deficiency in service =The Delhi Financial Corporation (hereinafter referred to as DFC) has filed this appeal against the order of the State Consumer Disputes Redressal Commission of Delhi in CC No. 609/1993. In this order the State Commission has held the appellant liable for deficiency of service to the complainant. The Commission has therefore awarded a compensation of Rs 2.50 lakhs in favour of the complainant. =a) There was no justification on the part of the appellant/DFC to sanction the loan under the General Scheme. Their claim that the loan application could not be considered under the Mahila Udyog Nidhi Scheme as the cost of the project exceeded Rs.10 lakhs, is not borne out from the records. The application was for a loan of Rs.8.76 lakhs and the sanction was Rs.7.5 lakhs only. b) Direct payment to the machinery supplier by the DFC was in violation of an express condition of the loan sanction order. The violation was further compounded by the delay of nearly six months in releasing the same. c) The claim of the appellant/DFC that the balance of the loan towards margin money for working capital was not released as it was not required, is contrary to the facts on record. The consideration of the loan application for working capital by Punjab and Sind Bank was awaiting a copy of the project appraisal report. This was sent by the appellant/DFC through their letter No.DFC/SLD/R/90/91-92 of 30.7.1992. In this background, the decision of the DFC to cancel the un-drawn portion of the loan finds no legs to stand on. d) Correspondence on record shows that the DFC cancelled the loan component of Rs.2.75 lakhs towards for margin of working capital on 26.5.1992. But, two months later, on 30.7.1992, the project report was forwarded by the DFC itself to Punjab and Sind Bank for consideration of working capital loan. It clearly shows that the cancellation of the balance of loan was premature and without any justification. 9. In the above background, we find ourselves in complete agreement with the view of the State Commission that the appellant was deficient in service on several counts. We therefore, find no merit in this appeal and dismiss it for the same reason. The order of the Delhi State Commission in CC NO.609/1993, awarding an overall compensation of Rs.2.5 lakhs to the respondent/complainant is confirmed. In addition, considering the facts and circumstances of this case, we also award a cost of Rs.20,000/-, which shall be paid by the appellant to the respondent/complainant within a period of two months. For delay in payment, if any, the amount shall carry interest at 9%.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 356 OF 2006 (Against the order dated 21.04.2006 in Complaint Case No.609 of 1993 of the State Commission, Delhi) Delhi Financial Corporation, Saraswati Bhawan, E Block, Connaught Place, New Delhi- 110001 ……….Appellant Versus Late Smt. Saroj Gupta Through her L.RS. 1. Sh. Rajesh Gupta Son of Late Sh. B.L.Gupta 2. Sh. Pradeep Gupta Son Late Sh. B.L. Gupta Both Resident of D/12, House No.112, Sector 8, Rohini, Delhi- 110085 ........Respondents BEFORE HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HON’BLE MR. VINAY KUMAR, MEMBER For the Appellant : Mr. B. Uday Dip Singh, Advocate Ms. Faujia Shakil, Advocate For the Respondent : Mr.Manoranjan, Advocate PRONOUNCED ON: 31.01.2012 ORDER PER MR.VINAY KUMAR, MEMBER The Delhi Financial Corporation (hereinafter referred to as DFC) has filed this appeal against the order of the State Consumer Disputes Redressal Commission of Delhi in CC No. 609/1993. In this order the State Commission has held the appellant liable for deficiency of service to the complainant. The Commission has therefore awarded a compensation of Rs 2.50 lakhs in favour of the complainant. 2. The case of the complainant before the state commission was that she had applied for a loan of Rs 8.76 lakhs for self-employment. The DFC sanctioned the loan of Rs 7.5 lakhs, including Rs 2.75 lakhs towards margin for working capital. It was alleged that while the complainant wanted to purchase the machine from M/S Aparna Mechanical Industries, Calcutta the DFC placed orders on M/S Illumina Lamps Private limited, Calcutta. Due to delay in sanction from the DFC, the machinery supply was delayed by more than seven months. This delayed the trial production by three months resulting in the loss as rent for the factory-building, water electricity and security charges were to be paid during the entire period. Further, the complainant had sought working capital loan from a bank in August 1990. This loan could not be sanctioned till 1992 as the project report required to be sent to the bank was not sent by the DFC. Finally, when the DFC sent the project report, it had already cancelled the balance of the loan required as margin money for working capital. This cancellation and consequent rescheduling of the loan was done without giving an opportunity to the complainant to represent against such action. 3. The main defense of the opposite party/DFC before the State Commission was that the margin for working capital was not released because the complainant had failed to obtain working capital from a bank. It is stated in the written response before the State Commission that “sanction of loan does not mean that the loan has to be released, even if the same is not required by the borrower.” 4. Considering the rival contentions, the State Commission came to the following conclusion— “After giving careful consideration to the rival contentions of the parties, we find that OP was deficient in service firstly for not paying the loan directly to the complainant after sanctioning it which could have facilitated the complainant to purchase the machinery from the manufacturer of her choice and on her own terms and conditions secondly the OP intentionally withheld the project report as a result of which the working capital could not be procured and as a consequence the complainant could not start the production and suffered heavy loss, as she had to maintain a tenanted premises and bear expense of machinery, Labour, electricity charges etc. So much so the complainant had to dispose of the factory because of delay on the part of the OP in making payment.” 5. We have heard the counsels for the appellant/DFC and the respondent/complainant and also perused the records of the case. The main ground of appeal is that the State Commission has ignored the evidence on record which showed that the respondent herself had chosen to purchase the machines from M/S Illumina lamps Pvt Ltd. Learned counsel for the appellant also drew our attention to the correspondence which showed that the list of suppliers was not available with the complainant. However, he could not explain why payment was not released through the complainant, as required under the terms of sanction of the loan. According to the learned counsel, the DFC made direct payment to the machinery supplier, only after the complainant had already paid the advance towards the same. This is no explanation for making payment in violation of the terms of sanction. More so, as DFC had made this payment in October 1991,which was six months after intimation of the payment of advance by the complainant. 6. On the allegation of the complainant that her application was for sanction of loan under the Mahila Udyog Nidhi (MUN) Scheme while the sanction was made under the general scheme, the counsel for DFC argued that as the requirement was over Rs 10 Lacs, the application had to be considered under the general scheme and not MUN. This was the stand of the appellant before the State Commission as well. But, we find that this argument does not stand the test of the evidence on record. As per the record, the application itself was for a loan of Rs 8.76 lakhs and the sanction was Rs 7.5 Lacs. Both were within Rs 10 lakhs. In the face of this evidence the only response of the counsel for DFC was that the complainant had consented to the application being considered under the general scheme. 7. Learned counsel for the respondent/complainant referred to the terms of the loan sanction letter of 11.12.1990. The very first clause in this letter reads as follows:- “1. When payment will be made:- Subject to the compliance of the terms and conditions contained in this letter and/completion of requisite formalities and documents to the satisfaction of the Corporation, the amount of the loan will be paid to you by cheques drawn in your favour”. He argued that as per this clause, the payment of money to the machinery supplier should have been made through the Complainant by releasing the entire sanctioned amount of Rs.4.46 lakhs, by way of a cheque in the name of the complainant. Instead of this, the appellant/OP released the entire balance amount directly to the supplier, after deducting the advance already paid to him. This was in clear violation of condition of letter of allotment as detailed above. Even in this release, the DFC delayed the matter by six months. While the advance to the machinery supplier had been paid in February –March 1991, the rest of the amount was paid in October 1991. It was further argued that as per condition No.15 of the letter of sanction three months time were given for completion of the transaction for which the loan was sanctioned. We note that compliance of this condition became an impossibility when the sanctioning authority i.e. the appellant/DFC itself took six months to release the payment to the machinery supplier. 