Perceiving divergent and contradictory views as regards the effect and impact of not committing an accused in terms of Section 193 of the Code of Criminal Procedure (for short `the Code') in cases where charge-sheet is filed under Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of =Judged from these spectrums and analysed on the aforesaid premises, we come to the irresistible conclusion that the objection relating to non-compliance of Section 193 of the Code, which eventually has resulted in directly entertaining and taking cognizance by the Special Judge under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, does not vitiate the trial and on the said ground alone, the conviction cannot be set aside or there cannot be a direction of retrial and, therefore, the decision rendered in Bhooraji (supra) lays down the correct law inasmuch as there is no failure of justice or no prejudice is caused to the accused. The decisions rendered in

Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 223 OF 2008 Rattiram & Ors. .............Appellant Versus State of M. P. Through Inspector of Police .........Respondent WITH CRIMINAL APPEAL NO. 458 OF 2008 Satyanarayan & ors. ............Appellant Versus The State of Madhya Pradesh Through Incharge, Police Station Cantt. .........Respondent J U D G M E N T Dipak Misra, J. Perceiving divergent and contradictory views as regards the effect and impact of not committing an accused in terms of Section 193 of the Code of Criminal Procedure (for short `the Code') in cases where charge-sheet is filed under Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of 2 Atrocities) Act, 1989 (for brevity `the Act') and cognizance is directly taken by the Special Judge under the Act, a two-Judge Bench thought it apposite to refer the matter to a larger Bench and on the basis of the said reference, the matter has been placed before us. At this juncture, it is requisite to clarify that the real conflict or discord is manifest in Moly and Another v. State of Kerala1 and Vidyadharan v. State of Kerala2 on one hand wherein it has been held that the conviction by the Special Court is not sustainable if it has suo motu entertained and taken cognizance of the complaint directly without the case being committed to it and, therefore, there should be retrial or total setting aside of the conviction, as the case may be, and the other in State of M. P. v. Bhooraji & Ors.3 wherein, taking aid of Section 465 (1) of the Code, it has been opined that when a trial has been conducted by the court of competent jurisdiction and a conviction has been recorded on proper appreciation of evidence, the same cannot be erased or effaced merely on the ground that there had been no committal proceeding and cognizance was taken by the Special Court inasmuch as the same does not give rise to failure of justice. 1 AIR 2004 SC 1890 2 (2004) 1 SCC 215 3 AIR 2001 SC 3372 3 2. The necessitous facts required to be adumbrated for the purpose of answering the present reference are that the appellants were charge sheeted under Section 3 (1) (x) of the Act but eventually, charges were framed under Sections 147, 148 and 302 read with Section 149 of the Indian Penal Code (for short, `the IPC'). The learned Trial Judge vide judgment dated 31.08.1996 in Sessions Trial No. 97 of 1995 convicted all the accused persons barring Mohan for the offences under Section 302 read with Section 149 IPC and sentenced them to imprisonment for life with a fine of Rs. 1000/-, in default of payment of fine, to suffer further rigorous imprisonment for three months and sentenced to one month rigorous imprisonment under Section 147 of the IPC. The accused Mohan was convicted for the offence under Sections 148 and 302 of the IPC and was sentenced to undergo one month rigorous imprisonment on the first score and to further life imprisonment and pay a fine of Rupees 1000/-, in default of payment of fine, to suffer further R.I. for three months on the second count. 3. Being dissatisfied with the judgment of conviction and the order of sentence, the appellants along with others preferred 4 Criminal Appeal No. 1568 of 1996 before the High Court of Judicature of Madhya Pradesh at Jabalpur. Apart from raising various contentions on merits, it was pressed that the entire trial was vitiated as it had commenced and concluded without committal of the case to the Court of Session as provided under Section 193 of the Code. Heavy reliance was placed on Gangula Ashok and Another v. State of Andhra Pradesh4 and Moly and Another (supra) and Vidyadharan (supra) but the Division Bench placed reliance on Bhooraji (supra) wherein Gangula Ashok (supra) was distinguished keeping in view the stage of the case and regard being had to the provision contained in Section 465 of the Code and treated the same to be a binding precedent in view of the special Bench decision of the High Court of Madhya Pradesh rendered in Jabalpur Bus Operators Association and Another v. State of Madhya Pradesh and Another5 and repelled the contention accordingly. Thereafter, as the impugned judgment would reveal, the Bench proceeded to deal with the matter on merits and eventually sustained the conviction and affirmed the sentence as has been indicated hereinbefore. 4 AIR 2000 SC 740 5 2003 (1) MPJR 158 5 4. We have heard Mr. Fakhrudin, learned senior counsel and Mr. Anis Ahmed Khan for the appellants in both the appeals and Ms. Vibha Datta Makhija, learned counsel for the respondent- State. 5. At the very outset, we shall advert to the jurisdiction or authority of the Special Court to take cognizance of the offence under the Act regardless of the interdict stipulated in Section 193 of the Code. Section 193 of the Code reads as follows: "193. Cognizance of offence by Court of Session- Except as otherwise expressly provided by this Code or by any other law for the time being in force, no court of Session shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under this code." On a plain reading of the aforesaid provision, it is clear as noon day that no Court of Session can take cognizance of any offence as a court of original jurisdiction except as otherwise expressly provided by the Code or any other law for the time being in force. 6. The questions that emanate, as a natural corollary, for consideration are whether the Special Court as constituted under 6 the Act is a Court of Session; and whether there is any special provision in the Act enabling the said court to take cognizance. 7. In Gangula Ashok (supra), a two-Judge Bench of this Court, after taking note of Section 6 of the Code and Section 14 of the Act, came to the conclusion that the intendment of the legislature is to treat the Special Court under the Act to be a Court of Session even after specifying it as a Special Court and it would continue to be essentially a Court of Session and not get denuded of its character or power as a Court of Session. The Court scanned the anatomy of the Act and analysed the postulates contained in Sections 4 and 5 of the Code and thereafter, referring to the Constitution Bench decisions in A. R. Antulay v. Ramdas Sriniwas Nayak and another6 and in Directorate of Enforcement v. Deepak Mahajan and another7, expressed thus: "16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge-sheet cannot straight away be laid down before the Special Court under the Act. 6 (1984) 2 SCC 500 7 (1994) 3 SCC 440 7 8. In Vidyadharan (supra), the Court delved into the said issue and eventually proceeded to state as follows: "23. Hence, we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge-sheet cannot straight away be laid down before the Special Court under the Act. We are reiterating the view taken by this Court in Gangula Ashok v. State of A.P. [(2000) 2 SCC 504 : 2000 SCC (Cri) 488] in the above terms with which we are in respectful agreement. The Sessions Court in the case at hand, undisputedly, has acted as one of original jurisdiction, and the requirements of Section 193 of the Code were not met." The aforesaid view was reiterated in Moly (supra). In M. A. Kuttappan v. E Krishnan Nayanar and another8, another two-Judge Bench ruled that the Special Judge under the Act cannot entertain a complaint filed before it and issue process after taking cognizance without the case being committed to it for trial by the competent Magistrate. It is apt to mention here that similar view has been spelt out in Bhooraji (supra). 9. After careful perusal of the aforesaid decisions, we have no scintilla of doubt that the view expressed which has a base of 8 (2004) 4 SCC 231 8 commonality is absolutely correct and there is no necessity to dwell upon the same more so when there is no cavil or conflict in this regard and there has been no reference on the said score. Additionally, no doubt has been expressed relating to the exposition of the said view, and irrefragably correctly so. 10. The demonstrable facet of the discord is that if cognizance is directly taken by the Special Judge under the Act and an accused without assailing the same at the inception allows the trial to continue and invites a judgment of conviction, would he be permitted in law to question the same and seek quashment of the conviction on the bedrock that the trial Judge had no jurisdiction or authority to take cognizance without the case being committed to it and thereby violated the mandate enshrined under Section 193 of the Code. 11. To make the maze clear, it is profitable to note that in Gangula Ashok (supra), the appellants had called in question the legal substantiality of the order passed by the Single Judge of the High Court of Andhra Pradesh who, after expressing the view that the Special Judge had no jurisdiction to take cognizance of the offence under the Act without the case being 9 committed to it, set aside the proceedings of the Special Court and further directed the charge-sheet and the connected papers to be returned to the police officer concerned who, in turn, was required to present the same before the Judicial Magistrate of Ist Class for the purpose of committal to the Special Court. That apart, the Single Judge further directed that on such committal, the Special Court shall frame appropriate charges in the light of the observation made in the order. 12. The two-judge Bench accepted the view as far as it pertained to setting aside of the impugned order but did not approve the direction issued for the steps to be taken by the Special Judge for framing of charges as it was of the view that no direction could have been issued to the Special Court as it was open to the appellants therein to raise all their contentions at the stage of framing of charge if they wished to advance a plea for discharge. Thus, it is evident that the accused-appellants had challenged the order of framing of charge and sought quashing of the same before the High Court. They did not wait for the trial to commence and the judgment of conviction to visit them. 10 13. After the dictum in Gangula Ashok (supra), the High Court of Madhya Pradesh was dealing with an appeal, Bhooraji (supra), wherein the appellants were convicted under Sections 148, 323, 302/149 IPC and sentenced to various punishments including imprisonment for life. It is worth noting that they were tried by the Special Judge under the Act as charge-sheet was filed under Section 3 (2) of the Act along with other offences of the IPC. When the matter came up before the Division Bench of the High Court, the learned Judges commenced the judgment with the prelude that the case had sluggished for more than nine years and the end was not in sight as direction for retrial seemed inevitable because of the decision rendered by this Court in Gangula Ashok (supra). 14. Be it noted, cognizance was taken directly by the Special Judge in the said case also. The anguish and the helplessness expressed by the High Court was taken note of when the State of Madhya Pradesh approached this Court. This Court laid emphasis on the fact that it was a case where the accused neither raised any objection when they were heard at the time of framing of the charge nor did they raise such a plea at any stage either before or after the evidence was recorded by the trial Court 11 but, a significant one, proponed such a contention only after the conviction was recorded and that too after the decision in Gangula Ashok (supra) was rendered. 15. As is perceptible, the Bench posed the question whether the High Court necessarily should have quashed the trial proceedings to be repeated only on account of the declaration of the legal position made by this Court concerning the procedural aspect about the cases involving the offences under the Act. The Bench referred to the provisions contained in Sections 462 and 465 of the Code and adverted to the concept of "a failure of justice" and held thus: "15. A reading of the section makes it clear that the error, omission or irregularity in the proceedings held before or during the trial or in any enquiry were reckoned by the legislature as possible occurrences in criminal courts. Yet the legislature disfavoured axing down the proceedings or to direct repetition of the whole proceedings afresh. Hence, the legislature imposed a prohibition that unless such error, omission or irregularity has occasioned "a failure of justice" the superior court shall not quash the proceedings merely on the ground of such error, omission or irregularity. xxx xxx xxx xxx xxx 17. It is an uphill task for the accused in this case to show that failure of justice had in fact 12 occasioned merely because the specified Sessions Court took cognizance of the offences without the case being committed to it. The normal and correct procedure, of course, is that the case should have been committed to the Special Court because that court being essentially a Court of Session can take cognizance of any offence only then. But if a specified Sessions Court, on the basis of the legal position then felt to be correct on account of a decision adopted by the High Court, had chosen to take cognizance without a committal order, what is the disadvantage of the accused in following the said course? 