this Court held that the Appellate Court can suspend “an order appealed against”, i.e. an order of conviction, only if the convict specifically establishes the consequences that may follow if the operation of the said order is not stayed. Stay of conviction must be granted only in a rare case and that too, only under special circumstances.the Appellate Court in an exceptional case, may put the conviction in abeyance along with the sentence, but such power must be exercised with great circumspection and caution, for the purpose of which, the applicant must satisfy the Court as regards the evil that is likely to befall him, if the said conviction is not suspended. The Court has to consider all the facts as are pleaded by the applicant, in a judicious manner and examined whether the facts and circumstances involved in the case are such, that they warrant such a course of action by it. The court additionally, must record in writing, its reasons for granting such relief. Relief of staying the order of conviction cannot be granted only on the ground that an employee may lose his job, if the same is not done. Corruption is not only a punishable offence but also undermines human rights, indirectly violating them, and systematic corruption, is a human rights’ violation in itself, as it leads to systematic economic crimes. Thus, in the aforesaid backdrop, the High Court should not have passed the said order of suspension of sentence in a case involving corruption. It was certainly not the case where damage if done, could not be undone as the employee/respondent if ultimately succeeds, could claim all consequential benefits. The submission made on behalf of the respondent, that this Court should not interfere with the impugned order at such a belated stage, has no merit for the reason that this Court, vide order dated 9.7.2009 has already stayed the operation of the said impugned order. 15. Thus, in view of the above, the appeal is allowed and the impugned order dated 8.4.2008 is hereby, set aside. Before parting with the case, we clarify that the observations made in this judgment will not adversely affect the case of the respondent at the time of final disposal of his appeal.

?                                             REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                       CRIMINAL APPEAL NO.1648 of 2012






      State of Maharashtra Through CBI,                  …..Appellant
      Anti Corruption Branch, Mumbai




                                   Versus




      Balakrishna Dattatrya Kumbhar                             …..
      Respondent






                                  JUDGMENT


      Dr. B.S. CHAUHAN, J.




      l.    This Criminal Appeal has been  preferred  against  the  impugned
      judgment and order dated 8.4.2008 in Criminal Application No.  157  of
      2008 in Criminal Appeal No. 1243 of 2007  passed by the High Court  of
      Bombay, by way of which, the High Court passed an order of  suspension
      of the conviction of the respondent under Section  13(2)  r/w  Section
      13(1)(e) of  the  Prevention  of  Corruption  Act,  1988  (hereinafter
      referred to as the `Act 1988’), passed  by  the  Special  Judge,  vide
      order dated 15.10.2007 in Special Case No. 93 of 2000.
      2.     The facts and circumstances giving rise to this appeal  are  as
      follows:
      A)    On 8.1.1999, Special Case No. 93 of 2000 in R.C.  No.  39-A   of
      1999 was registered against the respondent, the then Superintendent of
      Central Excise, Mumbai, for  the  offences  punishable  under  Section
      13(2)  r/w 13(1)(e) of the Act 1988, alleging that he possessed assets
      disproportionate to his disclosed source of income which  was  to  the
      extent of Rs. 7,64,368/-


      B)     After  completing  the   investigation   of   the   case,   the
      investigating agency filed  a charge-sheet dated 27.12.2000, under the
      said provisions of the Act, 1988.  The trial court concluded the trial
      and convicted the respondent under the said provisions and awarded him
      a sentence of two years, along with  a  fine  of  Rs.1  lakh  and,  in
      default, to undergo imprisonment for a further period of three months,
      vide judgment and order dated 15.10.2007.


      C)    Subsequent to his  conviction,  the  respondent  was  put  under
      suspension by the competent authority vide order dated  1.11.2007  and
      was served a show-cause notice dated 25.1.2008, to  explain   that  in
      view of his conviction for the offence punishable under the Act  1988,
      why he should not be dismissed from service, in view of the provisions
      of Rule 11 of CCS (CCA) Rules, 1965.  The respondent was given 15 days
      time to make his representation against the said show cause notice.


      D)     The  respondent  approached  the  High  Court  by   filing   an
      application under Section 389(1) of the  Code  of  Criminal  Procedure
      1973, (hereinafter referred  to  as  the  ‘Cr.P.C.’)  requesting  that
      during the pendency of his appeal against the said impugned  judgment,
      the  order  of  conviction  against  him  be  suspended.    The   said
      application of suspension of conviction has been allowed vide impugned
      order dated 8.4.2008.
            Hence, this appeal.


      3.    Shri P.P. Malhotra, learned ASG,  appearing  on  behalf  of  the
      appellant, submitted that the High  Court  could  exercise  its  power
      under Section 389(1) Cr.P.C., for suspension of such  conviction  only
      in the rarest of rare case.  In the instant case,  as  the  respondent
      was a public servant and had been convicted on charges of  corruption,
      the High Court  was  not  justified  in  passing  the  said  order  of
      suspension of conviction. The High Court should  have  considered  the
      ramifications of such suspension, as such an  order  would,  no  doubt
      demoralise the employers and also  other  public  servants.  Under  no
      circumstance,  does  the  case  of  the  respondent  fall  under   the
      exceptional  circumstances  under  which,  such  an  order  would   be
      warranted.  Thus, it is nothing  but  an  abuse  of  the  adjudicatory
      process of law and justice demands that he  should  be  treated  as  a
      corrupt and guilty person, unless he is proved  to  be  innocent.  The
      appeal deserves to be allowed and the impugned judgment and  order  is
      liable to be set aside.


      4.     On  the  contrary,  Shri  Sushil  Karanjkar,  learned   counsel
      appearing on behalf of the  respondent,  has  vehemently  opposed  the
      appeal contending that the respondent did  not  have  disproportionate
      assets as alleged.  There has been a serious error on the part of  the
      trial court in making such assessment and convicting the respondent on
      the basis of the same.  In fact, it is  the income of his  wife  which
      was duly proved before the statutory authorities, under the Income Tax
      Act 1961.  Subsequent to the conviction of the respondent, the  appeal
      was allowed by the Income Tax Appellate Tribunal, Mumbai,  vide  order
      dated 17.3.2009  wherein,  it  was  accepted  that  the  said  amount,
      belonged to respondent’s wife. The  High  Court  hence,  committed  no
      error in passing the impugned order.  The special leave petition also,
      was  filed at a belated stage and the said impugned order  was  passed
      over 4-1/2 years ago.  The appeal of the respondent is in the list  of
      matters listed for final hearing before the  Bombay  High  Court,  and
      thus, no interference is  required.    The  appeal  is  liable  to  be
      dismissed.