8. From rival contentions examined above and perusal of the records, the following picture clearly emerges:- a) There was no justification on the part of the appellant/DFC to sanction the loan under the General Scheme. Their claim that the loan application could not be considered under the Mahila Udyog Nidhi Scheme as the cost of the project exceeded Rs.10 lakhs, is not borne out from the records. The application was for a loan of Rs.8.76 lakhs and the sanction was Rs.7.5 lakhs only. b) Direct payment to the machinery supplier by the DFC was in violation of an express condition of the loan sanction order. The violation was further compounded by the delay of nearly six months in releasing the same. c) The claim of the appellant/DFC that the balance of the loan towards margin money for working capital was not released as it was not required, is contrary to the facts on record. The consideration of the loan application for working capital by Punjab and Sind Bank was awaiting a copy of the project appraisal report. This was sent by the appellant/DFC through their letter No.DFC/SLD/R/90/91-92 of 30.7.1992. In this background, the decision of the DFC to cancel the un-drawn portion of the loan finds no legs to stand on. d) Correspondence on record shows that the DFC cancelled the loan component of Rs.2.75 lakhs towards for margin of working capital on 26.5.1992. But, two months later, on 30.7.1992, the project report was forwarded by the DFC itself to Punjab and Sind Bank for consideration of working capital loan. It clearly shows that the cancellation of the balance of loan was premature and without any justification. 9. In the above background, we find ourselves in complete agreement with the view of the State Commission that the appellant was deficient in service on several counts. We therefore, find no merit in this appeal and dismiss it for the same reason. The order of the Delhi State Commission in CC NO.609/1993, awarding an overall compensation of Rs.2.5 lakhs to the respondent/complainant is confirmed. In addition, considering the facts and circumstances of this case, we also award a cost of Rs.20,000/-, which shall be paid by the appellant to the respondent/complainant within a period of two months. For delay in payment, if any, the amount shall carry interest at 9%. .………………………… (V.B.GUPTA,J.) PRESIDING MEMBER …………………………. (VINAY KUMAR) MEMBER s./-

convicted under section 302 read with section 34 of the Penal Code and is sentenced to rigorous imprisonment for life -The facts of the case in hand are quite different. It is seen above that it was the appellant who struck the first blow on the right side of the head of Dharmaraj and according to the post-mortem report that blow itself might have caused his death. We have, therefore, no doubt that the facts of the case clearly attract section 34 of the Penal Code in so far as the appellant is concerned. 16. In light of the discussions made above, we find no merit in the appeal. It is, accordingly, dismissed. 17. This Court by its order dated October 7, 2005 granted bail to the appellant. His bail bonds shall stand cancelled. He shall be taken into custody forthwith to serve out his remainder sentence.

1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1326 OF 2005 LOKESH SHIVAKUMAR ... APPELLANT VERSUS STATE OF KARNATAKA ... RESPONDENT J U D G M E N T Aftab Alam, J. 1. The appellant who was accused No.2 before the trial court is convicted under section 302 read with section 34 of the Penal Code and is sentenced to rigorous imprisonment for life and a fine of Rs.500/- with the default sentence of rigorous imprisonment for a week. 2. According to the prosecution case, one Dharamaraj, the deceased was engaged in the business of money lending and accused No.1 Madhu @ 2 Mahadeva had borrowed from him Rs.10,000/-. Dharamaraj went to jail in connection with some case, authorizing his younger brother Mallesha (informant-PW.1) to realise the money from his debtors in his absence. Mallesha tried to realise the loan amount from Madhu but was unsuccessful. On July 18, 1997, when Dharamaraj came out from the jail, Mallesha told him that Madhu had not refunded the money due to him. Dharamaraj said that he would himself get back the money from Madhu. It is further the prosecution case that on July 21, 1997, there was a festival in the village and in the evening at about 5:45 PM, the deceased and his brother Mallesha (PW.1) were in their house. At that time Madhu came to them and asked Dharamaraj to go out with him saying that he wanted to pay back the money that he had borrowed from him. Dharamaraj went along with him but, as he did not return after about half an hour, Mallesha along with two of his associates (Mahesh PW.2) and 3 (Mukunda PW.14) went looking for him in the direction of Madhu's house. On reaching near the house of Shivanna (accused No.3) they saw Dharamaraj surrounded by Madhu, the appellant and Shivanna and Thomas (accused nos.3 & 4 respectively). Shivanna and Thomas were hitting him with fists as a result of which he fell down. At that point, the appellant picked up one gobbaly tree wood piece which was lying there and swinging it like a club hit Dharamaraj with it on the right side of his head. Madhu then picked up a large stone and flung it on the head of Dharamaraj. Dharamaraj got severe bleeding injuries on his head, face and nose. He was taken to a hospital but was declared brought dead. 3. Before the trial court, PWs.1, 2 and 14 were examined as eye witnesses, who fully supported the prosecution case. The doctor who had conducted the post-mortem on the dead body of Dharamaraj was examined as PW.11. He proved the post-mortem 4 report. According to the doctor, he found a number of external injuries on the body of Dharamaraj which he described as follows:- "1. Obliquely situated lacerated wound on the right frontal region measuring 2- 1/2" x =" x bone deep with the compound fracture of underlying frontal bone. 2. Obliquely situated lacerated wound on the lateral aspect of the right eye brow; 1-1/2" x =" into bone deep with fracture of underlying bone. 3. Compromise at the root of the nose with fracture on nasal bone." 4. Lacerated wound on the right side of the lower lip =" x <". 5. Abrasion on the anterior aspect of the right leg =" x <"." On dissection, the external injuries were found corresponding to the following internal injuries: 1. Fracture of right side of the frontal bone of the skull, fracture of right orbit, fracture of nasal bone with crushing of right eye ball. 2. The membrane of the frontal region was returned. 5 3. Brain matters of right anterior part of the brain was crushed. 4. The gobbaly tree wood piece used by the appellant and the stone piece that Madhu had flung on the head of the deceased were also produced before the court as MO.2 and MO.1 respectively. On being shown the two material objects, the doctor stated that the injuries found on the dead body were possible if the person was assaulted with the club MO.2 and the stone MO.1. Further, replying to a question in cross-examination the doctor said that injuries Nos.2 & 3 found on the external examination of the body as recorded in the post- mortem report could have been caused if the deceased was hit with a stone and the other injuries could have been caused with the club or on coming into contact with a hard surface. 5. The trial court convicted all the four accused under section 302/34 of the Penal Code and sentenced them to life imprisonment and a fine of Rs.500/- each. 6 6. On appeal, the High Court found and held that there was no evidence that accused Nos. 3 & 4 shared the common intention of causing the death of Dharamaraj. It, accordingly, acquitted them of the charge but maintained the conviction and sentence of the appellant and accused No.1, Madhu. 7. Against the judgment of the High Court, the appellant has come in appeal. Mr. Naresh Kumar, learned counsel appearing for the appellant strenuously argued that like the other two accused acquitted by the High Court, there could be no application of section 34 of the Penal Code in the case of the appellant as well and his conviction under section 302 of the Penal Code with the aid of that section was wholly unsustainable. Learned counsel submitted that the appellant had no motive to commit the offence since he did not owe any money to the deceased and it was only Madhu who owed him Rs.10,000/- and, thus, could be said to have the motive to kill him. Secondly, according 7 to the learned counsel, there was discrepancy between the ocular evidence and the medical evidence and thirdly the appellant had not brought any weapon for commission of the offence. All these circumstances cumulatively ruled out his sharing the common intention to kill Dharamaraj. 