whether the transfer of land from a member of Scheduled Caste to a juristic person, other than Scheduled Caste, is void, in view of the provisions of Section 42(b) of the Rajasthan Tenancy Act, 1955 (for short ‘the Act’). 3. The High Court of Rajasthan has answered the above question in several cases holding that such a transfer would not be hit by the above mentioned provision, since the expression ‘person’ would not take in a ‘juristic person’ and that juristic person does not have a caste and, therefore, any transfer made by a Scheduled Caste person would not be hit by Section 42(b) of the Act. “7(2). If the khatedar of Scheduled Caste / Scheduled Tribe executes sale to such a person of Scheduled Caste / Scheduled Tribe who is office-bearer of any firm/society/company/legal institution, then the mutation on the basis of registration shall be made only in the name of that particular person/vendee who is a member of Scheduled Caste/Scheduled Tribe and not in the name of that firm/society/company/legal institution wherein he is office-bearer or member.” 17. The above mentioned condition makes it amply clear that the mutation on the basis of registration shall be made only in the name of that particular person/vendee who is a member of Scheduled Caste/Scheduled Tribe and not in the name of any firm/society/company/legal institution wherein a person is office-bearer or member. When we apply the above principles to the transfer of land in question, we have no hesitation to hold that the sale deed effected on 26.9.2005 was void and therefore rightly denied mutation in Revenue records. Property, therefore purchased by the respondent from the members of Scheduled Caste vide sale deed dated 26.9.2005 and other sale deeds, therefore are void since hit by Section 42(b) of the Act and it is so declared. The State can, therefore, re- possess the lands and return the lands to the original owners who are members of Scheduled Caste. Section 42(b) may go against the interest of the members of Scheduled Caste / Scheduled Tribe as well. There may be several situations where they intend to sell the property for purposes like marriage of son/daughter or to purchase a better property and so on, but in that event sometimes they may not get a better competitive price, if the sale is made only among the members of Scheduled Caste / Scheduled Tribe. We have come across legislations where provisions are made enabling them to sell their lands to the members of non-Scheduled Caste / Scheduled Tribe, on getting permission from the prescribed authority. Such a provision may be sometimes helpful to the members of Scheduled Caste / Scheduled Tribe to get a better price for their land but it is for the legislature to incorporate appropriate provision in the Rajasthan Act. 19. Consequently, the appeals are allowed and the judgments of the learned single Judge and the Division Bench of the High Court are set aside. However, there will be no order as to costs.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                     CIVIL APPEAL NOS. 6741-6742 OF 2012
            [Arising out of SLP (Civil) Nos. 33006-33007 of 2010]
State of Rajasthan & Others                        .. Appellants
                                   Versus
Aanjaney Organic Herbal Pvt. Ltd.                  .. Respondents
                                    WITH
                        CIVIL APPEAL NO. 6743 OF 2012
               [Arising out of SLP (Civil) No. 14771 of 2011]


                               J U D G M E N T

K. S. RADHAKRISHNAN, J.

   1. Leave granted.


2.    We are, in this case,  called  upon  to  decide  the  question  as  to
whether the transfer of land from a member of Scheduled Caste to a  juristic
person, other than Scheduled Caste, is void, in view of  the  provisions  of
Section 42(b) of the Rajasthan Tenancy Act, 1955 (for short ‘the Act’).

3.    The High Court  of  Rajasthan  has  answered  the  above  question  in
several cases holding that such a transfer would not be  hit  by  the  above
mentioned provision, since the expression  ‘person’  would  not  take  in  a
‘juristic person’ and that juristic  person  does  not  have  a  caste  and,
therefore, any transfer made by a Scheduled Caste person would  not  be  hit
by Section 42(b) of the Act.

4.    In the impugned judgment, reliance  has  been  placed  on  an  earlier
judgment of the High Court of Rajasthan in State of Rajasthan v. Indian  Oil
Corporation 2004 (5) WLC (Raj.) 703, which held as follows:
            “6.    It  goes  without  saying  that  though  the  Indian  Oil
      Corporation is a juristic person but it does not have a  caste.   Thus
      the sale in favour of Indian Oil Corporation by a member of  Scheduled
      Caste is not covered by the provisions of section 42 of the  Rajasthan
      Tenancy  Act.   Thus  taking  into   totality   of   the   facts   and
      circumstances, we feel that it is not a fit case where  the  delay  of
      480 days should be condoned.  The special leave is rejected.”


5.    The judgment in IOC (supra) was challenged before this  Court  by  the
State of Rajasthan in C.C.  No.  19386  of  2010  with  an  application  for
condonation of delay of 2798 days.  This Court dismissed the  petition  with
costs  vide  order  dated  4.1.2011,  since  the  delay  was  not   properly
explained.

6.    We are informed that since the special leave petition, arising out  of
CC No. 19386 of 2010, was dismissed, the judgment in IOC (supra) is  treated
as law so far as the State of Rajasthan is concerned and being  followed  in
various other similar cases. It is,  therefore,  necessary  to  examine  the
various legal issues raised before us  so  as  to  render  an  authoritative
pronouncement on the question posed before us.

7.    The respondent is a  private  limited  company  registered  under  the
Indian Companies Act vide Registration Certificate  of  Incorporation  dated
17.8.2005.  The Company purchased 25 bighas of land in  Khasra  No.  840/651
situated in Village Jetasan Patwar area Jetasan Tehsil,  Rajasthan,  out  of
which 9.73  bighas  belonged  to  the  members  of  Scheduled  Caste.   That
property was purchased  on  26.9.2005  by  a  registered  sale  deed  for  a
consideration  of  Rs.60,000/-.    An  application  was  preferred  by   the
respondent before the Revenue Authorities  for  mutation  of  the  property.
The same was refused placing reliance on a circular dated 19.11.2005,  which
stated that mutation could be effected only if the transfer was between  the
members of Scheduled Caste/ Scheduled Tribe, as the  case  may  be.    Since
the application for mutation was refused, the respondent herein  filed  S.B.
Civil Writ Petition No. 169/2006, which was  allowed  by  a  learned  single
Judge.  Aggrieved by the same, the State  preferred  an  appeal  before  the
Division Bench, being D.B. Civil Writ  Special  Appeal  (Writ)  No.  DR  (J)
1177/2008, which was also dismissed following the judgment in IOC (supra).

8.    Heard learned counsel  on  either  side.   The  Act  is  a  beneficial
legislation which takes special care to protect the interest of the  members
of Schedule Caste and Schedule Tribe.   Section  42  provides  some  general
restrictions on sale, gift and bequest of the interest  of  Scheduled  Caste
and Scheduled Tribe, in the whole or part of their holding.  The reason  for
such general restrictions is not only  to  safeguard  the  interest  of  the
members of Scheduled Caste and Scheduled Tribe, but also to  see  that  they
are not being exploited by the members of non-Scheduled Caste and  Scheduled
Tribe.  The relevant provisions of Section 42(b)  are  extracted  below  for
easy reference:
           “42.  General restrictions on sale, gift & bequest  –  The  sale,
           gift or bequest by a Khatedar tenant of his interest in the whole
           or part of his holding shall be void if
             a) xxxxxxx deleted
             b) Such sale, gift or bequest is by a member  of  a  Scheduled
                Caste in favour of a person who is  not  a  member  of  the
                Scheduled Caste, or by a member of  a  Scheduled  Tribe  in
                favour of a person who is not a  member  of  the  Scheduled
                Tribe.”


9.     Shri  P.P.  Choudhary,  learned  senior  counsel  appearing  for  the
respondent, submitted that the expression ‘person’, as such, is not  defined
in the Act and, therefore, we have to  go  by  the  definition  of  ‘person’
under the General Clauses Act, 1987.  The General Clauses  Act  defines  the
expression ‘person’ as follows:
           “3(42).     ‘Person’ shall include any company or association  of
           body or individuals, whether incorporated or not.”


10.   Learned senior counsel, therefore, submitted that, if it  is  so  read
along with  Section  3(42)  of  the  General  Clauses  Act,  the  expression
‘person’ used in clause (b) of Section 42 of the Act  takes  in  a  juristic
person as well and, therefore, if a member  of  Scheduled  Caste  sells  his
property to a juristic person, the sale cannot be declared as void, since  a
juristic person has no caste.