18. It is apposite to remember that during the period prior to the Code of Criminal Procedure 1973, the committal court, in police charge- sheeted cases, could examine material witnesses, and such records also had to be sent over to the Court of Session along with the committal order. But after 1973, the committal court, in police charge-sheeted cases, cannot examine any witness at all. The Magistrate in such cases has only to commit the cases involving offences exclusively triable by the Court of Session. Perhaps it would have been possible for an accused to raise a contention before 1973 that skipping committal proceedings had deprived him of the opportunity to cross-examine witnesses in the committal court and that had caused prejudice to his defence. But even that is not available to an accused after 1973 in cases charge-sheeted by the police. We repeatedly asked the learned counsel for the accused to tell us what advantage the accused would secure if the case is sent back to the Magistrate's Court merely for the purpose of retransmission of the records to the Sessions Court through a committal order. We did not get any 13 satisfactory answer to the above query put to the counsel." 16. After so stating, the Court proceeded to deal with the stance whether the Special Judge as a Court of Session would remain incompetent to try the case until the case is committed and, after critical ratiocination, declined to accept the said stand and opined that the expression "a Court of competent jurisdiction" as envisaged in Section 465 of the Code is to denote a validly constituted court conferred with the jurisdiction to try the offence or offences and such a court could not get denuded of its competence to try the case on account of any procedural lapse and the competence would remain unaffected by the non- compliance with the procedural requirement. The Bench further proceeded to lay down that the inability to take cognizance of an offence without a committal order does not mean that a duly constituted court becomes an incompetent court for all purposes. It was also ruled that had an objection been raised at the earlier stage, the Special Judge could have sent the record to the Magistrate for adopting committal proceeding or return the police report to the Public Prosecutor or the police for presentation before the Magistrate. In essentiality, it has been laid down that 14 the bar against taking cognizance of certain offences or by certain courts cannot govern the question whether the Court concerned is a "Court of competent jurisdiction" and further the condition precedent for taking cognizance is not the standard to determine whether the Court concerned is "a Court of competent jurisdiction". In the ultimate eventuate, Bhooraji (supra) ruled that when the trial had been conducted by a Court of competent jurisdiction, the same cannot be annulled by such a lapse and, accordingly, remitted the matter to the High Court for disposal of the appeal afresh on the basis of evidence already on record. It needs no special emphasis to highlight that in Bhooraji (supra), the controversy had emerged on the similar set of facts and the legal issues had emanated on the common platform and were dealt with. Therefore, unquestionably, it was a precedent operating in the field. 17. It is seemly to note that the decision in Bhooraji (supra) was possibly not brought to the notice of their Lordships who have decided the cases in Moly (supra) and Vidyadharan (supra). In Moly (supra), later two-Judge Bench set aside the judgment of conviction and remitted the matter as cognizance 15 was directly taken by the Special Court. In Vidyadharan (supra), the Bench held thus:- "24. The inevitable conclusion is that the learned Sessions Judge, as the undisputed factual position goes to show, could not have convicted the appellant for the offence relatable to Section 3(1)(xi) of the Act in the background of the legal position noted supra. That is, accordingly, set aside. However, for the offence under Sections 354 and 448 IPC, custodial sentence for the period already undergone, which as the records reveal is about three months, would meet the ends of justice considering the background facts and the special features of the case." As is perceivable, in one case, the matter was remitted and in the other, the conviction under Section 3 (1)(xi) was set aside and no retrial was directed. 18. At this stage, we may proceed to x-ray the ratio of M. A. Kuttappan (supra). In the said case, the challenge was to the order passed by the High Court under Section 482 of the Code wherein the learned Judge had quashed the order of the Special Judge taking cognizance of the offence under Section 3 (1)(x) of the Act. The two-Judge Bench referred to the authorities in Gangula Ashok (supra) and Vidyadharan (supra) and gave the 16 stamp of approval to the order passed by the High Court and eventually, while dismissing the appeal, observed as follows:- "However, it will be open to the appellant, if so advised, to file a complaint before a competent Magistrate who shall consider the complaint on its merit and then proceed in accordance with law. The learned Special Court as well as the High Court have made certain observations touching on the merit of the controversy. We make it clear that in case a complaint is filed by the appellant before a competent Magistrate, he shall proceed to consider the matter in accordance with law uninfluenced by any observation made either by the learned Special Judge or by the High Court. Nothing said in this judgment also shall be construed as expression of opinion on the merit of the case." 19. It is apposite to note that in the said case, the assail was different and the Bench was not considering the effect of non- committal under Section 193 of the Code after conviction was recorded. Though it referred to the authority in Vidyadharan (supra), yet that was to a limited extent. Hence, the said pronouncement cannot be regarded or treated to be one in line with Vidyadharan (supra) and is, therefore, kept out of the purview of conflict of opinion that has emerged in the two streams of authorities. 17 20. Before we advert whether Bhooraji (supra) was correctly decided or Moly (supra) and Vidyadharan (supra) laid down the law appositely, it is appropriate to dwell upon whether Bhooraji (supra) was a binding precedent and, what would be the consequent effect of the later decisions which have been rendered without noticing it. 21. In Union of India and Another v. Raghubir Singh (dead) by L. Rs. And Others9, the Constitution Bench, speaking through R. S. Pathak, CJ, has held thus:- "We are of opinion that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of the Court" 22. In Indian Oil Corporation Ltd., v. Municipal Corporation and Another10, the Division Bench of the High Court had come to the conclusion that the decision in Municipal Corporation, Indore v. Smt. Ratna Prabha & Ors.11 was not a binding precedent in view of the later decisions of the co-equal 9 ( 1989) 2 SCC 754 10 AIR 1995 SC 1480 11 AIR 1977 SC 308 18 Bench of this Court in Dewan Daulat Rai Kapoor v. New Delhi Municipal Committee12 and Dr. Balbir Singh v. Municipal Corporation Delhi13. It is worth noting that the Division Bench of the High Court proceeded that the decision in Ratna Prabha (supra) was no longer good law and binding on it. The matter was referred to the Full Bench which overruled the decision passed by the Division Bench. When the matter travelled to this Court, it observed thus:- "The Division Bench of the High Court in 1989 MPLJ 20 was clearly in error in taking the view that the decision of this Court in Ratna Prabha (AIR 1977 SC 308) (supra) was not binding on it. In doing so, the Division Bench of the High Court did something which even a later co- equal Bench of this Court did not and could not do." 23. In Chandra Prakash and Others v. State of U.P. and Another14, a subsequent Constitution Bench reiterated the view that had already been stated in Raghubir Singh (supra). 24. Thus viewed, the decision in Bhooraji (supra) was a binding precedent, and when in ignorance of it subsequent decisions have been rendered, the concept of per incuriam would come into play. In this context, it is useful to refer to a passage from A. R. 12 AIR 1980 SC 541 13 AIR 1985 SC 339 14 (2003) SCC (L & S) 827 19 Antulay (supra), wherein, Sabyasachi Mukharji, J (as his Lordship then was), while dealing with the concept of per incuriam, had observed thus:- ""Per incuriam" are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong." Again, in the said decision, at a later stage, the Court observed:- "It is a settled rule that if a decision has been given per incuriam the court can ignore it." 25. In Punjab Land Development & Reclamation Corporation Ltd. v. Presiding Officer, Labour Court, Chandigarh & Ors.15, another Constitution Bench, while dealing with the issue of per incuriam, opined as under:- "The Latin expression per incuriam means through inadvertence. A decision can be said generally to be given per incuriam when this Court has acted in ignorance of a previous decision of its own or when a High Court has acted in ignorance of a decision of this Court." 26. In State of U. P. And Another v. Synthetics and Chemicals Ltd. And Another16, a two-Judge Bench adverted in 15 (1990) 3 SCC 682 16 (1991) 4 SCC 139 20 detail to the aspect of per incuriam and proceeded to highlight as follows:- "`Incuria' literally means `carelessness'. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The `quotable in law' is avoided and ignored if it is rendered, `in ignoratium of a statute or other binding authority'. (Young v. Bristol Aeroplane Co. Ltd.17). Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law." 27. Recently, in Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors. 18, while addressing the issue of per incuriam, a two-Judge Bench, speaking through one of us (Bhandari, J.), after referring to the dictum in Bristol Aeroplane Co. Ltd. (supra) and certain passages from Halsbury's Laws of England and Raghubir Singh (supra), has stated thus:- "149. The analysis of English and Indian Law clearly leads to the irresistible conclusion that not only the judgment of a larger strength is binding on a judgment of smaller strength but the judgment of a co-equal strength is also binding on a Bench of Judges of co-equal strength. In the instant case, judgments 17 (1944) 1 KB 718 : (1944) 2 ALL ER 293 18 AIR 2011 SC 312 : ( 2011) 1 SCC 694 21 mentioned in paragraphs 135 and 136 are by two or three judges of this Court. These judgments have clearly ignored a Constitution Bench judgment of this Court in Sibbia's case (supra) which has comprehensively dealt with all the facets of anticipatory bail enumerated under Section 438 of Code of Criminal Procedure Consequently, judgments mentioned in paragraphs 135 and 136 of this judgment are per incuriam. 150. In case there is no judgment of a Constitution Bench or larger Bench of binding nature and if the court doubts the correctness of the judgments by two or three judges, then the proper course would be to request Hon'ble the Chief Justice to refer the matter to a larger Bench of appropriate strength." 28. The sequitur of the above discussion is that the decisions rendered in Moly (supra) and Vidyadharan (supra) are certainly per incuriam. 29. Presently, we shall proceed to address which view should be accepted as just and flawless. The centripodal issue, as we understand, is whether non-compliance of the interdict as envisaged and engrafted under Section 193 of the Code nullifies the final verdict after the trial and warrants its total extinction resulting in retrial, or it is incumbent on the part of the convict to exposit and satisfy that such guillotining of the interdict has occasioned in `failure of justice' or culminated in causation of 22 prejudice to him for the purpose of declaring that the trial was vitiated. 30. In Bhooraji (supra), the Bench has referred to Sections 462 and 465 of the Code which occur in Chapter 35 of the Code. Section 465 reads as follows:- "465. Finding or sentence when reversible by reason of error, omission or irregularity. - (1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution unless in the opinion of that court, a failure of justice has in fact been occasioned thereby. (2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings." 31. On a studied scrutiny of the anatomy of the said provision, it is luculent that the emphasis has been laid on a `court of competent jurisdiction' and `error, omission or irregularity in the 23 complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial' and `a failure of justice has in fact been occasioned thereby'. The legislative intendment inhered in the language employed is graphically clear that lancination or invalidation of a verdict after trial is not to be taken recourse to solely because there is an error, omission or irregularity in the proceeding. The term `a failure of justice' has been treated as the sine qua non for setting aside the conviction. 32. The submission of Mr. Fakkruddin and Mr. Anis Ahmed Khan, learned counsel for the appellants, is that it is not a mere irregularity but a substantial illegality. They have placed heavy reliance on paragraph 11 of Moly (supra) wherein the Bench has used the expression `that Section 193 imposes an interdict on all courts of Session against taking cognizance of an offence as a Court of original jurisdiction' and have also drawn inspiration from paragraph 17 of the said decision which uses the words `lack of jurisdiction'. The question posed by us fundamentally relates to the non-compliance of such interdict. The crux of the matter is whether it is such a substantial interdict which impinges upon the fate of the trial beyond any redemption or, for that matter it is such an omission or it is such an act that 24 defeats the basic conception of fair trial. Fundamentally, a fair and impartial trial has a sacrosanct purpose. It has a demonstrable object that the accused should not be prejudiced. A fair trial is required to be conducted in such a manner which would totally ostracise injustice, prejudice, dishonesty and favouritism. 