8. As regards motive, it is well established that if the prosecution case is fully established by reliable ocular evidence coupled with medical evidence, the issue of motive loses practically all relevance. In this case, we find the ocular evidence led in support of the prosecution case wholly reliable and see no reason to discard it. The submission, therefore, that the appellant had no motive for the commission of offence is not of any significance. As to any discrepancy between the ocular evidence and the medical evidence, we find none. All the three eye witnesses, namely, PWs.1, 2 and 14 deposed that the appellant picked up a gobbaly tree wood piece and struck on the right 8 side of the head of Dharamaraj with it. It is seen above that the first external injury recorded in the post-mortem report that caused the compound fracture of underlying frontal bone was on the right frontal region and according to the doctor, it could have been caused by the piece of wood (MO.2). We, therefore, fail to see any discrepancy between the medical evidence and the ocular evidence. On the contrary, the medical evidence tends to corroborate the eye witness account of the occurrence. The third submission that the appellant had not brought any weapon with him is equally without substance, as it is well settled that common intention can form and develop even in course of the occurrence. It is true that the appellant had not brought with him any weapon but it is equally true that in the gobbaly tree wood piece lying at the place of occurrence he found one and used it with lethal effect. 9 9. In support of the submission that section 34 of the Penal Code shall have no application to the case of the appellant, learned counsel relied upon a number of decisions of this Court, namely, Y. Venkaiah v. State of Andhra Pradesh, (2009) 12 SCC 126, Jagannath v. State of Madhya Pradesh, (2007) 15 SCC 378, Laxmanji and another v. State of Gujarat, (2008) 17 SCC 48, State of Punjab v. Bakhshish Singh and others,(2008) 17 SCC 411, Sripathi and others v. State of Karnataka, (2009) 11 SCC 660 and Akaloo Ahir v. State of Bihar (2010) 12 SCC 424. Of the many cases cited by the learned counsel, Venkaiah's case has no application to the facts of the case in hand but the other decisions relied upon in support of the contention would need some explaining. 10. In Jagannath (supra), two brothers, namely, Dhoomsingh and Ramsingh (the deceased) had collected drift wood from a river that flowed by the side of their house. The appellant, Jagannath, 10 and one Prabhudayal stole the wood collected by the two brothers on which an altercation took place between the two sides. In course of the altercation, Prabhudayal gave an axe blow on the head of Ramsingh that led to his death. The appellant, Jagannath, according to the prosecution case, caused some injuries to the informant (PW-11) and another witness, Naval Singh (PW-2), who had come on the site of occurrence. The injuries caused by the appellant Jagannath to the two witnesses were all simple in nature. It is, thus, to be noted that the occurrence took place in course of an altercation. The appellant Jagannath did not cause any injury to the deceased and caused only some simple injuries to the two prosecution witnesses. It was in those facts and circumstances that this Court held that he could not be said to have shared the common intention with the other accused to cause the death of Ramsingh. 11 11. In Laxmanji (supra), the appellants before the Court were accused Nos. 2 and 3. According to the prosecution case, they along with accused No. 1, who was carrying a Rampuri knife and accused No. 4, who had a stick, went to the house of the deceased, Bhamraji. The two appellants (accused 2 and 3) caught hold of the deceased while accused No. 1, who was having a knife, inflicted knife blows on the right hand side region of the abdomen and the thigh region of the deceased. As a result of the injuries, he fell down and later died. The trial court convicted accused No. 1 under section 302 and the two appellants (accused 2 and 3) under section 302 read with section 34 of the Penal Code. It acquitted accused No. 4. The High Court maintained the appellants' conviction. This Court, in the facts of the case, held that no common intention can be attributed to the appellants to cause the murder of the deceased. Though, it is not clearly spelled out but what seems to have weighed with the 12 Court is that the appellants had merely caught hold of the deceased and had caused no injury to him. 12. In Bakhshish Singh (supra), it was the case of the prosecution that while a certain Kabul Singh (PW-4) and his nephew, Mangal Singh (the deceased), were returning from the fields along with Swinder Kaur (PW-5), mother of Mangal Singh, they were accosted by the accused, namely, Bakhshish Singh and Balbir Singh, both of them being armed with a dang and Balraj Singh, who was armed with a chhavi. Gurmeet Kaur, the mother of Balraj Singh, raised a lalkara saying that Kabul Singh and Mangal Singh should not be allowed to escape as they had damaged their crops. Bakhshish Singh and Balbir Singh caught Mangal Singh and threw him down on the ground while accused Balraj Singh, at the instigation of his mother Gurmeet Kaur, inflicted a chhavi blow on the head of Mangal Singh, causing a single injury that led to his death. The trial court relying upon the evidence of PW-4 and PW-5 13 convicted Bakhshish Singh and Balbir Singh under section 302 with the aid of section 34 of the Penal Code. In appeal, the High Court found that the evidence did not establish the role purportedly played by Gurmeet, Balbir and Bakhshish. The High Court also noted that one single blow was given by Balraj and that too in course of a sudden quarrel. It, accordingly, acquitted Gurmeet, Balbir and Bakhshish and modified the conviction of Balraj from section 302 to section 304 Part I of the Penal Code. In appeal, preferred by the State of Punjab against the judgment of the High Court, this Court declined to interfere. 13. In Sripathi (supra), once again in the course of an altercation accused No.4 inflicted a stab injury on the abdomen of the deceased while the other three accused held him at different parts of the body. This Court held against the applicability of section 34 of the Penal Code in so far as 14 accused Nos.1 to 3 were concerned observing in Paragraph 8 of the judgment as follows:- "Coming to the plea regarding the applicability of Section 34 PC, we find that the evidence is not very specific as regards the role played by A-1, A-2 and A- 3. It is prosecution version that A-4 had the knife in his pocket which he suddenly brought out and stabbed the deceased." (emphasis added) 14. In Akaloo Ahir (supra), the deceased Kishore Bhagat was fired upon first by one Garju, but the shot missed him. Thereafter, the appellant Akaloo Ahir came on the scene and he also fired a shot at Kishore Bhagat which too missed its target. Following that attack, two other accused came on the scene. One of them handed over a cartridge to the other who fired a shot with his gun which hit Kishore Bhagat on his chest and stomach killing him on the spot. Akaloo Ahir and Garju were convicted by the trial court and the High Court under section 302 read with section 34 of the Penal Code. This Court, however, acquitted Akaloo Ahir under section 302/34 and convicted him under section 307 of the 15 Penal Code (Garju had died in the meanwhile). The reason why this Court held that section 34 was not applicable in the case of Akaloo Ahir appears to be that all the four accused who took shots on the deceased in turn had not come to the place of occurrence together and at the same time but they came there one after the other. In paragraphs 8 and 9 of the judgment this Court observed as follows:- "8. It has also to be noticed that the accused were all living in close proximity to each other and could have been attracted to the spot on account of the noise that had been raised on account of the first attack by Garju Ahir. It has come in evidence that both the parties were residents of Pokhra Tola which consisted only of 25 houses, all bunched up together. The possibility therefore, that they had been attracted to the place of incident on account of noise and had not come together with a pre-planned objective to commit murder cannot be ruled out. 9. It has been suggested by Mr. Chaudhary that Akaloo Ahir and Brij Mohan Ahir had come out from the same heap of straw which showed a pre-planned attack and a prior meeting of minds. We, however, see from the evidence of PW 5, Rama Shankar Yadav an eye witness, that there were two different heaps of straw near the place and the two accused had come out from 16 behind different heaps. In any way there is no evidence to suggest that there was any prior meeting of minds." 15. The facts of the case in hand are quite different. It is seen above that it was the appellant who struck the first blow on the right side of the head of Dharmaraj and according to the post-mortem report that blow itself might have caused his death. We have, therefore, no doubt that the facts of the case clearly attract section 34 of the Penal Code in so far as the appellant is concerned. 16. In light of the discussions made above, we find no merit in the appeal. It is, accordingly, dismissed. 17. This Court by its order dated October 7, 2005 granted bail to the appellant. His bail bonds shall stand cancelled. He shall be taken into custody forthwith to serve out his remainder sentence. ...........................................................J. (Aftab Alam) ...............................................................J. (Anil R. Dave) New Delhi; February 10, 2012.

