LAW FOR ALL

Friday, August 5, 2011

land acquisition – when to invoke urgent clause – The series of events shows lethargy and lackadaisical attitude of the State Government. In the light of the above circumstances, the respondents are not justified in invoking the urgency provisions under Section 17 of the Act, thereby depriving the appellants of their valuable right to raise objections and opportunity of hearing before the authorities in order to persuade them that their property may not be acquired

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6293 OF 2011

(Arising out of Special Leave Petition (C) No. 15151 of 2011)

Devendra Singh & Ors. .............. Appellants

versus

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

J U D G M E N T

H.L. Dattu, J.

Leave granted.

2). This appeal, by special leave, is directed against the

Judgment and Order dated 08.10.2010 passed by the High Court of

Judicature at Allahabad in Civil Misc. Writ Petition No. 61903 of

2010 whereby, the writ petition filed by the appellants challenging

the acquisition of their land for construction of District Jail by

invoking Sections 17(1) and 17(4) of the Land Acquisition Act,

1894 (hereinafter referred to as "the Act") was dismissed.

3). The facts of the present appeal are as follows:-

The District Magistrate, Jyotiba Phule Nagar, had sent a

proposal to the Principal Secretary, Home/Prisons Section 4,

Government of U.P. for acquisition of land situated at Amroha-

Naugawan Sadat Road for the construction of District Jail vide

letter dated 24.01.2003. After the gap of 5 years, the Special

Secretary, Prisons Administration and Reforms, Government of

U.P., had requested the District Magistrate to find the available

lands for acquisition, for the said purpose, in the proximity of the

District Head Quarters vide letter dated 16.01.2008. Subsequently,

the District Magistrate traced and informed the availability of such

lands in village Dasipur and other nearby villages for possible

acquisition to the Special Secretary vide letter dated 25.2.2008.

Thereafter, the Special Secretary directed the Selection Committee

to inspect the available lands regarding the feasibility of their

acquisition for the construction of Jail vide letter dated 22.04.2008.

Accordingly, the Selection Committee, after conducting detailed

spot inspection of the available lands, found and recommended that

the lands at village Dulhar Sant Prasad were suitable for

construction of Jail on 05.05.2008. In this backdrop, the

respondent had issued a notification dated 05.03.2010 under

2

Section 4 read with Section 17(4) of the Act for acquisition of

20.870 hectares of land at village Dulhapur Sant Prasad, Tehsil

Amroha, Jyotiba Phule Nagar for public purpose of construction of

District Jail. The same was published in the local newspapers on

26.03.2010. The relevant part of the notification is extracted

below:

"UTTAR PRADEHS SHASAN KARAGAR

PRASHASAN EVEM SUDHAR ANUBHAG - 4

The Governor is pleased to order the publication

of the following English translation of Notification

No. 443/22-4-2010-101 (b) 2000 dated 05 March,

2010 for general information:

NOTIFICATION

No. 443/22-4-2010-101 (b) 2000

Lucknow: Dated 05 March 2010

Under subsection (1) of section 4 of the Land

Acquisition Act, 1894 (Act No. 1 of 1984 (sic.)), the

Governor is pleased to notify for general

information that the land mentioned in the

schedule below is needed for the public purpose

namely, for construction of the District Jail in

District Jyotiba Phule Nagar.

Being of opinion that provisions of subsection (1)

of section 17 of the said Act are applicable to the

said land in as much as the said land is urgently

required for construction of the District Jail in

District Jyotiba Phule Nagar and that in view of

the pressing urgency it is as well necessary to

eliminate to delay likely to be caused by an enquiry

under section 5-A of the said Act the Governor is

further pleased to direct, under subsection (4) of

section 17 of said Act, that the provisions of

section 5-A shall not apply."

3

4). Since the appellants' land was also included in the

notification, they made representations dated 07.04.2010 and

20.08.2010 to the Land Acquisition Officer, the District

Magistrate, Jyotiba Phule Nagar, the Chief Minister and the Home

Secretary, Government of U.P. with the request that their land may

not be acquired as they had raised construction of houses, tube

wells and lands are under cultivation. They also suggested the

availability of large tracts of alternative lands with no construction

and irrigation facility situated within one Kilometer towards North.

However, the concerned authorities did not reply to these

representations of the appellants. Subsequently, the appellants,

aggrieved by the said notification, filed Writ Petition No. 22252 of

2010 before the High Court of Judicature at Allahabad, which was

dismissed vide its Order dated 22.04.2010 without deciding any

issue on merits on the ground that the writ petition is premature as

the declaration under Section 6 has not been issued. The High

Court further granted liberty to the appellants to raise all the

available grounds, including the applicability of Sections 17(1) and

17(4) of the Act, in order to challenge the acquisition of their land

once the State Government proceeds to issue Notification under

Section 6(1) of the Act. Thereafter, the State Government issued a

Notification dated 06.08.2010 under Section 6 read with Section

4

17(1) of the Act whereby, it directed the Collector of Jyotiba Phule

Nagar to take possession of the said land on the expiry of 15 days

from the date of publication of the Notice under Section 9(1) even

in the absence of any award being made under Section 11.

Eventually, the Public Notice dated 03.09.2010 was issued, which

expressed the intention of the Government to take possession of the

said land, in which it was directed to the appellants to appear

before the Special Land Acquisition Officer, Jyotiba Phule Nagar.

The appellants, being aggrieved, filed a Writ Petition before the

High Court of Judicature at Allahabad interalia questioning the

correctness of the Notification dated 5.3.2010 issued under Section

4 read with Section 17(4) and Notification dated 6.8.2010 issued

under Section 6 read with Section 17(1) thereby dispensing with

the opportunity of hearing and enquiry under Section 5-A of the

Act. The High Court, vide its impugned Judgment and Order dated

8.10.2010, dismissed the Wirt Petition and allowed the respondents

to proceed further with acquisition of the said land in terms of the

Act on the ground that the construction of the District Jail is an

urgent matter which has been mentioned in the Notification under

Section 4 as the very purpose of acquisition of the land. Aggrieved

by this Judgment and Order of the High Court, the appellants are

before us in this appeal.

5

5). The issue involved in the present appeal for our

consideration is: Whether the respondent is justified in invoking

the urgency provision under Section 17(1) and excluding the

application of Section 5-A in terms of Section 17(4) of the Act for

acquisition of the land for construction of District Jail.

6). The learned counsel Shri. Prashant Kumar submits that the

district of Jyotiba Phule Nagar came into existence on 24.04.1997.

