Ram Deo Prasad has been awarded death penalty for raping and inflicting injuries to a four year old child causing her death. = we feel it quite unsafe to confirm the death sentence awarded to the appellant. Hence, while confirming his conviction under sections 376 and 302 of the Penal Code, we set aside the death sentence given to the appellant and substitute it by imprisonment for life that should not be less than actual imprisonment for a period of 18 years. The case of the appellant for any remission under the Code of Criminal Procedure may be considered only after he has served out 18 years of actual imprisonment. 48. In the result, the appeal is dismissed subject to the modification in sentence.

Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1354 OF 2012
RAM DEO PRASAD … APPELLANT
VERSUS
STATE OF BIHAR … RESPONDENT
J U D G M E N T
Aftab Alam,J.
1. The appellant Ram Deo Prasad has been awarded death penalty for
raping and inflicting injuries to a four year old child causing her death. 
2. The prosecution case is based on the statement of one Mohd.
Kamruddin Mian made before Sub-Inspector, Birendra Kumar Pandey of
Siwan Town P.S. on December 21, 2004 at 8:15 a.m. at the Sadar Hospital,
Siwan. Mohd. Kamruddin stated that on the previous night after finishing
their meal at about 8:30 p.m. his family had gone to sleep at his house in
village Badka Gaon, P.S. Pachrukhi District Siwan. His four year old
1Page 2
daughter Laila Khatoon was sleeping by the side of her grandmother on the
outer verandah of the house and on the other side of the straw bed, the girl’s
mother was sleeping with her infant child. In the middle of the night, the
Informant who was sleeping in an inside room came out to relieve himself
and found Laila Khatoon missing from the side of her grandmother. A search
started for the girl and then his neighbour, Suman Kumar Sah (PW.2) told
them that just a little while ago he had seen the appellant swiftly running
away towards east, carrying a girl child in his arms who was crying. As
informed by Suman Sah, he (the Informant) and the villagers assembled there
proceeded towards east in search (of the child). After going for about a
kilometer, they heard the sound of heavy foot-steps and on going in the
direction of the sound they saw that the appellant, who was fleeing away with
the child, flung the child in the wheat field (by the side of the pathway) and
ran away. On going to the child, he found that it was his missing daughter.
She was moaning and bleeding from her private parts. The informant further
stated that he fully believed that the appellant after committing rape on her
child was taking her away with the intent to kill her and to hide the body
somewhere.
2Page 3
3. The statement was reduced to writing, as the fard-e-beyan (Exhibit 4)
by Sub-Inspector, Birendra Kumar Pandey (PW.6) and was duly signed by
the Informant and a witness, apart from the Sub-Inspector recording it. It was
dispatched to Pachrukhi police station, within the jurisdiction of which the
offence was committed, and there the recorded statement was incorporated in
the formal FIR (Exhibit 1), registered as Pachrukhi P.S. case No.131/2004
dated December 21, 2004 under section 376 of the Penal Code.
4. The child Laila Khatoon died at the Sadar Hospital Siwan on the same
day and consequently section 302 of the Penal Code was also added to the
case.
5. On the following day (December 22, 2004) at 11:00 a.m. the
Investigating Officer of the case (PW.4) went to the collector’s office (in
Siwan town) for a meeting in connection with the preparations for the
elections that were to be held shortly. There he was told by the officer incharge of the Siwan Town P.S. that at 9.00 that morning the appellant was
caught at the Siwan bus-stand and he was detained at the Town P.S. The
Investigating Officer went to the Town P.S., prepared the arrest memo of the
3Page 4
appellant and sent him for production before the Magistrate with the request
to take him in judicial custody. The appellant was, thus, produced before the
Magistrate on December 22, 2004 and as per the request of the Investigating
Officer, was remanded to judicial custody.
6. It did not occur to the Investigating Officer to take the appellant on
remand for interrogations or getting him examined by a doctor or seizing his
clothes etc.