11.   Dr. Manish Singhvi, learned Additional Advocate General appearing  for
the State of Rajasthan, on the other hand, contended  that  we  cannot  read
Section 3(42) of the General Clauses Act into Section 42(b) of the Act,  out
of context.  Learned counsel submitted that the expression ‘person’ used  in
Section 42(b) of the Act is a natural person and not a juristic  person  and
if the transfer is by a member of Scheduled Caste or Scheduled  Tribe  to  a
person who is not a member of Scheduled Caste or Scheduled Tribe, then  such
a transfer is void under Section 42 of the Act.

12.   Article 341 of the  Constitution  empowers  the  President  by  public
notification to specify the castes, races or tribes  which  shall,  for  the
purpose of the Constitution, be deemed to be Scheduled  Castes  in  relation
to that State or Union Territory  etc.   Article  341  of  the  Constitution
reads as follows:
           “341.        Scheduled  Castes.-  (1)  The  President  may  with
           respect to any State or Union Territory, and where it is a State
           after  consultation  with  the  Governor  thereof,   by   public
           notification, specify the castes, races or tribes or parts of or
           groups within castes,  races  or  tribes  which  shall  for  the
           purposes of this Constitution be deemed to be  Scheduled  Castes
           in relation to that State or Union Territory, as  the  case  may
           be.
           (2) Parliament may by law include in or exclude from the list of
           Scheduled Castes specified in a notification issued under clause
           (1) any caste, race or tribe or part  of  or  group  within  any
           caste, race or tribe,  but  save  as  aforesaid  a  notification
           issued under  the  said  clause  shall  not  be  varied  by  any
           subsequent notification.”



13.   Article 342 of the Constitution  deals  with  ‘Scheduled  Tribes’  and
reads as follows:
           “342.  Scheduled Tribes. – (1) The President may with respect to
           any State or Union territory, and where it  is  a  State,  after
           consultation with the Governor thereof, by public  notification,
           specify the tribes or tribal communities or parts of  or  groups
           within tribes or tribal communities which shall for the purposes
           of this  Constitution  be  deemed  to  be  Scheduled  Tribes  in
           relation to that State or Union Territory, as the case may be.
           (2) Parliament may by law include in or exclude from the list of
           Scheduled Tribes specified in a notification issued under clause
           (1) any tribe or tribal community or part of or group within any
           tribe or tribal community, but save as aforesaid a  notification
           issued under  the  said  clause  shall  not  be  varied  by  any
           subsequent notification.”


14.   The expressions ‘Scheduled Castes’ and “Scheduled Tribes’, we find  in
Section 42(b) of the Act have to  be  read  along  with  the  constitutional
provisions and, if so read, the expression ‘who  is  not  a  member  of  the
Scheduled Caste or Scheduled Tribe’ would mean a  person  other  than  those
who has been included in the public notification as  per  Articles  341  and
342 of the Constitution.  The expression ‘person’ used in Section  42(b)  of
the Act therefore can only be a natural person and not  a  juristic  person,
otherwise, the entire purpose of that section  will  be  defeated.   If  the
contention of the company is accepted, it can purchase land  from  Scheduled
Caste / Scheduled Tribe and then  sell  it  to  a  non-Scheduled  Caste  and
Schedule Tribe, a situation the legislature wanted to avoid.  A thing  which
cannot be done  directly  can  be  not  done  indirectly  over-reaching  the
statutory restriction.

15.   We are, therefore, of the view that the reasoning of  the  High  Court
that the respondent being a juristic person, the sale effected by  a  member
of Scheduled Caste to a juristic person, which does not  have  a  caste,  is
not hit  by  Section  42  of  the  Act,  is  untenable  and  gives  a  wrong
interpretation to the above mentioned provision.

16.   We are also of the view that the Revenue Authorities  rightly  refused
the mutation as per circular dated 9.11.2005.  Condition  No.  7(2)  of  the
circular  was  rightly  invoked  by  the  Revenue  Authorities  in   denying
mutation, which condition is extracted below for easy reference:
           “7(2).      If the khatedar of Scheduled Caste / Scheduled Tribe
           executes sale to such a person of Scheduled  Caste  /  Scheduled
           Tribe who is  office-bearer  of  any  firm/society/company/legal
           institution, then the mutation  on  the  basis  of  registration
           shall be made only in the name of that particular  person/vendee
           who is a member of Scheduled Caste/Scheduled Tribe  and  not  in
           the name of that firm/society/company/legal institution  wherein
           he is office-bearer or member.”


17.   The above mentioned condition makes it amply clear that  the  mutation
on the basis of registration  shall  be  made  only  in  the  name  of  that
particular person/vendee who is a member of Scheduled Caste/Scheduled  Tribe
and not in the name of any firm/society/company/legal institution wherein  a
person is office-bearer or member.  When we apply the  above  principles  to
the transfer of land in question, we have no hesitation  to  hold  that  the
sale deed effected on  26.9.2005  was  void  and  therefore  rightly  denied
mutation  in  Revenue  records.   Property,  therefore  purchased   by   the
respondent from  the  members  of  Scheduled  Caste  vide  sale  deed  dated
26.9.2005 and other sale deeds, therefore are  void  since  hit  by  Section
42(b) of the Act and it is so  declared.   The  State  can,  therefore,  re-
possess the lands and return the  lands  to  the  original  owners  who  are
members of Scheduled Caste.

18.   We may hasten to add, at times,  Section  42(b)  may  go  against  the
interest of the members of  Scheduled  Caste  /  Scheduled  Tribe  as  well.
There may be several situations where they intend to sell the  property  for
purposes like marriage of son/daughter or to purchase a better property  and
so on, but in that event sometimes they may not  get  a  better  competitive
price, if the sale is made only among  the  members  of  Scheduled  Caste  /
Scheduled Tribe.   We have come across  legislations  where  provisions  are
made enabling them to sell their  lands  to  the  members  of  non-Scheduled
Caste  /  Scheduled  Tribe,  on  getting  permission  from  the   prescribed
authority.  Such a provision may be sometimes  helpful  to  the  members  of
Scheduled Caste / Scheduled Tribe to get a better price for their  land  but
it is for the  legislature  to  incorporate  appropriate  provision  in  the
Rajasthan Act.

19.   Consequently, the appeals are allowed and the judgments of the
 learned single Judge and the Division Bench of the High Court are set
aside.  However, there will be no order as to costs.


                                                             ……………………………….J.
                                                   (K.S. Radhakrishnan)



                                                            ..………………………………J.
                                                   (Dipak Misra)
New Delhi,
September 20, 2012

In a suit for possession and recovery of mesne profit filed by the plaintiff- appellant before the trial Court of Additional District Judge, Delhi, the plaintiff prayed for a decree for possession in its favour on admissions, invoking the Court’s powers under Order XII Rule 6 of the Code of Civil Procedure, 1908. The trial Court examined the prayer and held that the jural relationship of landlord and tenant was admitted between the parties and so was the rate of rent as settled by them. Service of a notice terminating the tenancy of the defendant-respondent also being admitted, the trial Court saw no impediment in decreeing the suit for possession of the suit property. The application filed by the plaintiff- appellant under Order XII Rule 6 of the CPC was accordingly allowed and the suit filed by the plaintiff to the extent it prayed for possession of the suit property decreed in its favour.Section 116 of the Evidence Act applies and estops even a person already in possession as tenant under one landlord from denying the title of his subsequent landlord when once he acknowledges him as his landlord by attornment or conduct. Therefore, a tenant of immovable property under landlord who becomes a tenant under another landlord by accepting him to be the owner who had derived title from the former landlord, cannot be permitted to deny the latter’s title, even when he is sought to be evicted by the latter on a permitted ground.The section postulates that there is a tenancy still continuing, it had its beginning at a given date from a given landlord. It provides that neither a tenant nor any one claiming through a tenant shall be heard to deny that that particular landlord had at that date a title to the property. In the ordinary case of a lease intended as a present demise (which is the case before the Board, on this appeal) the section applies against the lessee, any assignee of the terms and any sub-lessee or licensee. What all such persons are precluded from denying is that the lessor had a title at the date of the lease and there is no exception even for the case where the lease itself discloses the defect of title. The principle does not apply to disentitle a tenant from disputing the derivative title of any who claims to have since become disentitled to the reversion……” (emphasis supplied) 17. In the light of the above, the trial Court was, in our view, perfectly justified in decreeing the suit for possession filed by the appellant by invoking its powers under Order XII Rule 6 of the Code of Civil Procedure. Inasmuch as the High Court took a different view ignoring the pleadings and the effect thereof, it committed a mistake. 18. We accordingly allow this appeal, set aside the impugned judgement and order of the High Court and affirm the judgment and decree passed by the trial Court. The Parties are directed to bear their own costs. 19. Keeping in view the fact that the premises in question is being used by the tenant for commercial purposes, we grant to the defendant time till 31st December, 2012 to vacate the same on furnishing an undertaking in usual terms before this Court within four weeks from today. Needless to say that the defendant shall be liable to pay the mesne profit for the period hereby granted at the rate determined by the trial Court. 20. The appeal is allowed accordingly.

