whether a bhumidhar having a right to transfer his land under U.P. Zamindari Abolition and Land Reforms Act, 1951 (the U.P. Act for short), while bequeathing his bhumidhari right in favour of a beneficiary can impose a restriction on the right of the legatee to make it a life estate, and if he does so whether the interest of the holder of a life estate shall continue to remain so restricted, or whether such a legatee can claim his interest to be unrestricted to affect the bequest in favour of other beneficiaries.

1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION Civil Appeal No. 2467 OF 2005 Jagan Singh (Dead) Through LRS. ... Appellant Versus Dhanwanti & Anr. ... Respondents J U D G E M E N T H.L. Gokhale J. This appeal under Article 136 of the Constitution of India raises the question as to whether a bhumidhar having a right to transfer his land under U.P. Zamindari Abolition and Land Reforms Act, 1951 (the U.P. Act for short), while bequeathing his bhumidhari right in favour of a beneficiary can impose a restriction on the right of the legatee to make it a life estate, and if he does so whether the interest of the holder of a life estate shall continue to remain so restricted, or whether such a legatee can claim his interest to be unrestricted to affect the bequest in favour of other beneficiaries. The second question is with respect to the application of doctrine of `lis pendens' in the facts of the present case. These questions have arisen in the present appeal which seeks to challenge the judgment and order dated 18.11.2004 passed by a learned Single Judge of Allahabad High Court dismissing the Second Appeal No.982 of 2004 filed by the appellant herein 2 (original plaintiff). By dismissing this Second Appeal, the learned Single Judge has confirmed the judgment and order dated 28.7.2004 passed by the Additional District Judge, Bijnaur in Civil Appeal No.97 of 2002 whereby the learned Additional District Judge has dismissed the said appeal of the appellant herein against the judgment and order dated 13.2.2002 passed by the Civil Judge, Junior Division, Najibabad which dismissed the Original Suit No.121 of 1994 filed by the appellant. Facts leading to this present appeal are as follows:- 2. One Umrao Singh S/o Jiraj Singh, R/o village Sarkara Khed in Tehsil Najibabad, District Bijnaur, U.P. owned certain parcels of bhumidhari lands which are covered under the provisions of the above U.P. Act. He executed a will on 30.12.1985 concerning these lands. He stated in the will that he had no issues, and had a younger brother by name Jagan Singh (the appellant herein) who was looking after him. The will further stated that during the testator's life the testator will remain owner in possession of the said property with all the rights. However after his death, barring a plot bearing No.140-8-10-19, Jagan Singh will become the exclusive owner of all his movable and immovable properties. As far as this plot No. 140-8-10-19 is concerned, Umrao Singh stated in his will as follows:- "My wife Dhanwanti R/o village Sarkara Khera will be the owner of my share of plot No. 140-8-10-19 but the restriction would be that she would not have any right to transfer the said property that would pass on to her, but this restriction will not apply to Jagan Singh." 3. It is the case of the appellant that he has been cultivating this plot No. 140-8-10-19, and further that he and the above referred Dhanwanti (the first respondent herein) each took half share of the crop therefrom. It was also his case 3 that Dhanwanti was not the lawfully married wife of Umrao Singh, and after the death of Umrao Singh she had planned to dispose of the above plot of land in favour of one Ghasita Ram S/o Ram Chander Singh (the respondent No.2 herein). According to the appellant, she did not have such right, and therefore he filed the above suit for permanent injunction to restrain her from disposing of this particular parcel of land either to this Ghasita Ram or otherwise. 4. The respondent No.1 defended the suit, and contended that she was a lawfully married wife of Umrao Singh. She submitted that the will was a forged one, and that the defendant No.2 had no connection with this parcel of land. The defendant No.2 contended in his written statement that he had been wrongfully joined in the suit, and that the respondent No.1 herself continued in possession of the land. 5. The learned Civil Judge who tried the suit, framed the issue as to whether the appellant was entitled to prohibit the respondent No.1 from selling half share of the disputed land as claimed by him. The learned Judge held that the will was a duly executed one, and also noted that it had been registered. He however held that the respondent No.1 will have the benefit of the provision of Section 14 (1) of the Hindu Succession Act, 1956, and in view thereof the property possessed by the respondent No.1 will have to be held as her wholly owned property, and that she was not a restricted owner. The learned Judge declined to accept the submission on behalf of the appellant that the right of the respondent No.1 in the land was only on account of the will made by deceased Umrao Singh. He declined 4 to accept that her right was restricted under Section 14 (2) of the Hindu Succession Act, 1956, and dismissed the suit. 6. The appellant carried the matter in appeal, but the learned Additional District Judge also dismissed the appeal. Thereafter, when the appellant filed the Second Appeal to the High Court, the High Court dismissed the same by holding that no substantial question of law arose in the matter. The learned Judge held that under section 152 of the U.P. Act a bhumidhar had a right to transfer his property, and such right was subject only to the restrictions contained in the Act as provided in section 152 (1) itself. The learned High Court Judge referred to Section 169 (2) of the U.P. Act, and observed that the said Sub-section which restricted the right of a female bhumidhar to bequeath her holding by will has now been deleted. The learned Judge went on to hold that the right to transfer cannot be restricted either by contract or by a will of a tenure holder, and that the restriction contained in the will that the legatee would not have a right to transfer the property was repugnant to the incidents of a bhumidhari tenure under the U.P. Act. 7. The present appeal raises principally two questions of law. Firstly, whether section 169 of the U.P. Act prohibits a bhumidhar with transferable rights from imposing a restriction on the rights of a legatee by limiting the bequest to the life time of the legatee. Secondly, whether such a restricted bequest is permissible in view of section 14 (2) of the Hindu Succession Act, 1956. This Court while admitting this Civil Appeal on 4.4.2005 passed the following order:- 5 "Leave granted. Until further orders, status quo as it exists today shall be maintained. Let the original record be requisitioned." Consideration of the rival submission 8. The learned counsel for the appellant submitted that the Courts below had completely misdirected themselves. He pointed out that the present bequest by Umrao Singh would be clearly covered under Sub-section (1) of Section 169 of the U.P. Act, read with Section 14 (2) of Hindu Succession Act, 1956, and that the right of a bhumidhar to deal with his own property had not been taken away in any way. Besides, this provision had already been interpreted in the judgments of this Court. The counsel for the respondents on the other hand submitted that all the courts below had taken a consistent view in this matter, and this Court should not interfere therein. Whether the bequest in favour of respondent No.1 created a restricted estate? 9. For deciding the issue raised in this appeal, we may refer to Section 169 of the U.P. Act which reads as follows:- "169. Bequest by a bhumidhar - (1) A [bhumidhar with transferable rights] may by will bequeath his holding or any part thereof, except as provided in [sub-section(2-A)]. (2) [***] [(2-A) In relation to a [bhumidhar with transferable rights] belonging to a Scheduled Caste or Scheduled Tribe, the provisions of [sections 157-A and 157-B] shall apply to the making of bequests as they apply to transfer during lifetime.] 6 (3) Every Will made under provision of sub-section (1) shall, notwithstanding anything contained in any law, custom or usage, [be in writing, attested by two persons and registered]. (*** deleted by U.P. Act 30 of 1975.) If we read this Section, it is very clear that Sub-section (1) permits a bhumidhar to bequeath his holding or any part thereof by making a will. Sub-section (3) however requires that this has to be done in writing, and the will has to be attested by two persons and it has to be registered. The only restrictions on this right are those provided under Sub-section (2), which in turn refers to sections 157- A and 157-B of the said Act. Section 157-A provides that in relation to a bhumidhar belonging to a Scheduled Caste, such land cannot be transferred to a person not belonging to a Scheduled Caste except with the prior approval of the collector. The other restriction is under section 157-B viz. that the land belonging to a Scheduled Tribe cannot be transferred except to a person belonging to a Scheduled Tribe. 10. (i) In the present case the facts are very clear. Umrao Singh was owner of the concerned land. He made a will, it was duly attested by two persons, and it was registered as required by section 169 (3) of the U.P. Act. Under that will he created a restricted interest in favour of respondent No.1 in plot No. 140-8-10-19. This cannot be said to be impermissible under section 169 (1) of the U.P. Act. It is nobody's case that section 169 (2) thereof applied to the present case. (ii) Section 14 of the Hindu Succession Act, 1956 undoubtedly declares in Sub- section (1) thereof that a property of a female hindu is her absolute property, but it creates an exception in Sub-section (2) which provides that Sub-section (1) will not apply to any property which is given away by instruments such as by way of a gift 7 or under a will. In the present case Umrao Singh had made a will, and under that he had created a restricted estate in favour of respondent No.1 which was permissible under this section 14 (2). Section 14 of the Hindu Succession Act, 1956 reads as follows:- "14. Property of a female Hindu to be her absolute property.- (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation - In this sub-section, `property' includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance of arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act." (2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property." 11. The issue raised in this Civil Appeal is no-longer res-intigra. In Navneet Lal Vs Gokul and others reported in 1976 (1) SCC 630, a bench of three judges of this court was concerned with an almost identical situation, wherein a life estate was created by the testator in favour of his wife. After going through the will, this Court held that it was permissible for the testator to create a limited estate in favour of his wife by making a will. Later, in Amar Singh Vs. Assistant Director of Consolidation reported in 1988 (4) SCC 143, this Court in terms held in paragraph 5 as follows:- 8 "The right of a bhumidhar with transferable rights to bequeath his holding or any part thereof by a will is expressly recognised by Section 169 (1) of the Act". 12. In Amar Singh (supra) this Court explained an earlier judgment Ramji Dixit Vs. Bhirgunath reported in AIR 1968 SC 1058. In that matter after the death of the owner, the land had devolved upon his wife as a Hindu widow's estate. A dispute arose about the alienations effected by her, and it was held that undoubtedly she had the right to alienate. But as can be seen, in that matter the estate had devolved by inheritance, and not by will. That is why in para 8 of Amar Singh (Supra) this Court specifically observed that the facts in Ramji Dixit were quite distinguishable. Besides, as held by this Court in Mst. Karmi Vs. Amru reported in AIR 1971 SC 745, a widow who succeeds to the property of her deceased husband on the strength of his will, cannot claim any right other than those conferred by the will. Thus life estate given to her under a will cannot become an absolute estate under the provisions of Section 14 (2) of the Hindu Succession Act, 1956. 