7. In course of investigation, the Investigating Officer inspected two sites
as “the place of occurrence”; one, the verandah of the Informant’s house from
where the child was lifted and the other, the wheat field where the child was
said to have been thrown by the appellant; nothing was found of any
significance at either of two places. No attempt was made to find out the spot
where the child was sexually abused and brutalized and where it might have
been possible to find some blood or some other article that could have thrown
any light on the identity of the offender. The “investigation” mainly consisted
of recording the statements of witnesses under section 161 of the Code of
4Page 5
Criminal Procedure and as it was completed charge-sheet was submitted on
March 30, 2005, naming the appellant as the accused.
8. On the basis of the charge-sheet the appellant was put on trial before
the 1st Additional Sessions Judge, Siwan.
9. It needs to be stated here that in support of its case, the prosecution
examined six (6) witnesses before the trial court. PW.6 is the Sub-Inspector
who had recorded the statement of the victim’s father Kamruddin Mian. He
was simply called to formally prove the fard-e-beyan, giving rise to the FIR.
PW.4 is the Investigating Officer. He formally proved the FIR. He also stated
that he had recorded the statements of Rukhsana Khatoon (the mother of the
victim: PW.3), Suman Sah (PW.1), Hasmuddin (not examined), Nasir
(PW.2), Ram Chhabila Prasad (not examined), Gumani Pandit (not
examined) and some others. PW.5 is the doctor who was a member of the
team of doctors which had conducted post-mortem over the body of the child.
She formally proved the post-mortem report.
10. Apart from the two policemen and the doctor the prosecution examined
three other witnesses. PW.1 is Suman Sah, the neighbour of the Informant
5Page 6
who was the first to say that he had seen the appellant running away, carrying
a girl child who was crying. PW.2 is Nasir, the paternal cousin of the
Informant who was one of the group which had gone in pursuit of the
appellant and who had seen the appellant flinging the child in the wheat field
and making good her escape. PW.3 is Rukhsana Khatoon, the unfortunate
mother of the child. We shall presently see their evidences in greater detail.
But at this stage it is important to note that the Informant, the father of the
child did not appear as one of the witnesses. By the time the trial took place
he had gone somewhere abroad to earn the livelihood.
11. Further, the prosecution took steps to examine two other witnesses
mentioned in the charge-sheet, namely Hasmuddin and Gumani Pandit and
obtained warrants of arrest for their production. They were produced before
the trial court on October 5, 2007 but from the order dated October 30, 2007
passed by the court, it appears that though the prosecution produced the
aforesaid two witnesses, besides one Ram Chhabila Prasad (also named in the
charge-sheet as one of the witnesses), the In-charge Public Prosecutor filed a
petition that the three witnesses were not inclined to support the prosecution
6Page 7
case and, as such, he was giving them up and was not in favour of examining
them. That petition was disposed of by order dated November 13, 2007 and
the three persons were discharged from giving evidence in the case.
12. At the commencement of the trial, the court framed the charge against
the appellant. It is relevant to see what was said in the charge which is
reproduced below:
“First - That you, on or about the 21st day of December 4 at
Badaka Gaon you committed rape on Laila Khatoon hardly aged
about 4 years and thereby committed an offence punishable under
section 376 of the Indian Penal Code and within my cognizance.
Secondly – That you on or about the same date/ day of
same month and same place you committed murder intentionally
and knowingly that the act of rape was likely to cause death of
Laila Khatoon and that thereby committed an offence punishable
section 302 of the Indian penal Code and within my cognizance.
And I hereby direct that you be tried by the said court on
the said charge.
The charge was read over and explained to the accused in
Hindi to which he pleaded not guilty and claimed to be tried.
Dated this 19 day of 04, 2007.”
13. It is, thus, to be seen that the charge is completely silent in regard
to the first part of the prosecution case that immediately after the child
7Page 8
was missing, the appellant was seen running away carrying in his arms
a girl child who was crying. There was no charge under section 366A
or section 367 of the Penal Code.