Fixing compensation in Motor accident case=The High Court opined that the deceased would have contributed an amount of Rs.16,000/- per month to the dependents, whereas the Tribunal opined that the deceased would have contributed an amount of Rs.5,000/-. Both the Courts below proceeded to arrive at the abovementioned amounts on the basis

Non-reportable IN THE SUPREME COUR OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1987 OF 2012 (Arising out of SLP (Civil) No.17186 of 2009) New India Assurance Co. Ltd. ....Appellant Versus Yogesh Devi & Ors. ....Respondents J U D G M E N T Chelameswar, J. Leave granted. 2. One Vijender Singh along with two others Bhagwan Das and Manish, was travelling by a motor cycle on 10-12-2002. The said motor cycle was hit by a truck bearing registration No. RJ-14G- 1556, resulting in the death of both Vijender Singh and Bhagwan Das. Respondent No.1 is the wife, Respondents 2 to 5 are the children, Respondent No.6, we are informed, is the mother of the deceased Vijender Singh. Respondents 1 to 6 herein filed an application against the appellant herein and others for compensation. The appellant, admittedly, is the insurer of the abovementioned truck. A huge claim of Rs.1,86,30,000/-, was 2 made towards compensation on the ground that the deceased Vijender Singh was earning more than Rs.35,000/- per month. The Tribunal, by its Judgment dated 06-02-2006, awarded an amount of Rs.10,00,000-00 and provided for appropriate deductions for the amounts, which had already been paid and also gave necessary directions for safeguarding the interest of the minor children. 3. From the Judgment of the Tribunal it appears that the claimants based their claim on the facts that the deceased Virender Singh was the owner of three vehicles (mini buses) and also certain agricultural land. It appears from the record that no evidence regarding the amount of income derived from the above mentioned properties is adduced. The only evidence available is the statement of the 1st respondent that the deceased used to give her an amount of Rs.35,000/- per month. She also admitted in her cross examination that the deceased was not filing any income tax returns. Therefore, the Tribunal reached a conclusion that the The petitioners are not entitled to any other compensation and they are held entitled to receive the following amount of compensation: 1. On a/c of loss of dependency from income = Rs.9,60,000.00 2. For loss of consortium to Petitioner No.1 = Rs. 10,000.00 3. For loss of love and affection to petitioner No.2 to 6 @ 5000/- each = Rs. 25,000.00 4. For funeral expenses = Rs. 5,000.00 ----------------------- Total Rs. 10,00,000.00 3 statement of the 1st respondent, that the deceased was earning more than Rs.35,000/-, cannot be believed. However, the Tribunal opined as under: "Thus keeping in view the fact of ownership of two buses and one bus given on contract and the agriculture land it can be said that the deceased was earning Rs.3900/-per month in the capacity of the driver of a bus. Keeping in view the remaining buses and agriculture land it will be appropriate to hold the income of the deceased at Rs.7380/- because in case he would have earned more than the said amount, he must have filed the income tax return. If the deceased would remain alive he must have spent 1/3rd upon himself, therefore it would be appropriate to hold the monthly dependency at Rs.5000/-." 4. Aggrieved by the said determination of the compensation made by the Tribunal, the claimants as well as the appellant herein carried the matter in Appeal to the High Court of Rajasthan. Admittedly, the Appeal preferred by the appellant herein was dismissed, whereas the Appeal preferred by the claimants (S.B. Civil Misc. Appeal No.1222 of 2006) was partially allowed modifying the Award of the Tribunal. The High Court by its Judgment dated 30-01-2009 opined that the deceased Vijender Singh's income should be taken at Rs.24,000/- per month of which 1/3rd is treated to be an amount, which the deceased would have spent on himself and the balance on the claimants. Therefore, the High Court concluded that the claimants are entitled for a compensation of Rs.30,72,000/-, and directed: "However, the rest of the award is confirmed. The Insurance Company is directed to pay the enhanced amount along with an interest @ 6% per annum from the date of the filing of the claim petition i.e. 24.3.03 till the realization 4 to the claimants within a period of two months. The learned Tribunal is directed to insure that the enhanced amount of compensation is paid to the claimants within a period of two months from the date of receipt of the certified copy of this judgment." Hence, the present Appeal. 5. The learned counsel for the appellant Sri M.K. Dua argued that the High Court grossly erred in coming to a conclusion that the income of the deceased should be determined at Rs.24,000/- per month. Such a determination is without any factual basis or evidence on record and therefore, contrary to the principle of law laid down by this Court in a catena of decisions, more particularly, in State of Haryana & Anr. Vs. Jasbir Kaur & Ors., (2003) 7 SCC 484, and, therefore, the Judgment under appeal cannot be sustained. 6. On the other hand, it is very strenuously argued by Sri Ashwani Garg, learned counsel for the claimants, that in view of the fact that there are six dependents on the deceased, of whom, four are school-going children, who are required to be educated by the 1st respondent widow, the High Court rightly enhanced the compensation and the Judgment under Appeal does not call for any interference by this Court. 7. This Court in Jasbir Kaur case (supra) held that the Tribunal is required to make a just and reasonable Award determining the compensation to be paid to the dependents of the victim of a fatal motor vehicle accident. Explaining the concept of just and 5 reasonable Award in the context of a motor vehicle accident claim, this Court held as follows: "It has to be kept in view that the Tribunal constituted under the Act as provided in Section 168 is required to make an award determining the amount of compensation which is to be in the real sense "damages" which in turn appears to it to be 'just and reasonable'. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has be to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate the compensation must be "just" and it cannot be a bonanza: not a source of profit; but the same should not be a pittance. The Courts and Tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be "just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just" a wide discretion is vested on the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression "just" denotes equitability, fairness and reasonableness, and non-arbitrary. If it is not so it cannot be just. (See Helen C. Rebello Vs. Maharashtra State Road Transport Corporation, AIR1998SC3191)." 8. Keeping the above principle in view, we must now examine the correctness of the conclusion arrived at by the Judgment under Appeal that the income of the deceased Virender Singh is to be taken at Rs.24,000/- per month. The reasoning of the High Court in that regard is as follows: 6 " While trying to assess his income, the learned Tribunal has conclused that as a driver he must have been earning Rs.3900/- per month and his total income would have been 7500/- per month. However, considering the fact that Vijendra Singh would have earned Rs.3900/- per month as a driver, it is difficult to believe that he would have earned merely Rs.3600/- from the two buses owned by him. There is no evidence produced by the respondent No.3 to show that the buses were not being plied. Considering the lack of transportation buses are plied. Thus, it is difficult to believe that in the transportation business, owner of two buses would have earned merely Rs.3600/- per month from two buses. Therefore, the logic of the learned Tribunal is highly questionable. If the figure of Rs.3900/- has a reasonable assessment of the salary of a driver, obviously the owner of two buses would have earned more than Rs.3900/- to the driver of his own bus. Thus, a reasonable assessment would be that the owner of bus would be earning atleast Rs.10,000/- from each bus. Therefore, Vijendra Singh's income should be taken as Rs.23,900/- per month or Rs.24,000/- in the round." In other words, in view of the Tribunal's conclusion that Vijender Singh was earning an amount of Rs.3900/- in his capacity as the driver of the bus per month, the High Court reached the conclusion that in his capacity as the owner of three buses, he must be deriving a much higher income from the buses. We agree with the logic of the High Court. However, the quantum of such income would depend upon various factors, such as; whether it is a stage carriage or a contract carriage, the condition of the bus, its seating capacity, the route on which it is plying, the cost of maintenance, the taxes to be paid on such business etc. But, the question is whether the income (either gross or net) derived by the owner of a bus could legally form the basis for determining the amount of compensation payable to his dependents, if he happens to die in a motor vehicle accident. 7 9. In our opinion, such an income cannot form the legal basis for determining the compensation. 