33. In Mrs. Kalyani Baskar v. Mrs. M. S. Sampoornam 19, it has been laid down that `fair trial' includes fair and proper opportunities allowed by law to the accused to prove innocence and, therefore, adducing evidence in support of the defence is a valuable right and denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed and the courts should be zealous in seeing that there is no breach of them. 34. In this regard, we may fruitfully reproduce the observations from Sidhartha Vashisht v. State (NCT of Delhi)20 wherein it has been so stated: - "In the Indian Criminal jurisprudence, the accused is placed on a somewhat advantageous position than under different jurisprudence of some of the countries in the world. The criminal justice administration system in India places 19 (2007) 2 SCC 258 20 (2010) 6 SCC 1 25 human rights and dignity for human life at a much higher pedestal. In our jurisprudence an accused is presumed to be innocent till proved guilty, the alleged accused is entitled to fairness and true investigation and fair trial and the prosecution is expected to play balanced role in the trial of a crime. The investigation should be judicious, fair, transparent and expeditious to ensure compliance to the basic rule of law. These are the fundamental canons of our criminal jurisprudence and they are quite in conformity with the constitutional mandate contained in Articles 20 and 21 of the Constitution of India." [Underlining is ours] 35. It would not be an exaggeration if it is stated that a `fair trial' is the heart of criminal jurisprudence and, in a way, an important facet of a democratic polity that is governed by Rule of Law. Denial of `fair trial' is crucifixion of human rights. It is ingrained in the concept of due process of law. While emphasising the principle of `fair trial' and the practice of the same in the course of trial, it is obligatory on the part of the Courts to see whether in an individual case or category of cases, because of non-compliance of a certain provision, reversion of judgment of conviction is inevitable or it is dependent on arriving at an indubitable conclusion that substantial injustice has in fact occurred. The seminal issue is whether protection given to the accused under the law has been jeopardised as a 26 consequence of which there has been failure of justice or causation of any prejudice. In this regard, it is profitable to refer to the decision in Gurbachan Singh v. State of Punjab 21 wherein a three-Judge Bench has opined thus:- "This court in `Willie (William) Slaney v. The state of Madhya Pradesh22 elaborately discussed the question of the applicability of Section 537 and came to the conclusion that in judging a question of prejudice, as a guilt, courts must act with a broad vision and look to the substance and not to technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. [Emphasis added] 36. Having dealt with regard to the concept of `fair trial' and its significant facets, it is apt to state that once prejudice is caused to the accused during trial, it occasions in `failure of justice'. `Failure of justice' has its own connotation in various jurisprudences. As far as criminal jurisprudence is concerned, we may refer with profit to certain authorities. Be it noted that in Bhooraji (supra), the Court has referred to Shamnsaheb M. 21 AIR 1957 SC 623 22 1956 CriLJ 291 : AIR 1956 SC 116 27 Multtani v. State of Karnataka23 wherein it has been observed as follows:- "23. We often hear about "failure of justice" and quite often the submission in a criminal court is accentuated with the said expression. Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression `failure of justice' would appear, sometimes, as an etymological chameleon (the simile is borrowed from Lord Diplock in Town Investments Ltd. vs. Department of the Environment24). The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage." [Emphasis supplied] 37. In State by Police Inspector v. T. Venkatesh Murthy25, the High Court of Karnataka had upheld an order of discharge passed by the trial court on the ground that the sanction granted to prosecute the accused was not in order. The two- Judge Bench referred to Sections 462 and 465 of the Code and ultimately held thus:- 23 (2001) 2 SCC 577 : 2001 SCC (Cri) 358 24 (1977) 1 All ER 813 25 AIR 2004 SC 5117 28 "13. In State of M.P. v . B hooraji and Ors. (2001) (7) SCC 679, the true essence of the expression "failure of justice" was highlighted. Section 465 of the Code in fact deals with "finding or sentences when reversible by reason of error, omission or irregularity", in sanction. 14. In the instant case neither the Trial Court nor the High Court appears to have kept in view the requirements of sub-section (3) relating to question regarding "failure of justice". Merely because there is any omission, error or irregularity in the matter of according sanction that does not affect the validity of the proceeding unless the Court records the satisfaction that such error, omission or irregularity has resulted in failure of justice. The same logic also applies to the appellate or revisional Court. The requirement of sub- section (4) about raising the issue, at the earliest stage has not been also considered. Unfortunately the High Court by a practically non-reasoned order, confirmed the order passed by the learned trial judge. The orders are, therefore, indefensible. We set aside the said orders. It would be appropriate to require the trial Court to record findings in terms of Clause (b) of Sub-section (3) and Sub-section (4) of Section 19." 38. We have referred to the said authority only for the purpose of a failure of justice and the discernible factum that it had concurred with the view taken in Bhooraji (supra). That apart, the matter was remitted to adjudge the issue whether there had 29 been failure of justice, and it was so directed as the controversy pertained to the discharge of the accused. 39. In Central Bureau of Investigation v. V. K. Sehgal26, it was observed: - "10. A court of appeal or revision is debarred from reversing a finding (or even an order of conviction and sentence) on account of any error of irregularity in the sanction for the prosecution, unless failure of justice had been occasioned on account of such error or irregularity. For determining whether want of valid sanction had in fact occasioned failure of justice the aforesaid sub-section (2) enjoins on the court a duty to consider whether the accused had raised any objection on that score at the trial stage. Even if he had raised any such objection at the early stage it is hardly sufficient to conclude that there was failure of justice. It has to be determined on the facts of each case. But an accused who did not raise it at the trial stage cannot possibly sustain such a plea made for the first time in the appellate court." The concept of failure of justice was further elaborated as follows:- "11. In a case where the accused failed to raise the question of valid sanction the trial would normally proceed to its logical end by making a judicial scrutiny of the entire materials. If that case ends in conviction there is no question of failure of justice on the mere premise that no valid sanction was accorded for prosecuting the public servant because the very purpose of 26 (1999) 8 SCC 501 30 providing such a filtering check is to safeguard public servants from frivolous of mala fide or vindictive prosecution on the allegation that they have committed offence in the discharge of their official duties. But once the judicial filtering process is over on completion of the trial the purpose of providing for the initial sanction would bog down to a surplusage. This could be the reason for providing a bridle upon the appellate and revisional forums as envisaged in Section 465 of the Code of Criminal Procedure." 40. Adverting to the factum of irregular investigation and eventual conviction, the Constitution Bench in M. C. Sulkunte v. State of Mysore27 opined thus: - "It has been emphasized in a number of decisions of this Court that to set aside a conviction it must be shown that there has been miscarriage of justice as a result of an irregular investigation." 41. After adverting to the concept of failure of justice, it is obligatory to dwell upon the aspect whether there is or can be any failure of justice if a Special Judge directly takes cognizance of an offence under the Act. Section 209 of the Code deals with the commitment of case to Court of Session when an offence is triable exclusively by it. The said provision reads as follows: - "209. Commitment of case to Court of Session when offence is triable exclusively by it. - 27 AIR 1971 SC 508 31 When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall - (a) Commit, after complying with the provisions of section 207 or section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made; (b) Subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial; (c) Send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence; (d) Notify the Public Prosecutor of the commitment of the case to the Court of Session." 42. Prior to coming into force of the present Code, Section 207 of the Code of Criminal Procedure, 1898 dealt with committal proceedings. By the Criminal Law Amendment Act, 1955, Section 207 of the Principal Act was substituted by Sections 207 and 207A. To appreciate the inherent aspects and the conceptual differences in the previous provisions and the present one, it is imperative to reproduce Sections 207 and 207A of the old Code. They read as under: 32 "207. In every inquiry before a magistrate where the case is triable exclusively by a Court of Session or High Court, or, in the opinion of the magistrate, ought to be tried by such Court, the magistrate shall, - (a) In any proceeding instituted on a police report, follow the procedure specified in section 207A; and (b) In any other proceeding, follow the procedure specified in the other provisions of this Chapter. 207A. (1) When, in any proceeding instituted on a police report the magistrate receives the report forwarded under Section 173, he shall, for the purpose of holding an inquiry under this section, fix a date which shall be a date of the receipt of the report, unless the magistrate, for reasons to be recorded, fixes any later date. (2) If, at any time before such date, the officer conducting the prosecution applies to the magistrate to issue a process to compel the attendance of any witness or the production of any document or thing, the magistrate shall issue such process unless, for reasons to be recorded, he deems it unnecessary to do so. (3) At the commencement of the inquiry, the magistrate shall, when the accused appears or is brought before him, satisfy himself that the documents referred to in section 173 have been furnished to the accused and if he finds that the accused has not been furnished with such documents or any of them, he shall cause the came to be so furnished. 33 (4) The magistrate shall then proceed to take the evidence of such persons, if any as may be produced by the prosecution as witnesses to the actual commission of the offence alleged, and if the magistrate is of opinion that it is necessary in the interests of justice to take the evidence of any one or more of the other witnesses for the prosecution, he may take such evidence also. (5) The accused shall be at liberty to cross- examine the witnesses examined under sub- section (4), and in such case, the prosecutor may re-examine them. (6) When the evidence referred to in sub-section (4) has been taken and the magistrate has considered all the documents referred to in section 173 and has, if necessary, examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him and given the prosecution and the accused an opportunity of being heard, such magistrate shall, if he is of opinion that such evidence and documents disclose no grounds for committing the accused person for trial, record his reasons and discharge him unless it appears to the Magistrate that such person should be tried before himself or some other magistrate, in which case he shall proceed accordingly. (7) When, upon such evidence being taken, such documents being considered, such examination (if any) being made and the prosecution and the accused being given an opportunity of being heard, the magistrate is of opinion that the accused should be committed for trial, he shall frame a charge under his hand, declaring with what offence the accused is charged. 