13. The learned Single Judge of the High Court held the transfer by respondent No.1 was not invalid since sub-section (2) of Section 169 of the U.P. Act had been deleted, which has been so done by U.P. Act No. 30 of 1975. This erstwhile sub-section (2) read as follows:- "(2) No bhumidhar entitled to any holding or part in the right of a [widow, widow of a male lineal descendant in the male line of descent, mother, daughter, father's mother, son's daughter, sister or half-sister being the daughter of the same father as the deceased], may bequeath by will such holding or part." 9 As can be seen, the purport behind this sub-section is to prohibit a bhumidhar entitled to any holding in the right of a female Hindu from bequeathing such holding by a will. The learned Judge clearly erred in reading this sub-section (2), and the effect of its deletion. He ignored that the present case was one falling under sub-section (1) of Section 169 and not under sub-section (2) since in the present matter the appellant was asserting his right with respect to the land which he received by way of the will of Umrao Singh. Respondent No.1 was entitled to a share in the land on account of that will only, and not on the basis of her own independent right. The will giving her a share had restricted it to her life time which Umrao Singh was entitled to do under Section 169 (1) of the U.P. Act, and the same would remain restricted in view of Section 14 (2) of Hindu Succession Act, 1956. . The learned Judge had relied on section 152 (1) of the U.P. Act, but that section also cannot be read to take away the right of a bhumidhar to bequeath his holding by a will because section 152 (1) states as follows:- "152. Bhumidhari interest when transferable- (1) The interest of a bhumidhar with transferable rights shall subject to the conditions hereinafter contained, be transferable." The present case is one of a bhumidhar bequeathing his land by a will, and as held in Amar Singh (supra) the same was clearly permissible. The bequest made under section 169 (1) in favour of a female Hindu, if it is a restricted one, shall remain a restricted one under sub-section (2) of section 14 of Hindu Succession Act, since the same will be governed by the terms of the will. The learned Single Judge of the High Court thus clearly erred in holding that the bequest in favour of Respondent No. 1 was not a restricted one. In view of what is stated above, the 10 Courts below erred in dismissing the suit filed by the appellant. In the circumstances, the judgments rendered by the High Court as well as by the Additional District Judge and by the Civil Judge are clearly erroneous in law and on facts. The question of applicability of doctrine of `lis pendes' 14. However, there are some subsequent developments which we must note. On 15.02.2010, one Smt. Poonam Rajput filed Interim Applications Nos. 3 and 4 of 2010 in this Civil Appeal. In I.A No. 3 she has applied for being impleaded as respondent, and in I.A No. 4 she sought exemption from filing the official translation of the annexures to I.A No. 3 of 2010. By its order dated 10.8.2010, this Court directed that both these I.A. Nos. 3 & 4 to be listed alongwith the main appeal. We have heard the learned senior counsel for the applicant in support of the I.A.s and the counsel for the appellant in reply thereto. In I.A No. 3 the applicant has claimed that the respondent No. 1 Dhanwanti has executed a registered sale deed in her favour on 27.9.2004, and her name had been directed to be mutated in the revenue records vide order dated 4.11.2004, and recorded in the Khatauni on 13.5.2005. She has submitted that this sale had taken place at a time when the suit No. 121/1994 and the First Appeal No. 97/2002 filed by the appellant herein had been dismissed on 28.7.2004. She claims to be a bonafide purchaser of the land in dispute for a good price of Rs. 3,35,000/-. 15. (i) The applicant further stated that in view of this sale, the appellant herein filed another suit No. 731/2004 on 8.10.2004 in the Court of Civil Judge (S.D.) 11 Bijnaur, against respondent No. 1 herein, wherein he joined the applicant as defendant No. 2. The appellant had prayed for cancellation of the said sale deed dated 27.9.2004. He had sought a permanent injunction restraining the defendants from taking possession of the disputed land. (ii) It is further stated that in this I.A No. 3, that respondent No. 1 and the applicant opposed the suit, and prayed for its dismissal by filing a joint written statement on 28.11.2004 wherein it was contended that the respondent No. 1 was the owner of half share of the disputed land, and she had been cultivating the same. It was also submitted that the first suit having been dismissed, a second suit for the same subject matter was not maintainable. (iii) It is pointed out that on 12.5.2005 the appellant filed an application in this suit No. 731/2004, and placed it on record that he had filed SLP (C) No. 6131/2005 (which is numbered as Civil Appeal No. 2467/2005 after the leave having been granted i.e. the present appeal) against the judgment of the Allahabad High Court arising out of the first suit. He placed it on record that the Civil Appeal was admitted on 4.4.2005, and that this court had directed maintenance of status quo in respect of the disputed land. The appellant had therefore prayed that the second suit filed by himself be stayed till the decision on the SLP by this Court, so that the multiplicity of the proceedings can be avoided. (iv) It was thereafter pointed out that the respondent No. 1 and applicant had opposed that application for stay of the second suit by their reply dated 22.8.2005. 12 Amongst other it was contended by them that certified copy of the order of this Court had not been filed. (v) It is further stated in this I.A No. 3 of 2010 that this suit No. 731/2004 remained pending for some time, and it came to be dismissed for non-prosecution on 27.1.2010. 16. This I.A. No. 3 of 2010 has been opposed by the legal representatives of the appellant who have come on record consequent upon his death. They have stated in their reply that they had no knowledge about this second suit No. 731/2004 which was filed by the appellant, their predecessor in interest. In any case they contend that the transfer made by the respondent No. 1 in favour of the applicant was `pendente lite', and therefore will have to be subject to the final decision of the Civil Appeal. Inasmuch as a plea based on the principle of `lis pendens' has been raised, we may now examine the applicability thereof to the facts of the present case. 17. The facts which have come on the record through I.A. No.3 and 4 of 2010 and the reply thereto disclose that the respondent No. 1 had entered into the agreement of sale of the land in dispute with applicant Smt. Poonam Rajput on 27.9.2004 when suit No. 121/1994 and Civil Appeal No. 97/2002 filed by the appellant had already been dismissed by orders dated 13.12.2002 and 28.7.2004 respectively. It is however necessary to note that this sale is within the period of limitation when the second appeal could have been filed. The appellant however chose first to file the second suit on 8.10.2004 for cancellation of the sale deed, 13 wherein he joined the aforesaid Smt. Poonam Rajput as respondent No. 2. (In the meanwhile he obtained the certified copy of the judgment and order in the First Appeal on 5.8.2004.) Thereafter, he filed the Second Appeal on 1.11.2004 which was filed within the period of limitation. This appeal was dismissed on 18.11.2004 at the admission stage, though after hearing both the parties. The appellant then filed the present Special Leave Petition. Special Leave was granted in the present matter, and an order of status quo came to be passed on the SLP on 4.4.2005. The original appellant has however not disclosed either in the Second Appeal or in the SLP that he had filed the second suit for setting aside the sale deed. Consequently, it did not come on record at that stage that the applicant claims to have purchased the land even before filing of the Second Appeal at a time when there was no order of stay in favour of the appellant. It is also material to note that thereafter the appellant herein had applied on 12.5.2005 for stay of his own second suit by pointing out about the pendency of the present proceedings and the order of status quo having been passed therein. This second suit came to be dismissed for non-prosecution on 27.1.2010. It is contended by the legal representatives of the appellant in their reply to I.A No. 3/2010, that they were not aware about this second Suit No. 731/2004 filed by their predecessor in title, and that is how, according to them the suit came to be dismissed for default. 18. Section 52 of the Transfer of Property Act, 1882 (T.P. Act in short) which lays down the principle of `lis-pendens' reads as follow:- "52. Transfer of property pending suit relating thereto - During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established 14 beyond such limits by the Central Government.... Or any suit or proceeding which is not collusive and in which any right or immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose. Explanation- For the purpose of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed off by a final decree or order and complete satisfaction or discharge or such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force. 19. The broad principle underlying section 52 of the T.P. Act is to maintain the status quo unaffected by the act of any party to the litigation pending its determination. Even after the dismissal of a suit, a purchaser is subject to lis pendens, if an appeal is afterwards filed, as held in Krishanaji Pandharinath Vs. Anusayabai AIR (1959) Bom 475. In that matter the respondent (original plaintiff) had filed a suit for maintenance against her husband and claimed a charge on his house. The suit was dismissed on 15.7.1952 under order IX, Rule 2, of Code of Civil Procedure 1908, for non-payment of process fee. The husband sold the house immediately on 17.7.1952. The respondent applied for restoration on 29.7.1952, and the suit was restored leading to a decree for maintenance and a charge was declared on the house. The plaintiff impleaded the appellant to the darkhast as purchaser. The appellant resisted the same by contending that the sale was affected when the suit was dismissed. Rejecting the contention the High Court held in para 4 as follows:- 15 ".......In section 52 of the Transfer of Property Act, as it stood before it was amended by Act XX of 1929, the expression "active prosecution of any suit or proceeding" was used. That expression has now been omitted, and the Explanation makes it abundantly clear that the 'lis' continues so long as a final decree or order has not been obtained and complete satisfaction there of has not been rendered. At page 228 in Sir Dinshah Mulla's "Transfer of Property Act", 4th Edition, after referring to several authorities, the law is stated thus: "Even after the dismissal of a suit a purchaser is subject to 'lis pendens', if an appeal is afterwards filed." If after the dismissal of a suit and before an appeal is presented, the 'lis' continues so as to prevent the defendant from transferring the property to the prejudice of the plaintiff, I fail to see any reason for holding that between the date of dismissal of the suit under Order IX Rule 2, of the Civil Procedure Code and the date of its restoration, the 'lis' does not continue. 20. It is relevant to note that even when Section 52 of T.P. Act was not so amended, a division bench of Allahabad High Court had following to say in Moti Chand Vs. British India Corporation AIR (1932) Allahabad 210:- "The provision of law which has been relied upon by the appellants is contained in S. 52, T.P. Act. The active prosecution in this section must be deemed to continue so long as the suit is pending in appeal, since the proceedings in the appellate Court are merely continuation of those in the suit: see the case of Gobind Chunder Roy v. Guru Chur Kurmokar 1888 15 Cal. 94." 