      5.    We have considered the rival submissions made by learned counsel
      for the parties and perused the records.


      6.    In Rama Narang v. Ramesh Narang & Ors., (1995) 2 SCC  513,  this
      Court dealt with the said issue elaborately and held  that  if,  in  a
      befitting case, the High Court  feels  satisfied  that  the  order  of
      conviction needs to be suspended, or stayed,  so  that  the  convicted
      person does not  have  to  suffer  from  a  certain  disqualification,
      provided for by some other statute, it may exercise its power in  this
      regard because otherwise, the damage done cannot be  undone.  However,
      while granting such stay of conviction, the court must examine all the
      pros and cons and then, only  if it feels satisfied that  a  case  has
      infact been made out for grant of such an order, it may proceed to  do
      so and even while doing so, it may, if it so considers it appropriate,
      impose such conditions as are  deemed   appropriate,  to  protect  the
      interests of the other  parties.  Further,  it  is  the  duty  of  the
      applicant to specifically invite the attention of the appellate  court
      as regards the consequences, which are likely to follow, upon grant of
      such stay, so as to enable it to apply its mind fully  to  the  issue,
      since under Section 389(1)  Cr.P.C., the court is under an  obligation
      to support its order in a manner provided  therein,  the  same  being,
      “for the reasons to be recorded by it in writing”.


      7.    In State of Tamil Nadu v. A. Jaganathan, AIR 1996 SC 2449,  this
      Court dealt with a case wherein the High Court  stayed  the  order  of
      conviction for the sole reason that, in absence of such  a  stay,  the
      accused was likely to lose his job.  This Court reversed the  impugned
      order therein observing:

              “…… the High Court, though made an observation  but  did  not
              consider at all the moral conduct of  the  respondent.….  who
              was the Police Inspector….had been convicted  under  Sections
              392, 218 and 466 I.P.C. while the other respondents, who  are
              also  public  servants,  have  been   convicted   under   the
              provisions of the Prevention of Corruption Act.   In  such  a
              case, the  discretionary  power  to  suspend  the  conviction
              either under Section 389 or under Section 482 Cr.P.C.  should
              not have been exercised.  The order impugned, thus, cannot be
              sustained.”



      8.    In K.C. Sareen v. Central Bureau of  Investigation,  Chandigarh,
      AIR 2001 SC 3320, this Court examined  a  case  wherein  a  government
      servant who had been convicted under the provisions of the  Prevention
      of Corruption Act would lose his job in the event that the  conviction
      was not stayed.  The Court held that when a public  servant  is  found
      guilty of corruption by a Court, he has to be treated as corrupt until
      he is exonerated by a superior Court in appeal/revision.  Mere stay of
      the conviction during the pendency of the appeal should not confer any
      benefit upon such an employee, for the reason that if  such  a  public
      servant is permitted to hold  office  and  to  perform  official  acts
      (unless he is absolved from such findings by a superior Court), public
      interest may suffer tremendously. It may  also  impair  the  moral  of
      other  persons  manning  such  office  and  may  further,  erode   the
      confidence of the people in public institutions,  besides  of  course,
      demoralising all other honest public servants.


      9.    In State of Maharashtra v. Gajanan & Anr.,  AIR  2004  SC  1188,
      this Court reiterated  a  similar  view,  placing  reliance  upon  the
      judgment in K.C. Sarin (supra) and Union of  India  v.  Atar  Singh  &
      Anr., (2003) 12 SCC 434.  In the latter case, this Court held that  an
      order of conviction should not be suspended merely on the ground  that
      non-suspension of such  conviction  may  entail  the  removal  of  the
      government servant from service.


      10.   In Ravikant S. Patil v. Savabhouma S. Bagali, (2007) 1 SCC  673,
      this Court held as under:-

                 “It deserves to be clarified that an order  granting  stay
              of conviction is not the rule  but  is  an  exception  to  be
              resorted to in rare cases depending upon the facts of a case.
                Where  the  execution  of  the  sentence  is  stayed,   the
              conviction continues to operate.  But where conviction itself
              is stayed, the effect is that  the  conviction  will  not  be
              operative from the date  of  stay.   An  order  of  stay,  of
              course, does not render the conviction non-existent, but only
              non-operative…….All these decisions,  while  recognizing  the
              power to stay conviction, have cautioned and  clarified  that
              such  power  should  be   exercised   only   in   exceptional
              circumstances where failure to  stay  the  conviction,  would
              lead to injustice and irreversible consequences.”
                                                          (emphasis   added)




      11.   In Navjot Singh Sidhu v. State of Punjab &  Anr.,  AIR  2007  SC
      1003, this Court held that the Appellate Court can suspend  “an  order
      appealed against”, i.e. an order of conviction, only  if  the  convict
      specifically establishes the  consequences  that  may  follow  if  the
      operation of the said order is not stayed.  Stay of conviction must be
      granted only  in  a  rare  case  and  that  too,  only  under  special
      circumstances.
      (See also: State of Punjab v. Navraj Singh AIR 2008 SC 2962; and  CBI,
      New Delhi v. Roshan Lal Saini, AIR 2009 SC 755).


      12.   Thus, in view of  the  aforesaid  discussion,  a  clear  picture
      emerges to the effect that, the  Appellate  Court  in  an  exceptional
      case, may put the conviction in abeyance along with the sentence,  but
      such power must be exercised with great  circumspection  and  caution,
      for the purpose of which, the applicant  must  satisfy  the  Court  as
      regards the evil that is likely to befall him, if the said  conviction
      is not suspended.  The Court has to consider  all  the  facts  as  are
      pleaded by the applicant, in a judicious manner and  examined  whether
      the facts and circumstances involved in the case are such,  that  they
      warrant such a course of action by it.  The court  additionally,  must
      record in writing, its reasons for granting such  relief.   Relief  of
      staying the order of conviction cannot be granted only on  the  ground
      that an employee may lose his job, if the same is not done.


      13.   The instant case is required to be  examined  in  light  of  the
      aforesaid  settled  legal  propositions.  The  relevant  part  of  the
      impugned order reads as under:


             “As the applicant would suffer serious prejudice on account  of
             order of dismissal, in my opinion, the applicant  is  justified
             in  applying  to  this  Court  for  suspending  the  order   of
             conviction so that the Department  shall  not  precipitate  the
             matter further.  The applicant through counsel  fairly  submits
             that relying on  this  order,  the  applicant  will  not  claim
             further relief of setting aside the order of  suspension  which
             is already  operating  against  the  applicant  passed  by  the
             Department on 1st November, 2007.”


      14.   The aforesaid order is therefore, certainly not  sustainable  in
      law if examined in light  of  the  aforementioned  judgments  of  this
      Court.   Corruption  is  not  only  a  punishable  offence  but   also
      undermines human rights, indirectly  violating  them,  and  systematic
      corruption, is a human rights’ violation in itself,  as  it  leads  to
      systematic economic crimes.  Thus, in the aforesaid backdrop, the High
      Court should not have passed the said order of suspension of  sentence
      in a case involving corruption.  It was certainly not the  case  where
      damage if done, could not be  undone  as  the  employee/respondent  if
      ultimately succeeds, could  claim  all  consequential  benefits.   The
      submission made on behalf of the respondent, that  this  Court  should
      not interfere with the impugned order at such a belated stage, has  no
      merit for the reason that this Court, vide order  dated  9.7.2009  has
      already  stayed the operation of the said impugned order.


      15.   Thus, in view of the  above,  the  appeal  is  allowed  and  the
      impugned order dated 8.4.2008 is hereby, set aside.
           Before parting with the case, we clarify that  the  observations
      made in this judgment will  not  adversely  affect  the  case  of  the
      respondent at the time of final disposal of his appeal.