Since then, the State Government had not shown any kind of

urgency and was only considering the proposal of acquiring the

land for the public purpose of construction of the District Jail. It

was only in the year 2010 that the State Government had issued

Notifications under Sections 4 and 6, invoking urgency provision

as contemplated by the Sections 17(1) and 17 (4). In other words,

the lackadaisical attitude of the State Government since the

creation of the new district nearly 13 years ago does not exhibit or

depict any kind of urgency but only lethargy on their part in

acquiring the land. Therefore, the urgency contemplated in the Act

cannot be equated with dereliction of responsibility on the part of

the State Government. The learned counsel contends that the

respondents had unnecessarily invoked the urgency provisions

under Section 17 (1) read with Section 17 (4) for acquisition of the

6

land for construction of the District Jail in view of the delay of 13

years in the issuance of the Notification under Section 4 of the Act

and still, the said land is under the possession of the appellants.

The learned counsel argues that invoking of the urgency provisions

under Section 17(4), which excludes the application of Section

5-A, by the respondents in the absence of any real urgency as

contemplated by Section 17, amounts to illegal deprivation of the

right to file objection and hearing of the appellants under Section

5-A of the Act. He submits, relying on various decisions of this

Court, that the expropriatory legislation like Land Acquisition Act

must be given strict construction. He further submits that Section

5-A is a substantial right and akin to Fundamental Right which

embodies a principle of giving of proper and reasonable

opportunity to the land owner to persuade the authorities against

the acquisition of his land which can be dispensed with only in

exceptional cases of real urgency. The learned counsel relies on

the decision of this Court in Dev Sharan & Others v. State of U.P.

(2011) 4 SCC 769 in support of his contention that dispensing with

the opportunity of hearing and enquiry under Section 5-A of the

Act in view of prolonged lethargy of almost 13 years on the part of

respondents by invoking emergency provisions under Section 17 is

illegal and unjustified. The learned counsel has further cited catena

7

of Judgments of this Court in support of his arguments which has

already been dealt with by this Court in Radhy Shyam v. State of

U.P. (2011) 5 SCC 553.

7). Per Contra, the learned senior counsel Shri. K.K. Venugopal

submits that the newly created district of Jyotiba Phule Nagar does

not have a District Jail to lodge the prisoners of the district who are

presently accommodated in the Moradabad District Jail, wherein

the total population of inmates exceeds by more than three times

the capacity of the Jail, causing great hardships to inmates. Further,

producing of the prisoners from Moradabad Jail to various Courts

in Jyotiba Phule Nagar raises financial and security concerns. He

submits that since the creation of the new district, the State

Government has been making continuous efforts for acquisition of

land to construct the District Jail. However, the process of

construction of Jail could not be carried forward due to subsequent

dissolution of the district vide Notification dated 13.04.2004,

which was challenged before the High Court and later, the High

Court quashed the said Notification of Dissolution. Pursuant to this

Order of the High Court, the district was recreated in 2004. He

further submits that the State Government had issued a Notification

dated 5.3.2010 under Section 4 read with Section 17 (4) of the Act

8

for acquisition of the said land for public purpose of urgent

construction of Jail in the newly created district by invoking

Section 17(4) of the Act in order to eliminate delay likely to be

caused by enquiry under Section 5-A of the Act. Subsequently, in

view of the said urgency, the State Government had issued

Notification dated 6.8.2010 under Section 6 read with Section

17(1) of the Act and published it in the Newspaper along with a

Public Notice under Section 9 of the Act dated 20.08.2010, all

within a period of 5 months. Further, the respondents, after

hearing the objections and claims of the appellants dated

03.09.2010 regarding the compensation and measurement of the

land under Section 9 of the Act, handed over the possession of the

said land to the Senior Superintendent of Jails, Mordabad, on

07.01.2011. The learned senior counsel submits that there is no

lethargy or negligence on the part of the State Government to

acquire the said land. He further supports the observation of the

High Court in the impugned Judgment that construction of Jail is

an urgent matter requiring acquisition of the land by invoking

urgency provisions under Section 17 (1) and Section 17(4) thereby

dispensing with the enquiry under Section 5-A of the Act. He

further contends that the right of the citizens of filing of objections

and opportunity of hearing under Section 5-A are subject to the

9

provisions of Section 17 of the Act and the same can be legally

curtailed in the event of any pressing need and urgency for

acquisition of land in order to eliminate delay likely to be caused

by an enquiry under Section 5-A of the Act. The learned senior

counsel further submits that Dev Sharan's Case (Supra) upon

which, the appellant had placed strong reliance is not relevant and

applicable to the present case because in that case, this Court

invalidated the acquisition of land by invoking urgency provisions

for construction of a new Jail when old Jail was already existed in

District Shahjahanpur but was located in a densely populated area

which needs to be shifted. Learned Senior Counsel has placed

reliance on the decisions of this Court in Deepak Pahwa v. Lt.

Governor of Delhi, (1984) 4 SCC 308 and Chameli Singh v. State

of U.P., (1996) 2 SCC 549 in support of his arguments that even

the delay and lethargy on the part of the respondents will not

disentitle them to invoke urgency provisions under Sections 17 of

the Act.

8). The issue before us is no more res integra as it has already

been decided by this Court in Radhy Shyam's Case (Supra) in

which one of us was the party (G.S. Singhvi, J.) wherein this Court

has considered the development of the jurisprudence and law, with

10

respect to invoking of the urgency provisions under Section 17 vis-

`-vis right of the landowner to file objections and opportunity of

hearing and enquiry under Section 5-A of the Act, by referring to

plethora of earlier decisions of this Court. This Court had culled

out various principles governing the acquisition of the land for

public purpose by invoking urgency thus:

"From the analysis of the relevant statutory

provisions and interpretation thereof by this Court

in different cases, the following principles can be

culled out:

(i) Eminent domain is a right inherent in every

sovereign to take and appropriate property

belonging to citizens for public use. To put it

differently, the sovereign is entitled to reassert its

dominion over any portion of the soil of the State

including private property without its owner's

consent provided that such assertion is on account

of public exigency and for public good --

Dwarkadas Shrinivas v. Sholapur Spg. and Wvg.

Co. Ltd.46, Charanjit Lal Chowdhury v. Union of

India47 and Jilubhai Nanbhai Khachar v. State of

Gujarat48.

(ii) The legislations which provide for compulsory

acquisition of private property by the State fall in

the category of expropriatory legislation and such

legislation must be construed strictly -- DLF

Qutab Enclave Complex Educational Charitable

Trust v. State of Haryana49; State of Maharashtra

v. B.E. Billimoria50 and Dev Sharan v. State of

U.P.242

(iii) Though, in exercise of the power of eminent

domain, the Government can acquire the private

property for public purpose, it must be

remembered that compulsory taking of one's

property is a serious matter. If the property

belongs to economically disadvantaged segment of

11

the society or people suffering from other

handicaps, then the court is not only entitled but is

duty-bound to scrutinise the action/decision of the

State with greater vigilance, care and

circumspection keeping in view the fact that the

landowner is likely to become landless and

deprived of the only source of his livelihood and/or

shelter.