21. If such a view is not taken, it would plainly be impossible that any action or suit could be brought to a successful termination if alienations pendente lite were permitted to prevail. The explanation to this section lays down that the pendency of a suit or a proceeding shall be deemed to continue until the suit or a proceeding is disposed of by final decree or order, and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution 16 thereof by any law for the time being in force. In the present case, it would be canvassed on behalf of the respondent and the applicant that the sale has taken place in favour of the applicant at a time when there was no stay operating against such sale, and in fact when the second appeal had not been filed. We would however, prefer to follow the dicta in Krishanaji Pandharinath (supra) to cover the present situation under the principle of lis-pendens since the sale was executed at a time when the second appeal had not been filed but which came to be filed afterwards within the period of limitation. The doctrine of lis-pendens is founded in public policy and equity, and if it has to be read meaningfully such a sale as in the present case until the period of limitation for second appeal is over will have to be held as covered under section 52 of the T.P. Act. 22. In the circumstances, we hold as follows:- (i) The judgment and order dated 13.2.2002 rendered by the Civil Judge, Junior Division, Najibabad in the suit No. 121/1994, the judgment and order dated 28.7.2004 passed by the Additional Distt. Judge, Bijnaur in Civil Appeal No. 97 of 2002, and the one dated 18.11.2004 by a learned Single Judge of Allahabad High Court in Second Appeal No. 982 of 2004 will have to be held as not laying down the correct law and will therefore have to be set aside. The appellant had sought a permanent injunction against the respondent No. 1 from selling the concerned parcel of land either to the respondent No. 2 or otherwise. That sale had not taken place. The relief in Suit No. 121/1994 will therefore have to be moulded to grant only a declaration that the respondent No. 1 had no right to sell the disputed parcel of land. 17 (ii) The applicant Smt. Poonam Rajput has claimed that the said parcel of land has been sold to her by the first respondent subsequently on 27.9.2004. The second suit filed by the appellant bearing Suit No. 731 of 2004 in the Court of Civil Judge, Senior Division, Bijnaur sought to set-aside the sale in favour of the applicant. It has come to be dismissed for default though the legal representatives of the appellant contend that it was so dismissed since they were not aware about that suit. However, although we have dealt with the applicability of the principle of lis pendens to the present matter, the order concerning the second sale passed in the second suit is not under challenge before us. It will be for the legal representatives of the appellant to apply to that court for appropriate orders, and it will be for that court to decide their application in accordance with law after hearing all the parties including the applicant. (iii) Since, the learned senior counsel for the applicant has been heard in support of the I.A. No.3 and 4 of 2010 no separate order is necessary thereon. The same are disposed of accordingly. 23. Hence, we pass the following order:- (a) The impugned judgment and order dated 13.2.2002 rendered by the Civil Judge, Junior Division, Najibabad, U.P. in the Suit No. 121/1994, and those arising in the appeals therefrom rendered by the Additional District Judge, Bijnaur and the High Court of Allahabad are held to be bad in law and are hereby set aside. (b) There shall be a declaration in favour of the appellant that the respondent No. 1 had no right to sell the disputed parcel of land. Suit No. 121/1994 18 filed by the appellant in the Court of Civil Judge, Junior Division, Najibabad, U.P. shall stand decreed to that extent. 24. The Civil Appeal and I.A. Nos. 3 and 4 of 2010 stand disposed of as above. The parties will bear their own costs. ........................................J. ( P. Sathasivam ) ........................... ..............J. ( H.L. Gokhale ) New Delhi Dated: January 19, 2012

whether an employer can take disciplinary action =In the above circumstances, we cannot agree with the view taken by the learned Single Judge, as affirmed by the Division Bench of the High Court, that the Appellant-Bank had no jurisdiction to proceed against the Respondent No.1 by way of disciplinary proceedings in regard to the allegations of defalcation made against him while he was employed under the Co-operative Samity which was an affiliate of the Appellant-Bank. The other

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 657 OF 2012 (Arising out of SLP(C) No.21192 of 2007) Burdwan Central Cooperative Bank Ltd. & Anr. ... Appellants Vs. Asim Chatterjee & Ors. ... Respondents J U D G M E N T ALTAMAS KABIR, J. 1. Leave granted. 2. The short point for decision in this Appeal is whether an employer can take disciplinary action 2 against an employee in regard to acts purported to have been done by him in his previous employment in an affiliated society. 3. The Respondent No.1 herein was an employee of Raipur Krishi Unnayan Samity (hereinafter referred to as "the Samity"), a cooperative society affiliated to the Burdwan Central Cooperative Bank, the Appellant herein. Under its Recruitment Rules, the Bank was entitled to recruit people from the affiliated societies through a regular recruitment process. In the recruitment process held in 1997, the Bank appointed the Respondent No.1 as a Grade III Staff of the Bank by an appointment letter dated 8th September, 1997. On being offered the said appointment, the Respondent No.1 left the services of the Samity where he was working and joined the Bank pursuant to the appointment letter issued to him. 3 4. While the Respondent No.1 was serving in the Bank, the Assistant Registrar, Cooperative Societies, Burdwan-I, lodged a complaint with the Bank that during an enquiry conducted by the Registrar of Cooperative Societies, it had transpired that the Respondent No.1 had committed various financial irregularities in maintaining the accounts of the Samity. In view of the above, the Assistant Registrar recommended that action be taken against him. 5. On the basis of the said complaint, the Bank issued a charge-sheet to the Respondent No.1 on 2nd February, 2000. Although, according to the Bank, the said Respondent admitted his guilt in his reply to the charge-sheet, a full-fledged enquiry was held by the Bank by appointing an Enquiry Officer and affording the Respondent No.1 adequate opportunity to defend himself, since according to him, he had been forced to sign a letter of 4 confession. On conclusion of the disciplinary proceedings, the Enquiry Officer found the Respondent No.1 guilty of the charges brought against him. On the basis of the Enquiry Report, the Bank through its Chief Executive Officer, being the Disciplinary Authority of the Respondent No.1, passed an order of dismissal on 8th May, 2000. It appears that neither a copy of the Enquiry Report nor the second show-cause notice was served upon the Respondent No.1. 6. Aggrieved by the order of the Disciplinary Authority, the Respondent No.1 filed a Writ Petition challenging the order of dismissal. The learned Single Judge who heard the matter, allowed the Writ Petition by holding that the dismissal order had been passed by the Bank with the mala fide intention of getting rid of the Respondent No.1. The learned Judge held that the Bank had no authority to proceed against the Respondent No.1 on 5 the allegation of defalcation of the funds of the Samity at a point of time when he was not an employee of the Bank. In addition, the learned Judge held that the order of the Disciplinary Authority was vitiated as the Respondent No.1 was not served with a copy of the Enquiry Report, nor was any opportunity given to him by way of a second show-cause notice to offer his explanation thereto. 7. The Bank preferred First Misc. Appeal No.301 of 2005 against the aforesaid order, wherein the attention of the Division Bench was drawn to the provisions of the West Bengal Cooperative Rules, 1987, wherein it has been stipulated that any mis- appropriation of the employer's business or property would come within the mischief of "misconduct". It was urged on behalf of the Bank that since the Samity was affiliated to the Bank, defalcation of the funds of the Samity would attract the definition of "misconduct" and the 6 Respondent No.1 had been rightly proceeded with departmentally. It was, however, admitted before the Division Bench that the Bank had dismissed the Respondent No.1 without affording him an adequate opportunity of explaining his version on the findings of the enquiry by serving him a copy of the Enquiry Report as well as the second show-cause notice. 8. On the submissions made on behalf of the parties, the Division Bench affirmed the view expressed by the learned Single Judge that the Bank could not have proceeded against the Respondent No.1 in respect of an illegality and/or misconduct which had allegedly been committed when he was not an employee of the Bank. Accordingly, without commenting on the findings of the learned Single Judge with regard to the allegations of mala fide and/or biased attitude on the part of the Bank, the Division Bench held that the Bank was not entitled 7 to proceed against the Respondent No.1 in law and disposed of the Appeal accordingly. 9. As indicated hereinbefore, the present Appeal is directed against the said judgment and order of the Calcutta High Court. 10. Mr. Tarun Kumar Ray, learned senior advocate appearing for the Appellant-Bank, urged that the Respondent No.1 had not been prejudiced in any way on account of non-supply of the report of the Enquiry Officer or in the absence of a second show- cause notice, as was earlier envisaged under Article 311(2) of the Constitution prior to its amendment by the 42nd Constitutional Amendment Act, 1976. Mr. Ray submitted that as had been held by this Court in Managing Director, E.C.I.L. vs. B. Karunakar [(1993) 4 SCC 727], the order of reinstatement for non-furnishing of Enquiry Report to the concerned employee would depend on the extent of prejudice caused to him and could not be 8 ordered as a matter of course. It was, however, mentioned that a copy of the Enquiry Report, if not served earlier, should be provided to the employee before arguments were allowed to be advanced and thereafter the court should apply its judicial mind before setting aside the punishment on a finding that prejudice has been caused to the concerned employee. The Court held further that this was the minimum compliance of the rules of natural justice while awarding major penalties. 11. In support of his contention that even though the Respondent No.1 was not under the administrative control of the Appellant when the alleged irregularity was perpetrated, the Appellant-Bank was still entitled to commence disciplinary proceedings against him, Mr. Ray referred to the decision of this Court in S. Govinda Menon vs. Union of India [(1967) 2 SCR 566]. In the said decision this Court had held that 9 even if an employee was not subject to the administrative control of the Government when he was functioning as Commissioner, his acts or omissions as Commissioner could form the subject matter of disciplinary proceedings, provided the act or omission reflected on his reputation for integrity or devotion to duty as a member of the service. 12. Mr. Ray urged that in the instant case there was no prejudice caused to the Respondent No.1 either by the non-service of the report of the Enquiry Officer or by the non-issuance of a second show-cause notice, which merited interference by the High Court with the decision to terminate the services of Respondent No.1. Mr. Ray submitted that in B. Karunakar's case (supra) it had been held that the failure to provide the Enquiry Report was not fatal to the disciplinary proceedings which could be re-commenced from the stage prior to 10 arguments, after supply of a copy of the Enquiry Officer's report which resulted in the termination of the services of the Respondent No.1. Mr. Ray further submitted that since no prejudice had been caused to the Respondent, in the above-mentioned circumstances the decision of the High Court to set aside the said Respondent's order of termination was not warranted in law and the judgments of both the learned Single Judge and the Division Bench were, therefore, liable to be set aside. 13. On the other hand, Mr. Gupta appearing for the Respondent No. 1 submitted that the learned Single Judge had rightly arrived at the conclusion that the dismissal of the Respondent No.1 was tainted with malafides on the part of the Bank to get rid of him. Mr. Gupta also contended that the High Court had rightly held that the dismissal of the Respondent on the basis of an allegation of defalcation of the funds of the Samity, when he was 11 not even an employee of the Bank, was wholly without jurisdiction, as he was not answerable to the Bank for whatever allegations that may have been made against him in his previous employment under the Raipur Krishi Unnayan Samity, which was a co-operative society affiliated to the Appellant- Bank. Mr. Gupta further submitted that in the absence of employer-employee relationship at the time when the alleged defalcation is said to have been committed, the Appellant co-operative Bank ought not to have proceeded against the Respondent No.1 in disciplinary proceedings, and, thereafter, dismissed him from service. Mr.Gupta submitted that the order of the learned Single Judge, as well as that of the Division Bench, was based on a correct appreciation of the law and did not merit interference in the appeal. 14. Having carefully considered the submissions made on behalf of the respective parties and having 12 regard to the fact that the Respondent No.1 was an employee of the Samity, which was a cooperative society affiliated to the Appellant Cooperative Bank herein, there was a link between the previous employment of the Respondent No.1 and his subsequent appointment under the Appellant-Bank. It has to be kept in mind that under its Recruitment Rules, the Appellant-Bank was entitled to recruit people from the affiliated societies through a regular recruitment process. Accordingly, even though the Respondent No.1 was employed by a different Cooperative Society, the same had a link with the Appellant-Cooperative Bank on the basis whereof the Respondent No.1 was appointed by the Appellant-Bank on 8th September, 1997. 