34 (8) As soon as such charge has been framed, it shall be read and explained to the accused and a copy thereof shall be given to him free of cost. (9) The accused shall be required at once to give in, orally or in writing, a list of the persons, if any, whom he wishes to be summoned to give evidence on his trial: Provided that the magistrate may, in his discretion, allow the accused to give in his list or any further list of witnesses at a subsequent time; and, where the accused is committed for trial before the High Court, nothing in this sub- section shall be deemed to preclude the accused from giving, at any time before his trial, to the Clerk of the State a further list of the persons whom he wishes to be summoned to give evidence on such trial. (10) When the accused, on being required to give in a list under sub-section (9), has declined to do so, or when he has given in such list, the magistrate may make an order committing the accused for trial by the High Court or the Court of Session, as the case may be, and shall also record briefly the reasons for such commitment. (11) When the accused has given in any list of witnesses under sub-section (9) and has been committed for trial, the magistrate shall summon the witnesses included in the list to appear before the Court to which the accused has been committed: Provided that where the accused has been committed to the High Court, the magistrate may, in his discretion, leave such witnesses to be summoned by the Clerk of the State and such witnesses may be summoned accordingly: 35 Provided also that if the magistrate thinks that any witness is included in the list for the purpose of vexation of delay, or of defeating the ends of justice, the magistrate may require the accused to satisfy him that there are reasonable grounds for believing that the evidence of such witness is material, and if he is not so satisfied, may refuse to summon the witness (recording his reasons for such refusal), or may before summoning him require such sum to be deposited as such magistrate thinks necessary to defray the expense of obtaining the attendance of the witness and all other proper expenses. (12) Witnesses for the prosecution, whose attendance before the Court of Session or High Court is necessary and who appear before the magistrate shall execute before him bonds binding themselves to be in attendance when called upon by the Court of Session or High Court to give evidence. (13) If any witness refuses to attend before the Court of Session or High Court, or execute the bond above directed, the magistrate may detain him in custody until he executes such bond or until his attendance at the Court of Session or High Court is required, when the magistrate shall send him in custody to the Court of Session or High Court as the case may be. (14) When the accused is committed for trial, the magistrate shall issue an order to such person as may be appointed by the State Government in this behalf, notifying the commitment, and stating the offence in the same form as the charge; and shall send the charge, the record of the inquiry and any weapon or other thing which is to be produced in evidence, to the Court of Session or where the commitment is made to the High Court, to the Clerk of the State or other officer appointed in this behalf by the High Court. 36 (15) When the commitment is made to the High Court and any part of the record is not in English, an English translation of such part shall be forwarded with the record. (16) Until and during the trial, the magistrate shall, subject to the provisions of this Code regarding the taking of bail, commit the accused by warrant to custody." 43. On a bare perusal of the above quoted provisions, it is plain as day that an exhaustive procedure was enumerated prior to commitment of the case to the Court of Session. As is evincible, earlier if a case was instituted on a police report, the magistrate was required to hold enquiry, record satisfaction about various aspects, take evidence as regards the actual commission of the offence alleged and further was vested with the discretion to record evidence of one or more witnesses. Quite apart from the above, the accused was at liberty to cross-examine the witnesses and it was incumbent on the magistrate to consider the documents and, if necessary, examine the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him by the prosecution and afford the accused an opportunity of being heard and if there was no ground for committing the accused person for trial, record 37 reasons and discharge him. Thus, the accused enjoyed a substantial right prior to commitment of the case. It was indeed a vital stage. But, in the committal proceedings in praesenti, the magistrate is only required to see whether the offence is exclusively triable by the Court of Session. Mr. Fakhruddin, learned senior counsel, would submit that the use of the words "it appears to the magistrate" are of immense signification and the magistrate has the discretion to form an opinion about the case and not to accept the police report. To appreciate the said submission, it is apposite to refer to Section 207 of the 1973 Code which lays down for furnishing of certain documents to the accused free of cost. Section 209(a) clearly stipulates that providing of the documents as per Section 207 or Section 208 is the only condition precedent for commitment. It is noteworthy that after the words, namely, "it appears to the Magistrate", the words that follow are "that the offence is triable exclusively by the Court of Session". The limited jurisdiction conferred on the magistrate is only to verify the nature of the offence. It is also worth noting that thereafter, a mandate is cast that he "shall commit". Evidently, there is a sea of difference in the proceeding for commitment to the Court of Session under the old Code and 38 under the existing Code. There is nothing in Section 209 of the Code to even remotely suggest that any of the protections as provided under the old Code has been telescoped to the existing one. 44. It is worth noting that under the Code of Criminal Procedure, 1898, a full-fledged Magisterial enquiry was postulated in the committal proceeding and the prosecution was then required to examine all the witnesses at this stage itself. In 1955, the Parliament by Act 26 of 1955 curtailed the said procedure and brought in Section 207A to the old Code. Later on, the Law Commission of India in its 41st Report, recommended thus:- "18.19. After a careful consideration we are of the unanimous opinion that committal proceedings are largely a waste of time and effort and do not contribute appreciably to the efficiency of the trial before the Court of Session. While they are obviously time- consuming, they do not serve any essential purpose. There can be no doubt or dispute as to the desirability of every trial, and more particularly of the trial for a grave offence, beginning as soon as practicable after the completion of investigation. Committal proceedings which only serve to delay this step, do not advance the cause of justice. The primary object of protecting the innocent accused from the ordeal of a sessions trial has not been achieved in 39 practice; and the other main object of apprising the accused in sufficient detail of the case he has to meet at the trial could be achieved by other methods without going through a very partial and ineffective trial rehearsal before a Magistrate. We recommend that committal proceedings should be abolished." We have reproduced the same to accentuate the change that has taken place in the existing Code. True it is, the committal proceedings have not been totally abolished but in the present incarnation, it has really been metamorphosed and the role of the Magistrate has been absolutely constricted. 45. In our considered opinion, because of the restricted role assigned to the Magistrate at the stage of commitment under the new Code, the non-compliance of the same and raising of any objection in that regard after conviction attracts the applicability of the principle of `failure of justice' and the convict-appellant becomes obliged in law to satisfy the appellate court that he has been prejudiced and deprived of a fair trial or there has been miscarriage of justice. The concept of fair trial and the conception of miscarriage of justice are not in the realm of abstraction. They do not operate in a vacuum. They are to be concretely established on the bedrock of facts and not to be 40 deduced from procedural lapse or an interdict like commitment as enshrined under Section 193 of the Code for taking cognizance under the Act. It should be a manifestation of reflectible and visible reality but not a routine matter which has roots in appearance sans any reality. Tested on the aforesaid premised reasons, it is well nigh impossible to conceive of any failure of justice or causation of prejudice or miscarriage of justice on such non-compliance. It would be totally inapposite and inappropriate to hold that such non-compliance vitiates the trial. 46. At this juncture, we would like to refer to two other concepts, namely, speedy trial and treatment of a victim in criminal jurisprudence based on the constitutional paradigm and principle. The entitlement of the accused to speedy trial has been repeatedly emphasized by this Court. It has been recognised as an inherent and implicit aspect in the spectrum of Article 21 of the Constitution. The whole purpose of speedy trial is intended to avoid oppression and prevent delay. It is a sacrosanct obligation of all concerned with the justice dispensation system to see that the administration of criminal justice becomes effective, vibrant and meaningful. The concept of speedy trial cannot be allowed to remain a mere formality (see 41 Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar28, Moti Lal Saraf v. State of Jammu & Kashmir29 and Raj Deo Sharma v. State of Bihar30). 47. While delineating on the facets of speedy trial, it cannot be regarded as an exclusive right of the accused. The right of a victim has been given recognition in Mangal Singh and Anr. v. Kishan Singh and ors.31 wherein it has been observed thus: - "Any inordinate delay in conclusion of a criminal trial undoubtedly has highly deleterious effect on the society generally and particularly on the two sides of the case. But it will be a grave mistake to assume that delay in trial does not cause acute suffering and anguish to the victim of the offence. In many cases the victim may suffer even more than the accused. There is, therefore no reason to give all the benefits on account of the delay in trial to the accused and to completely deny all justice to the victim of the offence." [Emphasis supplied] 48. It is worthnoting that the Constitution Bench in Iqbal Singh Marwah and another v. Meenakshi Marwah and another32, though in a different context, had also observed that delay in the prosecution of a guilty person comes to his 28 (1980) 1 SCC 81 29 AIR 2007 SC 56 30 AIR 1998 SC 3281 31 AIR 2009 SC 1535 32 AIR 2005 SC 2119 42 advantage as witnesses becomes reluctant to give evidence and the evidence gets lost. 49. We have referred to the aforesaid authorities to illumine and elucidate that the delay in conclusion of trial has a direct nexus with the collective cry of the society and the anguish and agony of an accused. Decidedly, there has to be a fair trial and no miscarriage of justice and under no circumstances, prejudice should be caused to the accused but, a pregnant one, every procedural lapse or every interdict that has been acceded to and not objected at the appropriate stage would not get the trial dented or make it unfair. Treating it to be unfair would amount to an undesirable state of pink of perfection in procedure. An absolute apple pie order in carrying out the adjective law, would only be sound and fury signifying nothing. 50. In the case at hand, as is perceivable, no objection was raised at the time of framing of charge or any other relevant time but only propounded after conviction. Under these circumstances, the right of the collective as well as the right of the victim springs to the forefront and then it becomes obligatory on the part of the accused to satisfy the court that there has 43 been failure of justice or prejudice has been caused to him. Unless the same is established, setting aside of conviction as a natural corollary or direction for retrial as the third step of the syllogism solely on the said foundation would be an anathema to justice. Be it noted, one cannot afford to treat the victim as an alien or a total stranger to the criminal trial. The criminal jurisprudence, with the passage of time, has laid emphasis on victimology which fundamentally is a perception of a trial from the view point of the criminal as well as the victim. Both are viewed in the social context. The view of the victim is given due regard and respect in certain countries. In respect of certain offences in our existing criminal jurisprudence, the testimony of the victim is given paramount importance. Sometimes it is perceived that it is the duty of the court to see that the victim's right is protected. A direction for retrial is to put the clock back and it would be a travesty of justice to so direct if the trial really has not been unfair and there has been no miscarriage of justice or failure of justice. 51. We may state without any fear of contradiction that if the failure of justice is not bestowed its due signification in a case of the present nature, every procedural lapse or interdict would be 44 given a privileged place on the pulpit. It would, with unnecessary interpretative dynamism, have the effect potentiality to cause a dent in the criminal justice delivery system and eventually, justice would become illusory like a mirage. It is to be borne in mind that the Legislature deliberately obliterated certain rights conferred on the accused at the committal stage under the new Code. The intendment of the Legislature in the plainest sense is that every stage is not to be treated as vital and it is to be interpreted to subserve the substantive objects of the criminal trial. 52. Judged from these spectrums and analysed on the aforesaid premises, we come to the irresistible conclusion that the objection relating to non-compliance of Section 193 of the Code, which eventually has resulted in directly entertaining and taking cognizance by the Special Judge under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, does not vitiate the trial and on the said ground alone, the conviction cannot be set aside or there cannot be a direction of retrial and, therefore, the decision rendered in Bhooraji (supra) lays down the correct law inasmuch as there is no failure of justice or no prejudice is caused to the accused. The decisions rendered in 45 Moly (supra) and Vidyadharan (supra) have not noted the decision in Bhooraji (supra), a binding precedent, and hence they are per incuriam and further, the law laid down therein, whereby the conviction is set aside or matter is remanded after setting aside the conviction for fresh trial, does not expound the correct proposition of law and, accordingly, they are hereby, to that extent, overruled. 53. The appeals be placed before the appropriate Bench for hearing on merits. ....................................J. [Dalveer Bhandari] ....................................J. [T. S. Thakur] ....................................J. [Dipak Misra] New Delhi; February 17, 2012.