                                                 REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                      CIVIL APPEAL NO.   6734  OF 2012
                (Arising out of S.L.P. (C) No.10576 of 2011)


M/s Payal Vision  Ltd.                       …Appellant

      Versus

Radhika Choudhary                                  …Respondent



                               J U D G M E N T

T.S. THAKUR, J.

1.    Leave granted.

2.    In a suit for possession and recovery of mesne  profit  filed  by  the
plaintiff- appellant before the trial Court of  Additional  District  Judge,
Delhi, the plaintiff prayed for a decree for possession  in  its  favour  on
admissions, invoking the Court’s powers under Order XII Rule 6 of  the  Code
of Civil Procedure, 1908.  The trial Court  examined  the  prayer  and  held
that the jural relationship of landlord and tenant was admitted between  the
parties and so was the rate of rent  as  settled  by  them.   Service  of  a
notice terminating  the  tenancy  of  the  defendant-respondent  also  being
admitted, the trial Court saw  no  impediment  in  decreeing  the  suit  for
possession of the suit property.  The application filed  by  the  plaintiff-
appellant under Order XII Rule 6 of the CPC was accordingly allowed and  the
suit filed by the plaintiff to the extent it prayed for  possession  of  the
suit property decreed in its favour.

3.    Aggrieved by the decree passed against the respondent, the  respondent
filed Regular First Appeal No. 81 of 2009 before the  High  Court  of  Delhi
which was allowed by the High Court in terms of its order dated 14th  March,
2011 reversing the judgment  and  decree  passed  by  the  trial  Court  and
remanding the matter back to the said Court for disposal in accordance  with
law.  The present appeal by special leave assails  the  correctness  of  the
said judgment.

4.     Mr.  Nagendra  Rai,  learned  counsel  appearing  on  behalf  of  the
appellant, strenuously argued that the High Court had  fallen  in  error  in
holding that there was no clear admission by the defendant either  regarding
the existence of a relationship of landlord and tenant between  the  parties
or the service of notice of termination of tenancy upon  the  defendant.  He
referred to the averments made in the plaint and the  written  statement  to
buttress his submission that the existence of the tenancy was  unequivocally
admitted, no matter the defendant-tenant had questioned the validity of  the
lease deed in her  favour  for  want  of  stamp  duty  and  registration  as
required under law.  The fact that the lease deed  was  not  registered  did
not, contended Mr. Rai, make  any  material  difference  so  long  that  the
defendant had been put in possession of the  demised  property  pursuant  to
the said document and so long as she held the same as a  tenant.   The  rate
of rent was also not disputed by  the  defendant  nor  was  the  service  of
notice of termination, which aspects alone were relevant and if admitted  or
proved, sufficient for the Court to  decree  the  suit  for  the  relief  of
possession.  Mr. Rai submitted that the defendant had no doubt disputed  the
title of plaintiff-appellant and alleged that the land underlying the  super
structure had vested in the Gram Sabha  but  any  such  contention  was  not
available to her in view of Section 116 of the  Indian  Evidence  Act,  1872
that estopped a tenant from denying the  title  of  the  landlord.   Relying
upon the decisions of this  Court  in  Karam  Kapahi  v.  Lal  Chand  Public
Charitable Trust (2010) 4 SCC 753 and Charanjit Lal  Mehra  v.  Kamal  Saroj
Mahajan (2005) 11 SCC 279, Mr. Rai argued that the High Court ought to  have
refused  any  interference  with  the  decree  passed  by  the  Court  below
especially when no triable  issue  arose  for  determination  by  the  trial
Court.

5.    On behalf of the respondent, it was argued that  the  High  Court  was
justified in holding that the written statement did not contain a clear  and
unequivocal   admission of the relevant aspects,  namely  the  existence  of
the jural relationship of landlord and tenant between the  parties  and  the
termination of the tenancy by service of a notice under Section 106  of  the
Transfer of Property Act, 1882.  According to him, the High Court  was  also
justified in relying upon the decision of this Court  in  Jeevan  Diesels  &
Electricals Ltd. v. Jasbir Singh Chadha (2010) 6  SCC  601  while  reversing
the judgment and decree passed by the Court below.

6.    In a suit for recovery of possession from a tenant  whose  tenancy  is
not protected under the provisions of the Rent  Control  Act,  all  that  is
required to be established by the plaintiff-landlord  is  the  existence  of
the jural relationship of landlord and tenant between the  parties  and  the
termination of the tenancy either by lapse of time or by  notice  served  by
the landlord under Section 106 of the Transfer of Property Act.  So long  as
these two aspects are not in dispute the Court can pass a  decree  in  terms
of Order XII Rule 6 of the CPC, which reads as under:

         “Judgment on admissions-(1) Where admissions of fact have been made
         either in the pleading or otherwise, whether orally or in  writing,
         the Court may at any stage of the suit, either on  the  application
         of any party or of its own  motion  and  without  waiting  for  the
         determination of any other question between the parties, make  such
         order or give such judgment as it may think fit, having  regard  to
         such admissions.
         
         (2) Whenever a judgment is pronounced under sub-rule (1)  a  decree
         shall be drawn upon in accordance with the judgment and the  decree
         shall bear the date on which the judgment was pronounced.”



7.    The above sufficiently empowers the Court trying the suit  to  deliver
judgment based on admissions whenever such  admissions  are  sufficient  for
the  grant  of  the  relief  prayed  for.   Whether  or  not  there  was  an
unequivocal and clear admission on either of the two  aspects  to  which  we
have referred above and which are relevant to a suit for possession  against
a tenant is, therefore, the only question that falls  for  determination  in
this case and in every other case where the plaintiff seeks  to  invoke  the
powers of the Court under Order XII Rule 6 of the CPC and prays for  passing
of the decree on the basis of admission.   Having  said  that  we  must  add
that whether or not there is a clear admission upon the  two  aspects  noted
above is a matter to be seen in the fact situation prevailing in each  case.
  Admission made on the basis of pleadings in a given case cannot  obviously
be taken as an admission in a different fact situation.  That  precisely  is
the view taken by this Court in Jeevan Diesels &  Electricals  Ltd.  (supra)
relied upon by the High Court where this Court has observed:

       “Whether or not there is a clear, unambiguous admission by one  party
       of the case of the other party is essentially a question of fact  and
       the decision of this question depends on the facts of the case.   The
       question, namely, whether there is a clear admission or not cannot be
       decided on the basis of a judicial precedent.  Therefore, even though
       the principles in Karam Kapahi (supra) may  be  unexceptionable  they
       cannot be applied in the instant case in view  of  totally  different
       fact situation.”




8.    Coming then to the question whether there  is  any  admission  by  the
tenant-respondent regarding the  existence  of  the  jural  relationship  of
landlord and tenant between the parties, it  would be  profitable  to  refer
to the averments made by the plaintiff-appellant in para  2  of  the  plaint
which is to the following effect:

         “That the plaintiff had agreed to let out the  entire  property  at
         Khasra No. 857 min. (1-03) Village Tehsil Mehrauli in  the  NCT  of
         Delhi Gitorani alongwith superstructure including  servant  quarter
         and garage of  the  defendant  to  the  defendant  for  residential
         requirement at a monthly rent of Rs.50,000/- (Rupees fifty thousand
         only) towards the  rent  for  the  demised  premises  exclusive  of
         charges for the electricity appliances, fixtures and fittings for a
         period of three years commencing on 10th day of October  2001  vide
         lease agreement dated 10.10.2001.”