                 ……………………………………….……………..J.
                           (Dr. B.S. CHAUHAN)




                  ……………………………….……………………..J.
                        (FAKKIR MOHAMED IBRAHIM KALIFULLA)


    New Delhi,
    October 15, 2012

the sale of property in favour of a particular person is not an act of insolvency when it is supported by consideration and it was for the discharge of the debt of the debtor. The preference given to a particular debtor cannot be treated as an act of insolvency.Merely because, the debtor has filed subsequently a debtor insolvency petition is also not a ground to interfere with the unsuccessful challenge made by the petitioners.

THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO

C.R.P.No. 1180 of 2005

ORDER:

The revision is filed against the judgment dated 29.12.2004 in A.S.No.183 of 2003 on the file of the III Additional District Judge (Fast Track Court), Bhimavaram, whereunder the application to declare the respondent as insolvent was dismissed and the appeal also confirmed the said order. 

Originally Insolvency Petition was filed in I.P.No.2 of 2001 by the petitioners herein, who are the creditors to declare that the 1^st respondent has borrowed several amounts from the petitioners and the respondents 2 to 4 are the wife and children of the 1^st respondent and the 1^st respondent borrowed the money for the benefit of the family and with a dishonest intention and with an ulterior motive to defeat or delay the genuine creditors, alienated the schedule property in favour of the 5^th respondent. 

As can be seen from the allegations in the petition, the petitioners formed into a committee just before the alienation and held a meeting on 05.11.2000 and the first item was to be purchased by the 5^th respondent at a consideration of Rs.6,50,000/- with a promise to clear the debts of the petitioners but the property was sold for a sum of Rs.2,30,000/- only and a collusive transaction was entered into and the 1^st respondent received a consideration of Rs.6,50,000/- and thereby committed an act of insolvency.  The 1^st respondent also filed I.P.No.27 of 2000. 

The 1^st respondent filed a counter disputing all the allegations in the petition and contending that there is no collusion of fraud.  According to him, he was indebted to Unikili Cooperative Society and for the discharge of the mortgage debt to the said society, the land was sold to the 5^th respondent and there is no fraud in the alienation.  

The respondents 2 and 3 denied the allegations.  The 5^th respondent filed a counter contending that the alleged borrowing from the petitioners is not true and he has purchased the property for valuable consideration and for the discharge of the debts due by the 1^st respondent and, therefore, the petition is liable to be dismissed. 

After considering the evidence on record, the learned Judge found that the petitioners are aware of the sale transaction and there is no proof that the property is more valuable. 

It was further contended by the 5^th respondent, which was accepted by the Court that the 1^st respondent has got some other properties and there is no intention to defeat or delay the lawful debts of the petitioners.  Furthermore, according to the case of the respondents, the sale of the property was for the discharge of the debt due to the society.  He claims to have paid a sum of Rs.2,27,000/- and odd under Exs.B-4 to B-8 to the society and he also obtained the Encumbrance Certificate.  Though, it was sought to be canvassed before the lower Court that the 5^th respondent agreed to discharge the debts of the petitioners, there is absolutely no material.  Therefore, accordingly, the Insolvency Petition was dismissed.  The lower appellate Court also taking into consideration the settled proposition of law and also taking into consideration that giving mere preference to a particular person, who is not a creditor, cannot be said to be an act of insolvency.  The lower appellate Court also found that there is no proof of intention to defeat or delay the creditors. 

Though the matter should have been treated as a Second Appeal arising out of the judgment of the lower Court, it was filed as a Civil Revision Petition.  It is needless to say that whether in Second Appeal or in the Civil Revision Petition the power of the Court to interfere with the findings of fact are very limited.  The finding of fact recorded by both the Courts is that the 5^threspondent has purchased the property and discharged the debts due to the society, merely because a preference was given to a particular creditor, who evidently is not related to the debtor, it cannot be said that there is an act of insolvency.  Merely because, the debtor has filed subsequently a debtor insolvency petition is also not a ground to interfere with the unsuccessful challenge made by the petitioners. 

In this connection, the learned counsel for the respondents relied upon a decision reported in the case of Malini Ayyappa Naicker (now dead) through L.R. etc. v. Seth Manghraj Udhavadas Firm[1], while dealing with the powers of the Appellate Court in an application under Section 53 of the Provincial Insolvency Act (5 of 1920) (for short “the Act”), wherein it was held that the High Court while acting under Section 75(1) of the Act has no right to interfere with the findings of fact. 

The learned counsel for the respondents also relied upon the decisions reported in the cases of D.Chakradhara Rao v. P.Koteswara Rao[2] and P.Lakshmipathi Chetty v. P.Janardhana Chetty and others[3] with regard to the power of the Court to interfere with the insolvency proceedings. 

It is also useful to refer to the decision reported in the case of Gutta Nirmala v. Gutta Nageswara Rao[4], wherein after considering several decisions, this Court held that the sale of property in favour of a particular person is not an act of insolvency when it is supported by consideration and it was for the discharge of the debt of the debtor.  The preference given to a particular debtor cannot be treated as an act of insolvency.  Therefore, for all the above reasons, there are absolutely no merits in the revision.

Accordingly, the Civil Revision Petition is dismissed.  No costs.

________________________

N.R.L. NAGESWARA RAO, J

Date: 19-08-2011

MR

 

THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO

C.R.P.No. 1180 of 2005

19-08-2011

MR

---

[1] 1969 Supreme Court Cases 688

[2] 1996 (3) ALT 34

[3] 2007 (5) ALD 723

[4] 2011 (4) ALT 171

Cancellation of bail is a serious matter. Bail once granted can be cancelled only in the circumstances and for the reasons which have been clearly stated by this court in a catena of judgments. It would be appropriate to refer to a few of them before dealing with the rival contentions. Thus, Section 439 of the Code confers very wide powers on the High Court and the Court of Sessions regarding bail. But, while granting bail, the High Court and the Sessions Court are guided by the same considerations as other courts. That is to say, the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds are required to be taken into consideration. Each criminal case presents its own peculiar factual scenario and, therefore, certain grounds peculiar to a particular case may have to be taken into account by the court. The court has to only opine as to whether there is prima facie case against the accused. The court must not undertake meticulous examination of the evidence collected by the police and comment on the same. Such assessment of evidence and premature comments are likely to deprive the accused of a fair trial. While cancelling bail under Section 439(2) of the Code, the primary considerations which weigh with the court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. But, that is not all. The High Court or the Sessions Court can cancel bail even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. Such orders are against the well recognized principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence, to flee from justice, etc. would not deter the court from cancelling the bail. The High Court or the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing accused involved in heinous crimes because they ultimately result in weakening the prosecution case and have adverse impact on the society. Needless to say that though the powers of this court are much wider, this court is equally guided by the above principles in the matter of grant or cancellation of bail. -Taking an overall view of the matter, we are of the opinion that in the interest of justice, the impugned order granting bail to the accused deserves to be quashed and a direction needs to be given to the police to take the accused in custody. We enquired with learned counsel for respondent 1-State of Rajasthan as to what is the stage of the case. We were shocked to know that till date, even the charges are not framed. We feel that the matter brooks no further delay. A direction needs to be given to the trail court to frame the charges and conclude the trial at the earliest. In the circumstances, the impugned order dated 19/8/2012 granting bail to accused – Khushi Ram Meena is quashed. The police are directed to take accused - Khushi Ram Meena in custody. The trial court is directed to frame charges within a period of one month from the date of receipt of this order. The trial court is further directed to proceed with the case and conclude it at the earliest independently and in accordance with law without being influenced by any observations made by us which may touch merits of the case as they are merely prima facie observations.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 1662  OF 2012
        [Arising out of Special Leave Petition (Crl.) No.155 of 2012]


KANWAR SINGH MEENA                …            APPELLANT

           Vs.