15. There is no denial of the fact that the Respondent No.1 came to be appointed by the Appellant-Bank on a temporary basis as a Grade-III 13 employee in the quota reserved for the employees of Primary Cooperative Societies affiliated to the District Central Cooperative Bank in terms of Rule 69(2)(b) of the West Bengal Co-operative Societies Rules, 1987. The provisions of Rule 69(2)(b) of the 1987 Rules, which are relevant in this case, provides as follows : "69. Minimum paid staff to be employed by a co-operative society, their respective essential qualifications and procedure of their employment and the conditions of their service - (1) xxx xxx xxx xxx (2) The posts shall be filled up in the following manner :- (a) .........; (b) not more than twenty-five percent of the sanctioned posts in the establishment of an apex or central society shall be filled up by promotion of fit and suitable employees of the societies affiliated to it; (c) ............; (d) ...............; (e) ..................." 14 16. In keeping with the above, the Appellant-Bank appointed the Respondent No.1 against the quota reserved for the employees of Primary Cooperative Societies affiliated to the Respondent-Bank in terms of Rule 69(2)(b) of the 1987 Rules. Mr. Ray appears to be correct in his contention that in view of the above link between the Primary Cooperative Society and the Appellant-Bank, even though the Respondent No.1 was not under the administrative control of the Appellant-Bank when he allegedly committed various financial irregularities, the Appellant-Bank was still entitled to commence disciplinary proceedings against him in view of his past conduct. The decision of this Court in S. Govinda Menon's case (supra), cited by Mr. Ray, also has a direct bearing on the facts of this case, where, although the Respondent No.1 was not under the administrative control of the Appellant-Bank, prior to his service with the Bank, his previous conduct 15 was a blot on his integrity and devotion to duty as a member of the service. Since no prejudice had been caused to the Respondent No.1 by the non- supply of the Enquiry Officer's report or the second show-cause notice under Article 311(2) of the Constitution, the Respondent No.1 had little scope to contend that the principles of natural justice had been violated which had vitiated the proceedings. 17. However, there is one aspect of the matter which cannot be ignored. In B. Karunakar's case (supra), despite holding that non-supply of a copy of the report of the Inquiry Officer to the employee facing a disciplinary proceeding, amounts to denial of natural justice, in the later part of the judgment it was observed that whether in fact, prejudice has been caused to the employee on account of non-furnishing of a copy of the inquiry report has to be considered in the facts of each 16 case. It was observed that where the furnishing of the inquiry report would not make any difference to the ultimate outcome of the matter, it would be a perversion of justice to allow the concerned employee to resume his duties and to get all consequential benefits. It was also observed that in the event the Inquiry Officer's report had not been furnished to the employee in the disciplinary proceedings, a copy of the same should be made available to him to enable him to explain as to what prejudice had been caused to him on account of non-supply of the report. It was held that the order of punishment should not be set aside mechanically on the ground that the copy of the inquiry report had not been supplied to the employee. This is, in fact, a case where the order of punishment had been passed against the Respondent No.1 on allegations of financial irregularity. Such an allegation would require serious consideration as to whether the services of 17 an employee against whom such allegations have been raised should be retained in the service of the Bank. Since a Bank acts in a fiduciary capacity in regard to people's investments, the very legitimacy of the banking system depends on the complete integrity of its employees. As indicated hereinbefore, there is a live-link between the Respondent No.1's performance as an employee of the Samity, which was affiliated to the Bank, and if the Bank was of the view that his services could not be retained on account of his previous misdemeanor, it is then that the second part of B. Karunakar's case (supra) becomes attracted and it becomes necessary for the court to examine whether any prejudice has been caused to the employee or not before punishment is awarded to him. It is not as if the Bank with an ulterior motive or a hidden agenda dismissed the Respondent No.1 from service, in fact, he was selected and appointed in the Appellant-Bank on account of his merit and 18 performance at the time of interview. It cannot be said that the Bank harboured any ill-feeling towards the Respondent No.1 which ultimately resulted in the order of dismissal passed on 8th May, 2010. We, therefore, repeat that since no prejudice has been caused to the Respondent No.1 by the non-supply of the Inquiry Officer's report, the said Respondent had little scope to contend that the disciplinary proceedings had been vitiated on account of such non-supply. 18. In the above circumstances, we cannot agree with the view taken by the learned Single Judge, as affirmed by the Division Bench of the High Court, that the Appellant-Bank had no jurisdiction to proceed against the Respondent No.1 by way of disciplinary proceedings in regard to the allegations of defalcation made against him while he was employed under the Co-operative Samity which was an affiliate of the Appellant-Bank. The other 19 decision cited by Mr. Ray in S. Govinda Menon's case (supra) also makes it abundantly clear that even though the Respondent No.1 may not have been under the direct administrative control of the Bank at the relevant point of time when the defalcation is alleged to have taken place, on account of the affiliation of the Samity with the Bank under the provisions of the West Bengal Co-operative Societies Rules, 1987, the Appellant-Bank had jurisdiction over the Respondent No.1 after he joined the employment of the Appellant-Bank. In the instant case, since the question of integrity in managing the accounts of the Samity is in question, it was but natural for the Bank to proceed departmentally against the Respondent No.1 after coming to learn of the allegations which have been made against him. 19. In our view, both the learned Single Judge and the Division Bench of the High Court were not 20 justified in interfering with the action taken by the disciplinary authorities of the Bank and their findings are liable to be set aside. The appeal, therefore, succeeds and is allowed. The orders of the learned Single Judge and the Division Bench of the High Court, are set aside. The decision taken by the Bank in dismissing the Respondent No.1 from service is restored. 20. There will be no order as to costs. ................................................J. (ALTAMAS KABIR) ................................................J. (CYRIAC JOSEPH) New Delhi Dated: 18.01.2012

BAIL TO SURESH KALMADI =The Petitioner Suresh Kalmadi has been in custody for over eight months and Petitioner V.K. Verma for ten months. There is no allegation BAIL APPLNs. 1692/2011 & 1515/2011 Page 18 of 18 that the Petitioners are likely to flee from justice and will not be available for the trial. The allegations against the Petitioners are of having committed economic offences which have resulted in loss to the State Exchequer by adopting the policy of single vendor and ensuring that the contract is awarded only to STL. Whether it was a case of exercise of discretion for ensuring the best quality or a case of culpability will be decided during the course of trial. There is no allegation of money trial to the Petitioners. There is no evidence of the Petitioners threatening the witnesses or interfering with evidence during investigation or trial. There is no allegation that any other FIR has been registered against the Petitioners. 18. In the facts and circumstances of the case, I am inclined to bail to the Petitioners. It is, therefore, directed that the Petitioners be released on bail on their furnishing a personal bond in the sum of Rs.5 lakhs with two sureties of the like amount each, subject to the satisfaction of the learned Trial Court. The Petitioners will not leave the Country without the prior permission of the learned Trial Court.

BAIL APPLNs. 1692/2011 & 1515/2011 Page 1 of 18 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Reserved on: 10th January, 2012 Decided on: 19th January, 2012 + BAIL APPLN. 1692 OF 2011 SURESH KALMADI ..... Petitioner Through: Mr. Mukul Rohtagi, Mr. Sushil Kumar, Mr. Sidharth Luthra, Sr. Advocates with Mr. Hitesh Jain, Mr. Sidharth Aggarwal, Ms. Sheyl Trehan, Ms. Diya Kapur, Mr. Nikhil Pillai and Mr. Aditya Wadhwa, Advocates. versus CBI ..... Respondents Through: Mr. Dayan Krishnan and Mr. Gautam Narayan, Spl Counsels with Mr. Nikhil Menon, Advocate. AND + BAIL APPLN. 1515 OF 2011 VISHWA KUMAR VERMA ..... Petitioner Through: Mr. Neeraj Kishan Kaul, Sr. Advocate with Mr. Anurabh Chowdhury, Mr. Amit Sharma, Mr. Vaibhav Tomar, Mr. Kapil Rustagi and Mr. Rakhim Advocates. versus CBI ..... Respondents Through: Mr. Dayan Krishnan and Mr. Gautam Narayan, Spl Counsels with Mr. Nikhil Menon, Advocate. Coram: HON'BLE MS. JUSTICE MUKTA GUPTA 1. By these petitions the Petitioners seek bail in case FIR bearing RC-DAI-2010-A-0044 for offence under Section 120B read with Sections BAIL APPLNs. 1692/2011 & 1515/2011 Page 2 of 18 420/467/468/471 IPC and Section 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act, 1988 (in short „PC Act‟). 2. Learned counsel for the Petitioner Suresh Kalmadi contends that the Petitioner was arrested on 24th April, 2011 and the charge sheet was filed on 20th May, 2011. All the offences alleged against the Petitioner are at the most punishable upto seven years except for offence under Section 467 IPC. As per the allegations set out in the charge sheet no offence under Section 467 IPC is made out against the Petitioner. Further the allegation qua forgery relates to insertion of an advertisement wherein instead of the words “Timing, Scoring or/and Result”, the words “Timing, Scoring and Result” were used, the cost of which advertisement was only Rs.69,603/- which was not cleared by the Petitioner. There is no delay in the trial on account of the Petitioner. In fact after filing the charge sheet the CBI has twice filed applications as late as on 24th September, 2011 and 3rd November, 2011 for placing additional documents and further list of witnesses on record. The application dated 3rd November, 2011 has been allowed on the 4th January, 2012, and the matter is now listed for scrutiny. The allegations against the Petitioner are regarding procurement of the Time Scoring Results (TSR) and it is alleged that conditions were created so that the tender could be awarded only to the Swiss Timing Omega. According to learned counsel in fact the tender was not finalized by the organizing committee. In view of the complaints received, the matter was referred to the Central Government and the sub-committee of the Central Government consisting of senior Secretary level officers held that there was no illegality or irregularity in the procurement process and it would be appropriate to award the tender to BAIL APPLNs. 1692/2011 & 1515/2011 Page 3 of 18 Swiss Timing Omega. Relying on Gurcharan Singh and others vs. State (Delhi Administration, 1978 (1) SCC 118 and Sanjay Chandra vs. CBI, 2011(13) SCALE 107 it is contended that the gravity of the allegations have to be seen on the basis of the punishment prescribed by the Code and not by what the media reports. In Sanjay Chandra (supra) their Lordship‟s granted bail even though the allegation was for offences under Section 409 read with 120B IPC, which is punishable upto life. Learned counsel further contends that a number of board meetings were held and as is evident from the board meeting dated 5th July, 2008 insistence was to procure from companies that had well established record. There is no denial that Swiss Timing Omega performed in the Olympics, Asian Games and Common Wealth Games. Further even in the Common Wealth Games 2010 there is no allegation that the timings, scoring or results were not excellent. The performance was of the best quality, which was appreciated by one and all. Referring to the notes of Mr. Jarnail Singh, Chief Executive Officer of the Common Wealth Games and Mr. V.K. Gautam, Chief Operating Officer it is contended that the notes prepared by these two officers also state that the selection of M/s Swiss Timing Omega was the correct decision in the situation. It is further contended that the medical condition of the Petitioner is that he has undergone aortic wall replacement in the year 2005 and thereafter he has been suffering from Cerebral Atrophy. He had strokes even while in the custody and once in such a situation he even received injuries. Thus the Petitioner be granted bail. 3. Learned counsel for Petitioner V.K. Verma contends that the order rejecting bail does not meet the standard of test laid down by the Hon‟ble BAIL APPLNs. 