(iv) The property of a citizen cannot be acquired by

the State and/or its agencies/instrumentalities

without complying with the mandate of Sections 4,

5-A and 6 of the Act. A public purpose, however,

laudable it may be does not entitle the State to

invoke the urgency provisions because the same

have the effect of depriving the owner of his right

to property without being heard. Only in a case of

real urgency, the State can invoke the urgency

provisions and dispense with the requirement of

hearing the landowner or other interested persons.

(
v
)
Section 17(1) read with Section 17(4) confers

extraordinary power upon the State to acquire

private property without complying with the

mandate of Section 5-A. These provisions can be

invoked only when the purpose of acquisition

cannot brook the delay of even a few weeks or

months. Therefore, before excluding the

application of Section 5-A, the authority concerned

must be fully satisfied that time of few weeks or

months likely to be taken in conducting inquiry

under Section 5-A will, in all probability, frustrate

the public purpose for which land is proposed to be

acquired.

(vi) The satisfaction of the Government on the

issue of urgency is subjective but is a condition

precedent to the exercise of power under Section

17(1) and the same can be challenged on the

ground that the purpose for which the private

property is sought to be acquired is not a public

purpose at all or that the exercise of power is

vitiated due to mala fides or that the authorities

concerned did not apply their mind to the relevant

factors and the records.

12

vii) The exercise of power by the Government

under Section 17(1) does not necessarily result in

exclusion of Section 5-A of the Act in terms of

which any person interested in land can file

objection and is entitled to be heard in support of

his objection. The use of word "may" in sub-

section (4) of Section 17 makes it clear that it

merely enables the Government to direct that the

provisions of Section 5-A would not apply to the

cases covered under sub-section (1) or (2) of

Section 17. In other words, invoking of Section

17(4) is not a necessary concomitant of the

exercise of power under Section 17(1).

(
viii
)
The acquisition of land for residential,

commercial, industrial or institutional purposes

can be treated as an acquisition for public

purposes within the meaning of Section 4 but that,

by itself, does not justify the exercise of power by

the Government under Sections 17(1) and/or 17(4).

The court can take judicial notice of the fact that

planning, execution and implementation of the

schemes relating to development of residential,

commercial, industrial or institutional areas

usually take few years. Therefore, the private

property cannot be acquired for such purpose by

invoking the urgency provision contained in

Section 17(1). In any case, exclusion of the rule of

audi alteram partem embodied in Sections 5-A(1)

and (2) is not at all warranted in such matters."

9). In view of the above it is well settled that acquisition of the

land for public purpose by itself shall not justify the exercise of

power of eliminating enquiry under Section 5-A in terms of

Section 17 (1) and Section 17 (4) of the Act. The Court should

take judicial notice of the fact that certain public purpose such as

development of residential, commercial, industrial or institutional

areas by their intrinsic nature and character contemplates planning,

13

execution and implementation of the schemes which generally

takes time of few years. Therefore, the land acquisition for said

public purpose does not justify the invoking of urgency provisions

under the Act. In Radhy Shyam (Supra), this Court, whilst

considering the conduct or attitude of the State Government vis-`-

vis urgency for acquisition of the land for the public purpose of

planned industrial development in District Gautam Budh Nagar,

has observed:

"In this case, the Development Authority sent the

proposal sometime in 2006. The authorities up to

the level of the Commissioner completed the

exercise of survey and preparation of documents

by the end of December 2006 but it took one year

and almost three months for the State Government

to issue notification under Section 4 read with

Sections 17(1) and 17(4). If this much time was

consumed between the receipt of proposal for the

acquisition of land and issue of notification, it is

not possible to accept the argument that four to

five weeks within which the objections could be

filed under sub-section (1) of Section 5-A and the

time spent by the Collector in making enquiry

under sub-section (2) of Section 5-A would have

defeated the object of the acquisition."

10). Moreover, in Dev Sharan Case (Supra) the acquisition of

land for construction of new District Jail, since the old Jail

was overcrowded and causing hardships including health

and hygiene concerns to the inmates, by invoking urgency

14

provision under Section 17 was quashed on the ground that

the government machinery had functioned at very slow pace

in processing the acquisition which clearly evinces that there

was no urgency to exclude the application of Section 5-A of

the Act. The Court further observed:

"35. From the various facts disclosed in the said

affidavit it appears that the matter was initiated by

the Government's Letter dated 4-6-2008 for

issuance of Section 4(1) and Section 17

notifications. A meeting for selection of a suitable

site for construction was held on 27-6-2008, and

the proposal for such acquisition and construction

was sent to the Director, Land Acquisition on 2-7-

2008. This was in turn forwarded to the State

Government by the Director on 22-7-2008. After

due consideration of the forwarded proposal and

documents, the State Government issued Section 4

notification, along with Section 17 notification on

21-8-2008. These notifications were published in

local newspapers on 24-9-2008.

36. Thereafter, over a period of 9 months, the State

Government deposited 10% of compensation

payable to the landowners, along with 10% of

acquisition expenses and 70% of cost of

acquisition was deposited, and the proposal for

issuance of Section 6 declaration was sent to the

Director, Land Acquisition on 19-6-2009. The

Director in turn forwarded all these to the State

Government on 17-7-2009, and the State

Government finally issued the Section 6

declaration on 10-8-2009. This declaration was

published in the local dailies on 17-8-2009.

37. Thus the time which elapsed between

publication of Section 4(1) and Section 17

notifications, and Section 6 declaration in the local

newspapers is 11 months and 23 days i.e. almost

15

one year. This slow pace at which the government

machinery had functioned in processing the

acquisition, clearly evinces that there was no

urgency for acquiring the land so as to warrant

invoking Section 17(4) of the Act.

38. In Para 15 of the writ petition, it has been

clearly stated that there was a time gap of more

than 11 months between Section 4 and Section 6

notifications, which demonstrates that there was no

urgency in the State action which could deny the

petitioners their right under Section 5-A. In the

counter which was filed in this case by the State

before the High Court, it was not disputed that the

time gap between Section 4 notification read with

Section 17, and Section 6 notification was about 11

months.

39. The construction of jail is certainly in public

interest and for such construction land may be

acquired. But such acquisition can be made only

by strictly following the mandate of the said Act. In

the facts of this case, such acquisition cannot be

made by invoking emergency provisions of Section

17. If so advised, the Government can initiate

acquisition proceeding by following the provision

of Section 5-A of the Act and in accordance with

law."