STATE OF RAJASTHAN & ANR.    …           RESPONDENTS



                                  JUDGMENT

(SMT.) RANJANA PRAKASH DESAI, J.

1.    Leave granted.

2.      The  appellant  is  the  brother  of  one  Purna  Singh  Meena.   On
20/5/2009, he lodged a complaint in respect of murder of Purna  Singh  Meena
(“the deceased”) against Khushi Ram Meena, who is respondent  2  herein  and
five others at Gandhi Nagar Police Station,  District  Jaipur  City  (East),
which was registered under Sections 147,  148,  149,  364  and  302  of  the
Indian Penal Code (for short,  “the  IPC”).   By  the  impugned  order,  the
Rajasthan High Court released Khushi Ram  Meena  (“the  accused”)  on  bail.
The appellant has challenged the said order in this appeal.


3.    The grievance of the appellant as stated by his counsel Mr.  Lekh  Raj
Rehalia is that the High Court committed a  grave  error  in  releasing  the
accused on  bail.   According  to  him  the  High  Court  ignored  the  well
established  principles  which  guide  the  courts  in  exercise  of   their
discretion to grant bail.  It is inter alia contended that  the  High  Court
overlooked extremely vital evidence collected by  the  investigating  agency
and, without assigning any reasons, it released the accused  on  bail.   The
High Court failed to notice  that  there  is  more  than  prima  facie  case
against the accused and that the brother  of  the  accused  who  is  an  IPS
Officer is trying to exert pressure on the investigating  officers.   It  is
submitted that the High Court’s order being perverse must be set  aside  and
the accused must be directed to be taken in custody.

4.    Mr. Ajay Vir Singh, learned counsel for respondent  1-State  supported
the  appellant.   He  relied  on  the  affidavit  of  Mr.  Yogesh   Dadhich,
Additional Deputy Commissioner of Police,  Jaipur  City  (East),  Jaipur  in
support of his submissions.  He also drew our attention to an  extract  from
the relevant station diary which indicates that the brother of  the  accused
tried to pressurize the investigating agency.


5.    Mr. U.U. Lalit, learned  senior  counsel  appearing  for  the  accused
submitted that though the High  Court  has  not  assigned  any  reasons  for
releasing the accused on bail, it has made a reference to various  important
features of the matter.  The High Court has observed  that  the  information
was received by the police at 6.10 a.m. on 20/5/2009 on mobile; however,  no
FIR was registered immediately; that the FIR came to be filed at  3.15  p.m.
on 20/5/2009; that though the investigation was transferred to CID  (CB)  on
5/6/2009,  the  same  officer  continued  the  investigation  and  got   the
statements  of  witnesses  recorded  under  Section  164  of  the   Criminal
Procedure Code (for short, “the Code”) on 10/6/2009;   that when the  matter
was investigated by CID  (CB),  the  factual  report  of  investigation  was
submitted by Sandeep Singh and Rajesh Sharma which reveals that the  accused
was not involved in this case;   that the location  of  the  mobile  of  the
accused as per the investigation was at Sikar and that the trial  court  had
rejected the application filed by the investigating agency  to  declare  the
accused as absconder.   The High Court also considered  the  fact  that  the
other co-accused have been enlarged on bail  by  the  High  Court.   Counsel
submitted that the impugned order was passed  after  taking  all  the  above
vital features into account and, therefore, it cannot be said that there  is
any non application of mind.  Counsel  submitted  that  each  of  the  above
circumstances is very relevant and makes out a case of false implication  of
the accused.  Counsel pointed  out  that  there  is  nothing  on  record  to
indicate that after  release  on  bail,  the  accused  had  tried  to  bring
pressure on the police.  The diary entry produced in this court pertains  to
an earlier period.  Counsel submitted that the accused  is  on  bail  for  a
considerable period.  There is nothing on record to show that he  has  tried
to  tamper  with  the  evidence  or  he  has  obstructed   the   course   of
administration of justice.  It would be, therefore, improper to  cancel  his
bail.


6.    Cancellation of bail is a serious matter.  Bail once  granted  can  be
cancelled only in the circumstances and for  the  reasons  which  have  been
clearly stated by this  court  in  a  catena  of  judgments.   It  would  be
appropriate to refer to  a  few  of  them  before  dealing  with  the  rival
contentions.

7.      In   Gurcharan   Singh   and   others   etc.    v.    State   (Delhi
Administration)[1], the  appellant  Gurcharan,  who  was  Superintendent  of
Police, was charged along with other police personnel  under  Section  120-B
read with Section 302 of  the  IPC.   During  the  preliminary  enquiry  six
alleged eye-witnesses, who  were  police  personnel,  did  not  support  the
prosecution case.  However, after the FIR was lodged during  the  course  of
investigation, seven witnesses including the said six police personnel  gave
statements implicating appellant Gurcharan Singh.   One  eye-witness  A.S.I.
Gopal Das made a statement under Section 164 of the Code in  favour  of  the
prosecution.  Learned Sessions Judge released appellant Gurcharan  Singh  on
bail after observing that there was little to gain by him by tampering  with
the witnesses who had, themselves, already tampered with their  evidence  by
making contradictory statements.  Learned Sessions  Judge  further  observed
that after reviewing the entire material he was of the  opinion  that  there
was little probability of appellant Gurcharan Singh fleeing from justice  or
tampering with the witnesses.  He noted that having regard to the  character
of evidence he was inclined to grant bail.  The prosecution moved  the  High
Court under Section 439 (2) of the Code for cancellation of the said  order.
 The High Court inter alia observed  that  considering  the  nature  of  the
offence and the character of the evidence, the  reasonable  apprehension  of
witnesses being tampered with and all other  relevant  factors,  it  had  no
option but to cancel  the  bail.   The  High  Court  observed  that  learned
Sessions Judge did not exercise his judicial discretion  on  relevant  well-
recognized principles.  An appeal was carried from the said  order  to  this
court.  This court observed that the  powers  of  the  High  Court  and  the
Sessions Court under Section 439 (1) of the Code are much wider  than  those
conferred on a court other  than  the  High  Court  and  Sessions  Court  in
respect of bail. However, certain considerations  which  have  to  be  taken
into account are common to all courts. This court  noted  that   gravity  of
the circumstances in  which the offence is committed; the position  and  the
status of the accused with reference to the victim and  the  witnesses;  the
likelihood of the accused fleeing from justice; of  repeating  the  offence;
of jeopardizing his own life being faced with a grim prospect of a  possible
conviction in the case; of tampering witnesses; the history of the  case  as
well as its investigation and  such other relevant grounds will have  to  be
taken into account.  To ascertain whether there is prima facie case  against
the accused, character of the evidence will have to  be  considered.   While
confirming the High Court’s interference with the  discretion  exercised  by
the  Sessions  Court,  this  court  expressed  its  displeasure  about   the
unwarranted premature comments made by the Sessions Court on the  merits  of
the case when at that stage it was only  called  upon  to  consider  whether
prima facie case was made out  against  the  accused  or  not.   This  court
particularly referred to statement of ASI Gopal Das, recorded under  Section
164 of the  Code  and  observed  that  this  witness  had  made  no  earlier
contradictory  statement  and  the  taint  of  unreliability  could  not  be
attached to his statement at that stage as was done by the  Sessions  Court.
This court found that the Sessions Court was not  alive  to  legal  position
that there was no substantive evidence recorded against  the  accused  until
the eye-witnesses were examined in the trial.  Serious  note  was  taken  of
the fact that the Sessions Court had not focused its attention  on  relevant
considerations.  The approach of the Sessions Judge was viewed as  suffering
from serious infirmity and cancellation of bail was endorsed.


