; (iii) the
identity of the person who executed the deed of acceptance dated 23 March 1958 in
comparison with the person in whose name the patta had been acquired in 1955;
(iv) whether Mohan Lal died prior to the execution of the deed of Trust on 11
November 1957; and (v) whether a presumption in regard to the death of Mohan Lal
would arise upon his not being heard of allegedly for seven years. The Collector has
proceeded to adjudicate on these, among other, factual issues. Section 29, it may
be noted, embodies a principle but does not provide a procedural mechanism for
adjudication upon disputed questions. The canvas of the controversy before the
Court is an abundant indication of matters which were seriously in dispute. The
contention of the state that the property would devolve upon it as a result of Mohan
Lal being presumed to be dead and having left behind no legal heir is seriously in
question. Such a matter could not have been adjudicated upon by the Collector by
assuming to himself a jurisdiction which is not conferred upon him by law.
21 The principle that the law does not readily accept a claim to escheat and that
the onus rests heavily on the person who asserts that an individual has died
intestate, leaving no legal heir, qualified to succeed to the property, is founded on a
16
sound rationale. Escheat is a doctrine which recognises the state as a paramount
sovereign in whom property would vest only upon a clear and established case of a
failure of heirs. This principle is based on the norm that in a society governed by the
rule of law, the court will not presume that private titles are overridden in favour of
the state, in the absence of a clear case being made out on the basis of a governing
statutory provision. To allow administrative authorities of the state – including the
Collector, as in the present case – to adjudicate upon matters of tittle involving civil
disputes would be destructive of the rule of law. The Collector is an officer of the
state. He can exercise only such powers as the law specifically confers upon him to
enter upon private disputes. In contrast, a civil court has the jurisdiction to adjudicate
upon all matters involving civil disputes except where the jurisdiction of the court is
taken away, either expressly or by necessary implication, by statute. In holding that
the Collector acted without jurisdiction in the present case, it is not necessary for the
court to go as far as to validate the title which is claimed by the petitioner to the
property. The court is not called upon to decide whether the possession claimed by
the trust of over forty-five years is backed by a credible title. The essential point is
that such an adjudicatory function could not have been arrogated to himself by the
Collector. Adjudication on titles must follow recourse to the ordinary civil jurisdiction
of a court of competent jurisdiction under Section 9 of the Code of Civil Procedure
1908.
22 We may at this stage also advert to the provisions of the Administrators –
General Act, 1963. The Act provides for the appointment of persons who are vested
with the powers of an Administrator General. Section 2(a) defines the expression
17
‘assets’ thus :
“(a) "assets" means all the property, movable and immovable, of
a deceased person, which is chargeable with and applicable to
the payment of his debts and legacies, or available for
distribution among his heirs and next of-kin”.
The Administrator General is notified under Section 3.
Section 7 allows for the grant of letters of administration by the High Court to the
Administrator General of the state, unless they are granted to the next of kin of the
deceased. Section 7 reads as follows :
“7. Administrator-General entitled to letters of administration,
unless granted to next-of kin :- Any letters of administration
granted by the High Court shall be granted to the
Administrator-General of the State unless they are granted to
the next-of-kin of the deceased.”
Section 9 empowers the Administrator General to apply to the High Court for the
administration of estates in specified circumstances :
“9. Right of Administrator-General to apply for administration of
estates :-
(1) If- (a) any person has died leaving within any State assets
exceeding rupees ten lakhs in value, and
(b) (whether the obtaining of probate of his will or letters of
administration to his estate is or is not obligatory), no person to
whom any court would have jurisdiction to commit
administration of such assets has, within one month after his
death, applied in such State for such probate, or letters of
administration, and
(c) (in cases where the obtaining of such probate or letters of
administration is not obligatory under the provisions of the
Indian Succession Act, 1925) , no person has taken other
proceedings for the protection of the estate, the
Administrator-General of the State in which such assets are,
may, subject to any rules made by the State Government, within
a reasonable time after he has had notice of the death of such
person, and of his having left such assets, take such
proceedings as may be necessary to obtain from the High Court
18
letters of administration of the estate of such person.
(2) The Administrator-General shall not take proceedings under
this section unless he is satisfied, that there is apprehension of
misappropriation, deterioration or waste of such assets if such
proceedings are not taken by him or that such proceedings are
otherwise necessary for the protection of the assets.”