11). In the facts and circumstances of the present case, it is clear

that the District of Jyotiba Phule Nagar was created in the year

1997 which was, however, dissolved and recreated in 2004. The

District Magistrate, Jyotiba Phule Nagar, had sent a proposal to the

Principal Secretary, Home/Prisons, Government of U.P. for

acquisition of land for the construction of District Jail on

24.01.2003 which is undoubtedly a public purpose. After the lapse

16

of 5 years in the year 2008, the State Government asked District

Magistrate to trace availability of lands for acquisition for

construction of the District Jail in the proximity to District

Headquarters and further requested the Selection Committee to

recommend the land suitable for the said purpose. Thereafter, the

Selection Committee recommended the acquisition of the said land

as suitable for the construction of the Jail but it took two years for

the State Government to issue the said Notifications under Section

4 and Section 6 respectively, thereby invoking the urgency

provisions under Section 17 of the Act. The series of events shows

lethargy and lackadaisical attitude of the State Government. In the

light of the above circumstances, the respondents are not justified

in invoking the urgency provisions under Section 17 of the Act,

thereby depriving the appellants of their valuable right to raise

objections and opportunity of hearing before the authorities in

order to persuade them that their property may not be acquired.

12). The decision of this Court in Chameli Singh (Supra), upon

which Shri. K.K. Venugopal, learned senior counsel for the

respondents has placed reliance, has already been considered and

distinguished by this Court in Radhy Shyam Case (Supra) in the

following terms:

17

"74. In State of U.P. v. Pista Devi, Rajasthan

Housing Board v. Shri Kishan and Chameli Singh

v. State of U.P. the invoking of urgency provision

contained in Section 17(1) and exclusion of Section

5-A was approved by the Court keeping in view the

acute problem of housing, which was perceived as

a national problem and for the solution of which

national housing policy was framed and the

imperative of providing cheaper shelter to Dalits,

tribals and other disadvantaged sections of the

society."

13). Learned senior counsel for the respondents also relied on the

decision of this Court in Deepak Pahwa Case (Supra). In that case,

the land was acquired by invoking urgency provisions under

Section 17 for the purpose of construction of a New Transmitting

Station for the Delhi Airport after the correspondence of nearly

eight years among the various Departments of the Government

before the Notification and the declaration was published in the

Gazette. This Court has held that mere pre-notification delay

would not render the invocation of the urgency provisions void as

very often, the delay increases the urgency of the necessity for

acquisition. We are afraid that the decision will not come to the

rescue of the respondents because this Court has observed that

delay only accelerates or increases the urgency of need of

acquisition, which contemplates that delay does not create a ground

or cause for urgency but increases the already existing urgency for

18

acquisition of land for any public purpose. Therefore, the delay, by

itself, does not create urgency for acquisition but accelerates

urgency only in case it already exists in the nature of the public

purpose.

14). For the reasons aforesaid, we hold that the State Government

was not justified, in the facts of this case, to invoke the emergency

provision of Section 17(4) of the Act. Therefore, the appellants

cannot be denied of their valuable right under Section 5-A of the

Act.

15). In the result, the appeal is allowed. The impugned Judgment

and Order of the High Court dated 08.10.2010 is set aside. No

order as to costs.

..............................J.

[ G.S. SINGHVI ]

...........................

...J.

[ H. L. DATTU ]

New Delhi,

August 03, 2011.

19

uttarakhand electricity board - Clauses (2) and (3) of Regulation 17 are clear that promotion to the post of Junior Engineer from amongst the Operating Staff is to be made on the basis of selection based on a written examination followed by a practical and oral test to which only such candidates would be admitted as have qualified in the written test and the names of the candidates who qualified in the practical and written tests were to be placed in the order of merit. If the private respondents could not be promoted whereas their juniors 15 were promoted because of their merit determined in the tests as provided in Clauses (2) and (3) of Regulation 17, the promotion of such juniors cannot be held to be in any way illegal.

Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3448 OF 2008

Rakesh Sharma & Ors., ... Appellants

Versus

Chairman/Managing Director,

Uttaranchal Power Corporation & Ors., ... Respondents

WITH

CIVIL APPEAL NO. 3476 OF 2008,

WITH

SPECIAL LEAVE PETITION (C) NOs.5278-5279 of 2009

AND

SPECIAL LEAVE PETITION (C) NO.4827 of 2009

J U D G M E N T

A. K. PATNAIK, J.

IN CIVIL APPEAL NOs. 3448 OF 2008 AND 3476 OF 2008

These two appeals are against two separate orders

passed by the Division Bench of the High Court of

Uttaranchal on 28.02.2006 and arise out of the same set of

facts and are accordingly being disposed of by this common

judgment.

2

2. The facts very briefly are that written tests and

interviews were conducted in the years 1977, 1979

and 1981 for promotion of Operating Staff (Technical

Grade-II) to the post of Junior Engineer in the Uttar

Pradesh State Electricity Board (for short `the UPSEB')

under Regulation 17 of the Uttar Pradesh State

Electricity Board Subordinate Electrical and

Mechanical Engineering Service Regulations, 1972 (for

short `the Regulations'). Mandip Singh and others,

who had taken the written test and interview in 1977,

moved the Allahabad High Court in a batch of Writ

Petitions and on 28.08.1989 a Division Bench of the

High Court by its order directed the UPSEB to declare

the select list of candidates who had appeared in 1977

examination and the interview and after exhausting

the same to make appointments from the select list of

the candidates who had appeared in the 1979 written

examination and interview. On 24.09.1999, the

UPSEB issued an Office Memo cancelling the

examination conducted in 1985 because it was not

possible to promote the Technical Cadre employees to

3

the post of Junior Engineer on the basis of

examination conducted in the year 1985 till the order

dated 29.08.1989 of the Allahabad High Court in the

case of Mandip Singh & others was complied with. On

09.11.2000, the new State of Uttaranchal, now

renamed as Uttarakhand, was carved out of the

erstwhile State of Uttar Pradesh and the Uttaranchal

Power Corporation Limited (for short `the UPCL')

became the successor of UPSEB for the State of

Uttarakhand and started functioning with effect from

01.04.2001 and adopted the Regulations for its

employees. On 05.04.2003, the Selection Committee

of UPCL recommended that there was no hindrance for

promoting the candidates selected on the basis of 1985

examination as there were vacancies to the post of

Junior Engineer after promotion of the selected

candidates of the years 1977 and 1979. Thereafter, a

list of employees, who had taken the examinations

conducted by the UPSEB in the years 1977, 1979 and

1985, was prepared and they were promoted to the

post of Junior Engineer by the Board of UPCL after

4

relaxation under Regulation 31 of the Regulations.