8.    In Puran  v.  Rambilas & Anr.[2], the appellant  therein  was  charged
under Sections 498-A and 304-B of the IPC.  The Additional  Sessions  Judge,
Nagpur released the appellant therein, on bail.  The  High  Court  cancelled
the bail granted to the appellant.   The  said  order  was  under  challenge
before this court.  It was argued that rejection of bail in  a  non-bailable
case at the initial stage and the cancellation of bail already granted  have
to be considered and  dealt  with  on  different  basis.   Very  cogent  and
overwhelming  circumstances  are  necessary  for  an  order  directing   the
cancellation  of  bail  already  granted.   It  was  argued  that  generally
speaking the grounds for cancellation of bail broadly  are  interference  or
attempt to interfere with the due course of justice or  evasion  or  attempt
to evade the due course of justice or abuse of  the  concession  granted  to
the accused in any manner.  Reliance was placed on Dolat Ram  v.   State  of
Haryana[3] in support of this  submission.   This  court  observed  that  in
Dolat  Ram,  it  was  clarified  that  the  above   instances   are   merely
illustrative and not exhaustive and one  such  ground  for  cancellation  of
bail would be where ignoring material and  evidence  on  record  a  perverse
order granting bail is passed in  a  heinous  crime  and  that  too  without
giving any reasons.  This  court  observed  that  such  an  order  would  be
against the principles of law and, interest of justice  would  require  that
such a perverse order be set aside and bail be cancelled.  This court  found
that inasmuch as the  Sessions  Court  had  ignored  vital  materials  while
granting bail, the High Court  had  rightly  cancelled  the  bail.   It  was
further observed that such  orders  passed  in  heinous  crimes  would  have
serious impact on the  society  and  an  arbitrary  and  wrong  exercise  of
discretion by the trial court has to be corrected.

9.    In Dinesh  M.N.   (S.P.)   v.   State  of  Gujarat[4],  the  appellant
therein - a police officer  was  involved  in  a  case  of  fake  encounter.
Learned Sessions Judge released him on bail.  It was evident from  the  bail
order that learned Sessions Judge  was  influenced  by  the  fact  that  the
deceased was a dreaded criminal, against  whom  as  many  as  25  FIRs  were
lodged.  An application for cancellation of bail was moved before  the  High
Court under Section 439(2) of the Code.  The High Court cancelled  the  bail
holding that learned Sessions Judge had not kept in view the seriousness  of
the offence in which the high ranking police officer was involved.   It  was
observed that past conduct or antecedents of the  deceased  could  not  have
been a ground for grant of bail to the accused.  This  court  while  dealing
with the challenge to the said order  held  that  though  it  is  true  that
parameters for grant of bail and cancellation of bail are different, if  the
trial court while granting bail acts on irrelevant materials,  bail  can  be
cancelled.  It was observed that perversity of a bail order  can  flow  from
the fact that  irrelevant  materials  have  been  taken  into  consideration
adding vulnerability to the order granting bail.  On the facts of the  case,
this court held that that the deceased had a shady reputation  and  criminal
antecedents, was certainly not a factor which should have  been  taken  into
consideration while granting bail to the accused.  It was the nature of  the
act  committed  by  the  accused  which  ought  to  have  been  taken   into
consideration.  The order of the High Court  was  confirmed  on  the  ground
that  the  bail  was  granted  on  untenable  grounds.   The  argument  that
supervening circumstances such as attempt to tamper with  the  evidence  and
interference with the investigation were absent and, therefore,  bail  could
not have been cancelled by reappreciating evidence,  was  rejected  by  this
court.

10.   Thus, Section 439 of the Code confers very wide  powers  on  the  High
Court and the Court of Sessions regarding bail.  But, while  granting  bail,
the High Court and the Sessions Court are guided by the same  considerations
as other courts. That is to say, the gravity of the crime, the character  of
the evidence, position and status of  the  accused  with  reference  to  the
victim and witnesses, the likelihood of the  accused  fleeing  from  justice
and repeating the  offence,  the  possibility  of  his  tampering  with  the
witnesses and obstructing the course of justice and such other  grounds  are
required to be taken into consideration.  Each criminal  case  presents  its
own peculiar factual scenario and, therefore, certain grounds peculiar to  a
particular case may have to be taken into account by the court.   The  court
has to only opine as to whether  there  is  prima  facie  case  against  the
accused.  The  court  must  not  undertake  meticulous  examination  of  the
evidence collected by the police and comment on the same.   Such  assessment
of evidence and premature comments are likely to deprive the  accused  of  a
fair trial.  While cancelling bail under Section 439(2)  of  the  Code,  the
primary considerations which weigh with the court are  whether  the  accused
is likely to tamper with the evidence or interfere or attempt  to  interfere
with the due course of justice or evade the due  course  of  justice.   But,
that is not all.  The High Court or the Sessions Court can cancel bail  even
in cases where the order granting  bail  suffers  from  serious  infirmities
resulting in miscarriage of justice.  If the  court  granting  bail  ignores
relevant materials indicating prima facie  involvement  of  the  accused  or
takes into account irrelevant  material,  which  has  no  relevance  to  the
question of grant of bail to the accused, the High  Court  or  the  Sessions
Court would be justified in cancelling the bail.  Such  orders  are  against
the well recognized principles underlying the power  to  grant  bail.   Such
orders are legally infirm and vulnerable leading to miscarriage  of  justice
and absence of supervening circumstances  such  as  the  propensity  of  the
accused to tamper with the evidence, to flee from justice,  etc.  would  not
deter the court from cancelling the bail.  The High Court  or  the  Sessions
Court is bound to cancel such bail orders particularly when they are  passed
releasing accused involved in heinous crimes because they ultimately  result
in weakening the prosecution case and have adverse impact  on  the  society.
Needless to say that though the powers of this court are  much  wider,  this
court is equally guided by the above principles in the matter  of  grant  or
cancellation of bail.