9.    In the written  statement  filed  by  her,  the  defendant  has  while
asserting that the averments made in para  2  above  are  vague,  false  and
wrong  asserted  that  the  property  in  question  was  not  let  out   for
residential purposes as alleged  by  the  tenant  but  was  constructed  for
commercial use and let out for that purpose  only.   The  execution  of  the
lease deed dated 10th October, 2001 to which the plaintiff made a  reference
in para 2 of the plaint is also not denied. Although the  defendant  appears
to be suggesting some collateral agreement also to have been orally  entered
into by the parties, the relevant portion of the written  statement  dealing
with these aspects may at this stage be extracted:

         “…………….  It is  further  denied  that  property  was  let  out  for
         residential purposes.  As submitted in  preceding  paras  the  said
         property was constructed for use of commercial purposes and was let
         out for commercial purposes at commercial rent.  Execution of Lease
         Deed is though not denied but is vehemently submitted that the said
         document was entered upon on the asking of  the  plaintiff  whereas
         the terms were different  than  those  incorporated  in  the  lease
         deed.”




10.   When placed in juxtaposition the averments made in the plaint and  the
written statement clearly spell out  an  admission  by  the  defendant  that
lease agreement dated 10th October 2001  was  indeed  executed  between  the
parties.   It  is  also  evident  that  the  monthly  rent  was  settled  at
Rs.50,000/- which fact too is clearly admitted  by  the  defendant  although
according to the defendant, the said amount represented rent for  commercial
use of  the  premises  and  not  residential  purposes  as  alleged  by  the
plaintiff.   Suffice it to say  that  the  averments  made  in  the  written
statement  clearly  accept  the  existence  of  the  jural  relationship  of
landlord and tenant between the parties no matter the  lease  agreement  was
not duly registered.  Whether the tenancy was for residential or  commercial
use of the property is wholly immaterial for  the  grant  of  a  decree  for
possession.  Even if the premises  were  let  out  for  commercial  and  not
residential use, the fact remained  that  the  defendant-respondent  entered
upon and is occupying the property as a  tenant  under  the  plaintiff.  The
nature of this use may be relevant for determination of  mesne  profits  but
not for passing of a decree for possession against the defendant.

11.   Incidentally, the defendant appears to  have  raised  in  the  written
statement a plea regarding the nature and  extent  of  the  super  structure
also.  While the plaintiff’s case is that the super structure as it  existed
on the date of the lease deed had been let out  to  the  defendant  and  the
defendant  had  made  structural  changes  without  any  authorisation,  the
defendant’s case is that the super structure was    constructed  by  her  at
her own cost pursuant to some oral agreement  between  the  parties.  It  is
unnecessary for us to delve deep into that aspect of the  dispute,  for  the
nature  and  extent  of  superstructure  or  the  legality  of  the  changes
allegedly made by the defendant is not relevant to the determination of  the
question whether the existence of tenancy is admitted by the defendant.   At
any rate, nature and extent  of  structure  whether  modified  or  even  re-
constructed by the defendant is a matter that can not alter  the  nature  of
the possession which the defendant holds in terms of the agreement  executed
by her. The relationship of the landlord and the tenant  remains  unaffected
even if the tenant has with or without the  consent  of  the  landlord  made
structural changes in the property.  Indeed if the tenancy was protected  by
the rent law and making of structural changes  was  a  ground  for  eviction
recognised by such law, it may have been necessary to  examine  whether  the
structure was altered and if so with or without the consent of the  parties.
 That is not the position in the present case.  The tenancy in  question  is
not protected under the Rent Control Act having regard to the fact that  the
rate of rent is more than Rs. 3500/- per month. It is, therefore, of  little
significance whether any structural change was made by the defendant and  if
so whether the same was authorised or otherwise.  The essence of the  matter
is that  the  relationship  of  the  landlord  and  the  tenant  is  clearly
admitted.  That is the most significant aspect to be examined by  the  Court
in a suit for possession especially when the plaintiff  seeks  a  decree  on
the basis of admissions.

12.   That brings us to the second question,  namely,  whether  the  tenancy
stands terminated either by lapse of time or by a  notice  served  upon  the
defendant.  The defendant-tenant did not have the benefit of a  secure  term
under a registered lease deed.  The result was that the tenancy was  only  a
month to month tenancy that could be terminated upon service of a notice  in
terms of Section 106 of the Transfer of Property Act.  The plaintiff’s  case
in para 6 of the plaint was that a notice was served upon the  tenant  under
Section 106 of the Transfer of Property Act pointing out that the defendant-
tenant had made substantial structural changes in the premises and  had  not
complied with the terms of the lease agreement.  The notice was duly  served
upon the tenant to which the tenant  has  not  replied.   Para  6  reads  as
under:

             “That  since  the  defendant  had  carried   out   substantial
         structural changes and further did not comply with the covenants of
         the lease agreement the plaintiff was compelled to serve  a  notice
         under Section 106 of the Transfer of Property Act.  The said notice
         was duly served upon the defendant and no reply to the said  notice
         has been received by the plaintiff or its counsel.”




13.   In reply, the defendant has not denied the service of  a  notice  upon
the defendant. Instead para 6  is  entirely  dedicated  to  the  defendant’s
claim that  the  whole  structure  standing  on  the  site  today  has  been
constructed by her out of her own money.  The defendant has  not  chosen  to
deny even impliedly leave alone specifically that notice  dated  17th  March
2003 was not served upon her.  In  para  6  of  the  preliminary  objections
raised in the written statement she has simply disputed the validity of  the
notice on the ground that that the same is not in  accordance  with  Section
106 of the Transfer of Property Act.  Para 6, reads as under:

         “That the alleged notice dated 17th March, 2003 is not as  per  the
         provisions of Section 106 of  Transfer  of  Property  Act.   It  is
         settled law that notice for termination  of  lease  has  to  be  in
         mandatory terms so specified in Section 106 of Transfer of Property
         Act.”




14.   Far from constituting a denial of the receipt of the notice the  above
is an admission of the fact that the notice was  received  by  her  but  the
same was not in accordance with Section 106  of  the  Transfer  of  Property
Act.  In fairness to counsel for the tenant-respondent in  this  appeal,  we
must record that the order passed by the High Court  was  not  supported  on
the plea of the notice being illegal for any reason.  A copy of  the  notice
in question is on the record and the same does not, in our  opinion,  suffer
from any illegality so as to make it non-est in the eye of law.

15.   We may, before parting, refer  to  yet  another  contention  that  was
raised by the defendant-respondent in her defence before the  courts  below.
In para 1 of the written statement filed by her it was  contended  that  the
property in question had vested in the Gram Sabha and  that  the  plaintiff,
therefore, could not seek her eviction from the same.  The  contention  was,
it appears, based on an order  dated  17th  February,  1999  passed  by  the
Revenue Authority under the Delhi Land Reforms Act whereby it  was  directed
that the property would stand vested in the Gram Sabha if the plaintiff  did
not re-convert the land in question for agricultural purposes  within  three
months. What is important is that the  tenancy  under  the  lease  agreement
dated 10th October, 2001 started subsequent  to  the  passing  of  the  said
order of the Revenue Authority.  In other words, the challenge to the  title
of the plaintiff qua the suit property was based on a document  anterior  to
the commencement of  the  tenancy  in  question.  It  also  meant  that  the
challenge was in substance a challenge to the landlord’s title on  the  date
of the commencement of the tenancy. Section 116 of the Evidence  Act,  1872,
however, estoppes the tenant from doing  so.  The  legal  position  in  this
regard is settled by several decisions of this Court and the Privy  Council.
Reference may in this regard be made to Mangat Ram v. Sardar Mehartan  Singh
(1987) 4 SCC 319 and Anar Devi (Smt.) v. Nathu Ram (1994) 4 SSC 251. In  the
later case this Court observed:


             “13. This Court in Sri Ram Pasricha  v.  Jagannath,  has  also
         ruled that in a suit  for  eviction  by  landlord,  the  tenant  is
         estopped from questioning the title  of  the  landlord  because  of
         Section 116 of the Act. The Judicial  Committee  in  Kumar  Krishna
         Prasad Lal Singha Deo v.  Baraboni  Coal  Concern  Ltd.,  when  had
         occasion to examine the contention  based  on  the  words  ‘at  the
         beginning of the tenancy’ in  Section  116  of  the  Evidence  Act,
         pronounced that they do not give a ground for a person  already  in
         possession of land becoming tenant  of  another,  to  contend  that
         there is no estoppel against his denying  his  subsequent  lessor's
         title. Ever since, the accepted position is that Section 116 of the
         Evidence Act applies and estops even a person already in possession
         as tenant  under  one  landlord  from  denying  the  title  of  his
         subsequent landlord when once he acknowledges him as  his  landlord
         by attornment or conduct. Therefore, a tenant of immovable property
         under landlord who becomes  a  tenant  under  another  landlord  by
         accepting him to be the owner who had derived title from the former
         landlord, cannot be permitted to deny the latter's title, even when
         he is sought to be evicted by the latter on a permitted ground.”



16.   To the same effect is the decision of Privy Council in Krishna  Prasad
v. Baraboni  Coal  Concern  Ltd.  AIR  1937  PC  251,  where  Privy  Council
observed:

           “The  section  postulates  that  there  is   a   tenancy   still
         continuing, it had its beginning at  a  given  date  from  a  given
         landlord.  It provides that neither a tenant nor any  one  claiming
         through a tenant shall  be  heard  to  deny  that  that  particular
         landlord had at that date a title to the property. In the  ordinary
         case of a lease intended as a present demise  (which  is  the  case
         before the Board, on this appeal) the section applies  against  the
         lessee, any assignee of the terms and any sub-lessee  or  licensee.
         What all such persons are precluded from denying is that the lessor
         had a title at the date of the lease and there is no exception even
         for the case where the lease itself discloses the defect of  title.
         The principle does not apply to disentitle a tenant from  disputing
         the derivative title  of  any  who  claims  to  have  since  become
         disentitled to the reversion……”




                                          (emphasis supplied)




17.   In the light  of  the  above,  the  trial  Court  was,  in  our  view,
perfectly justified in decreeing  the  suit  for  possession  filed  by  the
appellant by invoking its powers under Order XII  Rule  6  of  the  Code  of
Civil Procedure. Inasmuch as the High Court took a different  view  ignoring
the pleadings and the effect thereof, it committed a mistake.

18.    We accordingly allow this appeal, set aside  the  impugned  judgement
and order of the High Court and affirm the judgment  and  decree  passed  by
the trial Court.  The Parties are directed to bear their own costs.

19.   Keeping in view the fact that the premises in question is  being  used
by the tenant for commercial purposes, we grant to the defendant  time  till
31st December, 2012 to vacate the  same  on  furnishing  an  undertaking  in
usual terms before this Court within four weeks  from  today.   Needless  to
say that the defendant shall be liable to  pay  the  mesne  profit  for  the
period hereby granted at the rate determined by the trial Court.

20.   The appeal is allowed accordingly.




                                                  ……………………………………….……….…..…J.
                                                               (T.S. Thakur)









                                                 …………………………..…………………..…..…J.
                                                          (Gyan Sudha Misra)
New Delhi
September 20, 2012

it is not an appeal for cancellation of bail as cancellation is not sought because of supervening circumstances. The present one is basically an appeal challenging grant of bail where the High Court has failed to take into consideration the relevant material factors which make the order perverse. 35. Consequently, the order passed by the High Court is set aside and the bail bonds of the accused are cancelled. The accused is directed to surrender to custody forthwith failing which it shall be the duty of the investigating agency to take him to custody immediately. We may hasten to clarify that anything that has been stated here are only to be read and understood for the purpose of annulment of the order of grant of bail and they would have no bearing whatsoever on trial. 36. The appeal is, accordingly, allowed.

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                     CRIMINAL APPEAL NO.  1456  OF 2012
             (Arising out of S.L.P. (Criminal) No. 4083 of 2012)


Ash Mohammad                                 ... Appellants
                                   Versus
Shiv Raj Singh @ Lalla Babu & Anr.                 ... Respondents


                               J U D G M E N T

Dipak Misra, J.


      Leave granted.

2.    The present appeal by special leave has been preferred  assailing  the
legal defensibility  of  the  order  dated  26.04.2012  passed  in  Criminal
Application No.  28461 of 2011 by the High Court of Judicature at  Allahabad
and praying for quashment of the same, and further to cancel  the  grant  of
bail to the accused-respondent (hereinafter referred to  as  ‘the  accused’)
in respect of offences punishable  under  Sections  365/506  of  the  Indian
Penal Code (for short ‘the  IPC’).

3.    The facts material for adjudication of this appeal  are  that  an  FIR
was lodged by the present appellant on 29.05.2011  alleging  that  while  he
was going to his in-laws’ place in village Samadia, P.S. Patwai  along  with
Bihari Lal near canal of Milk Road from Patwai which leads to Samdia  Khurd,
two persons came on a motorcycle and after inquiring about the  identity  of
Bihari Lal told him that they had been asked by Lalla Babu @ Shiv Raj  Singh
to compel him to accompany them.   As there was resistance, they  threatened
to kill him and eventually made Bihari Lal sit in between them on  the  Hero
Honda motorcycle and fled towards Patwai.  The  incident  was  witnessed  by
Munish and Rajbir.  In quite promptitude the appellant went  to  the  Patwai
Police Station, District Rampur and lodged  the  FIR  as  a  consequence  of
which crime No. 770 of 2011 was registered  for  offences  punishable  under
Section 364 and 506 of the IPC.  On the basis of the FIR  the  criminal  law
was set in motion and the accused was arrested and taken into custody.

4.    The accused Shiv Raj Singh @ Lalla  Babu  preferred  bail  Application
No. 1268 of 2011 which came to be dealt by the learned  Additional  Sessions
Judge, Rampur who taking note of the allegations in the FIR  and  the  stand
put forth in oppugnation by  the  prosecution  as  well  as  by  the  victim
observed as follows:-

           “I have perused the case diary. While confirming his  abduction,
           victim Bihari Lal has stated under Section 164 Cr.P.C. that  the
           abductors took him to the accused.   Applicant-accused  and  his
           accomplices kept him confined in a room for  about  8  days  and
           they also used to assault him and threaten for life.  As per the
           victim, he escaped from their captivity after about  8  days  of
           abduction under the pretext of nature’s  call/time.  Munish  and
           Rajbir reported as eye-witnesses in the First Information Report
           stated before the Investigating Officer that the  abductors  had
           stated at the time of abduction that the applicant-accused Lalla
           Babu has send them to mend you.”

5.    Thereafter, taking note of the fact that the  accused  is  a  history-
sheeter and involved in number of cases rejected the application  for  bail.


6.    Being unsuccessful to secure bail  from  the  court  of  Session,  the
accused preferred a Bail Application No.  28461  of  2011  before  the  High
Court under Section 439 of the Code.  The High Court  though  took  note  of
the statement made under Section 164 CrPC that name  of  Shiv  Raj  Singh  @
Lalla Babu had figured as allegations were made against him to  that  effect
that victim Bihari Lal was taken by the  kidnappers  to  him,  yet  observed
that he only sat there  and  offended  Bihari  Lal.   The  High  Court  only
mentioned the fact that the accused has a criminal history and  is  involved
in number of cases but considering the factum that he has  been  in  custody
since 30.09.2011 directed his enlargement on  bail  on  certain  conditions,
namely, the accused shall report at the  police  station  concerned  on  the
first day of each English Calendar  month,  shall  not  commit  any  offence
similar to the offence which he is accused of, and  shall  not  directly  or
indirectly make any inducement, threat or promise to any  person  acquainted
with the facts of the case so as to dissuade him from disclosing such  facts
to the court or to any police officer.