10. In Jasbir Kaur case (supra), the claim was based on an assertion that the deceased was an agriculturist earning an amount of Rs.10,000/- per month by cultivating his land. Dealing with the question, this Court held: "8. xxxxxxxxx. The land possessed by the deceased still remains with the claimants as his legal heirs. There is however a possibility that the claimants may be required to engage persons to look after agriculture. Therefore, the normal rule about the deprivation of income is not strictly applicable to cases where agricultural income is the source. Attendant circumstances have to be considered." 11. Coming to the case on hand, the claim is based on the assertion that the deceased owned agricultural land apart from the abovementioned three mini-buses. The High Court rejected the claim insofar as it is based on the income from the land, on the ground that the income would still continue to accrue to the benefit of the family. Unfortunately, the High Court failed to see that the same logic would be applicable even to the income from the abovementioned three buses. The asset (three mini-buses) would still continue with the family and fetch income. The only difference, perhaps, would be that during his life time the deceased was managing the buses, but now, the claimants may have to engage some competent person to manage the asset, which, in turn, would require some payment to be made to such a manager. To the extent of such payment, there would be a depletion in the net 8 income accruing to the claimants out of the asset. Therefore, the amount required for engaging the service of a manager and the salary payable to a driver - as it is asserted that the deceased himself used to drive one of the three buses - would be the loss to the claimants. In the normal course the claimants are expected to adduce evidence as to what would be the quantum of depletion in the income from the abovementioned asset on account of the abovementioned factors. Unfortunately, no such evidence was led by the claimants. 12. In the circumstances, the Judgment under Appeal cannot be sustained as the finding of the High Court that the claimants lost an amount of Rs.16,000/- per month due to the death of Vijender Singh is neither based on any evidence nor the logic adopted by the High Court for arriving at such a conclusion is right. In the normal course, the matter should have been remitted to the Tribunal for further evidence for ascertaining of the basis upon which the compensation is to be determined. But having regard to the fact that the accident occurred a decade ago, we do not propose to remit the matter for further evidence. 13. The High Court opined that the deceased would have contributed an amount of Rs.16,000/- per month to the dependents, whereas the Tribunal opined that the deceased would have contributed an amount of Rs.5,000/-. Both the Courts below proceeded to arrive at the abovementioned amounts on the basis 9 that as a driver of one of the buses, he was getting a salary of Rs.3,900/- per month. In the circumstances, making a reasonable conjecture that somebody to be employed for the purpose of managing the business of the three mini-buses, would certainly demand a higher salary than a driver, we think it reasonable to notionally fix the salary of such manager at Rs.10,000/- per month. The said amount coupled with the salary of one driver, i.e., Rs.3,900/- would be the loss sustained by the family from the income arising out of the asset. Computed on the basis of the said figure and applying the same multiplier of 16 which was applied by both the courts below, the amount of compensation payable to the claimants would be: 13,900 x 12 x 16 = Rs.26,68,800/- 14. The Judgment under Appeal shall stand modified accordingly and remain unaltered in all other respects. Appeal stands disposed of. ........................................J. ( P. SATHASIVAM ) ........................................J. ( J. CHELAMESWAR ) New Delhi; February 10, 2012.

whether the appellant herein has made out a case for regular bail= the appellant is ordered to be released on bail on executing a bond with two solvent sureties, each in a sum of Rs. 5 lakhs to the 19

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 348 OF 2012 (Arising out of S.L.P. (Crl.) No. 8995 of 2011) Dipak Shubhashchandra Mehta .... Appellant(s) Versus C.B.I. & Anr. .... Respondent(s) J U D G M E N T P.Sathasivam,J. 1) Leave granted. 2) This appeal is directed against the judgment and order dated 20.10.2011 passed by the High Court of Gujarat at Ahmedabad in Criminal Misc. Application No. 14224 of 2011 whereby the High Court rejected the application for regular bail filed by the appellant herein. 1 3) Brief facts: (a) The appellant herein is the Joint Managing Director of Vishal Exports Overseas Ltd., a Public Limited Company (hereinafter referred to as "the Company") incorporated in the year 1988 as a partnership firm which was converted into a Public Limited Company in 1995 under the provisions of Chapter IX of the Companies Act, 1956. The Company is engaged in the business of import and export of diverse commodities including agricultural products and diamonds. According to the appellant, the Company was a Government of India recognized Four Star Trading House with a turnover of about Rs.3935 crores in the year 2005-2006. It is also his claim that the Company has been accredited with many awards and was ranked 1st in India under the merchant exporter category in the years 2003-04 and 2005-06. (b) Due to non-payment of advances from various banks, complaints were filed against the Company as well as the promoters and Directors. The FIRs filed by various banks are: (i) In the year 2008, Punjab National Bank lodged an FIR with CBI bearing No. RC-I(E)/2008/BSFC, Mumbai. In the 2 said case, only Pradip Shubhashchandra Mehta (A-3) was arrested. Remand was not granted by the Special CBI Court at Ahmedabad and bail was granted within a span of one day. The appellant herein was not arrested in this case and formal bail was granted to him on filing charge sheet. (ii) In the year 2009, UCO Bank lodged an FIR with the CBI bearing No. RC 12(E)/2009 in which charge sheet was submitted on 15.11.2010 and the appellant was arrested on 1.11.2010 and was released on temporary bail for various durations. (iii) Vijaya Bank had also lodged an FIR with the CBI bearing No. RC11(E)/2008 and submitted charge sheet on 26.06.2010 in which the appellant herein was arrested after filing of the charge sheet, he was also granted bail. (iv) State Bank of Hyderabad has also lodged an FIR and the same is under investigation. No charge sheet has been submitted so far. (c) State Bank of India and 17 other banks filed O.A. No. 11 of 2008 before the Debts Recovery Tribunal (DRT), Ahmedabad seeking recovery of amount given by way of credit facilities 3 under consortium arrangement to the Company. Ad-interim orders have been passed on 28.02.2008 to secure the interest of the banks and to ensure that the litigation does not become meaningless by the time final order is passed. (d) On 19.01.2010, the appellant herein filed Civil Suit No. 145 of 2010 seeking damages to the tune of Rs.786 crores against the informant Andhra Bank and other banks before the Ahmedabad City Civil Court. The Andhra Bank, Zonal Office, Mumbai also lodged an FIR on 19.01.2010 which was registered by the CBI BS & FC/MUM bearing No. 1(E)/2010 for commission of offences punishable under Sections 406, 420, 467, 468, 471 read with Section 120B of the Indian Penal Code, 1860 (in short `IPC'). In connection with the said FIR, the appellant herein was arrested on 31.03.2010 and remanded to police custody till 03.04.2010 and thereafter in the judicial custody. The appellant was granted temporary bail on three occasions on medical ground. After completing the investigation, the CBI submitted charge sheet on 10.06.2010 in which the appellant was arrayed as accused No.4. 4 (e) On 31.08.2010, the appellant preferred an application for bail after charge sheet was filed before the Special Court vide Criminal Misc. Application No. 141 of 2010 but the same was dismissed. (f) Being aggrieved by the said order, the appellant filed Criminal Misc. Application No. 11415 of 2010 before the High Court for regular bail in connection with the FIR lodged by Andhra Bank, Zonal Office Mumbai bearing No. 1(E)/2010 which was dismissed by the High Court on 19.10.2010. (g) After investigation in RC.12(E)/2009 lodged by UCO Bank charge sheet was submitted on 15.11.2010 and the appellant was arrested on 01.11.2010 and he was released on temporary bail. (h) Against the order dated 19.10.2010 passed by the High Court, the appellant filed S.L.P.(Crl.)No. 83 of 2011 before this Court and the same was disposed of on 29.04.2011 directing the special Court to take all endeavour for an early completion of the trial. (i) As there was no progress in the trial, the CBI filed a supplementary charge sheet on 02.02.2011 which was served 5 on all the accused including the appellant herein only on 02.08.2011. Since the trial did not come to an end, the appellant filed Criminal Misc. Application No. 195 of 2011 for regular bail before the Special Court. In the meanwhile, Additional Chief Judicial Magistrate, vide order dated 15.09.2011 in Misc. Application No. 17/2011 in Spl. Case No. 03/2010 granted temporary bail up to 20.10.2011 to the appellant herein on the ground of medical exigencies. Again on 19.10.2011, considering the health of the appellant, the Special Court extended the temporary bail till 30.11.2011. Vide order dated 27.09.2011, Special Court rejected the application for regular bail filed by the appellant herein. (j) The appellant filed an application being Criminal Misc. Application No. 14224 of 2011 before the High Court for regular bail but the same was rejected. Again the said application, the appellant has filed the above appeal by way of special leave before this Court. 