3. These promotions were challenged in Civil Writ Petition

Nos. 3 of 2003 (S/S), 979 of 2002 (S/S), 7195 of 2001

(S/S) and 803 of 2003 (S/S) in the High Court of

Uttaranchal. The four Writ Petitions were heard by a

learned Single Judge and allowed by a common order

dated 25.10.2004. The learned Single Judge held that

the promotions of employees of the cadre of Technical

Grade-II to the post of Junior Engineer on the basis of

1985 examination cannot be said to be legal after

cancellation of 1985 examination by the Office Memo

dated 24.09.1999 of the UPSEB, unless either

Regulation 17, which provides for promotion on the

basis of written examination and interview, was

amended or the order of cancellation of the 1985

examination was recalled. The learned Single Judge

directed the UPCL to hold examination afresh

complying with the provisions of Regulation 17 of the

Regulations. The learned Single Judge quashed the

seniority list of Junior Engineers dated 17.11.2001

which was based on the promotions held on the basis

5

of 1985 examination and further observed that the

promotions made on the basis of the examinations

held in the years 1977 and 1979 shall remain

unaffected. The learned Single Judge, however,

observed that those already promoted or holding the

charge of Junior Engineers will not be disturbed and

their functioning shall be subject to the result of the

fresh examination to be held.

4. Rakesh Sharma and others, who had been promoted

as Junior Engineers on the basis of the 1985

examination, challenged the order of the learned Single

Judge before the Division Bench of the High Court of

Uttaranchal in Special Appeal Nos. 96 of 2004 and 103

of 2004 but the Division Bench of the High Court

dismissed the Special Appeals by order dated

28.02.2006. The Division Bench agreed with the

reasons given by the learned Single Judge, but

observed that promotees on the basis of the 1985

examination shall be treated as working on ad hoc

promotion and shall be allowed to continue subject to

their appearance and passing in the examination and

6

the interview in accordance with Regulation 17 of the

Regulations and those selected afresh will be treated to

have been appointed from the date of promotion. The

UPCL also filed Special Appeal Nos.105, 107, 112 and

113 of 2008 against the order dated 28.02.2006 and

by a separate order dated 28.02.2006 the Division

Bench of the High Court sustained the order of learned

Single Judge and disposed of the Special Appeals with

the direction that those promotees, who had retired,

shall not be affected by the order of the learned Single

Judge.

5. Mr. P. P. Rao, learned counsel for the appellants in

Civil Appeal No.3476 of 2008, and Mr. D. K. Garg,

leaned counsel for the appellants in Civil Appeal

No.3448 of 2008, submitted that the selection of

candidates for promotion to the post of Junior

Engineer made on the basis of written examination

and interview held in 1985 was in accordance with

Regulation 17 of the Regulations and the High Court

has not found the selection of candidates to be illegal.

They submitted that the selection of candidates made

7

in the year 1985 was cancelled by the Office Order

dated 24.09.1999 of the UPSEB because if the

directions of the Division Bench of the Allahabad High

Court in the case of Mandip Singh & Ors. v. UPSEB &

Ors. to first appoint the candidates selected on the

basis of examinations and interviews held in 1977 and

1979, had to be complied with, the candidates selected

on the basis of the examination and interview held in

1985 could not be appointed. Learned counsel for the

appellants further submitted that the High Court was

under an erroneous impression that the Office Order

dated 24.09.1999 cancelling the examination of 1985

had not been recalled. They referred to the minutes of

the 14th Board of Directors' Meeting of UPCL held on

26.12.2003 and 24.01.2004 to show that the Board of

UPCL had resolved that the employees who have

qualified in the 1985 examination and had been

absorbed in the services of the UPCL would be eligible

to be promoted to the post of Junior Engineer.

Learned counsel for the appellants submitted that the

Board of UPCL, therefore, had in effect recalled the

8

cancellation of the 1985 examination for promotion to

the post of Junior Engineer and, therefore, the

candidates, who have been selected on the basis of the

1985 examination were promoted to the post of Junior

Engineer in accordance with Regulation 17 of the

Regulations and their appointments could not have

been declared to be invalid by the High Court.

6. Mr. B. Datta, learned counsel for the private

respondents in both the appeals, on the other hand,

submitted that the Board of the UPCL has committed a

breach of the directions of the judgment of the Division

Bench of the Allahabad High Court in the case of

Mandip Singh & Ors. v. UPSEB & Ors. and has resolved

in its meetings held on 26.12.2003 and 02.01.2004 to

promote the employees who had qualified in 1985

examination. He submitted that the UPCL should

have held another written examination and interview

in accordance with Regulation 17 of the Regulations.

He also submitted that the private respondents were

not promoted even though they qualified in the oral

tests and instead their juniors in the cadre of

9

Technical Grade-II were promoted on the basis of the

1985 examination, which have been held to be illegal

by the High Court.

7. We have considered the submissions of the learned

counsel for the parties and we find that in the batch of

Writ Petitions in the case of Mandip Singh & Ors. v.

UPSEB & Ors., the Division Bench of the Allahabad

High Court in its judgment dated 29.08.1989 did not

hold that the selection of candidates made for

promotion on the basis of 1985 examination was in

contravention of Regulation 17 of the Regulations or

was in any way illegal. The High Court only

considered the grievances of the candidates, who had

appeared in the 1977 and 1979 examinations and

issued writs of mandamus granting some reliefs. Para

14 of the judgment of the Division Bench in Mandip

Singh & Ors. v. UPSEB & Ors. is quoted hereinbelow:

"In the result, the writ petitions are allowed.

A mandamus is issued directly to the U.P.

State Electricity Board to declare the list of

the candidates appeared in 1977

examination and after exhausting the same

to make appointments from the list of the

candidates appeared in 1979 examination.

The months from the date of production of a

10

copy of this order. A further mandamus is

issued directing the UP State Electricity

Board to declare the list of temporary Junior

Engineers and thereafter to make

appointments from that list in accordance

with law. A mandamus is also issued to the

U.P. State Electricity Board to reduce the

marks for interview and oral test and to

make selection accordingly and this shall

also be done within two months from the

date of production of a copy of this order.

The U.P. State Electricity Board is also

directed to relax the qualifications only in

accordance with law and taking into

consideration the Regulation 31."

8. We further find that although in the judgment in

Mandip Singh & Ors. v. UPSEB & Ors. the Division

Bench of the Allahabad High Court did not declare the

selections made on the basis of 1985 examination and

interview to be in any way illegal, the UPSEB cancelled

the selections by Office Order dated 24.09.1999, which

is quoted hereibelow :

"Uttar Pradesh State Electricity Board

No.3726( )-AR-09(Ga)/Sachiv-99-20 F90G/88 (TC)

Dated September 24, 1999

Office Order

As per the note dated 17.12.1996 made by

U.P. State Power Corporation the

examinations held in the year 1985 could not

11

be given effect. Unless the judgment and

order dated 29.08.1989 passed by Hon'ble

High Court of Allahabad (Allahabad Bench) in

Writ Petition No. 4858/85 entitled Mandeep

Singh vs. UPSEB is not complied with.