The Administrator General is statutorily empowered to move the High Court to
protect the assets or estate of a deceased from dissipation.
Section 10 empowers the Administrator General to move the High Court to collect
and take possession of the assets of a deceased person where there is imminent
danger of misappropriation, deterioration or waste of assets :
“10. Power of Administrator-General to collect and hold assets
where immediate action is required :-
(1) Whenever any person has died leaving assets within any
State exceeding rupees ten lakhs in value, and the High Court
for that State is satisfied that there is imminent danger of
misappropriation, deterioration or waste of such assets,
requiring immediate action, the High Court may, upon the
application of the Administrator-General or of any person
interested in such assets or in the due administration thereof,
forthwith direct the Administrator-General - (a) to collect and
take possession of such assets, and
(b) to hold, deposit, realise, sell or invest the same according to
the directions of the High Court, and, in default of any such
directions, according to the provisions of this Act so far as the
same are applicable to such assets.
(2) Any order of the High Court under sub-section (1) shall
entitle the Administrator General
(a) to maintain any suit or proceeding for the recovery of such
assets;
(b) if he thinks fit, to apply for letters of administration of the
estate of such deceased person;
(c) to retain out of the assets of the estate any fees chargeable
under rules made under this Act; and
(d) to reimburse himself for all payments made by him to
respect of such assets which a private administrator might
lawfully have made.”
Under Section 11, the High Court is empowered to grant probate or letters of
administration to any other person who appears and establishes his claim :
19
“11. Grant of probate or letters of administration to person
appearing in the course of proceedings taken by
Administrator-General :- If, in the course of proceedings to
obtain letters of administration under the provisions of Section 9
or Section 10, -
(a) any person appears and establishes his claim-
(i) to probate of the will of the deceased; or
(ii) to letters of administration as next-of-kin of the deceased,
and gives such security as may be required of him by law; or
(b) any person satisfies the High Court that he has taken and is
prosecuting with due diligence other proceedings for the
protection of the estate, the case being one in which the
obtaining of such probate or letters of administration is not
obligatory under the provisions of the Indian Succession Act,
1925 (39 of 1925); or
(c) the High Court is satisfied that there is no apprehension of
misappropriation, deterioration, or waste of the assets and that
the grant of letters of administration in such proceedings is not
otherwise necessary for the protection of the assets; the High
Court shall –
(1) in the case mentioned in clause (a), grant probate of the will
or letters of administration accordingly;
(2) in the case mentioned in clause (b) or clause (c), drop the
proceedings; and
(3) in all the cases award to the Administrator-General the costs
of any proceedings taken by him under those sections to be
paid out of the estate as part of the testamentary or intestate
expenses thereof.”
Section 12 postulates those eventualities in which administration can be granted to
the Administrator General :
“12. Grant of administration to Administrator-General in certain
cases :- If, in the course of proceedings to obtain letters of
administration under the provisions of Section 9 or Section 10,
and within such period as to the High Court seems reasonable,
no person appears and establishes his claim to probate of a will,
or to a grant of letters of administration as next-of kin of the
deceased, or satisfies the High Court that he has taken and is
prosecuting with due diligence other proceedings for the
protection of the estate, the case being one in which the
obtaining of such probate or letters of administration is not
obligatory under the provisions of the Indian Succession Act,
1925 (39 of 1925), and the High Court is satisfied that there is
apprehension of misappropriation, deterioration, or waste of the
20
assets or that the grant of letters of administration in such
proceedings is otherwise necessary for the protection of the
assets; or if a person who has established his claim to a grant of
letters of administration as next-of-kin of the deceased fails to
give such security as may be required of him by law; the High
Court may grant letters of administration to the
Administrator-General.”