whether Ansaldo Caldaie, Italy, can be said to be a Qualified Steam Generator Manufacturer within the definition set out in the detailed Invitation for Bids.= The importance of the above condition is manifested in the functioning of the Steam Generator which handles High Pressure Steam for the purpose of turning the turbines for generating electricity. The design and engineering of the evaporator and the boiler itself has to be such as to withstand the very high temperatures and pressures generated. The importance of the variable pressure operations is of great importance as far as generation and wastage of energy is concerned. The importance of the evaporator in controlling pressure during operations is to automatically regulate the flow of water, generation of pressure and temperature of the steam to the desired level. 28. In that view of the matter, we allow the Appeal and set aside the impugned judgment of the Division Bench of the High Court allowing the Writ Petition filed by the whether Ansaldo Caldaie, Italy, can be said to be a Qualified Steam Generator Manufacturer within the definition set out in the detailed Invitation for Bids.= The importance of the above condition is manifested in the functioning of the Steam Generator which handles High Pressure Steam for the purpose of turning the turbines for generating electricity. The design and engineering of the evaporator and the boiler itself has to be such as to withstand the very high temperatures and pressures generated. The importance of the variable pressure operations is of great importance as far as generation and wastage of energy is concerned. The importance of the evaporator in controlling pressure during operations is to automatically regulate the flow of water, generation of pressure and temperature of the steam to the desired level. 28. In that view of the matter, we allow the Appeal and set aside the impugned judgment of the Division Bench of the High Court allowing the Writ Petition filed by the The importance of the above condition is manifested in the functioning of the Steam Generator which handles High Pressure Steam for the purpose of turning the turbines for generating electricity. The design and engineering of the evaporator and the boiler itself has to be such as to withstand the very high temperatures and pressures generated. The importance of the variable pressure operations is of great importance as far as generation and wastage of energy is concerned. The importance of the evaporator in controlling pressure during operations is to automatically regulate the flow of water, generation of pressure and temperature of the steam to the desired level. 28. In that view of the matter, we allow the Appeal and set aside the impugned judgment of the Division Bench of the High Court allowing the Writ Petition filed by the

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.2134 OF 2012 (Arising out of SLP(C)No.7807 of 2011) NTPC LIMITED ... APPELLANT Vs. ANSALDO CALDAIE BOILERS INDIA P. LTD. & ANR. ... RESPONDENTS J U D G M E N T ALTAMAS KABIR, J. 1. Leave granted. 2. Following international competitive bidding procedures, the Appellant had invited bids for the supply and installation of Steam Generator package for captive coal- based Thermal Power Projects in different areas. The bid of the Respondent No.1 was rejected by the Appellant by its letter dated 5th January, 2011, as the same did not meet the minimum qualifying requirements set out in the Bid documents. Furthermore, the Qualified Steam Generator Manufacturer, Ansaldo Caldaie, Italy, proposed by the said Respondent, did not have the necessary minimum qualification, as was required in terms of the Bid documents. 3. The main issue which arises for consideration in this Appeal is whether Ansaldo Caldaie, Italy, can be said to be a Qualified Steam Generator Manufacturer within the definition set out in the detailed Invitation for Bids. The said invitation for bid contained the qualifying requirement for Bidders in Clause 7 of the Tender Document. Clause 7.1.0 provided that the Bidder should meet the qualifying requirements of any one of the qualifying routes stipulated under Clause 1.1.0 or 1.2.0 or 1.3.0 or 1.4.0 or 1.5.0. In addition, the Bidder was also required to meet the requirements stipulated under Clause 7.6.0 and 7.7.0, together with the requirements stipulated under Section ITB. 4. Route 1 permits a Qualified Steam Generator Manufacturer to join the bidding process provided that it should meet the qualifying requirements of any of the qualifying routes indicated in Clause 7 of the tender documents. In Clause 7 of the tender documents, five different routes have been enumerated which could be taken by the tenderers, namely :- (i) as a Qualified Steam Generator Manufacturer; or (ii) as an Indian Steam Generator Manufacturer; or (iii) as an Indian subsidiary company of a Qualified Steam Generator Manufacturer; or (iv) as an Indian Joint Venture Company for manufacturing Super Critical Steam Generators in India between an Indian Company and a Qualified Steam Generator Manufacturer; or (v) as an Indian Joint Venture Promoter holding at least 51% stake in a Joint Venture Company for manufacturing Super Critical Steam Generators in India between an Indian Company and a Qualified Steam Generator Manufacturer. 5. Indisputably, none of the parties which responded to the invitation adopted Routes 1 or 3. Bharat Heavy Electricals Ltd. adopted Route 2, while Route 4 found favour with Larsen & Toubro, MHI and the Appellant, while BGR took recourse to Route 5. Route 4 contained in Clause 7.4.0 relates to Indian Joint Venture Companies for manufacturing of Super Critical Steam Generators in India between an Indian Company and a Qualified Steam Generator Manufacturer. For the sake of reference, Clauses 7.4.1 and 7.4.2 which formed part of Route 4 are extracted hereinbelow :- "7.4.0 Route 4 : Indian Joint Venture (JV) Company for manufacturing of Super Critical Steam Generator in India between an Indian Company and a Qualified Steam Generator Manufac-turer 7.4.1 The Bidder shall be a Joint Venture (JV) Company incorporated in India under the Companies Act 1956 of India, as on the date of techno-commercial bid opening, promoted by (i) an Indian Company registered in India under the Companies Act 1956 of India and (ii) a Qualified Steam Generator Manufacturer meeting requirements of clause 7.1.1, created for the purpose of manufacturing in India supercritical steam generator sets covering the type, size and rating specified. If the JV Company is incorporated as a public limited Company then it should have obtained certificate for Commencement of Business in India as on the date of techno-commercial bid opening. The Qualified Steam Generator Manu-facturer shall maintain a minimum equity participation of 26% in the JV Company for a lock-in period of 7 years from the date of incorporation of JV Company or up to the end of defect liability period of the contract whichever is later. One of the promoters shall be a majority stakeholder who shall maintain a minimum equity partici-pation of 51% in the JV Company for a lock in period of 7 years from the date of incorporation of JV Company or up to the end of defect liability period of the contract whichever is later. In the event that the majority stake holder in the JV Company is an entity other than the Qualified Steam Generator Manufacturer, it should be an Indian Company and should have executed, in the last 10 years, large industrial projects on EPC basis (with or without civil works) in the area of power, steel, oil & gas, petrochemical, fertilizer and/or any other process industry with the total value of such projects being Rs.10,000/- million or more. At least one of such projects should have a contract value of Rs.4,000/- million or more. These projects shall be in successful operation for a period of not less than one year as on the date of techno-commercial bid opening. 7.4.2 The Bidder shall furnish a DJU executed by him, the Qualified Steam Generator Manufacturer and other JV promoter having 25% or higher equity participation in the JV Company, in which all the executants of DJU shall be jointly and severally liable to the Employer for successful performance of contract as per the format enclosed in the bidding documents. The joint deed of undertaking shall be submitted along with techno-commercial bid, failing which the Bidder shall be disqualified and his bid shall be rejected. In case of award, each promoter having 25% or higher equity participation in the JV Company will be required to furnish an on demand bank guarantee for an amount of 0.5% of the total contract price of the Steam Generator Package in addition to the contract performance security to be furnished by the Bidder." 6. As mentioned hereinbefore, the bid filed by the Respondent No.1 was rejected by the Appellant by its letter dated 5th January, 2011, as the same did not fulfil the qualifying requirements of Route 4, extracted hereinabove. 7. Appearing for the Appellant, the learned Attorney General, Mr. Goolam E. Vahanvati, submitted that Clause 7.1.1 prescribes the basic qualifying requirements for a Qualified Steam Generator Manufacturer and the same is applicable to all the routes permitted under the bidding documents, irrespective of the route which the Bidder would opt for, for seeking qualification. For the sake of convenience, Clause 7.1.1 is reproduced hereinbelow :- "7.1.1 The Bidder should have designed, engineered , manufactured/got manufactured, erected/supervised erection, commissioned/ supervised commissioning of at least one (1) number of coal fired supercritical Steam Generator having rated capacity of 1500 tonnes of steam per hour or above. Further, such Steam generator should be of the type specified, i.e. single pass (tower type) or two pass type using either spiral wound (inclined) or vertical plain or vertical rifled type water wall tubing, and should be in successful operation for a period of not less than one (1) year as on the date of Techno-commercial bid opening. In addition, the above Steam Generator should have been provided with evaporator suitable for variable pressure operation (sub-critical and supercritical pressure ranges). The Bidder shall offer only the type of Steam Generator and type of water wall tubing for which he is qualified." 8. The learned Attorney General submitted that Clause 7.1.1 is identical to Clause 1.1.2 of Item No.4 of Section III of the Tender Documents and under Clause 1.4.1 it has been clearly mentioned that the requirements of Clause 1.1.1 had to be met. The learned Attorney General urged that in view of Clause 7.1.1, the Bidder must have "designed" and "engineered" the entire Steam Generator himself and the same could not be outsourced. Accordingly, once it is submitted that a Steam Generator is to be designed by the Qualified Steam Generator Manufacturer itself, all the integral parts of the Steam Generator like the furnace (evaporator), Superheaters 1, 2 and 3, Reheaters 1 and 2, connecting piping etc., have to be designed and engineered by the said manufacturer himself. The learned Attorney General also urged that Clause 7.1.1, however, permitted the manufacture, erection or commissioning to be outsourced by the Qualified Steam Generator Manufacturer, in view of the expressions used, such as, "got manufactured", "supervised erection" and "supervised commissioning". 9. The learned Attorney General also contended that Clause 7.1.1 also categorically states that the Steam Generator would have to be provided with an evaporator suitable for variable pressure operation (emphasis added). It was submitted that an evaporator is an integral and one of the most critical parts of any Supercritical Steam Generator. It was further urged that if the evaporator was not designed for variable pressure operation, conditions in Note 5 of the Notes in Clause 1.0.0 of the Bid documents would have to be complied with. For the sake of reference, Note 5 is reproduced hereinbelow :- "Steam Generator Manufacturer with Technology Tie-up for Variable Pressure Design In case a supercritical Steam Generator manufacturer meets all the requirements as specified in clause no. 1.1.1 above except that the evaporator in the reference steam generator is not designed for variable pressure operation and is designed for constant pressure (Universal Pressure) operation only, in such case, the Supercritical Steam Generator Manufacturer has an ongoing license agreement (which covers technology transfer), as on the date of Techno-commercial bid opening, with the original Technology Owner (Licensor) for design, manufacture, sell, use, service of once through variable pressure supercritical steam generator technology (with evaporator suitable for variable pressure operation in sub-critical pressure ranges). i. The licensor should have experience of providing such variable pressure design steam generator technology for at lease one (1) no. of coal fired supercritical steam generator for a 1500 T/hr or higher capacity using either spiral wound (inclined) or vertical plain or vertical rifled type water wall tubing with the evaporator suitable for variable pressure operation in sub-critical and super-critical pressure ranges and which should be in successful operation for a period of not less than one (1) year as on the date of bid opening. ii. The Bidder shall offer only the type of steam generator i.e. single pass (tower type) or two pass type for which the Bidder is qualified and shall offer only the type of water wall tubing (either spiral wound (inclined) or vertical plain or vertical rifled type) for which his licensor is qualified. iii. In such an event, the Bidder shall furnish a Deed of Joint Undertaking executed between the Bidder and the supercritical steam generator manufac-turer (as the case may be) and its Technology Owner (Licensor), as per the format enclosed in the Bidding Documents towards the Bidder and the licensor being jointly and severally liable to the Employer for successful performance of the Steam Generator along with an extended warranty of at least one (1) year over and above what is required as per tender documents. iv. In case of award, Technology Owner (Licensor) will be required to furnish an on demand bank guarantee for an amount of 0.1% of the total contract price of the Steam Generator Package in addition to the contract perfor-mance security to be furnished by the Bidder." 