4) Heard Mr. Mukul Rohtagi, learned senior counsel for the appellant and Mr. P.P. Malhotra, learned Addl. Solicitor General for the CBI. 6 5) The only point for consideration in this appeal is whether the appellant herein has made out a case for regular bail and whether the High Court is justified in dismissing his bail application. 6) We are conscious of the fact that this Court should not ordinarily, save in exceptional cases, interfere with the orders granting/refusing bail by the High Court. We are also provided with the facts and figures about the appellant's involvement in similar other proceedings. In the case on hand, out of four accused, A-1 is the Company and the appellant-A-4 is the Joint Managing Director of the Company. It is not in dispute that A-2 and A-3 were granted bail by the High Court on medical grounds. Mr. Rohtagi, learned senior counsel for the appellant apart from highlighting that the appellant-A-4 is entitled for regular bail and also submitted that he be considered on medical grounds because of his various ailments as certified by leading doctors including the Medical Officer, Central Jail Dispensary, Ahmedabad. 7) Insofar as the merits of the claim of the appellant is considered, it is useful to refer the recent decision of this 7 Court in Sanjay Chandra vs. Central Bureau of Investigation, 2012 (1) SCC 40. Since in this decision, all the earlier decisions of this Court relating to grant of bail in a matter of this nature have been considered, we feel that no other earlier decisions need be referred to. Those appeals were directed against the common judgment and order of the learned Single Judge of the High Court of Delhi dated 23.05.2001 in Sanjay Chandra vs. CBI by which the learned Single Judge refused to grant bail to the appellant-accused therein. The allegations against those accused appellants were that they entered into a criminal conspiracy for providing telecom services to otherwise ineligible companies and by their conduct, the Department of Telecommunications (DoT) suffered huge loss. The learned Special Judge, CBI, New Delhi rejected the bail applications filed by them by order dated 20.04.2011. The appellants therein moved applications before the High Court under Section 439 of the Code of Criminal Procedure, 1973. The same came to be rejected by the learned Single Judge by his order dated 23.05.2011. Aggrieved by the same, the appellants approached this Court by filing appeals. 8 8) After considering the entire materials, arguments of the various senior counsel as well as the Addl. Solicitor General for the CBI and marshalling the earlier decisions of this Court and after finding that the trial may take considerable time and the appellants who are in jail have to remain in jail longer than the period of detention had they been convicted and also keeping in mind the fact that the accused are charged with economic offences of huge magnitude, ultimately this Court granted bail to all the appellants by imposing severe conditions. 9) It is also relevant to refer the order passed by this Court on 29.04.2011 in SLP (Criminal) No. 83 of 2011 filed by the appellant herein earlier. This Court directed as under: "We have considered the rival contentions and also perused all the relevant documents. In view of the fact that the other two accused, namely, A-2 and A-3 were released mainly on the ground of illness and old age and of the assurance by the learned Additional Solicitor General that the trial will be completed within a period of three months, we are not inclined to accede to the request of the petitioner. However, we make it clear that for any reason if the trial continues beyond the period assured by the learned Additional Solicitor General, the petitioner is free to move bail application before the Special Court. In such event the Special Court is permitted to consider it in accordance with law. We also direct the Special Court to take all endeavour for an early completion of the trial as suggested by the learned Additional Solicitor General. 9 10) Though on the last date of hearing, learned Addl. Solicitor General assured this Court that the trial will be completed within a period of three months, in view of various reasons considering the magnitude of the issues involved, frequent absence of the accused at the hearing dates due to various reasons including health grounds, filing of petition for discharge and also the pressure of work on the Special Court hearing among other important matters, the fact remains that the trial could not be concluded. In fact, it is pointed out that though the prosecution has submitted charge sheet the charges have not been framed due to various reasons as mentioned above. 11) We have already pointed out that insofar as the present case is concerned among the four accused A-1 is a Company, A-2 and A-3 were granted bail on medical grounds. According to the present appellant i.e A-4, he was arrested on 31.03.2010 by the CBI and was remanded to police custody for three days. Since 03.04.2010, he is in the judicial custody at Sabarmati Central Jail, Ahmedabad and on 15.09.2011, he was granted interim bail up to 20.10.2011 and again on 10 19.10.2011, considering his health conditions, the Special Court extended his interim bail till 30.11.2011. As stated earlier, the CBI has completed the investigation and submitted the charge sheet on 10.06.2010 and the offences alleged in the charge sheet are of the years 2006 and 2007. 12) Mr. Rohtagi, learned senior counsel, after taking us through various proceedings by the Civil Court as well as DRT under SARFESI Act submitted that entire properties of the appellant and their companies/firms were attached by the orders of the Court/Tribunal. According to him, before entering into transaction with the banks, all those properties have been mortgaged and as on date, the appellant cannot do anything with those properties without the permission of the Court/Tribunal. In such circumstances, he submitted that there will not be any difficulty in realising the money payable to the banks, if any. In addition to the above factual information, it was pointed out that after the order of this Court, on 29.04.2011 there is no progress in the trial. It is also pointed out that the trial has not even commenced inasmuch as a supplementary charge sheet has been served 11 upon the appellant herein only on 02.08.2011. It is further pointed out that the charge has not been framed till this date. It is also brought to our notice that prosecution has relied upon 286 documents and listed 47 witnesses in the charge sheets filed by it. 13) In addition to the above information, Mr. Rohtagi has also pointed out that at the time of arrest of the appellant on 31.03.2010, he was taken to the hospital and was diagnosed for hypertension and acidity. According to him, no other ailment was noted by the hospital in the discharge card. While so, when he was in custody since 31.03.2010, the appellant has suffered 40 per cent permanent partial disability in his left arm as a result of surgery for abnormal bone protrusion. It is also highlighted that on account of uncontrolled high blood pressure while in custody the appellant has suffered 30 per cent blindness in his right eye and has undergone a surgery for vitreous hemorrhage. It is further pointed out that the hemorrhage having re-occurred, the doctors have advised a second surgery to save his eyes. However, according to him, the said surgery could not be 12 performed due to continuing uncontrolled high blood pressure and resultant recurring bleeding in the vessel even after first surgery. It is also pointed out that after passing of order by this Court on 29.04.2011, the appellant while in custody has contracted obstructive jaundice requiring long intensive treatment. As a result of such obstructive jaundice, the appellant is also unable to undergo other required surgeries. Learned senior counsel has also pointed out that the appellant is now suffering from further disability of loss of hearing which can be corrected only through surgery. In support of the above claim, various certificates issued by doctors of private hospitals have been placed on record. In addition to the same, Mr. Rohtagi by drawing our attention to the certificate dated 07.08.2011 issued by the Central Prison Hospital, Sabarmati, Ahmedabad stated that even according to the Medical officer of the Central Jail Dispensary, the appellant is suffering from various ailments as mentioned in the certificate which reads as under: 13 "OUT NO. ACJD/346/2011 CENTRAL PRISON HOSPITAL SABARMATI, AHMEDABAD Date : 07.08.2011 CERTIFICATE This is to certify that Mr. Dipak Shubhash Mehta is an under trial prisoner of Central Jail, Ahmedabad with prisoner NO. 4077. He complains of continuous precordial chest pain dullache like heaviness in chest, Gabharaman, giddiness, chronic Rt. Hypochondriach pain in abdomen, bleeding P/R. dimness of vision Rt. Eye vision deviation of Rt. Eye outward since 1 -1/2 years. Patient is a known case of uncontrolled blood pressure since 4 years, chronic