11.   It is necessary now to briefly  note  the  facts  of  the  case.   The
complaint lodged by the appellant stated that  on  19/5/2009,  the  deceased
came to his house at about 7.00 p.m.  After the deceased  received  a  phone
call, he told the appellant that he had  to  take  money  from  someone  and
asked him to drop him by his bike at Gandhi Nagar.  Accordingly, he  dropped
the deceased near Janta Store, Opp. Shyam Hawans Paradise Apartment,  Gandhi
Nagar at 12.00 in the night. The deceased told him that he  will  come  back
next morning.  Since the deceased did not return as promised, the  appellant
reached Padawa near Shyam Hawans Paradise Apartment at about 11.00 a.m.  and
inquired about the deceased.  Chowkidar Kuldip Prajapati told him  that  the
deceased was with Rita madam in Flat No.603 and  in  the  morning  at  about
6.00 a.m., the accused, who used to meet Rita madam came with his  four/five
men in a jeep bearing Registration No.RJ-14-UB-294.  All of them  went  into
Flat no.603; beat up the deceased; dragged him out of the flat,  dumped  him
in the jeep and left the place in the jeep.  After  that,  he  searched  for
the deceased.  He ultimately  went  to  the  police  station  and  gave  the
information to the police.   Thereafter, he went  to  the  mortuary  in  SMS
Hospital.  At the mortuary  he  saw  the  dead  body  of  the  deceased  and
identified it.  The appellant stated that he was sure that the deceased  was
murdered by the accused and his associates.   On  the  basis  of  this  FIR,
investigation was started.

12.   During investigation, on 10/6/2009, statements  of  Kuldip  Prajapati,
the Chowkidar of Shyam Hawans Paradise  Apartment  and  Rita  were  recorded
under Section 164 of the Code by Judicial  Magistrate,  First  Class  No.15,
Jaipur City, Jaipur.  Copies of these statements have been  perused  by  us.
Kuldip Prajapati inter alia stated  in  his  statement  that  Rita  came  to
reside in Flat No.603 situate in Shyam Hawans Paradise  Apartment  belonging
to R.P. Singh on 7/5/2009.  The accused was a  usual  visitor  at  the  said
flat. On 19/5/2009 at about 8.30 p.m., he received a  phone  call  from  the
accused.  The accused asked him whether Rita was in the  flat  to  which  he
answered in the affirmative.  He further stated that on 20/5/2009  at  about
6.00 a.m., the accused came there in a jeep along with three  to  four  men.
He went to Rita’s flat.  After sometime, Rita came to him and told him  that
there was a dispute going on in her house.  He went upstairs with Rita.   He
saw the accused along with three to four persons dragging  a  man.   On  his
enquiry, the accused told him that a wicked man had entered his  flat.   The
accused did not tell him where he was  taking  the  man.   He  put  the  man
inside the jeep and took him away.

13.   In her statement, recorded under Section 164 of the Code, Rita,  inter
alia, stated that she was married to one  Ramgopal  Meena.   Ramgopal  Meena
became insane and, therefore, she deserted him.  She was  staying  with  her
parents.  Since her elder brother was  dealing  in  wine,  the  accused,  an
Excise Officer used to visit their house frequently.  On  his  request,  she
began residing with him.  Later on,  physical  relations  developed  between
both of them.  The accused made  arrangement  for  her  in  a  rented  house
wherever he was posted.  When she was residing in Deepak  Colony,  she  came
in contact with the deceased,  who  was  also  residing  in  Deepak  Colony.
Intimate friendship developed between her and the  deceased.   Rita  further
stated that disputes arose between her and the  accused.   She  stated  that
the accused knew that she was staying with the deceased.  In the absence  of
the deceased, the accused came to her and threatened her.  He told  her  not
to reside with the deceased and vacate the house.  He made  her  vacate  the
house and put her  up  in  a  rented  accommodation  in  Gandhi  Nagar.   On
19/5/2009, the accused was  continuously  making  telephone  calls  to  her.
Last call was received at 11.30 p.m.  He was threatening her and asking  her
as to why she was in touch with the deceased.   The  deceased  came  to  her
flat at about 5.30 a.m.   When they were taking tea at about 6.00 a.m.,  the
accused came there.  He was accompanied by Rai Singh and two others.   Those
two other persons caught her.  They  pushed  her  outside  the  flat.   They
closed the door.  She went downstairs to call the  guard  Kuldip  Prajapati.
She told him that some dispute was going on in her flat.  When both of  them
were going upstairs, she saw all the  four  persons  dragging  the  deceased
down.  She did not know where the deceased  was  taken.   She  informed  the
brother of the deceased that the accused had taken away the  deceased.   She
concluded that the accused, Rai Singh, Vijay and Subhash  jointly  committed
the murder of the deceased.


14.   From the complaint and  the  aforementioned  two  statements  recorded
under Section 164 of the  Code,  it  prima  facie  appears  that  there  was
illicit relationship between the accused and Rita.  However,  Rita  came  in
contact with the deceased and intimate relationship  developed  between  the
two, which was not liked by the accused.  It appears to be the case  of  the
investigating agency that, therefore, the accused  eliminated  the  deceased
with the help of his companions.


15.   At this stage, we do  not  want  to  comment  on  the  credibility  or
otherwise of  the  evidence  collected  by  the  prosecution.   Whether  the
statements  of  Kuldip  Prajapati  and  Rita  would  ultimately   help   the
prosecution to establish its case can be ascertained only when the trial  is
concluded.   That  is  the  function  of  the  trial  court.   It  would  be
inappropriate to discuss the evidence in depth at this stage because  it  is
likely to influence the trial court.  We, therefore, refrain from doing  so.
 But, we must make it clear that the  statements  of  Kuldip  Prajapati  and
Rita, recorded under Section 164 of the Code, appear to be relevant as  they
prima facie indicate involvement of the accused in the  crime  in  question.
The High Court ought not to have ignored those statements.  It is true  that
the High Court has referred to certain features  of  the  prosecution  case,
but that reference is in the form of submissions made  by  counsel  for  the
accused.   The  High  Court  has  not  discussed  those  features.   It  has
expressed no opinion as to why it was releasing the  accused  on  bail.   It
was imperative for the High Court to do so.  We have been shown  an  extract
from a relevant diary entry which does indicate that brother of the  accused
tried to bring pressure on  the  investigating  agency.   In  his  affidavit
filed in this court, Mr. Yogesh Dadhich, Additional Deputy  Commissioner  of
Police, Jaipur City (East), has confirmed  that  the  accused  had  made  an
effort to influence  the  investigation.   The  fact  that  brother  of  the
accused is an IPS officer is not denied by his counsel.  This  fact  is  not
noticed by the High Court.  If it was not brought to the notice of the  High
Court by the investigating agency, then, it will have to be  said  that  the
investigating agency adopted a very casual approach before the  High  Court.
In any case, the order passed  by  the  High  Court  releasing  the  accused
involved in a heinous crime on bail,  ignoring  the  relevant  material,  is
legally not tenable.  It suffers from serious infirmities.  The  High  Court
has exercised its discretionary power in an  arbitrary  and  casual  manner.
We have also noticed that the incident  took  place  on  19/5/2009  and  the
accused could be  arrested  only  on  1/6/2011.  His  two  attempts  to  get
anticipatory bail, one from the Sessions Court and the other from  the  High
Court, did not succeed.  Assuming that the accused is  not  likely  to  flee
from justice or after release on bail he has not tried to  tamper  with  the
evidence, that is no reason why a legally infirm and untenable order  passed
in arbitrary exercise of discretion releasing  the  accused  involved  in  a
gruesome crime on bail should be allowed to stand.  This order needs  to  be
corrected because it will set  a  bad  precedent.   Besides,  it  will  have
adverse effect on the trial.