10. In addition to the above, the learned Attorney General submitted that in the event the provisions of Note 5 were to be followed, it would be necessary for the Bidder to provide a Deed of Joint Undertaking to be executed between the Bidder, the proposed Qualified Steam Generator Manufacturer, who possessed the experience of designing and engineering a Steam Generator with evaporator suitable for constant pressure operation. The very reason for the furnishing of a Deed of Joint Undertaking was to make the technology owner responsible for the successful operation of the plant along with the Bidder. It was submitted that only when such an undertaking was given by the licensor and the Qualified Steam Generator Manufacturer that the Bidder would be eligible for being considered as being qualified to participate in the bidding process. The learned Attorney General submitted that despite the fact that the Respondent No.1 had taken recourse to Note No.5 and the bid of the Respondent was non-responsive, no Deed of Joint Undertaking had been furnished by the Respondent. On the other hand, in the bid submitted by the Respondent No.1, it had been mentioned in Clause 1.2.0 that the evaporator in the reference Steam Generator, which was supplied to Enel, was for variable pressure operation. The Respondent claimed to have designed and engineered the reference Steam Generator, but when it came to the actual confirmation in reference to the experience, it was indicated as follows :- 1.5.0 We, confirm that M/s ANSALDO CALDAIE S.p.A. (Qualified Steam Generator Manufacturer) meets all the requirement as per 1.1.1 of BDS except that the evaporator indicated in the reference steam generator is not designed for variable pressure operation and is designed for constant pressure (Universal Pressure) operation only and seeking qualification along with the original technology owner (Licensor) from which he has an ongoing license agreement (which covers technology transfer), as on the date of Techno-commercial bid opening, for design, manufacture, sell, use, service of once through variable pressure supercritical steam generator technology (with evaporator suitable for variable pressure operation in sub-critical and supercritical pressure ranges). Further we confirm that original technology owner (Licensor) had experience of providing variable pressure design steam generator technology for at least one (1) no. of coal fired supercritical steam generator technology for at least one (1) no. of coal fired supercritical steam generator for a 1500 T/hr or higher capacity using either spiral wound (inclined) or vertical plain or vertical rifled typed water wall tubing with the evaporator suitable for variable pressure operation in sub-critical and super-critical pressure ranges and which should be in successful operation for a period of not less than one (1) year as on the date of techno commercial bid opening. The detail of Licensor and his experience detail are as follows:" 11. The learned Attorney General submitted that it was, therefore, clear that the evaporator for the Steam Generator, which the Respondent No.1 had agreed to provide, had not been designed for variable pressure operation and, accordingly, the experience of the licensor was relied upon. Furthermore, the Deed of Joint Undertaking referred to in Clause 1.01.00 was left blank, and Clause 1.6.0 which included the reference to the Deed of Joint Undertaking was expressly and consciously scored off. It was submitted that the failure to furnish the said undertaking made the bid of the Respondent No.1 completely non-responsive. 12. In support of his aforesaid submissions, the learned Attorney General submitted that the crucial aspects of the case are :- (i) Did the tender contemplate that the Evaporator is something separate from the Steam Generator? (ii) Is the Evaporator not an integral part of the Steam Generator? (iii) Could the Evaporator, if the tender contemplated that the Evaporator could be manufactured by a third party, be manufactured by a third party? (iv) Did Ansaldo Caldaie indicate that the Evaporator would be supplied by it after having it manufactured by a third party? 13. The learned Attorney General submitted that as far as the first two questions are concerned, the Evaporator was very much an integral part of the Steam Generator and as far as the third and fourth questions are concerned, the Attorney General submitted that the answer was in the negative. 14. Learned Attorney General contended that the Respondent No.1 was ineligible to compete in the bid, since it did not satisfy one of the critical conditions of the tender document. It was submitted that in order to be eligible, a Bidder had to satisfy the conditions contained in Clause 7.1.1 of the Memorandum of Understanding, hereinafter referred to as `MOU'. Although, manufacturing, erection or commissioning of the Steam Generator could be outsourced, the "designing" and "engineering" of the Steam Generator had to be done by the Bidder himself. The learned Attorney General submitted that if the party proposed as Qualified Steam Generator Manufacturer by the Bidder had not designed or engineered the Steam Generator himself, he could not be said to have met the qualifying requirements stipulated for a Qualified Steam Generator Manufacturer and consequently, the Bidder could not also be said to have fulfilled the requirements relating to meeting the minimum qualification requirements for his bid to be accepted. The learned Attorney General submitted that the evidence on record clearly indicated that the Respondent No.1 had not designed or engineered the entire Steam Generator and that it transpired that in response to queries raised by the Appellant to Enel, the reference station owner had indicated that the work had been split up between the Respondent No.1 and BHK, but executed the contract for the reference station as part of a consortium. The detailed break-up which was provided, indicated that the Respondent No.1 had not done the designing and engineering of the boiler walls furnace. It was submitted that the failure to design and/or engineer the critical parts of the Steam Generator was fatal for qualification as a Qualified Steam Generator Manufacturer and hence the bid submitted by the Respondent No.1 had to be rejected. 15. The learned Attorney General submitted that there were various contradictions and inconsistencies in the bid submitted by the Respondent No.1 and while, on the one hand, it was mentioned that the reference Steam Generator was provided with evaporator suitable for variable pressure operation within sub-critical and super critical pressure ranges, it was also indicated in another part of the Tender Documents that the evaporator indicated in the reference Steam Generator was not designed for variable pressure operation, but for constant pressure operation. It was submitted that the said condition being one of the fundamental conditions of the bid, it could not be held to be substantially responsive. 16. The learned Attorney General submitted that the High Court had not applied itself to these aspects of the matter, which were essential in nature and had proceeded on the assumption that the bid of the Respondent No.1 was in order and that the rejection of the bid of the Respondent No.1 was liable to be quashed. 17. On behalf of the Respondent No.1 it was submitted by Mr. Mukul Rohatgi, learned Senior Advocate, that the Respondent No.1 Company is an Indian Company jointly promoted by Gammon India Limited and Ansaldo Caldaie S.p.A., Italy, who has been in the business of manufacturing, designing, erecting and commissioning of boilers since 1853 and is a world leader in the manufacture of Supercritical Steam Generators and had engineered, designed and manufactured 24 Supercritical boilers with capacity of 1500 Tonnes of Steam per hour and above. Mr. Rohatgi submitted that the Respondent No.1 Company had installed boilers of various types all over the world and it also has a significant presence in India since 1960. Included amongst its major projects within India, are :- (i) 3 x 200 MW for NTPC at Ramagundam, Andhra Pradesh, which was installed in 1980 and has been operating successfully since its installation; (ii) 2 x 500 MW for NTPC, Farakkha in West Bengal, which has been in operation since 1992; (iii) 230 MW at Smalkot for BSES, which was commissioned in 1999; and (iv) 2 x 210 MW at Neyvelli Lignite Corporation at Tamil Nadu, which was the first of its kind in the State. It was submitted that the consortium, of which the Respondent No.1 was a part, has the distinction of being the second largest company involved in the installation of boilers in India after Bharat Heavy Electricals Ltd. (BHEL). 18. Mr. Rohatgi submitted that the Respondent No.1 has vast experience in working with Steam Generators and was fully eligible to compete in the bids relating to Clause 7.4 of the detailed information for bids, which stipulated that the qualification of the Qualified Steam Generator Manufacturer would be considered if it owned at least 26% of the equity of the Bidder as per Clause 7.1.1. Accordingly, Respondent No.1 submitted its performance certificate. Mr. Rohatgi submitted that the Respondent No.1 submitted the Performance Certificate issued to Ansaldo Caldaie by Anel Tower for Torranvaldaliga Nord Power Plant, to the Appellant to support its eligibility for participating in the Bid. 19. Mr. Rohatgi submitted that there were four Bidders, including the Respondent No.1, but ultimately on 5th January, 2011, the Respondent No.1 was informed that his technical bid had been rejected on the ground that it did not meet the qualification criteria. The Bank Guarantee furnished by the Respondent No.1 was returned to him. In the meantime, the Writ Petition filed by the Respondent, (WP (C) No.296 of 2011), came up for hearing on 17th January, 2011, when it was withdrawn with liberty to file a fresh petition based on the fact that the Respondent No.1 had in the interregnum period received the rejection letter dated 5th January, 2011, issued by the Appellant. 20. Mr. Rohatgi submitted that Clause 7.1.1 and Clause 7.4 clearly reflected the mind of the Bidder. Learned counsel urged that the use of the expression "provided" in dealing with the capability of the Bidder to deal with variable pressures merely indicated that the Steam Generator Manufacturer would have to provide technical tie-up for variable pressure design and in the absence of the same, the bid submitted would still qualify for being considered. It was urged that the use of the expression "provided" would have to be read along with the phrase "designed, engineered, manufactured/got manufactured" etc. The further usage of the words "in addition" indicated that the stipulation regarding the provision of an evaporator suitable for variable pressure operation was an additional, ancillary and peripheral requirement and not integral to the type of Steam Generator contemplated. Mr. Rohatgi urged that the submission made on behalf of the Appellant to the contrary was incorrect since it had been in no uncertain terms submitted that in the bid document and in the pleadings before the High Court and this Court noted that the evaporator provided with the Steam Generator at the reference plant at TNP was suitable for variable pressure operation. 21. It was submitted that the entire basis of the case made out by the Appellant was, therefore, non-est and the High Court did not commit any error in allowing the Writ Petition filed by the Respondents. 22. There is no dispute that the Respondent No.1 chose Route 4 while submitting its Tender Bid, in its capacity as an Indian Joint Venture Company for manufacturing Super- Critical Steam Generator in India between an Indian Company and a Qualified Steam Generator Manufacturer. The crucial condition for a Bidder of the said category to be considered is contained in Clause 7.1.1 of the Tender Documents, which has been extracted hereinbefore and provides that the Bidder should have designed, engineered, manufactured/got manufactured, erected/ supervised direction, commissioned/supervised commissioning of at least one Steam Generator having rated capacity of 1500 Tonnes of Steam per hour or above and that it should be provided with an Evaporator suitable for variable pressure operations for special category and supercritical pressure ranges. 23. The controversy which led to the rejection of the Technical Bid of the Respondent No.1 was with regard to the question as to whether in the case of a Joint Venture Undertaking it was essential that the Qualified Steam Generator Manufacturer also had to be the manufacturer of the evaporator or whether it could function as a facilitator. Furthermore, what appears to have weighed with the Appellant in rejecting the Technical Bid of the Respondent No.1 was that the Steam Generator had been designed for constant pressure and not variable pressure, as required by the Appellant. 24. Admittedly, the evaporator is an integral part of the Steam Generator. The question is whether the same could not be manufactured by a third party and supplied to the Qualified Steam Generator Manufacturer for use in the boiler. Although, the said proposition has been hotly contested on behalf of the Respondent, an attempt was also made to show that the evaporator was in fact designed for variable pressure, but such a submission was contrary to the confirmation given by the Respondent No.1 which indicated that the evaporator had been designed for Constant Pressure (Universal Pressure) operation only. The MOU, while permitting manufacturing, erection or commissioning of the Steam Generator, provided that the same could be outsourced, but the "designing" and "engineering" of the Steam Generator had to be done by the Bidder himself and if the party proposed as Qualified Steam Generator Manufacturer and the Bidder had not designed and engineered the Steam Generator itself, it could not be said that the qualifying requirements for such manufacturer had been satisfied. 25. From the terms and conditions contained in the MOU, it appears to us that it was the intention of the Appellant that the Qualified Steam Generator Manufacturer would have to be the manufacturer of the evaporator itself and could not have outsourced the manufacture thereof to a third party, since the evaporator controlling the pressure of the Steam generated is a vital and crucial component of the Steam Generator itself. The Appellant, which will be the ultimate user of the Generator, must be presumed to be conscious of the competence of the tenderer to "provide" the evaporator in keeping with the required specifications. 26. In the aforesaid context, we are unable to uphold the decision of the Division Bench of the Delhi High Court quashing the letter dated 5th January, 2011, issued by the Appellant herein, informing the Respondent No.1 that its Techno-commercial Bid had been rejected on the ground that it did not meet the minimum requirement set forth in item No.4 of Section III of the Tender Documents. The High Court while interpreting the provisions of Clause 7.1.1 of the Tender Documents was influenced by the use of the phrase "manufactured/got manufactured" while considering the fact that although, Ansaldo Caldaie, Italy, was being projected as the Qualified Steam Generator Manufacturer, Siemens A.G. was shown as the technology owner/licensor of the evaporator which was offered by the Respondent No.1. In other words, the evaporator being offered by the Respondent No.1 was one which had been manufactured not by the Qualified Steam Generator Manufacturer, but by a third party, which was not contemplated in the aforesaid condition of the Tender Documents. 27. The importance of the above condition is manifested in the functioning of the Steam Generator which handles High Pressure Steam for the purpose of turning the turbines for generating electricity. The design and engineering of the evaporator and the boiler itself has to be such as to withstand the very high temperatures and pressures generated. The importance of the variable pressure operations is of great importance as far as generation and wastage of energy is concerned. The importance of the evaporator in controlling pressure during operations is to automatically regulate the flow of water, generation of pressure and temperature of the steam to the desired level. 28. In that view of the matter, we allow the Appeal and set aside the impugned judgment of the Division Bench of the High Court allowing the Writ Petition filed by the Respondent No.1. The Writ Petition filed by the Respondent No.1, therefore, stands dismissed. 29. There shall, however, be no order as to costs. ......................................................J. (ALTAMAS KABIR) New Delhi ......................................................J. Dated: 16.02.2012 (J. CHELAMESWAR)

service matter =The appellant, who was working as Security Assistant, was proceeded departmentally on 2nd September, 1996 for the following charge: "While functioning as SA(G) in the office of Deputy Central Intelligence Officer, Palanpur, under Subsidiary Intelligence Bureau, Ahmedabad, unauthorisedly absented from duty between 3.10.1995 and 7.11.1995, 9.11.1995 and 10.12.1995 and from 10.12.1995 to 2.8.1996, thereby violating Rule 3(1)(ii) 3(1)(iii) of Central Civil Services (Conduct) Rules, 1964." =The appellant stands reinstated. Taking into consideration the fact that the Charged Officer has suffered a lot since the proceeding was drawn in 1996 for absence from duty for a certain period, we are not remitting the proceeding to the disciplinary authority for any further action. Further, keeping in view the fact that the appellant has not worked for a long time we direct that the appellant be paid 50% of the back wages but there shall be no order as to costs.