14. At the conclusion of the prosecution evidence, the court
examined the appellant under section 313 of the Code of Criminal
Procedure. It is also important to see how the examination under
section 313 took place; hence, the full examination under section 313 is
quoted below.
“Question: Have you heard the statements of the witnesses?
Answer: Yes.
Question: Against you the charge and evidence are that on
20/12/2004 in the night at 12.00 you went to the
house of Kamruddin Miyan s/o Babujaan Miyan,
village Barka Gaon P.S. Pachrukkhi district Siwan
and abducted his daughter Laila Khatoon (6 years).
Answer: No.
Question: There is also evidence against you that you
committed rape on her and flung her in the field and
as a result she died.
Answer: No.
Question: Do you have anything to say in your defense?
8Page 9
Answer: I have been falsely implicated. The villagers have
wrongly declared me as mad.”
15. This is all! The first question was an empty formality and the second
question was evidently asked even without looking to the charge as there was
no charge of abducting the child from her father’s house against that
appellant. The whole of section 313 was, thus, squeezed into the third and the
last question. We shall advert back to this aspect of the matter later but there
is something else in the appellant’s statement under section 313 which we
cannot fail to notice. There is an allusion to the villagers’ calling him, “mad”.
Unfortunately, this aspect of the matter received absolutely no attention either
in investigation or during trial. We may here clarify that on the basis of that
isolated fragment of a sentence we are not suggesting that the appellant was
of unsound mind. But what we wish to emphasize is that in a case involving
death sentence, the court cannot afford to leave any detail, howsoever small
and apparently insignificant, fully explored.
16. At the conclusion of the trial, the court found the appellant guilty of
committing rape and causing injuries to the child leading to her death and
accordingly, by judgment and order dated September 6, 2008/September 9,
9Page 10
2008 passed in Sessions Trial No. 417 of 2006, convicted him under sections
376 and 302 of the Penal Code and awarded him the death penalty.
17. Since the punishment given to the appellant was death, the trial court
made a reference under section 366 of the Code of Criminal Procedure which
was registered in the High Court as Death Reference No.15/2008.
18. It needs to be stated here that before the trial court, the appellant was
unrepresented and, therefore, the court had appointed an advocate to defend
him from the panel of lawyers for undefended accused. Further, even after
being punished with death, the appellant did not file any appeal before the
High Court and, thus, what the High Court had before it was only the death
reference made by the trial court. The High Court in its judgment has brushed
aside the fact that no appeal was filed by the appellant, observing as under.
“The respondent has not preferred an appeal,
understandably because he could challenge the findings upon
which the orders of conviction and sentence are based as if he
had preferred an appeal.”
1Page 11
19. In our view, the High Court, attributed to the appellant, knowledge of
law and the court procedure for which there does not appear to be any basis.
To our mind, the appellant filed no appeal before the High Court either
because of the lack of resources or because he did not fully realize the gravity
of his position and we are unable to accept the view taken by the High Court
for the appellant filing no appeal against the judgment of the trial court giving
him the death penalty.
20. Anyway, since there was no one to represent the appellant in the death
reference, the High Court requested a senior advocate of that court to assist it
in hearing and disposing of the reference and finally by a detailed judgment
dated September 17, 2009 accepted the reference and confirmed the death
penalty awarded to the appellant.
21. After the High Court judgment, the Registry of the Supreme Court
received the jail petition (special leave petition) (death case) on behalf of the
appellant through the Superintendent, Central jail, Buxar, Bihar. Though the
petition was barred by limitation by 42 days, it was not accompanied by any
application for condonation of delay. The jail petition along with copies of
1Page 12
the judgments passed by the trial court and the High Court were handed over
to the Amicus Curiae, appointed as per the instructions contained in Circular,
dated December 6, 2008. The amicus then drew up and filed a proper special
leave petition on which notice was issued and the execution of the appellant
was stayed by order dated March 19, 2010. Leave to appeal was finally
granted by order dated September 3, 2012.