obstructive jaundice since 6 months and fissure in anno with piles. Patient was sent to eye dept. Civil Hospital Ahmedabad on 02.02.2011, seen by Dr. K.P.S. (Ophthalmic Surgical Unit) and diagnosed as Rt. Eye glaucoma, 3rd nerve palsy in Rt. Eye with vitreous hemorrhage, macular degeneration and percentage of blindness is 30%. CT report suggests Fatty replacement of belly and distal tendinous insertion of superectus muscle on Rt. Side. On 25.03.2011, patient was operated for vitreous hemorrhage in private hospital even though, on 17.06.2011 eye examination found fresh vitreous hemorrhage present due to uncontrolled blood pressure and chronic obstructive jaundice. On 27.09.2010, patient was sent to U.M. Mehta Institute of Cardiology & Research Centre for further investigation and treatment where his Echocardiography was done and report suggests Normal LV side and fair LV function reduced LV compliance and 55%. On 08.01.2011, patient was operated for tardy ulner nerve paresis. It forearm and neurolysis done of Lt. ulner nerve and advised regular physiotherapy. Dated 26.02.2011 CDMO, Govt. General Hospital, Sola certified that patient is 14 a case of physically disabled and has 40% permanent physical impairment in relation to his Lt. upper limb. Patient needs to be under continuous observation under treating doctor and follow up. He is advised to avoid physical and mental stress to prevent any serious complications. This certificate is issued on the basis of available case records at Central Jail Dispensary. Date: 07.08.2011 Place: Ahmedabad Central Jail Sd/- Medical Officer Central Jail Dispensary, Ahmedabad." 14) Apart from the above certificate, the very same Medical Officer, Central Jail Dispensary, Ahmedabad has issued another Certificate on 08.09.2011. In the said Certificate, after reiterating the very same complaints finally he concluded "he needs treatment from the Specialist, Super Specialist, Cardiologist and Gastroenterologist & Ophthalmologist for his multiple problems". 15) The above information by a Medical Officer of the Central Jail Dispensary, Ahmedabad supports the claim of the appellant about his health condition. No doubt, Mr. P.P. Malhotra, learned ASG by drawing our attention to various details from the counter affidavit filed on behalf of the CBI 15 submitted that in view of magnitude of the financial involvement by the appellant with the nationalised banks, it is not advisable to enlarge him on bail. 16) We have gone through all the details mentioned in the counter affidavit of the Senior Superintendent of Police, CBI, and Bank Securities and Fraud Cell, Mumbai. The appellant has also filed rejoinder affidavit repudiating those factual details. At this juncture, it is unnecessary to go into further details. In the earlier order, we have noted the assurance of the ASG for completion of the case within three months. Admittedly, the same was not fulfilled due to various reasons. It is also not in dispute that though the charge sheet and additional charge sheet were submitted to the Court, the same have not been approved and framed. In the meanwhile, apart from absence of some of the accused on various dates, due to some reasons or other including medical grounds, the appellant herein has also filed a petition for `discharge'. Further, even in the counter affidavit filed by the CBI, it is stated that the accused persons moved applications under Section 239 of the Code of Criminal Procedure, 1973 for 16 discharge and the same are pending for hearing and disposal and further the Madhao Merchantile Bank case is going on day-to-day basis before the Special CBI Court and in addition to the same, Sohrabuddin Fake Encounter case is also pending for trial before the same Court. It is clear that the said Special CBI Court is over burdened and in view of the voluminous materials the prosecution has collected, undoubtedly the trial may take a longer time. 17) This Court has taken the view that when there is a delay in the trial, bail should be granted to the accused. [Vide Babba vs. State of Maharashtra, (2005) 11 SCC 569, Vivek Kumar vs. State of U.P., (2000) 9 SCC 443.] But the same should not be applied to all cases mechanically. 18) The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted, particularly, where the accused is charged of having 17 committed a serious offence. The Court granting bail has to consider, among other circumstances, the factors such as a) the nature of accusation and severity of punishment in case of conviction and the nature of supporting evidence; b) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant and; c) prima facie satisfaction of the court in support of the charge. In addition to the same, the Court while considering a petition for grant of bail in a non-bailable offence apart from the seriousness of the offence, likelihood of the accused fleeing from justice and tampering with the prosecution witnesses, have to be noted. Considering the present scenario and there is no possibility of commencement of trial in the near future and also of the fact that the appellant is in custody from 31.03.2010, except the period of interim bail, i.e. from 15.09.2011 to 30.11.2011, we hold that it is not a fit case to fix any outer limit taking note of the materials collected by the prosecution. This Court has repeatedly held that when the undertrial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated. As posed in the Sanjay 18 Chandra's case (supra) we are also asking the same question i.e. whether the speedy trial is possible in the present case for the reasons mentioned above. 19) As observed earlier, we are conscious of the fact that the present appellant along with the others are charged with economic offences of huge magnitude. At the same time, we cannot lose sight of the fact that though the Investigating Agency has completed the investigation and submitted the charge sheet including additional charge sheet, the fact remains that the necessary charges have not been framed, therefore, the presence of the appellant in custody may not be necessary for further investigation. In view of the same, considering the health condition as supported by the documents including the certificate of the Medical Officer, Central Jail Dispensary, we are of the view that the appellant is entitled to an order of bail pending trial on stringent conditions in order to safe guard the interest of the CBI. 20) In the light of what is stated above, the appellant is ordered to be released on bail on executing a bond with two solvent sureties, each in a sum of Rs. 5 lakhs to the 19 satisfaction of the Special Judge, CBI, Ahmedabad on the following conditions: i) the appellant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him to disclose such facts to the Court or to any other authority. ii) the appellant shall remain present before the Court on the dates fixed for hearing of the case, for any reason due to unavoidable circumstances for remaining absent he has to give intimation to the Court and also to the concerned officer of CBI and make a proper application that he may be permitted to be present through counsel; iii) the appellant shall surrender his passport, if any, if not already surrendered and in case if he is not a holder of the same, he shall file an affidavit; iv) In case he has already surrendered the Passport before the Special Judge, CBI, that fact should be supported by an affidavit. 20 v) liberty is given to the CBI to make an appropriate application for modification/recalling the present order passed by us, if the appellant violates any of the conditions imposed by this Court. 21) The appeal is disposed of on the above terms. ...........................................J. (P. SATHASIVAM) ...........................................J. (J. CHELAMESWAR) NEW DELHI; FEBRUARY 10, 2012. 21

Land Acquisition Act, 1894; Ss. 3(a) and (b), 11 and 16: Acquisition of land by State Government-Easementary right on the ground of necessity-Availability of-High Court rightly drew a distinction between an easement of an ordinary nature for which compensation could be claimed and an easement of necessity in respect of which right of passage could not be extinguished by reason of acquisition, hence justified in granting right of passage to the claimant both on principle and precedent-Civil Procedure Code, 1908-Section 100-Constitution of India, 1950-Article 136. espondent Nos. 1 to 3 had purchased certain portion of land belonging to `R'. The sale deed specifically mentioned that respondent-vendees would have access to their land through a passage from the remaining part of the land of the vendor, which was later acquired by the Government of Himachal Pradesh. The State Government blocked off the passage by a barbed wire fencing, thereby preventing respondents' access to their land. Aggrieved, respondents filed a suit for issuing injunction against the appellants. Suit was dismissed by the Trial Court. Appellate Court decreed the suit holding that there existed a passage from the land acquired by the State Government to the land of the respondents and they had no other passage to their land. Appeal against this order was dismissed by the High Court. Hence the present appeal. It was contended by the appellants that once an award has been made under Section 11 of the Land Acquisition Act and possession of the acquired land was taken, the land would vest absolutely in the Government free from all encumbrances.