1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.2106 OF 2012 (ARISING OUT OF SLP(C)NO.15381 OF 2006) KRUSHNAKANT B. PARMAR ... APPELLANT Versus UNION OF INDIA & ANR. ... RESPONDENTS J U D G M E N T SUDHANSU JYOTI MUKHOPADHAYA, J. Leave granted. 2. The appellant, who was working as Security Assistant, was proceeded departmentally on 2nd September, 1996 for the following charge: "While functioning as SA(G) in the office of Deputy Central Intelligence Officer, Palanpur, under Subsidiary Intelligence Bureau, Ahmedabad, unauthorisedly absented from duty between 3.10.1995 and 7.11.1995, 9.11.1995 and 10.12.1995 and from 10.12.1995 to 2.8.1996, thereby violating Rule 3(1)(ii) 3(1)(iii) of Central Civil Services (Conduct) Rules, 1964." 3. On receipt of charge-sheet the appellant denied the allegation by his reply dated 7th October, 1996 and also alleged bias against his Controlling Officer, Mr. P. Venkateswarlu with specific stand that he was prevented by him from signing the attendance register and to attend the office. He also 2 explained reasons of absence for certain period for which he had applied for leave. 4. During the pendency of the departmental proceedings, the appellant was transferred to another place which he challenged before the Central Administrative Tribunal alleging bias against his superior Officer. The Central Administrative Tribunal by order dated 15th November, 2000 set aside the order by holding `the order of transfer is vitiated due to malice in law and fact' which was affirmed by the Gujarat High Court on 17th August, 2001. After about seven years Inquiry Officer submitted a report on 28th April, 2003 and held that the charge has been proved against the appellant beyond all reasonable doubt, holding him guilty of violating Rule 3(1)(ii) and 3(1)(iii) of Central Civil Services (Conduct) Rules, 1964. 5. A copy of the Inquiry Report was forwarded to the appellant who submitted a reply on 13th July, 2003 and raised following objections: (i) Mr. Venkateswarlu, the then DCIO, Palanpur who was the complainant against the appellant about absence from duty, against whom the appellant has alleged malice and was the prime witness, refused to attend the inquiry; (ii) the Report of the Inquiry Officer is based on statements of two prosecution witnesses, who have not proved the charges; (iii) the Inquiry Officer failed to discuss the evidence relied on by him; 3 (iv) the attendance register for the relevant period was not produced and (v) the defence taken by him that he was not allowed to attend duty has not been dealt with by the Inquiry Officer. The Joint Deputy Director, SIB, thereafter, dismissed the appellant from service by an order dated 02.12.2003. 6. The appellant challenged the order of dismissal before Central Administrative Tribunal which by order dated 4th May, 2004 refused to entertain the application and allowed the appellant to avail alternative remedy of appeal. Accordingly, the appellant preferred an appeal on 17th May, 2004 before the Director, Intelligence Bureau highlighting lapses committed by the Inquiry Officer, and also alleged bias against the controlling officer who prevented him from performing the duty and to sign the attendance register. The Appellate Authority without discussing the aforesaid objections rejected the appeal by order dated 30th November, 2011 and observed as follows: "........the undersigned has come to the same conclusion that the appellant should have been discharged from service under the Temporary Service Rules when the first instance of indiscipline on his part was noticed. ..........the charge against the appellant, Shri K.B. Parmar that he remained absent unauthorisedly has been established beyond doubt.......... 4 Now, therefore, the undersigned, being the competent Appellate Authority hereby rejects the appeal dated 17.5.2004 submitted by Shri K.B. Parmar, against the order of Disciplinary Authority dated 2.12.2003 both on account of being time-barred as well as having no merit and confirms the penalty of removal from service on the said Shri K.B. Parmar vide order dated 2.12.2003." 7. The appellant challenged the order of punishment and the appellate order in Original Application No. 619 of 2004 before the Central Administrative Tribunal which was dismissed by order and judgment dated 28th September, 2005 and affirmed by the Gujarat High Court. 8. Learned counsel appearing on behalf of the appellant has taken us through records including report submitted by the Inquiry Officer and the order passed by the Appellate Authority and argued that the Inquiry Officer failed to consider the relevant evidence produced by the appellant and misdirected himself in arriving at the finding of guilt against him. He would further contend that no specific finding has been given with regard to the charge that he violated Rule 3(1)(ii) and Rule 3(1)(iii) of the Conduct Rules. 9. Per contra, according to the learned counsel for the respondents, departmental inquiry was conducted in accordance with law, and after providing full opportunity to the appellant, on appreciation of evidence, as the Inquiry Officer held the appellant guilty, the Appellate Authority affirmed the same. 5 10. We have heard learned counsel for the parties. From a bare perusal of the charge memo and the Inquiry Report it can be deduced that the Inquiry Officer proceeded on a wrong premise. The appellant was principally charged for unauthorised absence from duty during three consecutive period: (i) 3rd October, 1995 to 7th November, 1995 (36 days); (ii) 9th November, 1995 to 10th December, 1995 (32 days); and (iii) 10th December, 1995 to 2nd August, 1995 (234 days), in violation of Rule 3(1)(ii) and Rule 3(1)(iii) of the Rule 3(1)(ii) and Rule 3(1)(iii) of Central Civil Services (Conduct) Rules, 1964. 11. The charge was sought to be proved by respondents on the basis of statement of three witnesses, namely, (i) Shri P. Venkateswarlu, DCIO, SIB, Hyderabad, (ii) Shri B.P. Jivrani, ACIO-II, Palanpur and (iii) Shri L.N. Thakkar, JIO-I(MT), Gandhidham, and seven documentary evidence, including attendance register of the office of DCIO, Palanpur, but the complainant refused to appear in the Inquiry in support of complaint and charge. 12. The records suggest that on 11th August, 1995, the appellant requested the respondents to transfer him from Palanpur to any nearest place at Ahmedabad or Nadiad or Anand which was accepted by respondents and an order of transfer was issued by the respondents on 21st August, 1995 transferring the appellant to the office of DCIO, Nadiad with immediate effect. On 25th August, 1995, the Joint Assistant Director, SIB ordered to release the 6 appellant from Palanpur to join duty at Nadiad with effect from 31st August, 1995. In view of such order the appellant was relieved and joined at Nadiad. However, the order of transfer was cancelled by the respondents on 4th September, 1995 and he was transferred at a distance place which was challenged by him before the Central Administrative Tribunal. After cancellation of the order of transfer the appellant sent a complaint on 18th September, 1995 before the authorities that the DCIO, Palanpur, Mr. P. Venkateswarlu was not allowing him to join duty. The order of transfer was challenged by him before the Central Administrative Tribunal, Ahmedabad alleging bias against Mr. Venkateswarlu, DCIO, Palanpur, in-charge of the office which was accepted by the Central Administrative Tribunal and the order of transfer was set aside. Thereafter appellant joined duty on 11th December, 1995 and proceeded on leave for 11 days due to illness of his father. 13. The Inquiry Officer noticed the aforesaid facts and held the appellant was unauthorisedly absent between 3rd October, 1995 and 7th November, 1995; 9th November, 1995 and 10th December, 1995; 10th December, 1995 and 2nd August, 1995. However, while coming to such contention, the authority failed to decide whether such absence amounted to misconduct. The evidence led by the appellant in support of his claim that he was prevented to sign the attendance register and to perform duty though noticed the Inquiry Officer on presumption and surmises, held the charge proved. 7 14. Rule 3(1)(ii) and Rule 3(1)(iii) of Central Civil Services (Conduct) Rules, 1964, relates to all time maintaining integrity, devotion to duty and to do nothing which is unbecoming of a Government servant and reads as follows: "Rule 3 - General. (1) Every Government servant shall at all times-- (i) maintain absolute integrity; (ii) maintain devotion to duty; and (iii) do nothing which is unbecoming of a Government servant." 15. In the case of appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion of duty and his behaviour was unbecoming of a Government servant. 16. The question whether `unauthorised absence from duty' amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances. 17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence can not be held to be wilful. 18. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There 8 may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant. 19. In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct. 20. In the present case the Inquiry Officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold the absence is wilful; the disciplinary authority as also the Appellate Authority, failed to appreciate the same and wrongly held the appellant guilty. 21. The question relating to jurisdiction of the Court in judicial review in a Departmental proceeding fell for consideration before this Court in M.B. Bijlani vs. Union of India and others reported in (2006) 5 SCC 88 wherein this Court held: "It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi- criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of 9 probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with." 22. In the present case, the disciplinary authority failed to prove that the absence from duty was wilful, no such finding has been given by the Inquiry Officer or the Appellate Authority. Though the appellant had taken a specific defence that he was prevented from attending duty by Shri P. Venkateswarlu, DCIO, Palanpur who prevented him to sign the attendance register and also brought on record 11 defence exhibits in support of his defence that he was prevented to sign the attendance register, this includes his letter dated 3rd October, 1995 addressed to Shri K.P. Jain, JD, SIB, Ahmedabad, receipts from STD/PCO office of Telephone calls dated 29th September, 1995, etc. but such defence and evidence were ignored and on the basis of irrelevant fact and surmises the Inquiry Officer held the appellant guilty. 23. Mr. P. Venkateswarlu, DCIO, Palanpur, who was the complainant and against whom appellant alleged bias refused to appear before the Inquiry Officer in spite of service of summons. Two other witnesses, Shri Jivrani and Shri L.N. Thakkar made no statement against the appellant, and one of them stated that he had no knowledge about absence of the appellant. Ignoring the aforesaid evidence, on the basis of surmises and conjectures, the Inquiry Officer held the charge proved. 10 24. Though the aforesaid facts noticed by the Appellate Authority but ignoring such facts giving reference of extraneous allegations which were not the part of the charge, dismissed the appeal with following uncalled for observation: "The appellant even avoided the basic training required for the job and asked JAD Ahmedabad to send all the training papers for his training at IB Training School, Shivpuri (Madhya Pradesh) to his residence at Ahmedabad. `An untrained officer is of no worth to the department'." 25. In the result, the appeal is allowed. The impugned orders of dismissal passed by disciplinary authority, affirmed by the Appellate Authority; Central Administrative Tribunal and High Court are set aside. The appellant stands reinstated. Taking into consideration the fact that the Charged Officer has suffered a lot since the proceeding was drawn in 1996 for absence from duty for a certain period, we are not remitting the proceeding to the disciplinary authority for any further action. Further, keeping in view the fact that the appellant has not worked for a long time we direct that the appellant be paid 50% of the back wages but there shall be no order as to costs. .......................................................J. ( G.S. SINGHVI ) .......................................................J. ( SUDHANSU JYOTI MUKHOPADHAYA) NEW DELHI, FEBRUARY 15, 2012.