Under Section 14, the grant of letters of administration to the Administrator General
can be revoked where an executor or next of kin of a deceased establishes a claim
to probate or letters of administration in preference to the Administrator General :
“14. Recall of Administrator-General's administration and grant
of probate etc., to executor or next-of-kin :- If an executor or
next-of-kin of the deceased, who has not been personally
served with a citation or who has not had notice thereof in time
to appear pursuant thereto, establishes to the satisfaction of
the High Court a claim to probate of will or to letters of
administration in preference to the Administrator-General, any
letters of administration granted in accordance with the
provisions of this Act to the Administrator-General :
(a) shall be revoked, if a will of the deceased is proved in the
State; (b) may be revoked, in other cases, if an application for
that purpose is made within six months after the grant to the
Administrator-General and the High Court is satisfied that there
has been no unreasonable delay in making the application, or
in transmitting the authority under which the application is
made; and probate or letters of administration may be granted
to such executor or next-of-kin as the case may be.”
The effect of the grant of probate or letters of administration is provided by Section
20(1) which reads thus :
“20. Effect of probate or letters granted to Administrator-General
:- (1) Probate or letters of administration granted by the High
Court to the Administrator-General of any State shall have effect
over all the assets of the deceased throughout India and shall
be conclusive as to the representative title against all debtors of
the deceased and all persons holding such assets, and shall
afford full indemnity to all debtors paying their debts and all
persons delivering up such assets to such
Administrator-General.”
21
23 The above provisions enacted by Parliament define the ambit of the powers
vested in the Administrator General and the circumstances in which he can move
the High Court. Essentially, the Administrator General steps in to protect the estate
of a person who has died and no person to whom any court would have jurisdiction
to commit the administration of the estate has come forth. The Administrator
General is authorised by law to move the High Court to obtain letters of
administration. Where the property or estate of the deceased is in imminent danger,
the Administrator General can be empowered by the High Court to take immediate
steps to safeguard the estate. While permitting the Administrator General to apply to
the High Court for the grant of letters of administration, the law allows any other
individual to appear and establish a claim before the High Court. Where a claim to
probate or letters of administration in preference to the Administrator General is
established, an order of revocation can be passed by the High Court. Such
adjudicatory functions are entrusted to the High Court. The Administrator General,
as a public official, is conferred with duties and obligations to secure and safeguard
the administration of the estate left behind by a deceased individual in the
circumstances adverted to in the statute. The legislation has not reserved a judicial
power to the Administrator General. Parliament in its wisdom has made provisions to
ensure that estates are not frittered away upon the death of persons who do not
leave behind legal heirs, by allowing the Administrator General to invoke the
jurisdiction of the High Court to safeguard such estates. The conferment of
adjudicatory functions upon the High Court safeguards against an abuse of power
and facilitates an adjudication of private claims.
22
24 In the present case, for the reasons indicated above, we have come to the
conclusion that the Collector acted manifestly in excess of his jurisdiction and
launched upon an adjudicatory exercise. This power was not vested in him. The
counter affidavit filed in these proceedings relies upon the provisions of Sub-section
2 of Section 167 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act,
1950 in its application to the State of Uttarakhand. Sub- sections 1 and 2 of
Section167 provide as follows :
“167 (1). The following consequences shall ensue in respect of
every transfer which is void by virtue of Section 166, namely-
(a) the subject-matter of transfer shall, with effect from the date
of transfer, be deemed to have vested in the State Government
free from all encumbrances;
(b) the trees, crops and wells existing on the land on the date of
transfer shall, with effect from the said date, be deemed to have
vested in the State Government free from all encumbrances;
and
(c) the transferee may remove other moveable property or the
materials of any immovable property existing on such land on
the date of transfer within such time as may be prescribed.”
“167 (2). Where any land or other property has vested in the
State Government under sub section (1) it shall be lawful for the
Collector to take over possession over such or other property
and to direct that any person occupying such land or other
property be evicted therefrom. From the purposes of taking over
such possession or evicting such unauthorised occupants, the
Collector may use or cause to be used such force as may be
necessary.”
25 The power conferred upon the Collector by Sub-section 2 of Section 167 can
be exercised only in the circumstances set out in Sub-Section 1. In the present
case, the provision was clearly not attracted.
23
26 For the above reasons, we allow the appeal and set aside the impugned
judgment of the High Court dated 15 May 2007. In consequence, the Writ Petition
filed by the Appellant is allowed and the order dated 12 May 2003 passed by the
Collector is quashed and set aside.
27 The Civil Appeal is disposed of in the above terms. There shall be no order as
to costs.
……........................................J
[N V RAMANA]
................................................J
[Dr D Y CHANDRACHUD]
New Delhi;
September 22, 2017