1692/2011 & 1515/2011 Page 4 of 18 Supreme Court. The discretion has been exercised by the learned Trial Court in a casual manner. The Hon‟ble Supreme Court in Sanjay Chandra (Supra) clearly held that merely stating that there is an apprehension of witnesses being influenced is not sufficient. Some material should be placed on record to show that the witnesses are likely to be influenced. The other aspect of the Petitioner being influential so as to be in a position to influence the witnesses is that he has deep roots in the society. The aspect of the Petitioner having deep roots in the society thus there being no likelihood of his fleeing from justice has been ignored by the Trial Court. The allegations are essentially that the Petitioner along with other co-accused conspired to change the eligibility criteria so as to benefit the Swiss Timing Omega. The company Swiss Timing Ltd.(STL) enjoys a huge reputation worldwide. Quality and reputation are not the issues raised. Criminal culpability cannot be attributed in case emphasis is on the quality. There is no allegation of any money trail or any pecuniary benefit to the Petitioner. In fact, the Petitioner himself forwarded a complaint for inquiry in view of the pseudonym complaints received. Reiterating the contentions raised on behalf of Petitioner Suresh Kalmadi, it is contended that even Jarnail Singh and V.K. Gautam in their notes stated that this was the best decision in the situation. On a note prepared by the Petitioner V.K. Verma the matter was referred to the Government for intense scrutiny. Even after the intense scrutiny the committee comprising of senior officers reiterated the decision to award tender to STL. 4. Learned counsel for the Petitioner V.K. Verma further submits that when the charge sheet was filed on 25th May, 2011, there was no mention BAIL APPLNs. 1692/2011 & 1515/2011 Page 5 of 18 about the statement of Jarnail Singh, CEO as a witness. When arguments on bail were heard on 1st June, 2011, CBI produced an ante dated statement of Jarnail Singh. In his statement, Jarnail Singh disowned his note and stated that the files were only routed through him. The contents of the letter and notes are not disputed and it is an admitted fact that meetings took place. The fact that Pan American Games were not considered by the Organizing Committee was for the reason that even in the past, Olympic Games never considered Pan American Games to be a qualifying event for consideration. Even though in the meetings Pan American Games was discussed, however ultimately it was unanimously decided in the presence of two prosecution witnesses that companies, who had experience of Common Wealth Games, Asian Games and Olympics games will only be considered. Though V.K. Gautam had sent a note of dissent, however, a perusal of the minutes of the meeting show that all these aspects were discussed and a unanimous decision was taken after everybody from the Government deliberated and decided thereon. 5. To counter the allegation of the prosecution that in the Request for Proposal (RFP) instead of words “Timing, Scoring or/and Result”, the words “Timing, Scoring and Result” were used i.e. the word „or‟ was deliberately deleted, it is contended that everybody consistently used the words “Timing, Scoring and Result”. Even Sujit Panigrahi, who is now the prosecution witness recommended option-1 i.e. there should be one single supplier for Timing, Scoring and Result and recommended the STL. This was even recommended by Vijay Kumar Gautam, who is now the star witness of the prosecution. Even the advertisement issued by Vijay Kumar Gautam before BAIL APPLNs. 1692/2011 & 1515/2011 Page 6 of 18 the RFP, was for Timing, Score and Result. Reliance is placed on Court on its own motion v. CBI, 109 (2003) DLT 494 to contend that though there is no dispute to the proposition that the police has a power to arrest, however, the arrest should be effected only if there is a need to arrest. It was held that there is a difference between the power of arrest and need to arrest. Relying upon R. Vasudevan v. CBI, 166 (2010) DLT 583 it is contended that being on high place in the society works as a double edged weapon, if it can be alleged that the accused can temper with the evidence and threaten the witnesses, it is also countered by the fact that the accused has roots in the society and thus there is no likelihood of absconding. Relying upon Anil Mahajan v. Commissioner of Customs & another, 2000 III AD (Delhi) 369 it is contended that the bail is a rule and not jail. The purpose of keeping a prisoner in custody is not pre-trial detention. The approach of the learned Trial Court in rejecting the bail is totally casual and the only ground on which bail has been denied is that there is apprehension that the accused may influence the witnesses as they are well connected and influential persons. There is no evidence that the Petitioners tried to influence any prosecution witness. It is further submitted that a person on bail has a better position to defend himself during trial and thus, the Petitioner be granted bail who has been in custody for more than 10 months. There is no justification for keeping him behind the bars any further. 6. Learned counsel for the CBI focusses his arguments on four reasons urged by the Petitioners for grant of bail i.e. the law laid down by the Hon‟ble Supreme Court in Sanjay Chandra v. CBI and other judgments, delay in proceedings, charge under Section 467 IPC being not made out and BAIL APPLNs. 1692/2011 & 1515/2011 Page 7 of 18 reliance on certain documents to show that it was a well deliberated decision wherein the witnesses and senior officers of the Government were party. It is contended that in Sanjay Chandra (supra) the Hon‟ble Supreme Court reiterated the guidelines laid down in its earlier decisions in Gurcharan Singh v. State, (1978)1 SCC 118, Babu Singh v. State of U.P., (1978) 1 SCC 579 and State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21. The ratio laid down by all the judgments is that if the accused is of such a character that his mere presence at large would intimidate the witnesses, it is a good ground to deny bail. References are made to the statements of witnesses PW2 V.K. Gautam, Chief Operating Officer, PW-1 Sujit Panigrahi, Additional Director General, Technology FA and PW6 V.K. Saxena, who have shown the influence exerted by the Petitioners and how they had been terrorized and harassed by the Petitioners. Thus, from the statement of the witnesses it is writ large that the Petitioners are disentitled to bail on account of the fact that (1) their mere presence at large would intimidate the witnesses and (2) there is tangible evidence on record to show that they have in the past intimidated persons, who are today prosecution witnesses. Further one of the co-accused has been found to be influencing a prosecution witness. 7. Learned counsel for the CBI further contends that there is no delay on account of the prosecution. During the trial after filing of the charge sheet the copies of the charge sheet and list of documents were supplied to the accused on 24th May, 2011 when the Petitioners sought copies of the documents in E-form and the co-accused Surjit Lal sought a hard copy of the same. On 21st July, 2011 CBI supplied the copies of complete charge sheet, documents and statements in a DVD to all the accused persons. Thereafter, BAIL APPLNs. 1692/2011 & 1515/2011 Page 8 of 18 a request was made by the accused persons that hyper-linking be done for which CBI sought time. On 5th August, 2011 E-copies of the challans with hyperlink were furnished to the accused persons. In the meantime, three other accused surrendered before the Trial Court and E-copies of the challans were served upon them. Since some of the accused are still not available for trial, the CBI moved an application for separation of the trial, which was opposed by the Petitioners and other accused. In the meantime, CBI filed an application seeking to place on record certain additional documents and statements, which was finally decided on 4th January, 2012. The Trial Court has already directed for proceeding with the matter on day-to-day basis and thus from the perusal of the orders passed by the Trial Court, it is evident that there is no delay on account of the CBI. 8. As regards the allegations under Section 467 IPC, learned counsel for the CBI contends that the gravamen of charge against the Petitioners is that they in concert with other accused to achieve a common object entered into a conspiracy and as a part of conspiracy, Surjit Lal the co-accused forged the documents. A perusal of statements of all witnesses clearly reveals that all powers were centralized in the Petitioners and Mr. Bhanot, who were controlling all the decisions. In the charge-sheet there are prima facie allegations of forgery which have been confirmed by the CFSL report. If the Pan American Games were also included then other players in the field of this device would have also been included and thus there would have been more competition. A perusal of the letters written by the Ministry of Youth Affairs and Sports clearly shows that there was no other option but to go ahead with the decision to award contract to STL due to paucity of time. BAIL APPLNs. 1692/2011 & 1515/2011 Page 9 of 18 Further the Central Government examined the documents only in reference to the complaints received and not for the purpose of re-validating the action taken by the Petitioners. 9. As regards the medical condition it is submitted that the Petitioner Suresh Kalmadi‟s condition is stable and he is provided with the best medical treatment. His condition is all right as is evident from the fact that he even approached this Court seeking permission to attend the Parliament. Thus, bail should not be granted to the Petitioners. 10. I have heard learned counsel for the parties. Briefly the case of the prosecution is that the Petitioner Suresh Kalmadi as the Chairman, Vishwa Kumar Verma as Director General, Lalit Kumar Bhanot, Secretary General of the Organizing Committee of the Commonwealth Games 2010, STL and other accused entered into a conspiracy to eliminate all forms of competition and ensure that STL was awarded the contract for TSR system. The Petitioners along with the other accused initially in the year 2008 attempted to nominate STL as the only eligible vendor. When this attempt was unsuccessful, in the year 2009 they issued a highly defective Expression of Interest by keeping the concerned officers i.e. Technology F.A. in dark. When this also did not bear fruit, the Petitioners with co-accused got issued a tailor made RFP to suit STL to the exclusion of other vendors. This is borne out from the fact that even prior to submitting of the bid in response to RFP on 4th November, 2009 the Petitioner Suresh Kalmadi in the presence of Petitioner V.K. Verma on 12th October, 2009 declared to the General Assembly of the CWG Federation that the TSR system would be provided by STL. In this regard on 21st March, 2009 a note was initiated by co- BAIL APPLNs. 1692/2011 & 1515/2011 Page 10 of 18 accused Surjit Lal (DDG Procurement) enclosing therewith an Expression of Interest (EOI) for TSR wrongly stating that the Ministry of Sports had approved the placing of the same on the website without the knowledge of Technology F.A. Further forgeries were committed by Surjit Lal to ensure publication of EOI so as to favour STL. When the officers of Technology F.A. became aware of this EOI from the newspapers/ website of the O.C. on 29th March, 2009, strong objection was raised byPW-2 Vijay Kumar Gautam in his note dated 23rd March, 2009 which was suppressed. In view of the qualifications required in the EOI, none of the major providers of TSR responded. Thus, Surjit Lal recommended that awarding of the contract for TSR to STL be considered, which recommendation was forwarded by co-accused Lalit Bhanot on 4th May, 2009 to the Ministry of Sports seeking its approval for awarding the contract to STL on a single vendor basis. However, the Government did not agree with the said recommendation and the Organizing Committee was advised to procure the TSR system through open tender. Though PW-1 Sujit Panigrahi recommended that an agreed approach to the provision of TSR system be adopted as the extent of planning and work required to deliver the services was significant, however this note was returned by the office of Petitioner V.K. Verma with the remark that no action was required on that file and PW-1 was dissuaded from processing the matter for open tender and to prepare a scope of work for STL instead. Thereafter, a draft RFP was put up by the Technology F.A. on 29th August, 2009. Even this RFP was manipulated and tampered with and the decisions taken thereon in the 8th OCFC meeting were fabricated. In the RFP the Pan American Games were excluded so as to oust a number of players. To further disqualify a competitor of STL, the Petitioner BAIL APPLNs. 