Election Petition No.1 of 2009, filed by the Respondent herein, Shri Chandra Narayan Tripathi @ Chandu Tripathi, in connection with the said election, under Sections 80, 80A/81 of the Representation of the People Act, 1951, for a declaration that the election of Shri Kapil Muni Karwaria as a Member of Parliament from 51-Phulpur Parliamentary Constituency of District Allahabad be set aside and be declared null and void. =Whether the above-mentioned Pramod Kumar was eligible to subscribe to the nomination paper of the Respondent is a question which can only be decided on evidence. The Election Tribunal, in our view, did not commit any error in dismissing the applications filed by the Appellant herein for rejection of the Election Petition filed by the Respondent herein. In our view, no interference is called for with the order of the Election Tribunal and the Appeal is, therefore, liable to be dismissed. It is for the Election Tribunal to take up the matter and decide the same at an early date. 18. The Appeal is, therefore, dismissed in view of the observations made hereinabove. We, however, make it clear that the views expressed in this judgment are only confined to the disposal of the two objections which have been filed by the

REPORTABL E IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.2122 OF 2012 (Arising out of SLP(C)No.16734 of 2011) KAPIL MUNI KARWARIYA ... APPELLANT Vs. CHANDRA NARAIN TRIPATHI ... RESPONDENT J U D G M E N T ALTAMAS KABIR, J. 1. Leave granted. 2 2. On 2nd March, 2009, a Notification under Section 14 of the Representation of the People Act, 1951, hereinafter referred to as the "1951 Act", was issued by the Election Commission of India to constitute the 15th Lok Sabha by calling upon Parliamentary Constituencies of India to elect Members of the House of the People (Lok Sabha). 3. District Allahabad consists of two Parliamentary Constituencies, namely, 51-Phulpur Parliamentary Constituency and 52-Allahabad Parliamentary Constituency. The District Magistrate, Allahabad, was appointed by the Election Commission of India as the Returning Officer for 51-Phulpur Parliamentary Constituency. The Returning Officer notified the date of filing of nomination papers from 28th March, 2009, to 4th April, 2009, from 11.00 a.m. to 3.00 p.m. Separate dates were given for the other stages of the election. The date of polling was fixed on 16th 3 April, 2009 and the date of counting was fixed on 16th May, 2009, a month later, when the results were to be declared. 4. The Special Leave Petition is directed against the judgment and order dated 5th May, 2011, passed by the Allahabad High Court (Election Tribunal) in Election Petition No.1 of 2009, filed by the Respondent herein, Shri Chandra Narayan Tripathi @ Chandu Tripathi, in connection with the said election, under Sections 80, 80A/81 of the Representation of the People Act, 1951, for a declaration that the election of Shri Kapil Muni Karwaria as a Member of Parliament from 51-Phulpur Parliamentary Constituency of District Allahabad be set aside and be declared null and void. The said prayer was made in the background of the rejection of his nomination paper for election to the said Constituency by the Returning Officer. The said Chandra Narain Tripathi, who is the Respondent 4 herein, filed his nomination paper for election to the said Lok Sabha constituency as a candidate of Krantikari Jai Hind Sena. He challenged the Appellant's election on the ground that the nomination papers which he had filed to contest the election had been wrongly rejected. 5. There is no dispute that the Appellant filed his nomination paper as a candidate of the Bahujan Samaj Party and the Respondent filed his nomination paper for contesting the election to the aforesaid 51-Phulpur Parliamentary Constituency as a candidate of Krantikari Jai Hind Sena, which is an unrecognized political party. Accordingly, under Section 33 of the Representation of the People Act, 1951, his nomination paper was required to be subscribed by ten (10) proposers. His nomination paper was found to be defective, inasmuch as, the name of the second proposer, Pramod Kumar was found to have been deleted from the electoral roll. 5 According to the Appellant herein, Pramod Kumar, who was not a voter from 1st January, 2009, and had been declared "Vilopit", had subscribed to the nomination paper of the Respondent, though he was not a voter from the aforesaid constituency. According to the Appellant, the name of the said proposer No.2 was deleted from the electoral roll and, hence, the Respondent's nomination fell short of the reasonable number of proposers in terms of the first proviso to Section 33 of the 1951 Act. 6. After scrutinizing the nomination papers, the Returning Officer found that the nomination paper filed by the Election Petitioner, the Respondent herein, was invalid and defective and he, accordingly, rejected the said nomination paper. After the votes were counted, on 16th May, 2009, the Returning Officer declared the Appellant elected from the 51-Phulpur Parliamentary Constituency, as having secured the highest number of votes polled 6 for the said Lok Sabha seat. It is the said order of the Returning Officer which was challenged before the Election Tribunal by the Respondent herein by way of an Election Petition, being No.1 of 2009, on the ground that his nomination paper had been improperly rejected. 7. On 5th October, 2009, the Appellant filed an application under Section 86(1) of the 1951 Act, in Election Petition No.1 of 2009, praying for dismissal of the Election Petition on the ground of non-compliance of the provisions of Section 81(1) of the 1951 Act. One of the grounds taken by the Appellant in the application was that the Respondent was not an elector of 51-Phulpur Parliamentary Constituency within the meaning of Section 2(e) of the 1951 Act. It was urged that since the Respondent was not a duly elected candidate and did not also claim to be so, he was 7 not entitled to file the Election Petition under Section 81(1) of the 1951 Act. 8. The Appellant also filed another application under Order VII Rule 11 of the Code of Civil Procedure in the said Election Petition before the Election Tribunal on 5th November, 2009, for dismissal of the Election Petition for non- disclosure of the cause of action. In this application it was categorically indicated that the name of the proposer No.2, Mr. Pramod Kumar, had been struck off from the electoral roll and he was no more an elector from the said place and was not, therefore, entitled to propose the name of the Respondent for election to the 51-Phulpur Parliamentary Constituency. 9. The applications filed by the Appellant, the one under Section 86(1) of the 1951 Act and the other under Order VII Rule 11 of the Code of Civil Procedure, were heard together and were dismissed 8 by the Election Tribunal on 5th May, 2011. The Election Petition was, thereafter, directed to be listed for disposal of the amendment applications moved on behalf of the Appellant and also for settlement of issues. 10. It is the said interim order of the Election Tribunal, based on the two applications filed by the Appellant herein, against which this Special Leave Petition has been filed. 11. Appearing for the Appellant herein, Mr. Ranjit Kumar, learned Senior Advocate, submitted that the Respondent had filed his nomination for contesting the election as an independent candidate. His nomination paper was, however, rejected by the Returning Officer on the ground that the nomination paper had not been subscribed by 10 proposers. The Respondent, thereafter, filed an Election Petition in the Election Tribunal challenging the election 9 of the Appellant herein on the ground that his nomination paper had been wrongly rejected and that he had been prevented from contesting the polls. In the said Election Petition, the Appellant herein filed two separate applications, one for setting aside the order passed by the Returning Officer holding that the Election Petition filed by the Respondent was not maintainable and the other for dismissal of the Election Petition under Order VII Rule 11 of the Code of Civil Procedure since the name of one of the proposers, Pramod Kumar, had been deleted from the voters' list and he was, therefore, not an elector on the date of nomination in the electoral roll relating to 261 Allahabad West Assembly Constituency. Accordingly, since he was not an elector of the said Constituency on the date of filing of the nomination papers, he was not eligible to subscribe the nomination paper of the Election Petitioner. 10 12. Both the objections taken by the Appellant herein were rejected by the Election Tribunal and the Election Petition filed by the Respondent herein, was held to be maintainable. 13. It was further submitted that Pramod Kumar's name having been deleted from the electoral roll, it would be clear from the electoral roll, which had been made an integral part of the Election Petition, that on the date of filing of nomination papers Pramod Kumar could not have been one of the 10 proposers of the Election Petitioner. Mr. Ranjit Kumar submitted that in the absence of the required number of proposers for the nomination paper of the Election Petitioner, as required under Section 33 of the 1951 Act, the Election Petitioner was not a duly nominated candidate and his nomination had been rightly rejected by the Returning Officer. 11 14. In support of his submissions, learned counsel referred to and relied upon the judgment of this Court in Charan Lal Sahu Vs. K.R. Narayanan [(1998) 1 SCC 56] and the decision in the case of Charan Lal Sahu Vs. Giani Zail Singh[(1984) 1 SCC 390] and a couple of other cases which do not say anything different from the other decisions. Mr. Ranjit Kumar urged that since the Election Petitions were original proceedings and not appealable, the Election Tribunal's jurisdiction cannot be confined to the grounds on which the Returning Officer rejected the nomination paper. In fact, it is not precluded from considering any other ground or fresh material having any relevance to the rejection of the Respondent's nomination paper. In this regard, reference was also made to the decision of this Court in J.H. Patel Vs. Subhan Khan [(1996) 5 SCC 312] and in the case of Uttamrao Shivdas Jankar Vs. Ranjitsinh Vijaysinh Mohite 12 Patil [(2009) 13 SCC 131]. Urging that his interlocutory applications had been wrongly rejected, the Appellant prayed for setting aside the order passed by the Election Tribunal and to hold that the Election Petition was not maintainable. 15. The Respondent herein, whose nomination paper had been rejected, appeared and with the permission of the Court, was allowed to advance submissions in support of his case that the applications filed by the Appellant (the returned candidate) had been rightly rejected by the Election Tribunal. The Respondent urged that it has been wrongly held by the Returning Officer that the Respondent's nomination paper was not in order, since the name of Pramod Kumar was very much there in the voters' list, but may have been removed therefrom at a later stage. It was submitted that the said question is yet to be decided by the Election 13 Tribunal in the pending Election Petition and, accordingly, no order is called for in the present Appeal. As far as the decisions cited by Mr. Ranjit Kumar are concerned, it was submitted that the same did not help the Appellant's case, inasmuch as, the same related to the question that as Election Petitions were original proceedings, the Court's jurisdiction to consider the matter could not be confined only to the grounds on which the Returning Officer had rejected the nomination paper. In the said decisions it was also held that the Returning Officer was not precluded from considering any other ground or fresh material having bearing on the question of rejection of the nomination paper. It was further held that it is not only the decision making process but the merit of the decision of the Returning Officer which has to be seen while trying an Election Petition. 14 16. Having carefully considered the submissions made on behalf of the respective parties and having considered the fact that the Election Petition is yet to be disposed of by the Election Tribunal, we are of the view that making any observations in this proceedings would certainly have an effect on the pending proceedings before the Election Tribunal. We are, however, inclined to agree with the view taken by the Election Tribunal that the Election Petition filed by the Respondent herein was required to be considered on evidence on account of the allegations made therein. 17. The question regarding the right of Pramod Kumar to be a subscriber to the nomination paper filed by the Respondent herein is the fundamental question which is required to be considered in this case. Being the central question involved in the pending Election Petition, in our view, the allegations contained therein have to be decided 15 before a decision can be rendered regarding the validity of the Respondent's Election Petition. Whether the above-mentioned Pramod Kumar was eligible to subscribe to the nomination paper of the Respondent is a question which can only be decided on evidence. The Election Tribunal, in our view, did not commit any error in dismissing the applications filed by the Appellant herein for rejection of the Election Petition filed by the Respondent herein. In our view, no interference is called for with the order of the Election Tribunal and the Appeal is, therefore, liable to be dismissed. It is for the Election Tribunal to take up the matter and decide the same at an early date. 18. The Appeal is, therefore, dismissed in view of the observations made hereinabove. We, however, make it clear that the views expressed in this judgment are only confined to the disposal of the two objections which have been filed by the 16 Appellant herein before the Election Tribunal and the same should not influence the outcome of the pending Election Petition filed by the Respondent herein. 19. There shall, however, be no order as to costs. ..................................................................J. (ALTAMAS KABIR) New Delhi ..................................................................J. Dated:15.02.2012 (SURINDER SINGH NIJJAR)