Besides this, 100 marks were fixed for viva

voce. After having kept the recommendations

made by Power Service Commission on the

aforesaid point the examinations held in the

year 1985 for the promotion of Technical

Grade-II on the post of Junior Engineer are

hereby cancelled.

Sd/- Illegible"

9. It will be clear from the Office Order dated

24.09.1999 that the only reason given by the UPSEB

to cancel the selection on the basis of the 1985

examination for promotion of Technical Grade-II staff

to the post of Junior Engineer is that if the judgment

of the High Court in the case of Mandip Singh & Ors. v.

UPSEB & Ors. was to be complied with, the selection

made on the basis of 1985 examination could not be

given effect to because there would be no vacancies in

the post of Junior Engineer in which the selected

candidates of 1985 could be accommodated.

10. We also find from the records that after the new

State of Uttarakhand was formed and the UPCL

12

became the successor of the UPSEB for the State of

Uttarakhand, several posts of Junior Engineers were

required to be filled up. Therefore, the Board of the

UPCL deliberated over the matter afresh in its

Meetings held on 26.12.2003 and 02.01.2004 and

resolved as follows :

"As the erstwhile U.P. State Electricity Board

did not take cognizance of the examination

conducted in 1985 for promotion to the post of

Junior Engineer from Operating Staff as per

the Hon'ble High Court of Allahabad decision

which stated that first the list of candidates

appeared in 1977 examinations be exhausted,

and not for any other reason, the employees

qualified the 1985 Examination and absorbed

in the Corporation services would be eligible

for promotion to the post of Junior Engineer."

11. The facts discussed above clearly establish that the

selection of candidates on the basis of the 1985

examination and interview have not been held by the

Allahabad High Court to be illegal in the batch of Writ

Petitions in the case of Mandip Singh & Ors. v. UPSEB

& Ors. and the UPSEB had also not cancelled the

selection of candidates for promotion on the basis of

1985 examination on the ground that the selection was

in contravention of Regulation 17 of the Regulations or

13

was in any other way irregular and the only reason

given by the UPSEB in its Office Order dated

24.09.1999 for cancelling the selection on the basis of

1985 examination was that the selection cannot be

given effect to without complying with the directions of

the High Court in the case of Mandip Singh & Ors. v.

UPSEB & Ors. If the successor of UPSEB, namely, the

UPCL, found that a number of posts of Junior

Engineers had to be filled up and this could be done by

promoting the candidates, who had qualified in the

1985 examination and who had been absorbed in the

services of the UPCL and resolved accordingly, the

High Court could not have held in the impugned order

that the promotions of the candidates on the basis of

1985 examination were contrary to Regulation 17 of

the Regulations or in any way illegal. For these very

reasons, we also cannot accept the contention of the

learned counsel for the respondents that the Board of

UPCL has committed a breach of the directions in the

judgment of the Allahabad High Court in Mandip Singh

& Ors. v. UPSEB & Ors.

14

12. We also do not find any merit in the grievances of the

private respondents that they were not promoted but

their juniors in Technical Grade-II have been promoted

on the basis of the 1985 examination. Clauses (2) and

(3) of Regulation 17 of the Regulations are quoted

hereinbelow:

"(2) The selection shall be based on a written test

followed by a practical and oral test to which only

such candidates would be admitted as have

qualified in the written test.

(3) The names of the candidates who qualify in

the practical and oral test shall be placed in a list

in their order of merit. For computing the merit

of a candidate the marks obtained by him both in

the written test and the practical and oral test

shall be added."

Thus, Clauses (2) and (3) of Regulation 17 are clear that

promotion to the post of Junior Engineer from amongst the

Operating Staff is to be made on the basis of selection based

on a written examination followed by a practical and oral

test to which only such candidates would be admitted as

have qualified in the written test and the names of the

candidates who qualified in the practical and written tests

were to be placed in the order of merit. If the private

respondents could not be promoted whereas their juniors

15

were promoted because of their merit determined in the

tests as provided in Clauses (2) and (3) of Regulation 17, the

promotion of such juniors cannot be held to be in any way

illegal.

13. For the aforesaid reasons, the appeals are allowed

and the judgments of the learned Single Judge in Writ

Petition Nos. 3 of 2003 (S/S), 979 of 2002 (S/S), 7195

of 2001 (S/S) and 803 of 2003 (S/S) and the impugned

judgment of the Division Bench of the High Court are

set aside. There shall be no order as to costs.

IN

SPECIA
L LEAVE PETITION (C) NOs.5278-5279 of 2009

AND 4827 of 2009

These Special Leave Petitions were listed for hearing

along with Civil Appeal Nos.3448 of 2008 and 3476 of 2008.

2. At the time of hearing of the Civil Appeals, Mr. D. K.

Garg, learned counsel for the petitioners, submitted that the

Special Leave Petitions be listed after the disposal of the

Civil Appeals.

3. We have today disposed of Civil Appeal Nos.3448 of

2008 and 3476 of 2008. These Special Leave Petitions may

now be listed for hearing.

16

.............................J.

(R. V. Raveendran)

.............................J.

(A. K. Patnaik)

New Delhi,

August 03, 2011.

Thursday, August 4, 2011

how the evidence of Smt. Ruchi Saxena was relevant in the instant case and why direction should be given to examine her as a court witness, as she was neither present at the time when the bribe was demanded or even at the time when the trap was arranged and laid. Without examining the relevance of evidence, which may be tendered by Smt. Ruchi Saxena or the necessity of examining her as a court witness or examining the question of prejudice if at all which is likely to be caused to the defence, if she is not examined, the High Court has directed the learned Special Judge to examine Smt. Ruchi Saxena as a court witness. There is no manner of doubt that the power under Section 311 of the Code of Criminal Procedure, 1973 is exercised arbitrarily and, therefore, the impugned judgment is liable to be set aside.

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1345 OF 2011

(Arising out of S.L.P. (Criminal) No. 6562 of 2010)

Vijay Kumar ... Appellant

Versus

State of U.P. and another ...Respondents

J U D G M E N T

J.M. PANCHAL, J.

Leave granted.

2. This appeal, by grant of special leave, is directed

against judgment dated May 10, 2010, rendered by

learned Single Judge of High Court of Judicature at

Allahabad in Criminal Revision No. 1895 of 2010,

2

by which the order dated April 23, 2010, passed by

learned Special Judge, Bareilly below Application

No. 103 Kha in Special Case No. 2 of 2003 refusing

to summon Smt. Ruchi Saxena, staying in U.S.A.,

as a court witness, is set aside and the learned

Special Judge, Bareilly is directed to summon and

examine Smt. Ruchi Saxena as court witness under

Section 311 of the Code of Criminal Procedure,

1973.