1692/2011 & 1515/2011 Page 11 of 18 V.K.Verma once again tampered with the conditions of RFP and got deleted the word “or” thereby making it Timing Scoring and Result Management system instead of Timing Scoring or/and Result Management system. It was falsely stated that the decisions to delete the word “or” was taken on the directions of PW-3 Rahul Verma, Joint Secretary IST, Ministry of Youth Affairs and Sports. In fact no such meeting took place. In order to suppress the dissent, PW-2 V.K. Gautam was divested of his supervision of the Technology F.A. and vide order dated 13th October, 2009 the Petitioner Suresh Kalmadi entrusted it to Petitioner V.K. Verma. Thereafter on 6th November, 2009 V.K. Gautam was removed from OCFC and Sujit Panigrahi was superseded by the Petitioner Suresh Kalmadi by appointing one Sandeep Arya as ADJ Technology. 11. Though much has been stated by the learned counsel for the Petitioner that V.K. Gautam was removed from OCFC because the Government wanted Jarnail Singh to be adjusted and that in fact Jarnail Singh was a party to all the decisions, prima facie at this stage it cannot be said that no case for conspiracy for offence punishable under Section 467 IPC is made out on the facts alleged as there has been systematic manipulation of records to ensure that the contract is awarded to STL. At this stage the allegations of the prosecution have to be taken on their face value. This is an issue which will have to be decided by the Trial Court during trial on appreciation of evidence. 12. However, the issue that is required to be considered by this Court at this stage is whether the Petitioners are entitled to grant of bail when the investigation is admittedly complete and charge-sheet and all other BAIL APPLNs. 1692/2011 & 1515/2011 Page 12 of 18 documents under Section 173(8) Cr.P.C. have been filed. In Sanjay Chandra (supra) their Lordships held: “14. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, 'necessity' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson. 15. In the instant case, as we have already noticed that the "pointing finger of accusation" against the Appellants is 'the seriousness of the charge'. The offences alleged are economic offences which has resulted in loss to the State exchequer. Though, they contend that there is possibility of the Appellants BAIL APPLNs. 1692/2011 & 1515/2011 Page 13 of 18 tampering witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor: The other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Indian Penal Code and Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the Constitutional Rights but rather "recalibration of the scales of justice." The provisions of Cr.P.C. confer discretionary jurisdiction on Criminal Courts to grant bail to accused pending trial or in appeal against convictions, since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognized, then it may lead to chaotic situation and would jeopardize the personal liberty of an individual. This Court, in Kalyan Chandra Sarkar v. Rajesh Ranjan: (2005) 2 SCC 42, observed that "under the criminal laws of this country, a person accused of offences which are non-bailable, is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 of the Constitution, since the same is authorized by law. But even persons accused of non- bailable offences are entitled to bail if the Court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the Court is satisfied by reasons to be recorded that in spite of the existence of prima facie case, there is need to release such accused on bail, where fact situations require it to do so." BAIL APPLNs. 1692/2011 & 1515/2011 Page 14 of 18 16. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It is also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution. In the case of State of Rajasthan v. Balchand : (1977) 4 SCC 308, this Court opined: “2. The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the Petitioner who seeks enlargement on bail from the Court. We do not intend to be exhaustive but only illustrative. 3. It is true that the gravity of the offence involved is likely to induce the Petitioner to avoid the course of justice and must weigh with us when considering the question of jail. So also the heinousness of the crime. Even so, the record of the Petitioner in this case is that, while he has been on bail throughout in the trial court and he was released after the judgment of the High Court, there is nothing to suggest that he has abused the trust placed in him by the court; his social circumstances also are not so unfavourable in the sense of his being a desperate character or unsocial element who is likely to betray the confidence that the court may place in him to turn up to take justice at the hands of the court. He is stated to be a young man of 27 years with a family to maintain. The circumstances and the social milieu do not militate against the Petitioner being granted bail at this stage. At the same time any possibility of the absconsion or evasion or other abuse can be taken care of by a direction that the Petitioner will report himself before the police station at Baren once every fortnight.”” BAIL APPLNs. 1692/2011 & 1515/2011 Page 15 of 18 13. Thus the requirements that have to be balanced at this stage are the seriousness of the accusations, whether the witnesses are likely to be influenced by the Petitioners being enlarged on bail during trial and whether the accused are likely to flee from justice if released on bail. As stated earlier, prima facie a case for offence under Section 467 IPC is made out, the punishment prescribed for which is up to life imprisonment. Thus, the accusations against the Petitioners are serious in nature. However, the evidence to prove accusations is primarily documentary in nature besides a few material witnesses. As held in Sanjay Chandra (supra) if seriousness of the offence on the basis of punishment provided is the only criteria, the Courts would not be balancing the Constitutional Rights but rather recalibrating the scales of justice. 14. Learned counsel for the CBI has strenuously contended that the witnesses were threatened and harassed by the Petitioners who permitted every course of action to be taken only as per their desire. In this regard statements of PW-1 Sujit Panigrahi, PW-2 V.K. Gautam and PW-6 V.K. Saxena have been relied upon. PW-1 Sujit Panigrahi has alleged that he was harassed and totally sidelined in all the matters. The witness was issued a memo with false allegations resulting in the witness giving resignation to the Petitioner Suresh Kalmadi on 26th November, 2009. The resignation was not accepted at that time and further harassment followed. The witness even asked for being relieved on health grounds as the maltreatment was affecting him and finally on 20th January, 2010 he was relieved of his duty and one Sandeep Arya was brought in, who could manage the things as per the desire of the Petitioners and co-accused. PW-2 V.K. Gautam has stated that due to BAIL APPLNs. 1692/2011 & 1515/2011 Page 16 of 18 falsification and manipulation of records, heated arguments ensued between him and V.K. Verma the Petitioner herein, and he threatened to expose the manipulation. However, the Petitioner V.K. Verma contemptuously stated that he was not bothered about it and PW-2 could do what he wanted. PW-2 was removed from the OCFC on 6th November, 2009. PW-2 also had an exchange of words with the Petitioner Suresh Kalmadi on 13th October, 2009 whereafter the work of Technology F.A. was taken away from him and he was put under V.K. Verma. According to this witness the situation in O.C. became so unbearable that he proceeded on long leave from 20th December, 2009 citing personal reasons. PW-6 V.K. Saxena has stated that Kalmadi told him that STL had to be selected for the TSR system and Verma assured that he was sure that the Committee members knew how this had to be done. Petitioner V.K. Verma also threatened the witness PW-6 that if he qualified M/s. MSL he will have to face a CBI enquiry. Thus, to release the pressure being exerted on PW-6 to select STL only, PW-6 recorded his reasons for passing both STL and MSL and circulated his views to all members of the Committee which views formed a part of the Minutes of the Committee‟s decision. PW-1 Sujit Panigrahi who was also Technology expert agreed with the views of PW-6. Thereafter, Petitioner Suresh Kalmadi got angry with PW-6 and expressed his displeasure by observing that he knew how to get it corrected. 15. Thus, in nutshell the allegations of threatening the witnesses and tampering with the evidence are when the witnesses were working under the Petitioners and they were threatened and harassed to toe the line of the Petitioners. However, whether the said threat can raise an apprehension that BAIL APPLNs. 1692/2011 & 1515/2011 Page 17 of 18 the Petitioners are likely to influence the witnesses during the trial is an issue which has to be examined by this Court. It may be noted that the statements of these witnesses i.e. PW-1, PW-2 and PW-6 were recorded by the CBI when the Petitioners had not been arrested. Thus, it is apparent that the witnesses were harassed and threatened only till they were working under the Petitioners. Thereafter there was no influence on the witnesses and they made their statements fearlessly before the CBI. Thus, the evidence on record that in the past witnesses were intimidated does not prima facie shows that there is any likelihood of threat to the prosecution witnesses. I find no merit in the contention of the learned counsel for the CBI that the mere presence of the Petitioners at large would intimidate the witnesses. Further one co-accused who was actually found influencing the prosecution witness is not the Petitioner before this Court. 16. As regards delay in trial, it may be noted that the charge sheet was filed on the 20th May, 2011 and thereafter twice supplementary charge sheets with list of witnesses and documents have been filed. After the charge sheet was filed, time was consumed in providing it in E-form with hyperlinking. After the scrutiny of the supplementary charge, the matter will now be listed for arguments on charge. Though the learned Trial Court has directed that the trial be conducted on day to day basis, however, in the main charge sheet itself 49 witnesses have been cited. Thereafter, further witnesses have been cited in the two supplementary charge sheets. Thus, the trial is likely to take time. 17. The Petitioner Suresh Kalmadi has been in custody for over eight months and Petitioner V.K. Verma for ten months. There is no allegation BAIL APPLNs. 1692/2011 & 1515/2011 Page 18 of 18 that the Petitioners are likely to flee from justice and will not be available for the trial. The allegations against the Petitioners are of having committed economic offences which have resulted in loss to the State Exchequer by adopting the policy of single vendor and ensuring that the contract is awarded only to STL. Whether it was a case of exercise of discretion for ensuring the best quality or a case of culpability will be decided during the course of trial. There is no allegation of money trial to the Petitioners. There is no evidence of the Petitioners threatening the witnesses or interfering with evidence during investigation or trial. There is no allegation that any other FIR has been registered against the Petitioners. 18. In the facts and circumstances of the case, I am inclined to bail to the Petitioners. It is, therefore, directed that the Petitioners be released on bail on their furnishing a personal bond in the sum of Rs.5 lakhs with two sureties of the like amount each, subject to the satisfaction of the learned Trial Court. The Petitioners will not leave the Country without the prior permission of the learned Trial Court. The Petitions stand disposed of accordingly. Order dasti. (MUKTA GUPTA) JUDGE JANUARY 19, 2012 ‘vn’

at appeal stage recalling of a witness approver for further cross examination basing subsequent developments can be allowed. scope of sec.311,391 of Cr.P.C=March 20, 1975, at about 4.15 p.m. when the car in which Mr. Justice A.N. Ray, holding the office of the Chief Justice of India at that time, was travelling, along with his son Shri Ajoy Nath Ray and a Jamadar Jai Nand and the driver Inder Singh, stopped at the intersection of Tilak Marg and Bhagwan Dass road, at a stone throw distance from the Supreme Court of India, two live hand grenades were lobbed inside the car. Fortunately, the grenades did not explode and the occupants of the car, including the Chief Justice of India, escaped unharmed.