7.    Questioning the justifiability of  the  impugned  order  Ms.  Abha  R.
Sharma, learned counsel for the  petitioner  has  contended  that  the  High
Court has absolutely misdirected itself by not  appositely  considering  the
statement recorded under Section 164 of the Code of Criminal Procedure,  the
gravity of the offences and criminal antecedents of the accused and  further
the affidavit filed by the prosecution  bringing  number  of  factors  as  a
consequence of which an illegal order enlarging the appellant  on  bail  has
come  into  existence.   The  learned  counsel  submitted  that   the   non-
consideration of the material facts vitiates the order  of  the  High  Court
and annulment of the same is the judicial warrant.

8.    Per contra, Mr.  Irshad  Ahmed,  learned  counsel  appearing  for  the
accused contended that the prosecution  case  is  a  fabricated,  false  and
malicious one and it has been foisted because of  political  vendetta.    It
is urged by him that there is discrepancy between statements recorded  under
Section 161 Cr.P.C and 164 Cr.P.C and, therefore, the order  passed  by  the
High Court cannot be found fault with.   It is his further  submission  that
though the accused has been released on bail, yet he has  conducted  himself
and in the absence of any supervening circumstances it would be  undesirable
to cancel the order granting bail as  the  sanctity  of  liberty  should  be
treated with paramount importance.  It is also argued that  the  High  Court
was absolutely conscious of the cases pending against  accused  but  because
of election disputes and constant animosity of the administration which  was
stand of the accused they were not dwelled  upon  in  detail  and  an  order
admitting the accused to bail was passed on imposing  stringent  conditions.
That apart, it is put forth that in the absence of any failure on  his  part
to respect the conditions his liberty should not be put to any  jeopardy  at
the instance of an interested party who is bent upon to harass him.

9.    The centripodal issue that emerges for consideration  is  whether  the
order passed by the  High  Court  is  legitimately  acceptable  and  legally
sustainable within the ambit and sweep of the principles laid down  by  this
Court for grant of regular bail under Section 439 of the Code.

10.   In Ram Govind Upadhyay v. Sudarshan Singh and Others[1], it  has  been
opined that the grant of bail  though  involves  exercise  of  discretionary
power of the Court, such  exercise  of  discretion  has  to  be  made  in  a
judicious manner and not as a matter  of  course.   Heinous  nature  of  the
crime warrants more caution and there is  greater  chance  of  rejection  of
bail, though, however dependent on the factual matrix  of  the  matter.   In
the said case the learned Judges referred to the decision in  Prahlad  Singh
Bhati v. NCT,  Delhi and Another[2]   and stated as follows:-

           “(a)  While granting bail the court has to  keep   in  mind  not
           only the nature of the accusations,  but  the  severity  of  the
           punishment, if the  accusation  entails  a  conviction  and  the
           nature of evidence in support of the accusations.

           (b) Reasonable apprehensions of  the  witnesses  being  tampered
           with or the  apprehension  of  there  being  a  threat  for  the
           complainant should also weigh with the court in  the  matter  of
           grant of bail.

           (c) While it  is  not  expected  to  have  the  entire  evidence
           establishing the guilt of the accused  beyond  reasonable  doubt
           but there ought always to be a prima facie satisfaction  of  the
           court in support of the charge.

           (d) Frivolity in prosecution should always be considered and  it
           is only the  element  of  genuineness  that  shall  have  to  be
           considered in the matter of grant of bail, and in the  event  of
           there being some doubt as to the genuineness of the prosecution,
           in the normal course of events, the accused is  entitled  to  an
           order of bail. ”

11.   In Chaman Lal v. State of  U.  P.  and  Another[3]  this  Court  while
dealing with an application for bail has stated that certain factors are  to
be considered for grant of bail, they are; (i) the nature of accusation  and
the severity  of  punishment  in  case  of  conviction  and  the  nature  of
supporting evidence; (ii) reasonable  apprehension  of  tampering  with  the
witness or apprehension of threat to the complainant; and (iii) prima  facie
satisfaction of the court in support of the charge.

12.   In Masroor v. State of Uttar  Pradesh  and  another[4],  while  giving
emphasis for ascribing reasons for granting of bail, however, brief  it  may
be, a two-Judge Bench observed that there is no denying the  fact  that  the
liberty of an individual is precious and is to  be  zealously  protected  by
the courts.  Nonetheless, such a protection  cannot  be  absolute  in  every
situation.  The valuable right of liberty of an individual and the  interest
of the society in general has to be balanced.  Liberty of a  person  accused
of an offence would depend upon the exigencies of the case.

13.   In Prasanta Kumar Sarkar v. Ashis Chatterjee  and  another[5]  it  has
been observed that normally this Court does  not  interfere  with  an  order
passed by the High Court granting or rejecting  the  bail  of  the  accused,
however, it is equally  incumbent  upon  the  High  Court  to  exercise  its
discretion judiciously, cautiously  and  strictly  in  compliance  with  the
basic principles laid down in a plethora of decisions of this Court  on  the
point.  Among other circumstances the factors which are to be borne in  mind
while considering an application for bail are whether  there  is  any  prima
facie or reasonable ground to believe that the  accused  had  committed  the
offence; nature and gravity of the accusation; severity  of  the  punishment
in the event of conviction; danger of the accused absconding or fleeing,  if
released on bail; character, behavior, means, position and standing  of  the
accused; likelihood of the offence being repeated;  reasonable  apprehension
of the witnesses being influenced; and danger, of course, of  justice  being
thwarted by grant of bail.

14.   In State of U.P. through CBI  v.  Amarmani  Tripathi[6]  it  has  been
ruled that in an  appeal  against  grant  of  bail  all  aspects  that  were
relevant under Section 439 read with Section 437 continue to be relevant.

15.   In Puran v. Rambilas  and  another[7]  it  has  been  noted  that  the
concept of setting aside  an  unjustified,  illegal  or  perverse  order  is
totally different from the cancelling an order of bail on  the  ground  that
the  accused  had  misconducted  himself  or  because  of  some  supervening
circumstances warranting such cancellation.

16.   In Dr. Narendra K. Amin v. State of Gujarat and another[8],  a  three-
Judge Bench has observed that when  irrelevant  materials  have  been  taken
into consideration the same makes the order granting  bail  vulnerable.   If
the order is perverse, the same can be set at naught by the superior court.

17.   In  Prakash  Kadam  and  others  v.  Ramprasad  Vishwanath  Gupta  and
another[9], while making a distinction  between  cancellation  of  bail  and
consideration for grant of bail, this Court opined thus: -

           “18.  In considering whether to cancel the bail  the  court  has
           also to consider the gravity and nature of  the  offence,  prima
           facie case against the accused, the position and standing of the
           accused, etc.  If there are very serious allegations against the
           accused his bail may be cancelled even if he has not misused the
           bail granted to him.  Moreover, the above principle applies when
           the same court which granted bail is approached  for  cancelling
           the bail.  It will not apply when the  order  granting  bail  is
           appealed against before an appellate/Revisional Court.

           19.   In our opinion, there is no absolute rule that  once  bail
           is granted to the accused then it can only be cancelled if there
           is likelihood of misuse of the bail.   That  factor,  though  no
           doubt important, is not the  only  factor.   There  are  several
           other factors also which may be seen while  deciding  to  cancel
           the bail.”

18.   We have referred to the above authorities solely for  the  purpose  of
reiterating two conceptual principles, namely, factors that are to be  taken
into consideration while exercising power of admitting an  accused  to  bail
when  offences  are  of  serious  nature,  and   the   distinction   between
cancellation of bail because of supervening circumstances  and  exercise  of
jurisdiction in nullifying an order granting bail  in  an  appeal  when  the
bail order is assailed on the ground that the same is perverse or  based  on
irrelevant considerations or founded on  non-consideration  of  the  factors
which are relevant.