3. From the record of the case it is evident that Smt.

Ruchi Saxena, resident of village Aonla, District

Bareilly, U.P., is owner of an agricultural piece of

land. She is settled in U.S.A. Her property is being

looked after by the appellant Mr. Vijay Kumar, who

is her father. To avoid encroachment on the land

Smt. Ruchi Saxena started constructing boundary

wall on the agricultural land belonging to her.

However, construction of wall was objected to, by

the Nagar Palika, Aonla on the ground that Nagar

3

Palika is the owner of the said land. Therefore, Smt.

Ruchi Saxena filed a suit No. 443 of 1999 in the

Court of learned Civil Judge praying for permanent

prohibitory injunction to restrain the Nagar Palika,

Aonla and its servants, agents, etc. from putting up

any obstruction in construction of wall to be carried

out on the property in question. The learned Civil

Judge, before whom the suit was pending, by order

dated September 24, 1999, granted an interim order

directing the Nagar Palika not to interfere with the

possession of Smt. Ruchi Saxena of her agricultural

land and not to obstruct construction of boundary

wall. It may be stated that the Nagar Palika had

filed an application on September 23, 1999 under

Order VII Rule 11, Civil Procedure Code, to reject

the plaint, as according to it, the plaint was not

disclosing any cause of action. However, the said

application was rejected by the learned Judge on

September 23, 1999.

4

4. Feeling aggrieved by the order of injunction, Nagar

Palika filed miscellaneous appeal under Order 43

Rule 1 CPC as well as a civil revision application

under Section 115 of the Civil Procedure Code

against order rejecting application filed under Order

VII Rule 11 of the Civil Procedure Code before the

High Court. During the pendency of the appeal and

the revision, the respondent No. 2, i.e. Tajammul

Hussain became Chairman of Nagar Palika in the

year 2001. At that time, one Mr. Shamim Ahmad

was Executive Officer of the Nagar Palika. After

filing of suit Smt. Ruchi Saxena has gone to U.S.A.

and presently she is residing there. However, the

case instituted by her is being supervised and

looked after by the appellant Mr. Vijay Kumar, who

is her father.

5. The case of the prosecution is that the respondent

No. 2 herein and the Executive Officer Mr. Shamim

Ahmed demanded a sum of Rs.2 lacs as bribe from

5

the appellant to settle the matter. Therefore, on

December 5, 2001, the appellant lodged a complaint

before S.P. (Vigilance), Bareilly in respect of the

same, pursuant to which a trap was arranged. On

December 7, 2001 the respondent No. 2 and

Shamim Ahmed were arrested while receiving an

amount of Rs.50,000/- as part payment of total

bribe amount of Rs.2 lacs. On April 24, 2002, the

miscellaneous appeal, filed by the Nagar Palika

against the order granting interim injunction, was

dismissed by the appellate court, and thereafter, the

appellant has constructed boundary wall over the

property in question.

6. After success of the trap, further investigation was

carried out and on January 4, 2003 charge-sheet

was submitted against the two accused persons,

namely, the respondent No. 2 and Shamim Ahmed,

who was then Executive Officer of the Nagar Palika,

for alleged commission of offences punishable under

6

Sections 7, 13(2) read with Section 13(1)(d) of the

Prevention of Corruption Act, 1988. The

prosecution also submitted a list of witnesses. The

list did not indicate the name of Smt. Ruchi Saxena

as one of the witnesses to be examined in the case

because she was neither examined during the

investigation of the complaint lodged by the

appellant nor has any concern with the criminal

case.

7. On December 16, 2006 an application dated

February 26, 2004 was moved on behalf of Smt.

Ruchi Saxena in the suit filed by her before the trial

court seeking permission to withdraw the suit with

liberty to file fresh suit in case there was fresh

cause of action. The said application was allowed

and the record shows that the learned counsel for

Nagar Palika was also present at the time when the

said order was passed.

7

8. After framing of necessary charges against the two

accused the trial of the case was conducted before

the learned Special Judge, Bareilly in Special Case

No. 2 of 2003. During the trial the prosecution

examined witnesses. They were cross-examined on

behalf of the accused. On March 18, 2010 the

prosecution submitted certified copies of the orders

passed by the competent court and the High Court

in respect of civil litigation. The learned Special

Judge, by an order dated March 22, 2010, allowed

the papers to be admitted in evidence, by awarding

cost of Rs.500/- to each of the accused and closed

the evidence on behalf of the prosecution.

Thereafter, the case was fixed for April 2, 2010 for

statements of the accused to be recorded under

Section 313 of the Code of Criminal Procedure and

for defence evidence, if any.

9. On April 2, 2010, three separate applications were

filed by the accused. One application No. 103 Kha

8

was filed by accused Tajammul Hussain requesting

the court to summon Smt. Ruchi Saxena as a court

witness. Second application being No. 104 Kha was

filed to recall the present appellant Vijay Kumar,

PW-8 Anoop Kumar, PW-10 Lekh Pal Lala Ram and

PW-11 Investigating Officer. Third application being

No. 105 Kha was moved by the accused Shamim

Ahmed to recall the appellant. On April 15, 2010,

objections were filed on behalf of the prosecution to

the three applications submitted by the accused.

So far as application praying to summon Smt.

Ruchi Saxena and examine her as a court witness

was concerned, it was stated on behalf of the

prosecution that the application was filed to delay

the trial because the accused were fully aware of the

fact that Smt. Ruchi Saxena was residing in

America as a citizen of USA and it was difficult for

her to appear as a witness. It was also pointed out

by the prosecution that Smt. Ruchi Saxena had

nothing to do with this case and neither she was

9

examined under Section 161 of the Code of Criminal

Procedure nor her name had been listed as one of

the prosecution witnesses. What was maintained

by the prosecution was that the application was

filed with mala fide intention and accused had failed

to indicate in the application as to what was the

intention of their questioning Smt. Ruchi Saxena

especially when no questions and/or suggestions

were put to any of the witnesses examined by the

prosecution with reference to her.

10. The learned Special Judge, by order dated April 23,

2010, dismissed all the three applications.

Therefore, feeling aggrieved, the respondent No. 2

filed a revision petition being Criminal Revision No.

1895 of 2010 before the High Court challenging the

order by which his request to summon and examine

Smt. Ruchi Saxena as a court witness was rejected.

10

11. The High Court has allowed the revision petition by

judgment dated May 10, 2010 giving rise to the

instant appeal.

12. This Court has heard the learned counsel for the

parties and considered the documents forming part

of the appeal.