1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 174 OF 2012 [ARISING OUT OF SLP (CRIMINAL) NO.6489 OF 2006] SUDEVANAND ... APPELLANT VERSUS STATE THROUGH CBI ... RESPONDENT WITH CRIMINAL APPEAL NO. 175 OF 2012 [ARISING OUT OF SLP (CRIMINAL) NO.6625 OF 2006] SANTOSHANAND ... APPELLANT VERSUS STATE THROUGH CBI ... RESPONDENT AND CRIMINAL APPEAL NO. 176 OF 2012 [ARISING OUT OF SLP (CRIMINAL) NO.6800 OF 2006] RANJAN DWIVEDI ... APPELLANT VERSUS STATE THROUGH CBI ... RESPONDENT 2 J UD G M E N T Aftab Alam, J. 1. Leave granted. 2. On March 20, 1975, at about 4.15 p.m. when the car in which Mr. Justice A.N. Ray, holding the office of the Chief Justice of India at that time, was travelling, along with his son Shri Ajoy Nath Ray and a Jamadar Jai Nand and the driver Inder Singh, stopped at the intersection of Tilak Marg and Bhagwan Dass road, at a stone throw distance from the Supreme Court of India, two live hand grenades were lobbed inside the car. Fortunately, the grenades did not explode and the occupants of the car, including the Chief Justice of India, escaped unharmed. 3. A case was registered and investigation was started by the Crime Branch of the Delhi Police. But, as the police investigation did not make much headway, on June 30, 1975 the case was handed over to the CBI. On the same day, one Santoshanand Avadhoot (appellant in Criminal appeal arising out of SLP (Criminal) 6625 of 2006) was arrested followed by the arrest of an advocate, namely, Ranjan Dwivedi (appellant in criminal appeal arising out of SLP (Crl.) No.6800/2006) on July 6, 1975. 3 4. Here, it may be noted that about two and a half months before the attempt on the life of the Chief Justice of India, Shri L.N. Mishra, the Minister of Railways in the Union Cabinet was killed in a bomb blast taking place during a function on the platform of Samastipur Railway Station. In connection with that case, Sudevanand Avadhoot (appellant in criminal appeal arising out of SLP (Crl.) No.6489/2006) and one Vikram alias Jaladhar Das were arrested at Bhagalpur. On July 27, 1975 they were also arrested in the present case relating to the attempt on the life of the Chief Justice and were brought to Delhi where they were sent on police remand from July 31, 1975 to August 14, 1975. While on remand, Vikram made a confessional statement and requested to be allowed to become an Approver. He was produced before a Magistrate on August 14, 1975, before whom he made a statement under Section 164 of the Code of Criminal Procedure (in short "Cr.P.C.") giving the details of the conspiracy to kill the Chief Justice of India. He was again produced before the Chief Judicial Magistrate on August 22, 1975 before whom he made a similar statement for grant of pardon under Section 306 Cr.P.C. 5. The CBI completed investigation of the case and submitted charge- sheet against the three accused, namely, Sudevanand, Santoshanand and Ranjan Dwivedi and they were put on trial in Sessions Case No.9/1976. 4 Sudevanand and Santoshanand were charged under Section 307 read with Section 120-B of the Indian Penal Code and Section 4(b) of the Explosive Substances Act, 1908. So far as Ranjan Dwivedi is concerned, he was charged jointly with the other two accused under Section 120 B of the Penal Code only. At the conclusion of the trial, the Additional Sessions Judge, Delhi vide his judgment and order dated October 28, 1976 convicted Sudevanand and Santoshanand under Sections 115, 307/120B of the Penal Code and sentenced them to undergo rigorous imprisonment for 7 years under Section 115 read with 120-B(1), 10 years for attempting to kill Chief Justice A. N. Ray and three other occupants of the car and 7 years under Section 4(b) of the Explosive Substances Act, 1908. Ranjan Dwivedi was convicted under Section 115/120 B(1) of the Penal Code and was sentenced to 4 years rigorous imprisonment. 6. It may be noted here that Vikram, the Approver was examined by the prosecution as PW.1 and according to the appellants their conviction is mainly based on his evidence. 7. Against the judgment and order passed by the trial court, Ranjan Dwivedi filed appeal before the High Court on December 6, 1976 which is 5 registered as Criminal Appeal No.436/1976. Sudevanand and Santoshanand jointly filed a separate appeal which is registered as 443/1976. 8. After the appellants' trial was over, and they were convicted and sentenced by the trial court, as noted above, and after they had filed their appeals before the High Court against the judgment and order passed by the trial court, certain developments took place in the L. N. Mishra murder case. That case was also investigated by the CBI and in that case too Sudevanand and Santoshanand (along with others) were accused and in that case also Vikram was granted pardon on becoming an Approver. According to his statements made before the Magistrates both the killing of L. N. Mishra and the attempt on the life of Chief Justice of India were parts of a larger conspiracy, at the instance of the same organisation and a common group of persons. 9. On August 30, 1978, the Chief Minister of Bihar wrote a highly confidential letter to the Prime Minister of India, a copy of which was endorsed to the DIG (CID) Bihar. In pursuance of the Chief Minister's letter, the DIG (CID) is said to have made an inquiry into the circumstances in which Vikram @ Jaladhar Das had made the confessional statement and was tendered pardon to become Approver. Following the enquiry, on 6 September 30, 1978 the statement of Vikram was recorded at Danapur jail where he was lodged at that time. The statement was taken in the question and answer form and it was recorded in the presence of Dr. D. Ram, Superintendent; Danapur Hospital, (Ex-officio Jail Superintendent) and Haider Ali, the Jailor. The statement was also recorded on a tape recorder. In this statement Vikram retracted from his earlier statements incriminating himself and the other accused in the case. He said that his earlier statements were obtained by the CBI by subjecting him to great mental and physical torture. He was beaten up and tortured to such an extent that he agreed to make whatever statement CBI wanted him to make. The retraction made by Vikram was placed before the Chief Minister who requested Mr. Tarkunde, a former judge of the Bombay High Court to give a report in light of the statement made by Vikram in jail on September 30, 1978. Mr. Tarkunde is said to have given his opinion that the conviction of all the accused in the Chief Justice's case was based on fabricated evidence of the Approver and, therefore, the High Court should be requested to consider the appeals of the three accused keeping aside the Approver's evidence. We need not go any further in this matter, as all this was plainly outside the legal frame-work. 10. It needs, however, to be noted that upset by these developments, the CBI moved this Court in Transfer Petition (Crl.) No. 69/1979 praying for the 7 transfer of the trial of the L.N. Mishra murder case outside Bihar. In the transfer petition though the State of Bihar was not formally made a party, a number of allegations were made against some of its officers. In those circumstances, the concerned officers after obtaining permission from the State Government, filed affidavits/applications denying the allegations made against them in the transfer petition filed by the CBI and supporting the veracity of the retraction made by Vikram in Danapur jail on September 30, 1978 disowning the earlier statements made by him. In the overall facts and circumstances of the case, however, this Court deemed just and proper to transfer the trial of the L.N. Mishra murder case from Bihar to Delhi where it now remains pending as Sessions Case No. 1/2006 (after being renumbered) before the Additional Sessions Judge, Delhi. 11. It is curious to note that in the L.N. Mishra murder case Vikram was examined by the prosecution as PW.2 and in course of his deposition before the court he said that the statement made by him at Danapur jail was not voluntary but he was forced to make the statement under coercion and threats by the Chief Secretary, Law Secretary and Home Secretary, Government of Bihar and the SP and the DSP in the State Police. He said in his deposition before the court that his statement in jail was made on the 8 basis of a statement prepared and given to him in writing by the State Government officers. 12. Coming back to the appellant's appeal pending before the Delhi High Court, both Sudevanand and Santoshanand were released on bail in 1986 after remaining in jail for almost 11 years. In 1997-1998, that is to say 11 years after coming out of jail, the appellants filed three criminal miscellaneous applications in the pending appeals. Criminal miscellaneous application No. 5786/97 was filed on September 24, 1997 praying to call for and taking on the appeal record the statement made by Vikram, the Approver, in Danapur jail on September 30, 1978, the affidavits of the officials of the Bihar Government filed in the transfer petition before this Court and the enquiry report of Justice Tarkunde. The second application (criminal miscellaneous) No.5700/98 was filed on September 16, 1998 to summon Vikram, the Approver (PW.1 in the case), for further cross- examination in terms of Section 145 of the Evidence Act. The third application (criminal miscellaneous) No.6300/98 was filed on October 15, 1998 praying to call the evidence of Vikram, the Approver (PW.2), recorded in the trial of L.N. Mishra murder case. 9 13. The Delhi High Court took up all the three criminal miscellaneous applications and disposed them of by order dated November 22, 2006. The High Court noted that it was within the knowledge of the appellants that the Approver had made the retraction in the year 1978 disowning his earlier statements but the three applications in question were filed after a lag of more than 20 years and primarily for that reason did not allow all the prayers made in the three applications but granted the appellants only a limited and partial relief. In the operative portion of the order the High Court observed and directed as follows: "The last application moved by the appellant for considering the record, certified copies etc. u/s 80 and other provisions under the Evidence Act, report of justice V.M. Tarkunde and other documents which may be admissible under the Evidence Act has to be permitted. This prayer is being kept open and would be considered as per law. Succinctly stated, the applications for leading further evidence which would have entailed further time are hereby dismissed, but the third application for considering those documents which have already been placed on the record as per law, is hereby permitted. This case is fixed for final arguments on 6th December, 2006 at 12.15 P.M. The case would be taken up on day to day basis." Against the order passed by the High Court, the appellants have come to this Court in these appeals. 14. Mr. Lahoty and Mr. Arvind Kumar, counsel appearing for the appellants in the three appeals placed before the Court passages from the 10 statement of Vikram recorded in Danapur jail on September 30, 1978 describing the manner in which his earlier statements, incriminating himself and the other accused, were obtained by the CBI. Referring to the latter statement of Vikram, counsel submitted that denial to further cross-examine him in light of his statement of September 30, 1978 would cause grave prejudice to the appellants and would lead to a miscarriage of justice. Mr. Lahoty stated that the accused in the L.N. Mishra murder case had earlier come to this court for quashing the trial proceedings and their appeal (Criminal Appeal No. 126 of 1987) was heard along with the case of Abdul Rehman Antulay and was disposed of by a common judgment reported in (1992) 1 SCC 225. In paragraph 98 of the judgment, the Court noted the submission made on behalf of the appellants that a very unusual feature of the case was the exchange of charges and counter charges between the CBI and the Bihar (CID) of false implication and frame up against each other. According to the Bihar (CID), the CBI was guilty of frame up against the members of Anand Marg, while according to CBI, the Bihar (CID) had been deliberately proceeding against innocent persons while letting of the real culprits. Mr. Lahoty submitted that as a result of the Central Investigating Agency and the State Investigating Agency acting at cross purpose, the case had become highly murky to the great detriment of the appellants. He further 11 submitted that in that situation if the appellants are not allowed the opportunity to further cross-examine Vikram, the Approver (PW.1), it would be highly unfair and unjust to them. He also submitted that the Delhi High Court was wrong in rejecting the applications made by the appellants on the ground of delay. 15. Mr. Arvind Kumar in support of the plea raised by the appellants placed reliance on the decision of this Court in Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158, commonly known as the Best Bakery Case. He also pressed into service a decision of this Court in Pandit Ukha Kolhe v. State of Maharashtra, 1964 (1) SCR 926 (939-940). 16. So far as the Best Bakery Case is concerned, we see absolutely no application of that decision to the facts of the present case. Suffice to note here that in Satyajit Banerjee v. State of W.B., (2005) 1 SCC 115, the Court explained the very exceptional nature of the Best Bakery Case and observed that the decision cannot be applied to all cases against the established principles of criminal jurisprudence (See paragraph 25 & 26 in Satyajit Banerjee). 17. We also fail to see how the decision in Pandit Ukha Kolhe might help the appellants in the present appeals. 12 18. We agree with Mr. Lahoty's submission that the delay in filing the applications should not have been the sole ground for rejecting the appellants' applications before the High Court. The High Court does not say that the appellants were in anyway responsible for the inordinate delay in their appeals, that remains pending since 1976, being taken up for hearing. That being the position, as long as the appeals were pending, the High Court should have considered the appellants' request for summoning PW.1 for further cross-examination on merits, and in light of the relevant legal provisions. Mr. Lahoty is also right in submitting that any further cross- examination of PW.1 would not have taken more than two or three days and would not have contributed to any further delay in the disposal of the appeal in any material way. 19. But the question remains to be examined whether the law permits the summoning of PW.1 for the reason as stated on behalf of the appellants. 