Dismissing the appeal, the Court HELD: 1.1. Both the Additional District Judge and the High Court have concurrently held that the only approach available to respondent Nos. 1 to 3, is through the land of the appellant and as such they had a right to approach their land as claimed by them and the appellant had no right to obstruct the approach by putting up a barbed wire fencing. [212-E] 1.2. The High Court drew a distinction between an easement of an ordinary nature in respect of which compensation could have been claimed in the land acquisition proceedings and an easement of necessity, a right of passage, and held that right of passage by way of necessity, as enjoyed by the respondents over the land of original landlord and presently acquired by the appellant, was not extinguished by reason of acquisition. In the peculiar facts and circumstances of the case, the distinction drawn by the High Court about non-extinguishment of the right of easement arising out of necessity appears to be justified both on principle and precedent. The present case is not a fit case to be interfered with in exercise of the jurisdiction under Article 136 of the Constitution. Hence, the appeal is dismissed. [213-B; 214-A-B-C] Collector of Bombay v. Nusserwanji Rattanji Mistri and Ors., AIR (1955) SC 298, relied on. State of Himachal Pradesh v. Tarsem Singh and Ors., [2001] 8 SCC 104, distinguished. Rakesh Dwivedi and Naresh K. Sharma for the Appellants. A.V. Palli and Mrs. Rekha Palli for the Respondent Nos. 1-3. J.S. Attri for the Respondent No. 4. 2005 AIR 954 , 2005(1 )SCR209 , 2005(2 )SCC164 , 2005(1 )SCALE150 , 2005(1 )JT169 CASE NO.: Appeal (civil) 1022 of 2000 PETITIONER: H.P. State Electricity Board & Ors. RESPONDENT: Shiv K. Sharma & Ors. DATE OF JUDGMENT: 10/01/2005 BENCH: Shivaraj V. Patil & B.N. Srikrishna JUDGMENT: J U D G M E N T Srikrishna, J. The Himachal Prades State Electricity Board, Shimla, challenges by this appeal the judgment of the High Court of Himachal Pradesh dismissing its second appeal under Section 100 of the Code of Civil Procedure (hereinafter referred to as 'the CPC'). The appellant-Board purchased 10.10 bighas out of holding of one Rikhi Ram on 20.4.1978. The sale deed specifically mentioned that the present respondents 1 3 shall have access to their land from the land of the seller, Rikhi Ram. On 29th March, 1981 the State Government acquired an area of 41.06 bighas of land for the public purpose of construction of 60 KW sub-station at Barotiwala. The acquired land included the remaining land of Rikhi Ram from whom respondents 1 to 3 had purchased the land. After the acquisition of the land, the entire property acquired for the benefit of the appellant was fenced off by barbed wire. An electric sub-station and living quarters for the employees of the appellant were also constructed thereupon. It appears that the appellant blocked off the passage being used as access to the land of the respondent which passed through the residential quarters and prevented such access to the said respondents. Respondents 1 to 3 filed a suit before the sub-judge Nalagarh for a mandatory injunction ordering the appellant- Board to remove the barbed wire blocking access to their land and for a permanent injunction to restrain the appellant in any manner to obstruct the access to their land. The trial court dismissed the suit. Respondent 1 to 3 carried an appeal before the Additional District Judge, Solan. The Additional District Judge raised the following points for determination: "1. Whether the suit of the plaintiffs is liable to be dismissed on account of non-proof of the map filed with the plaint, as held by the learned Trial Court? 2. Whether the plaintiffs have the right by way of easement of necessity or as purchasers from Rikhi Ram to pass through the land of the defendants through the passage shown in the site plan ? The learned Additional District Judge decided both the points in favour of the said respondents. He also held that the evidence on record proved the existence of a path from the land purchased by the appellant-Board to the lands of the said respondents and that they had no other approach from Haryana side. In view thereof, the Additional District Judge allowed the appeal and decreed the suit. The appellant carried a regular second appeal under Section 100 of the CPC before the High Court. The High Court considered the following substantial question of law: "Whether the right of respondents-plaintiffs to pass through the acquired land for reaching Nalagarh-Barotiwala-Kalka road by way of necessity was encumbrance which stood extinguished ?" The High Court answered the question of law in favour of respondents 1 to 3 and dismissed the second appeal. Hence, this appeal by special leave. Both the Additional District Judge and the High Court have concurrently held that the land of respondents 1 to 3 (original plaintiffs) could be approached only through the land of the appellant as the other three sides of the land of the said respondents were surrounded by the territory of Haryana State. There is also a concurrent finding that the sale deed (Ex.PW 1/a) by which the lands were sold by Rikhi Ram to the Appellant-Board contained a clause giving respondents 1 to 3 a right of approach through the land purchased by the appellant; that in the absence of proper evidence led by present appellants (original defendants) by producing the relevant record, adverse inference had to be drawn to hold that fencing was put in the year 1986 as claimed by the plaintiffs; that the trial court was not right in holding that the map (Ex.PW 1/o) was not approved and, therefore, the claim of the respondents-plaintiffs cannot be accepted. The High Court considered the findings of facts recorded by the Additional District Judge and held that these findings did not call for any interference under section 100 of the CPC in the second appeal. Both the Additional District Judge and the High Court have concurrently held that the only approach available to respondents 1 to 3, is through the land of the appellant-defendant and as such they had a right to approach their land as claimed by them and the appellant-defendant had no right to obstruct the said approach by putting up a barbed wire fencing. It was argued before us, as before the High Court, that by reason of section 16 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act'), once an award has been made under section 11 of the Act and possession of the acquired land taken, the land would vest absolutely in the Government "free from all encumbrances". Our attention was also drawn to the definition of "land" in section 3(a) and "person interested" in section 3(b) of the Act. Reliance was also placed on a judgment of this Court in State of Himachal Pradesh v. Tarsem Singh and Others ((2001) 8 SCC 104) to contend that, even assuming respondents 1 to 3 had a right of way by easement over the land of Rikhi Ram, which was purchased by the appellant, the said land having been acquired under section 16 of the Act stood vested in the State Government absolutely and free from all encumbrances including such easementary right. The High Court considered several judgments cited before it and drew a distinction between an easement of an ordinary nature in respect of which compensation could have been claimed in the land acquisition proceedings and an easement of necessity like a right of passage and held that right of passage by way of necessity, as enjoyed by the respondents-plaintiffs over the land of Rikhi Ram and now acquired by the appellant- defendants, was not extinguished by reason of acquisition. The High Court relied on the observations of this Court made in Collector of Bombay v. Nusserwanji Rattanji Mistri and others. (AIR 1955 SC 298), wherein it is observed thus : "Under Section 16, when the Collector makes an award "he may take possession of the land which shall thereupon vest absolutely in the Government free from all encumbrance". The word "encumbrance" in this section can only mean interests in respect of which a compensation was made under s.11 or could have been claimed." This judgment of Collector of Bombay (supra) was a judgment by a Bench of three learned Judges of this Court. Learned counsel for the appellants drew our attention to the judgment in State of Himachal Pradesh (supra) rendered by a Bench of two learned Judges and contended that this judgment clearly holds that the phrase "free from encumbrances" used in section 16 of the Act is wholly unqualified and would include in its compass every right including an easementary right which affects the land. He particularly drew our attention to Paragraph 10 of the judgment where the court took the view: "all rights title and interest including easementary rights stood extinguished and all such rights title and interest vested in the State free from all encumbrances." In the first place, it is difficult for us to read the judgment in Tarsem Singh case (supra) as taking a view contrary to and differing from the law laid down by a larger Bench in Collector of Bombay (supra). Secondly, we notice that the decision in Tarsem Singh (supra) is not in respect of an easementary right arising out of necessity. There does not seem to be any discussion on the said aspect of the matter in this judgment. The view taken in Collector of Bombay (supra), therefore, appears to hold the field, particularly where the nature of easementary right claimed is not capable of being evaluated in terms of compensation and arises out of sheer necessity. In the peculiar facts and circumstances of the case, therefore, the distinction drawn by the High Court about non- extinguishment of the right of easement arising out of necessity appears to be justified both on principle and precedent. In any event, we do not think that the present is a fit case where it is necessary for us to go deeper into this larger issue of law for we are satisfied that the judgment of the High Court under appeal is not one which is required to be interfered with in exercise of our jurisdiction under Article 136 of the Constitution. For all these reasons we are of the view that the appeal has no merit and deserves to be dismissed. The appeal is hereby dismissed. No costs.