16.   Taking an overall view of the matter, we are of the  opinion  that  in
the interest of justice, the impugned order granting  bail  to  the  accused
deserves to be quashed and a direction needs to be given to  the  police  to
take  the  accused  in  custody.   We  enquired  with  learned  counsel  for
respondent 1-State of Rajasthan as to what is the stage  of  the  case.   We
were shocked to know that till date, even the charges are  not  framed.   We
feel that the matter brooks no further delay.    A  direction  needs  to  be
given to the trail court to frame the charges and conclude the trial at  the
earliest.   In  the  circumstances,  the  impugned  order  dated   19/8/2012
granting bail to accused – Khushi Ram Meena  is  quashed.   The  police  are
directed to take accused - Khushi Ram Meena in custody.  The trial court  is
directed to frame charges within a period of one  month  from  the  date  of
receipt of this order.  The trial court is further directed to proceed  with
the case and conclude it at the earliest  independently  and  in  accordance
with law without being influenced by any observations made by us  which  may
touch merits of the case as they are merely prima facie observations.

17.   The appeal is disposed of in the aforestated terms.



                                                       ……………………………………………..J.
                                         (AFTAB ALAM)



                                                       ……………………………………………..J.
                             (RANJANA PRAKASH DESAI)


NEW DELHI,
OCTOBER 16, 2012.

-----------------------
[1]    (1978) 1 SCC 118
[2]    (2001) 6 SCC 338
[3]    (1995) 1 SCC 349
[4]    (2008) 5 SCC 66

-----------------------
16

declaration sought by the plaintiff cannot be granted in an independent suit and the remedy open to the plaintiff is to file an application before the Court which passed the decree, seeking setting aside of the decree on the ground that it was without jurisdiction on accountCS(OS) 2338/2012 Page 9 of 9 of the relief claimed in the suit having become barred by limitation by the time the suit was filed, or to file an appeal on the ground of limitation. 12. As regards the decree of mandatory injunction, directing the defendants to remove their goods, since under the compromise decree passed by the learned Civil Judge, defendant No. 1 was entitled to continue in possession of the first floor till sale of the suit property, this relief is not open to the plaintiff in law unless and until the consent decree dated 29.05.2010 is set aside. For the reasons stated hereinabove, the plaintiff is directed to amend the plaint so as to delete reliefs claimed in para (ii) and (iii) of the plaint. The amended plaint in terms of this direction be filed within four weeks.