13. Section 311 of the Code of Criminal Procedure reads

as under: -

"311. Power to summon material

witness, or examine person present. - Any

Court may, at any stage of any inquiry, trial or

other proceeding under this Code, summon

any person as a witness, or examine any

person in attendance, though not summoned

as a witness, or recall and re-examine any

person already examined; and the Court shall

summon and examine or recall and re-examine

any such person if his evidence appears to it to

be essential to the just decision of the case."

This Section consists of two parts, viz., (1) giving

discretion to the court to examine the witness at any

stage; and (2) the mandatory portion which compells a

court to examine a witness if his evidence appears to be

11

essential to the just decision of the case. The Section

enables and in certain circumstances, imposes on the

Court the duty of summoning witnesses who would have

been otherwise brought before the Court. This Section

confers a wide discretion on the Court to act as the

exigencies of justice require. The power of the Court

under Section 165 of the Evidence Act is complementary

to its power under this Section. These two sections

between them confer jurisdiction on the Court to act in

aid of justice. There is no manner of doubt that the

power under Section 311 of Code of Criminal Procedure

is a vast one. This power can be exercised at any stage of

the trial. Such a power should be exercised provided the

evidence which may be tendered by a witness is germane

to the issue involved, or if proper evidence is not adduced

or relevant material is not brought on record due to any

inadvertence. It hardly needs to be emphasized that

power under Section 311 should be exercised for the just

decision of the case. The wide discretion conferred on

the court to summon a witness must be exercised

12

judicially, as wider the power, the greater is the necessity

for application of the judicial mind. Whether to exercise

the power or not would largely depend upon the facts and

circumstances of each case. As is provided in the

Section, power to summon any person as a witness can

be exercised if the court forms an opinion that the

examination of such a witness is essential for just

decision of the case.

14. The record nowhere shows that any complaint was

filed by Smt. Ruchi Saxena against any of the

accused making grievance that they had demanded

any bribe amount from her. The case of the

prosecution is simple that in order to settle the

matter relating to construction of boundaries on the

disputed property, which is being supervised by the

appellant who is father of Smt. Ruchi Saxena, the

respondent No. 2 and another accused had

demanded a sum of Rs.2 lacs as bribe amount from

the appellant as a result of which the appellant had

13

filed complaint pursuant to which a trap was laid

and accused were arrested while receiving an

amount of Rs.50,000/- as part payment of the bribe

amount of Rs.2 lacs. As is evident from the facts of

the case after success of the trap, FIR in the case

was lodged by Mr. V.K. Bhardwaj, Inspector U.P.

Vigilance Establishment. After framing of charge

and commencement of trial several witnesses were

examined by the prosecution, who had been cross-

examined by the accused. Smt. Ruchi Saxena had

nothing to do with the bribe case either as a

complainant or as a witness to the trap arranged by

the police. Her name did not figure as one of the

witnesses to be examined by the prosecution when

charge-sheet was submitted in the court of learned

Special Judge. The High Court without specifying

as to how Smt. Ruchi Saxena is a material witness

or how her evidence is essential for just decision of

the case, has directed the learned Special Judge to

summon Smt. Ruchi Saxena as a court witness

14

under Section 311 of the Code of Criminal

Procedure and to examine her. Though Section 311

confers vast discretion upon the court and is

expressed in the widest possible terms, the

discretionary power under the said Section can be

invoked only for the ends of justice. Discretionary

power should be exercised consistently with the

provisions of the Code and the principles of criminal

law. The discretionary power conferred under

Section 311 has to be exercised judicially for

reasons stated by the Court and not arbitrarily or

capriciously. Before directing the learned Special

Judge to examine Smt. Ruchi Saxena as a court

witness, the High Court did not examine the

reasons assigned by the learned Special Judge as to

why it was not necessary to examine her as a court

witness and has given the impugned direction

without assigning any reason. The High Court

failed to consider the case of the prosecution that

the application was submitted by the respondent

15

No. 2 only to delay the trial and no case was made

out by the respondent No. 2 as to why direction

should be given to examine Smt. Ruchi Saxena as a

court witness. In a bribe case what is required to

be proved by the prosecution is that there was a

demand of bribe by the accused from the

complainant and that pursuant to the said demand,

bribe amount was accepted by the accused. To

prove this case it was not necessary for the court to

examine Smt. Ruchi Saxena as a court witness.

15. Neither the respondent No. 2 in his application nor

the court in the impugned judgment has specified

the reason as to why and how examination of Smt.

Ruchi Saxena as a court witness is necessary.

16. At this stage, it would be advantageous to refer to

decision of this Court in Sawal Das vs. State of

Bihar AIR 1974 SC 778. In the said case the

appellant, his father and his mother were charged

for murder of appellant's wife. Immediately after

16

the wife was pushed inside the room and her cries

of "Bachao Bachao" came from inside the room, her

children were heard crying and uttering words that

their mother was either being killed or had been

killed. But the children were not produced as

witnesses in the trial court. There was some

evidence in the case that the appellant's children

had refrained from revealing any facts against the

appellant or his father or his step-mother when they

were questioned by the relations or by the police.

The argument before this Court was that they

should have been summoned as court witnesses for

examination under Section 540 of the Code of

Criminal Procedure, 1898, which is para material

same as Section 311 of Code of Criminal Procedure,

1973. This Court has held that the court could

have rightly decided in such circumstances not to

examine the children under Section 540 of the Code

of Criminal Procedure. If this is the approach to be

made while deciding application under Section 311

17

of the Code of Criminal Procedure, this Court fails

to understand as to how the evidence of Smt. Ruchi

Saxena was relevant in the instant case and why

direction should be given to examine her as a court

witness, as she was neither present at the time

when the bribe was demanded or even at the time

when the trap was arranged and laid. Without

examining the relevance of evidence, which may be

tendered by Smt. Ruchi Saxena or the necessity of

examining her as a court witness or examining the

question of prejudice if at all which is likely to be

caused to the defence, if she is not examined, the

High Court has directed the learned Special Judge

to examine Smt. Ruchi Saxena as a court witness.

There is no manner of doubt that the power under

Section 311 of the Code of Criminal Procedure,

1973 is exercised arbitrarily and, therefore, the

impugned judgment is liable to be set aside.

18

17. For the foregoing reasons the appeal succeeds. The

impugned order dated May 10, 2010, rendered by

the learned Single Judge of the High Court of

Judicature at Allahabad in Criminal Revision No.

1895 of 2010 directing the learned Special Judge to

examine Smt. Ruchi Saxena as a court witness is

hereby set aside.

18. The appeal accordingly stands disposed of.

.....................................J.

[J.M. Panchal]

.....................................J.

[H.L. Gokhale]

New Delhi;

August 03, 2011.

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Friday, August 5, 2011

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