19.   We are absolutely conscious that liberty of a  person  should  not  be
lightly dealt with, for deprivation of  liberty  of  a  person  has  immense
impact on the mind of a person.  Incarceration creates a  concavity  in  the
personality of an individual.   Sometimes  it  causes  a  sense  of  vacuum.
Needless to emphasize, the  sacrosanctity  of  liberty  is  paramount  in  a
civilized society.  However, in a democratic body polity which is wedded  to
Rule  of  Law  an  individual  is  expected  to  grow  within   the   social
restrictions sanctioned by law.  The individual  liberty  is  restricted  by
larger social interest and its deprivation must have due  sanction  of  law.
In an orderly society an individual is expected to live with dignity  having
respect for law and also giving due respect to  others’  rights.   It  is  a
well accepted principle that the concept of liberty is not in the  realm  of
absolutism but is a restricted one.  The cry of the collective for  justice,
its desire for peace and harmony and its necessity for  security  cannot  be
allowed to be trivialized.  The life of an individual living  in  a  society
governed by Rule of Law has to be regulated and such regulations  which  are
the source in law subserve the social balance and function as a  significant
instrument for protection of human rights and security  of  the  collective.
It is because fundamentally laws are made for their obedience so that  every
member of  the  society  lives  peacefully  in  a  society  to  achieve  his
individual as well as social interest.   That  is  why  Edmond  Burke  while
discussing about liberty opined, “it is regulated freedom”.

20.   It is also to be kept  in  mind  that  individual  liberty  cannot  be
accentuated to such an extent or elevated to  such  a  high  pedestal  which
would bring in anarchy or disorder in the society.  The prospect of  greater
justice requires that law and order should prevail in  a  civilized  milieu.
True it is, there can be no arithmetical formula for fixing  the  parameters
in  precise  exactitude  but  the  adjudication  should  express  not   only
application of mind but  also  exercise  of  jurisdiction  on  accepted  and
established norms.  Law and order  in  a  society  protect  the  established
precepts and see to it that contagious crimes do not  become  epidemic.   In
an organized society the concept of liberty basically requires  citizens  to
be responsible and not to disturb the tranquility  and  safety  which  every
well-meaning person desires.  Not for nothing J. Oerter stated:
           “Personal liberty is  the  right  to  act  without  interference
           within the limits of the law.”

21.   Thus analyzed, it is clear that though liberty is a greatly  cherished
value in the life of an individual, it is a controlled  and  restricted  one
and no element in the society can act in a manner by  consequence  of  which
the life or liberty of others is jeopardized, for  the  rational  collective
does not countenance an anti-social or anti-collective act.

22.   Having said  about  the  sanctity  of  liberty  and  the  restrictions
imposed by law and the necessity of collective security, we may  proceed  to
state as to what is the connotative concept of bail.  In Halsbury’s Laws  of
England[10] it has been stated thus: -

           “The effect of  granting  bail  is  not  to  set  the  defendant
           (accused) at liberty but to release him from the custody of  law
           and to entrust him to the custody of his sureties who are  bound
           to produce him to appear at his trial at a  specified  time  and
           place.  The sureties may seize their principal at any  time  and
           may discharge themselves by handing him over to the  custody  of
           law and he will then be imprisoned.”

23.   In Sunil Fulchand Shah v. Union  of  India  and  others[11]  Dr.  A.S.
Anand, learned Chief Justice, in his concurring opinion, observed: -

           “Bail is well understood in criminal jurisprudence  and  Chapter
           XXXIII of the Code  of  Criminal  Procedure  contains  elaborate
           provisions relating to grant of bail.   Bail  is  granted  to  a
           person who has been arrested in a non-bailable  offence  or  has
           been convicted  of  an  offence  after  trial.   The  effect  of
           granting bail is to release the accused from  internment  though
           the court would  still  retain  constructive  control  over  him
           through the sureties.  In case the accused is  released  on  his
           own bond such constructive  control  could  still  be  exercised
           through the conditions  of  the  bond  secured  from  him.   The
           literal meaning of the word “bail” is surety.”

24.   As grant of bail  as  a  legal  phenomenon  arises  when  a  crime  is
committed it is profitable to refer to certain authorities as  to  how  this
Court has understood the concept of crime in the  context  of  society.   In
P.S.R. Sadhanantham v. Arunachalam and another[12], R.S. Pathak, J. (as  his
Lordship then was), speaking for himself and A.D. Kaushal,  J,  referred  to
Mogul Steamship Co. v. McGregor Gow & Co. (1989) 23  QBD 598,  606  and  the
definition given by Blackstone and opined thus: -

           “A crime, therefore, is an act deemed by law to  be  harmful  to
           society in general, even  though  its  immediate  victim  is  an
           individual.”

25.   In Mrs. Harpreet Kaur Harvinder Singh Bedi  v.  State  of  Maharashtra
and another[13] a two-Judge  Bench,  though  in  a  different  context,  has
observed: -

           “Crime is a revolt against the whole society and  an  attack  on
           the civilization of the day.  Order is the  basic  need  of  any
           organized civilized society and  any  attempt  to  disturb  that
           order affects the society and the community.”

26.   In T.K. Gopal alias Gopi v. State of Karnataka[14] it  has  been  held
that crime can be defined  as  an  act  that  subjects  the  doer  to  legal
punishment.  It may also be defined as commission  of  an  act  specifically
forbidden by law; it may be an offence against morality or social order.

27.   Keeping in mind the aforesaid aspects, namely, the factors  which  are
to be borne in mind  while  dealing  with  an  application  preferred  under
Section 439 of  the  Code  of  Criminal  Procedure  in  respect  of  serious
offences,  the  distinction  between  a  perverse  or  illegal   order   and
cancellation of order granting  bail,  the  individual  liberty  and  social
security, the concept of bail, the definition of crime and the duty  of  the
court, we may proceed to deal as to  how  in  the  case  at  hand  the  bail
application has been dealt with by the High Court.

28.   On a perusal of the  order  passed  by  the  High  Court  it  will  be
difficult to say that the  High  Court  has  passed  a  totally  cryptic  or
unreasoned order.  The  spinal  question  is  whether  it  has  ignored  the
relevant factors which were brought to its notice at the time  of  extending
the benefit of enlargement of bail to the accused.  The prosecution  by  way
of an affidavit had brought to the notice of the High Court about the  cases
pending against the accused.  The High Court recorded the submission of  the
complainant that the accused was involved in 52 cases.  On a perusal of  the
counter-affidavit filed before the High Court it is perceptible that it  was
categorically stated that the accused was a  history-sheeter;  that  he  was
the pivotal force in getting the kidnapping done;  that  the  victim  Bihari
Lal was in captivity for eight days; and that he escaped under  the  pretext
that he was going to attend the call of nature.  The  High  Court  has  only
made a passing reference to the same and took note of period of  custody  of
seven months and held, “considering the facts and circumstances of the  case
but without expressing any opinion on the merits of the case, the  applicant
is entitled to be released on bail”.

29.   It is worthy to note that the fact  relating  to  involvement  of  the
accused in various crimes was brought to the notice of  the  High  Court  by
virtue of an affidavit filed by the competent authority of the  prosecution.
 As  per  the  Inspector-in-charge  of  the  concerned  police  station  the
following cases were pending against the accused:

|S.   |Crime No.  |Sections              |Police      |District    |
|No.  |           |                      |Station     |            |
|1.   |270/86     |25 Arms Act           |Shahabad    |Rampur      |
|2.   |271/86     |395/397/307/332/      |Shahabad    |Rampur      |
|     |           |337/225/427           |            |            |
|3.   |137/88     |3(1) Gangster Act     |Shahabad    |Rampur      |
|4.   |209/92     |147/148/149/302       |Shahabad    |Rampur      |
|5.   |189/95     |323/342/35/504/ 506   |Shahabad    |Rampur      |
|6.   |184/96     |3/4 U.P. Gunda Act    |Shahabad    |Rampur      |
|7.   |185/96     |147/148/149/307/ 225  |Shahabad    |Rampur      |
|8.   |485/98     |323/504/506/3(1) 10   |Shahabad    |Rampur      |
|     |           |S.C./S.T. Act         |            |            |
|9.   |493/98     |420/506/467/468/ 47   |Shahabad    |Rampur      |
|10.  |281/99     |3/4 U.P. Gunda Act    |Shahabad    |Rampur      |
|11.  |626/05     |347/504/506           |Shahabad    |Rampur      |
|12.  |628A/05    |452/352/504/506       |Shahabad    |Rampur      |
|13.  |363/06     |3(1) Prevention of    |Shahabad    |Rampur      |
|     |           |damage to Public      |            |            |
|     |           |Property Act, 1984    |            |            |
|14.  |2171/08    |147/143/283/341 and 6 |Shahabad    |Rampur      |
|     |           |United Province       |            |            |
|     |           |Special Power Act,    |            |            |
|     |           |1936 and Section 7 of |            |            |
|     |           |Criminal Law Amendment|            |            |
|     |           |Act.                  |            |            |
|15.  |670/09     |3(1) Gangster Act     |Shahabad    |Rampur      |
|16.  |1207/09    |448/380               |Shahabad    |Rampur      |
|17.  |939/10     |323/324/307/302       |Shahabad    |Rampur      |
|18.  |507/11     |147/506               |Shahabad    |Rampur      |
|19.  |537/11     |147/148/149/307       |Shahabad    |Rampur      |
|20.  |538/11     |147/148/149/307/      |Shahabad    |Rampur      |
|     |           |353/354 and Section 7 |            |            |
|     |           |of Criminal Law       |            |            |
|     |           |Amendment Act         |            |            |
|21.  |313/91     |447/323/504/506 & 3(1)|Shahabad    |Rampur      |
|     |           |10 S.C./S.T. Act      |            |            |
|22.  |391/92     |348/379/504/506 & 3(4)|Shahabad    |Rampur      |
|     |           |10 S.C./S.T. Act      |            |            |
|23.  |99/09      |147/148/307/323/      |Milk        |Rampur      |
|     |           |504/506 & 3(2) 10     |            |            |
|     |           |S.C./S.T. Act         |            |            |
|24.  |2007/08    |147/504/506/307/ 427 &|Milk        |Rampur      |
|     |           |3(1) 10 S.C./ S.T. Act|            |            |
|25.  |770/11     |364/506               |Patwai      |Rampur      |
|26.  |575/93     |302/392/412 IPC       |Islam Nagar |Badayun     |
|27.  |441/94     |25 Arms Act           |Civil Line  |Moradabad   |
|28.  |17/01      |364 IPC (The court    |Faizganj    |Badayun     |
|     |           |issued non-bailable   |Behta       |            |
|     |           |warrants but          |            |            |
|     |           |absconding)           |            |            |
|29.  |269/02     |420 IPC               |Kasganj     |Eta         |
|30.  |270/02     |25 Arms Act           |Kasganj     |Eta         |


In this Court also the same list has been filed.  Thus, there  is  no  doubt
that the accused is a history-sheeter.

30.   Coming to the nature of crime it is perceivable that two persons  came
on a motorcycle and kidnapped Bihari Lal and kept  him  in  confinement  for
eight days.  The role of the accused is clearly stated.  It is apt  to  note
that a history-sheeter has a recorded past.  The High Court,  in  toto,  has
ignored the criminal antecedents of the accused.  What has weighed with  the
High Court is that the accused had spent seven months in custody.  That  may
be one of the factors but that cannot be the whole and the  sole  factor  in
every case.  It depends upon the nature of the offence, the manner in  which
it is committed and its impact on the society.  We may hasten  to  add  that
when we  state  that  the  accused  is  a  history-sheeter  we  may  not  be
understood to have said that a history-sheeter is never  entitled  to  bail.
But, it is a significant factor to be taken note of regard being had to  the
nature of crime in respect of which he has been  booked.   In  the  case  at
hand, as the prosecution case unfolds, the accused did not  want  anyone  to
speak against his activities.  He had sent  two  persons  to  kidnap  Bihari
Lal, who remained in confinement for eight days.  The victim  was  tortured.
Kidnapping, as an offence,  is  on  the  increase  throughout  the  country.
Sometimes it is dealt with formidable skill and sometimes  with  terror  and
sometimes with threat or brute force.  The crime relating to kidnapping  has
taken many a contour.  True it is, sometimes allegations  are  made  that  a
guardian has kidnapped a child or a boy in love has kidnapped a girl.   They
do stand on a different footing.  But kidnapping for ransom or  for  revenge
or to spread terror or to establish  authority  are  in  a  different  realm
altogether.  In the  present  case  the  victim  had  been  kidnapped  under
threat, confined and abused.  The sole reason for kidnapping is because  the
victim had shown some courage to speak against the  accused.   This  may  be
the purpose for sustaining of authority in the area by the accused  and  his
criminal antecedents, speak eloquently in that  regard.   In  his  plea  for
bail the accused had stated that such offences had been  registered  because
of political motivations but the range of offence and  their  alleged  years
of occurrence do not lend prima facie acceptance to the same.  Thus, in  the
present case his criminal antecedents could not have been  totally  ignored.


31.   Be it noted, a stage has come that in  certain  States  abduction  and
kidnapping have been regarded as heroism.  A particular  crime  changes  its
colour with efflux of time.  The concept of crime in  the  contextual  sense
of kidnapping has really undergone a sea change  and  has  really  shattered
the spine of the orderly society.  It is almost nauseating  to  read  almost
every  day  about  the  criminal  activities  relating  to  kidnapping   and
particularly by people who call themselves experts in  the  said  nature  of
crime.

32.   We may usefully state that when the citizens  are  scared  to  lead  a
peaceful  life  and  this  kind  of  offences  usher  in  an  impediment  in
establishment of orderly  society,  the  duty  of  the  court  becomes  more
pronounced and the burden is heavy.  There should have been proper  analysis
of the criminal antecedents.  Needless to say, imposition of  conditions  is
subsequent to the order admitting an accused to bail.  The  question  should
be posed whether the accused deserves to be enlarged  on  bail  or  not  and
only thereafter issue of imposing conditions would arise.  We  do  not  deny
for a moment that period of custody is a relevant factor but  simultaneously
the totality of circumstances and the criminal antecedents are  also  to  be
weighed.  They are to be weighed in the scale of collective cry and  desire.
 The societal concern has to be kept in view in juxtaposition of  individual
liberty.  Regard being had to the said parameter we are  inclined  to  think
that the social concern in the case at hand deserves to  be  given  priority
over lifting the restriction of liberty of the accused.

33.   In the present context the period of custody of seven months,  in  our
considered opinion, melts into insignificance.  We repeat  at  the  cost  of
repetition that granting of bail is a matter  of  discretion  for  the  High
Court and this Court is slow to interfere  with  such  orders.   But  regard
being had to the antecedents of the accused which is also  a  factor  to  be
taken into consideration as per the pronouncements of  this  Court  and  the
nature of the crime committed and the confinement of the  victim  for  eight
days, we are disposed to interfere with the order impugned.

34.   We may note with profit that it is not an appeal for  cancellation  of
bail as cancellation is not sought  because  of  supervening  circumstances.
The present one is basically an appeal challenging grant of bail  where  the
High Court has failed to  take  into  consideration  the  relevant  material
factors which make the order perverse.

35.   Consequently, the order passed by the High Court is set aside and  the
bail bonds of the  accused  are  cancelled.   The  accused  is  directed  to
surrender to custody forthwith failing which it shall be  the  duty  of  the
investigating agency to take him to custody immediately.  We may  hasten  to
clarify that anything that has been stated here are  only  to  be  read  and
understood for the purpose of annulment of the order of grant  of  bail  and
they would have no bearing whatsoever on trial.

36.   The appeal is, accordingly, allowed.





                                                                ……………………….J.
                                                       [K. S. Radhakrishnan]



                                                                ……………………….J.
                                                   [Dipak Misra]

New Delhi;
September 20, 2012.


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[1]    (2002) 3 SCC 598
[2]    (2001) 4 SCC 280
[3]    (2004) 7 SCC 525
[4]    (2009) 14 SCC 286
[5]    (2010) 14 SCC 496
[6]    (2005) 8 SCC 21
[7]    (2001) 6 SCC 338
[8]    2008 (6) SCALE 415
[9]    (2011) 6 SCC 189
[10]   Halsbury’s Laws of England, 4th Edn., Vol. 11, para 166
[11]   (2000) 3 SCC 409
[12]   AIR 1980 SC 856
[13]   AIR 1992 SC 979
[14]   AIR 2000 SC 1669


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