CS(OS) 2338/2012                                                                                                                                         Page 1 of 9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 09.10.2012
Judgment pronounced on: 16.10.2012
+  CS(OS)  2338/2012
SANTOSH  PURI            ..... Plaintiff
Through:  Mr R.M. Bagai and Ms Damini
Khaira, Advs.
versus
ANIL PURI & ANR.  ..... Defendant
Through:  None.
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN
V.K. JAIN, J.
CS(OS)  2338/2012 and IAs 14118/2012 (O. 39 R. 1&2 CPC), 14119/2012 (for interim
directions), 14120/2012 (condonation of delay)
1. This is a suit for declaration, injunction and recovery of money.    The
plaintiff claims to be the owner of Property No. A-2/150 Safdarjung Enclave, New
Delhi.  The aforesaid property was purchased by late Shri Raj Kumar Puri, husband
of the plaintiff, who expired on 19.06.1986, leaving the plaintiff, two daughters,
namely, Dr. Rita Lingam and Dr. Reena Mohindra and one son defendant No. 1
Anil Puri as his legal heirs.   Defendant No. 1 and the daughters of the plaintiff
relinquished their share in the suit property in her favour, as a result of which she
became its absolute owner.    It is alleged that since the defendants had beenCS(OS) 2338/2012                                                                                                                                         Page 2 of 9
harassing the plaintiff, she left for Malaysia on 14.11.2001 to stay with her
daughter Rita Lingam, but the misbehaviour of the defendants persisted even after
the plaintiff returned from Malaysia.  She, therefore, left for USA on 01.07.2003 to
live with her younger daughter Reena Mohindra and her family.    When she
returned to India, after five years, she found that the defendants had trespassed into
several portions of the property and had also rented out two portions of the said
property.    Defendant No. 1 filed suit No. 345 of 2008, seeking a decree for
cancellation of the relinquishment deed executed by him in favour of the plaintiff.  
The daughters of the plaintiff were also impleaded as defendants in that suit.  On
the matter being referred for mediation, the counsel for the plaintiff agreed for
cancellation of the relinquishment deed and giving 29% of the suit property to
defendant No. 1.  It was also agreed that the plaintiff would be entitled to 50% of
the rent from 01.06.2010, the house would be sold within one year and 71% of the
proceedings would go to the plaintiff, whereas the remaining 29% would be
retained by defendant No. 1.  A decree dated 29.05.2010 was passed in terms of the
settlement arrived at during mediation proceedings.
The case of the plaintiff is that the decree dated 29.05.2010 passed by the
learned Civil Judge is without jurisdiction being barred by limitation since the suit
was filed more than three years after execution of the relinquishment deed.  In the
present suit, the plaintiff is seeking a declaration that the decree dated 29.05.2010CS(OS) 2338/2012                                                                                                                                         Page 3 of 9
passed by learned Civil Judge is null and void.  She is also seeking a mandatory
injunction, directing the defendants to remove their goods from the suit property.
She has also sought an injunction directing the defendants not to interfere in her
physical possession of the suit property.  Another relief sought by her is a direction
to the defendants to handover Kisan Vikaspatras, which, according to the plaintiffs,
were purchased by them from the rent which belonged to her.  She is also claiming
recovery of Rs 27,51,350/- from the defendants.
2. A perusal of the consent judgment dated 29.05.2010 discloses the following
terms agreed between the parties before Mediation Cell:-
a) 25% share in the suit property bearing A-2/150 Safdarjung Enclave, New
Delhi would vest in defendant No. 1 Anil Puri and 75% in the plaintiff Santosh
Puri.
b) the relinquishment deed dated 20.03.2001 stands cancelled;
c) the suit property would be mutated and converted into freehold in the ratio of
25% and 75% in favour of Anil Puri and Santosh Puri respectively and the
conversion charges/stamp duty would be paid by them in the same ratio.
d) the suit property would be sold within one year and on sale Anil Puri shall
get 29% of the sale proceeds, whereas Santosh Puri will get 71% for herself as well
as for her daughters.CS(OS) 2338/2012                                                                                                                                         Page 4 of 9
e) the rent proceeds with effect from 01.06.2010 shall be divided in equal
proportions between Santoshi Puri and Anil Puri.
f) Santoshi Puri will get the ground floor vacated from tenants within six
months and in case of non-vacation by the tenants even after 06 months, Anil Puri
will get 25% and Santosh Puri will get 75% share in the rent proceeds after 06
months.
g) after vacation of the ground floor by the tenants, Santosh Puri will shift to
ground floor, whereas Anil Puri will remain in exclusive use and possession of the
first floor.
h) the suit property will not be let out to any person in future until sale of the
proceeds.
3. Order 23 Rule 3 of the CPC, to the extent it is relevant, provides that where
it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in
part by any lawful agreement or compromise in writing and signed by the parties,
the Court shall order such agreement or compromise to be recorded, and shall pass
a decree is accordance therewith.  Rule  3A provides that no suit shall lie to set
aside a decree on the ground that the compromise on which the decree was based,
was not lawful.
4. In view of the provisions contained in Rule 3A, the learned counsel for the
plaintiff was requested to satisfy me how the suit is maintainable as regards theCS(OS) 2338/2012                                                                                                                                         Page 5 of 9
declaration that the decree dated 29.05.2010 is null and void and mandatory
injunction directing the defendants to remove their goods from the suit property.
5. In view of the provisions of Rule 3A, if a decree is sought to be challenged 
on the ground that the compromise on which it was based was void or voidable 
and, therefore, was not lawful, no suit can be filed for setting aside such a decree.  
As a necessary corollary, the only remedy available to a party who seeks to 
challenge a decree on the ground that the compromise on which it was based was 
void or voidable and therefore, unlawful, is  either to go back to the Court which 
had passed the decree on the basis of such a compromise or to file an appeal in 
terms of Section 96 read with Order XLIII Rule 1A of CPC.  In view of the bar 
imposed by Rule 3A of Order 23, read with the Explanation to Rule 3, there is no 
scope for an interpretation that a compromise decree which is voidable and not 
void cannot be challenged by filing a separate suit.
6. The question whether a compromise decree obtained by playing fraud upon a 
party to the suit came up for consideration before the Supreme Court in  Pushpa 
Devi Bhagat (D) through LR Smt. Sadhan Rai v. Rajinder Singh and others JT 
2006 (6) SC 235.  The Supreme Court held that no independent suit can be filed for 
setting aside compromise decree on the ground that the compromise was not lawful 
in view of the  bar contained in Order XXIII of Code of Civil Procedure and the 
only remedy available to a party to a consent decree to avoid such consent decree is CS(OS) 2338/2012                                                                                                                                         Page 6 of 9
to approach the court which recorded the compromise and made a decree in terms 
of it, and establish that there was no compromise. It was further held that in that 
event the court which recorded the compromise will itself consider and decide the 
question as to whether there was a valid compromise or not.
7. In view of the authoritative pronouncement of Supreme Court in the case of 
Pushpa Devi Bhagat’s case (supra) and the specific provisions contained in Order 
23 Rule 3A of the Code of Civil Procedure read with the Explanation to Rule 3 
thereof, there is no escape from the conclusion that irrespective of whether a fraud 
is played upon the Court or by one party to the litigation on the other, no 
independent suit lies for setting aside the compromise decree on the ground that the 
compromise on which the decree was based was unlawful. Such a decree can be 
challenged before a Court which passed the decree based on compromise by filing 
appropriate application under Section 151 of CPC or before a  higher Court, by
filing an appeal.
8. In Banwari Lal, v. Smt. Chando Devi AIR 1993 SC 1139, Supreme Court
held that a party challenging a compromise can file a petition under proviso to R.3
of O.23, or an appeal under Section 96(1) of the Code, in which he can now
question the validity of the compromise in view of R.1A of O. 43 of the Code.
In Morium Bibi and others v. Showkatra Begum and others 1995 AIHC
3720, a Division Bench of Calcutta High Court held that an independent suit,CS(OS) 2338/2012                                                                                                                                         Page 7 of 9
challenging compromise decree on the ground of fraud or otherwise is not
maintainable and the only forum open to the aggrieved party is to approach the
Court which passed the decree or to file an appeal under Section 96(1) in view of
Order 43 Rule 1-A of CPC.
9. The learned counsel for the plaintiff has relied upon Lachman Singh v.
Hazara Singh 2008(8) SCALE 220, Prem Singh & Ors v. Bubal Singh & Ors
AIR 2006 SC 3608 Noharlal    Verma v. Distt. Cooperative Central Bank Ltd.
Jagdalpur AIR 2009 SC 664, SP Chengalvaraya Naidu by LRs v. Jagannath and
Ors. (1994) 1 SCC 1 and Sneh Gupta vs Devi Sarup & Ors. (2009) 6 SCC 194.
10. In Lachman Singh (supra), Supreme Court held that Section 3 of
Limitation Act puts an embargo on the Court to entertain the suit if it is found to be
barred by limitation.
In Prem Singh and Ors (supra), Supreme Court noted that Section 3 of the
Limitation Act provides that irrespective of the fact as to whether any defence is set
out is raised by the defendant or not, in the event a suit is found to be barred by
limitation, every suit instituted, appeal preferred and every application made after
the prescribed period shall be dismissed.
In Noharlal  Verma (supra), Supreme Court held that if a suit is instituted,
appeal is preferred or application is made after the prescribed period, it has to be
dismissed even though no such plea has been raised or defence has been set up. In CS(OS) 2338/2012                                                                                                                                         Page 8 of 9
other words, even in absence of such plea by the defendant, respondent or
opponent, the Court or Authority must dismiss such suit, appeal or application, if it
is satisfied that the suit, appeal or application is barred by limitation.
These judgments are not relevant to decide the question as to whether a
compromise decree can be challenged by way of an independent suit or not.
In SP Chengalvaraya Naidu (supra), Supreme Court held that a decree
obtained by fraud is to be treated as nullity and can be questioned in collateral
proceedings. There is no quarrel with the proposition of law that a decree which is
a nullity in the eyes of law can be questioned in any collateral proceedings.  But,
this judgment does not deal with the issue which is involved in the present case.
I have also perused the judgment of Supreme Court in Sneh Gupta (supra).
This judgment does not deal with the issue as to whether the consent decree alleged
to be unlawful on account of the relief claimed in the decree having become barred
by limitation, can be challenged by way of an independent suit or not.  This
judgment, therefore, is also of no help to the plaintiff, as far as the issue in hand is
involved.
11. For the reasons stated hereinabove, I am of the view that declaration sought
by the plaintiff cannot be granted in an independent suit and the remedy open to the
plaintiff is to file an application before the Court which passed the decree, seeking
setting aside of the decree on the ground that it was without jurisdiction on accountCS(OS) 2338/2012                                                                                                                                         Page 9 of 9
of the relief claimed in the suit having become barred by limitation by the time the
suit was filed, or to file an appeal on the ground of limitation.
12. As regards the decree of mandatory injunction, directing the defendants to
remove their goods, since under the compromise decree passed by the learned Civil
Judge, defendant No. 1 was entitled to continue in possession of the first floor till
sale of the suit property, this relief is not open to the plaintiff in law unless and
until the consent decree dated 29.05.2010 is set aside.
For the reasons stated hereinabove, the plaintiff is directed to amend the
plaint so as to delete reliefs claimed in para (ii) and (iii) of the plaint.  The amended
plaint in terms of this direction be filed within four weeks.
Renotify on 24.01.2013.
                   V.K.JAIN, J
OCTOBER 16, 2012
BG