20. Mr. P.K. Dey, the counsel appearing for the CBI, strongly opposed the appellants' prayer for summoning Vikram, the Approver (PW.1), for further cross-examination in light of his statement recorded in Danapur jail on September 30, 1978. Learned counsel submitted that Vikram had made his confessional statements completely voluntarily and on three different 13 occasions. He was produced before the Magistrate on August 14, 1975 for recording his statement under Section 164 Cr.P.C. He was then produced before the Chief Judicial Magistrate on August 22, 1975 for recording his statement for grant of pardon under Section 306 Cr.P.C. Finally, he was produced before the trial court as PW.1 where he was examined first by the prosecution and was then subjected to a lengthy cross-examination on behalf of the accused. On none of the three occasions he made the slightest complaint that his statements were obtained under coercion or threats. He was also produced before the Magistrate many times for the purpose of remand and for other purposes, such as taking cognizance, commitment of the case to the court of Sessions and also before the trial court where the trial proceeded and got concluded and at no point of time he gave any indication that his statements/evidence were given under any coercion, threats or inducement. 21. Mr. Dey also submitted that the statement of Vikram that was recorded in Danapur jail on September 30, 1978 had no legal sanctity, as it was recorded in a manner and by means completely unknown to law. It also did not qualify as the previous statement within the meaning of Section 145 of the Evidence Act as in fact, it was later in time than the deposition of PW.1 in this case before the trial court. He also referred to passages from the 14 deposition of Vikram, the Approver, made in the trial of the L.N. Mishra murder case in which he was examined as PW.2 where he stated that his statement of September 30, 1978 recorded in Danapur jail was not voluntary but it was made under threats from the top officials of the State Government. 22. Mr. Dey submitted that the statement made by Vikram in jail on September 30, 1978 could never be the basis for summoning him for further cross-examination at the stage of the appeal and in support of this submission relied upon a decision of this Court in Mishrilal v. State of M.P., (2005) 10 SCC 701. In that case, one of the prosecution witnesses (PW.2) had supported the prosecution case before the trial court but before the Juvenile Court that was trying some of the juvenile accused in the same case he did not support the prosecution case and as a result, the juvenile accused were acquitted of the charge under Section 307 IPC for having made an attempt on the life of this witness. After his evidence before the Juvenile Court, he was again summoned before the trial court where the other accused were facing trial and was confronted with the evidence he had given before the Juvenile Court. This Court found and held that the procedure adopted by the Sessions Judge was not in accordance with law and in paragraphs 5 and 6 of the judgment observed and held as follows: 15 "5. The learned Counsel for the appellants seriously attacked the evidence of PW.2 Mokam Singh. This witness was examined by the Sessions Judge on 6-2-1991 and cross-examined on the same day by the defence counsel. Thereafter, it seems, that on behalf of the accused persons an application was filed and PW.2 Mokam Singh was recalled. PW.2 was again examined and cross- examined on 31-7-1991. It may be noted that some of the persons who were allegedly involved in this incident were minors and their case was tried by the Juvenile Court. PW.2 Mokam Singh was also examined as a witness in the case before the Juvenile Court. In the Juvenile Court, he gave evidence to the effect that he was not aware of the persons who had attacked him and on hearing the voice of the assailants, he assumed that they were some Banjaras. Upon recalling, PW.2 Mokam Singh was confronted with the evidence he had given later before the Juvenile Court on the basis of which the accused persons were acquitted of the charge under Section 307 IPC for having made an attempt on the life of this witness. 6. In our opinion, the procedure adopted by the Sessions Judge was not strictly in accordance with law. Once the witness was examined-in-chief and cross-examined fully, such witness should not have been recalled and re-examined to deny the evidence he had already given before the court, even though that witness had given an inconsistent statement before any other court or forum subsequently. A witness could be confronted only with a previous statement made by him. At the time of examination of PW.2 Mokam Singh on 6.2.1991, there was no such previous statement and the defence counsel did not confront him with any statement alleged to have been made previously. This witness must have given some other version before the Juvenile Court for extraneous reasons and he should not have been given a further opportunity at a later stage to completely efface the evidence already given by him under oath. The courts have to follow the procedures strictly and cannot allow a witness to escape the legal action for giving false evidence before the court on mere explanation that he had given it under the pressure of the police or for some other reason. Whenever the witness speaks falsehood in the court, and it is proved satisfactorily, the court should take a serious action against such witnesses." 16 23. The decision in Mishrilal was followed in Hanuman Ram v. State of Rajasthan and others, (2008) 15 SCC 652. The case of Mishrilal had come to this Court after the appeal court had maintained the conviction and sentence passed against the accused. But Hanuman Ram came at the intermediate stage when the trial court was directed by the High Court to recall two prosecution witnesses under Section 311 of the Cr.P.C. under similar circumstances. In Hanuman Ram too, two of the witnesses (PWs 3 and 5) who had supported the prosecution case before the trial court did not support the case of the prosecution before the Children's Court where one of the accused in the case who was a minor was being tried. Before the trial court an application was made under Section 311 Cr.P.C. for summoning those two witnesses for cross-examination with reference to their statements before the Children's Court. The trial court did not accept the prayer and rejected the petition. On an application in revision, the High Court intervened in favour of the accused and directed the trial court to recall and re-examine the two witnesses. In appeal against the High Court order, this Court following the earlier decision in Mishrilal, held that there was no legal foundation for recalling the witnesses under Section 311 Cr.P.C. and set aside the High Court judgment. 17 24. At first sight, the decisions in Mishrilal and Hanuman Ram seem to clinch the issue arising in the case. But, on a deeper examination, it would appear that the decision in Mishrilal did not interpret Section 311 Cr.P.C. defining the import, scope and ambit of the provision contained therein. It rather said that on the facts of the case, the provision had no application and the procedure adopted by the trial court was not strictly in accordance with law. Now, the interpretation of a legal provision and its application to a set of facts are two different exercises requiring different approaches. "Interpretation" means the action of explaining the meaning of something. For interpreting a statutory provision, the court is required to have an insight into the provision and unfold its meaning by means of the well-established canons of interpretation, having regard to the object, purpose, historicism of the law and several other well-known factors. But, what is important to bear in mind is that the interpretation of a legal provision is always independent of the facts of any given case. "Application" means the practical use or relevance (of something to something); the application of a statutory provision, therefore, is by definition case related and as opposed to interpretation, the application or non-application of a statutory provision would always depend on the exact facts of a given case. Anyone associated with the process of adjudication fully knows that even the slightest 18 difference in the facts of two cases can make a world of difference on the question whether or not a statutory provision can be fairly and reasonably applied to it. Keeping in mind what is said here if we read Mishrilal, it would be evident that in the over all facts of that case, the Court was satisfied that the statement of the witness (PW.2, Mokam Singh) before the Juvenile Court was for some extraneous reasons and, therefore, he should not have been allowed an opportunity to completely efface the evidence already given by him under oath. The Court with its vast experience of the way criminal justice system works in our country was in a manner commenting upon the serious and widespread malady of prosecution witness being won over by the accused. Once the Court came to realise that the witness was gained over before he was examined in the Juvenile Court, it naturally felt that at least he should not have been allowed to spoil the other case too and it would, therefore, logically follow that his recall and re- examination in the trial of the other accused before the Sessions Court was an abuse of Section 311 of the Cr.P.C. To us, it appears that it was mainly due to that reason that the Court frowned upon the latter evidence of PW.2 taken by the Sessions Court on his recall after his examination before the Juvenile Court. 19 25. Moreover, in Mishrilal the question that came up for consideration before the Court was whether the deposition of Mokam Singh (PW.2) before the Juvenile Court would come within the meaning of "previous statement" under Section 145 of the Evidence Act so as to justify his recall for further cross-examination confronting him with his deposition before the Juvenile Court. The Court answered the question in the negative pointing out that at the time of his examination earlier before the Sessions Court there was no such statement with which he could be confronted by the defence. 26. In Hanuman Ram, on identical facts and for the same reasons the Court simply followed the decision in Mishrilal. 27. The facts of the case before us are quite different. It is not only Vikram who is making diametrically opposite statements but the CBI and the State (CID) seem to be at loggerheads with the one accusing the other of manipulating and using Vikram for its own designs. It is an unusual case by any reckoning. 28. It is obvious that one of the two statements of Vikram is false. But unlike Mishrilal or Hanuman Ram where the Court was able to sense without difficulty that the witnesses' depositions before the Juvenile Court and the Children's Court respectively were false, it is very difficult to say at 20 this stage which of the statements is true and which of the statement was made under the influence, threat or coercion by the State officials or the CBI. The position may be clear in case he is subjected to further examination with reference to his statement made in Danapur jail on September 30, 1978. 29. The matter may be looked at from another angle. Section 391 of the Cr.P.C. provides as follows: "391. Appellate Court may take further evidence or direct it to be taken.- (1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or, when the Appellate Court is a High Court, by a Court of Session or a Magistrate. (2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal. (3) The accused or his pleader shall have the right to be present when the additional evidence is taken. (4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry. " 30. It is, thus, to be seen that the provision is not limited to recall of a witness for further cross-examination with reference to his previous statement. The Appellate Court may feel the necessity to take additional 21 evidence for any number of reasons to arrive at the just decision in the case. The law casts a duty upon the court to arrive at the truth by all lawful means. This is another reason why we feel any reliance on Mishrilal that considered the recall of a witness in the context of Section 145 of the Evidence Act is quite misplaced in the facts of this case. 31. Mr. Dey contended that Vikram's statement that he is alleged to have made in jail has no legal sanctity and it came to be made and recorded in a manner completely unknown to law. Mr Dey may be right but on that ground alone it would not be correct and proper to deny the application of Section 391 of the Cr.P.C. Take the case where, on the testimony of the Approver, a person is convicted by the trial court under Section 302 and 120-B etc. of the Penal Code and is sentenced to a life term. After the judgment and order passed by the trial court and while the convict's appeal is pending before the High Court, the `Approver' is found blabbering and boasting among his friends that he was able to take the Court for a ride and settled his personal score with the convict by sending him to jail to rot at least for 14 years. Such a statement would also be completely beyond the legal framework but can it be said that in light of such a development the convicted accused may not ask the High Court for recalling the Approver for further examination. 22 32. As a matter of fact, if some later statement, has come to be made in some legal ways, it may be admissible on its own without any help from Section 311 or Section 391 of the Cr.P.C. It is only such statement or development which is otherwise not within the legal framework that would need the exercise of the Court's jurisdiction to bring it before it as part of the legal record. 33. In light of the discussions made above, we have no hesitation in holding that the High Court was in error in refusing to summon Vikram, the Approver (PW.1) for his further examination as prayed for on behalf of the appellants. We, accordingly, set aside that part of the High Court order and direct the High Court to summon Vikram (PW.1) for his further examination by the appellants and if so desired by the CBI. For the sake of convenience, the High Court may direct a member of the Registry of the rank of a Sessions Judge/Additional Sessions Judge to record the additional evidence of Vikram (PW.1). The examination of the witness by the appellants and the CBI must not go beyond two working days each so that the recording of his evidence should be complete in not more than four days. The Registrar recording the evidence would certify it and place before the Court and the Court shall then proceed to dispose of the appeals. 23 34. The appeals are thus allowed. 35. Before parting with the record of the case we are constrained to say that we are distressed beyond words to find that the case relating to the attempt on the life of the CJI remains stuck up at the stage of the appeal even after about 37 years of the occurrence. We are informed that the other case of the killing of Shri L.N. Mishra is still mired before the trial court. We do not wish to make any comment on that case as that is the subject matter of Writ Petition (Criminal) Nos. 200 and 203 of 2011 that remains pending before this Court. But so far as the present case is concerned, we would request the Chief Justice of the Delhi High Court with all the strength at our command to take notice of the inordinately long time for which these appeals (Criminal Appeal Nos.436 & 443 of 1996) are pending before the High Court and to put a tab on them so as to ensure that the appeals are disposed of without any further delay and in any case not later than six months from the date of the receipt/production of a copy of this order. ...................................J. (Aftab Alam) ...................................J. New Delhi, (Ranjana Prakash Desai) January 19, 2012.