22. The amicus appointed by the office assisted us to the best of his ability
but we also requested Mr. P.S. Patwalia, learned senior counsel, to assist the
Court in the hearing of the appeal and Mr. Patwalia rendered admirable
assistance to us.
23. Since the appeal involves death penalty, we propose to re-examine all
the issues arising in the case ourselves, independently of any findings arrived
at by the courts below.
24. It is noted above that the prosecution examined six witnesses in support
of its case. Dr. Seema Choudhary (PW.5) is the doctor who was a member of
the Medical Board constituted to examine the dead body of Laila Khatoon.
She stated before the court the findings of the post-mortem and proved the
1Page 13
post-mortem report which was marked as Ex.3. The evidence of the doctor
coupled with the post-mortem report leaves no room for doubt that the child
was sexually abused and brutalized with utmost cruelty and perversity and
the injuries inflicted upon her in course of the sexual abuse caused her death.
25. Birendra Kumar Pandey (PW.6) is the Sub-Inspector of Police of Siwan
(Town) P.S. who had taken down the statement made by Mohd. Kamruddin
Mian and recorded it as the fard-e-beyan. He identified the fard-e-beyan
which was marked as Ex.4.
26. Mehboob Alam Khan (PW.4) is the Investigating Officer of the case.
There is hardly anything significant in his deposition before the court.
27. This leaves us with the statements of PW.1 to PW.3.
28. Suman Kumar Sah (PW.2) is the Informant’s neighbour. In his
deposition before the court he stated that about two and a half years before
the date of the deposition he woke up one night at about 11- 11.30 for
relieving himself, he saw that a person carrying a child in his arms was going
towards the field of Ram Bachan Mishra. He then went back to sleep. After
10-20 minutes, he saw Mohd. Kamruddin (the Informant), Nasir Mian
1Page 14
(PW.1), Gumani Pandit (not examined), Ram Chhabila Prasad (not
examined) and others, coming on the road in front of his house. He went out
to meet them and then he came to know that someone had taken away a child
from Kamruddin’s house. He further said that he did not tell them that a
little while ago he had seen someone carrying a child. However, he also
joined them and proceeded with them. He further said that they found a girl
lying in the field of Sachidanand Mishra. The girl was bleeding from her
private parts. The girl was brought to Siwan where she died. He added that
he did not know who had abducted the girl. He concluded by saying that
he knew the appellant who was present in court. At that stage he was
declared hostile by the prosecution and was subjected to crossexamination. He denied that he had made any statement before the police
that he had seen the appellant taking away the child from the verandah of
Kamruddin and further that in course of search he had seen the appellant with
the child. The Investigating Officer (PW.4), however, stated before the court
that Suman Sah had said before him that he had seen the appellant coming
out from the verandah of Kamruddin and in course of the search too had seen
the appellant with the victim child.
1Page 15
29. The second witness Nasir Mian (PW.1) stated before the court that
about two and a half years earlier, at about 12:00 in the night, Kamruddin got
up and found that his daughter was missing from the side of his mother with
whom she was sleeping. Kamruddin came to him and then there was an
outcry that the child was missing. He, along with Kamruddin and other
villagers started searching for the child. In course of the search they went to
Suman Sah who told them that the appellant had gone towards east, in the
direction of Ram Bachan Mishra’s orchard, carrying a child. They then went
to Ram Bachan Mishra’s orchard and, lighting the torch there, they saw the
appellant running away with a child. The appellant, on seeing them coming
after him, flung the child in Ram Bachan Mishra’s wheat field. They ran after
him but he succeeded in fleeing away. In the wheat field they found
Kamruddin’s daughter who was about 4 years old. She was injured and was
bleeding from her private parts. They brought the child to the Sadar Hospital,
Siwan, where she passed away the following morning. The mouth of the
child was filled with earth and she was also bleeding from her nose.
1Page 16
30. In cross-examination he stated that the occurrence took place on a
winter night which was very cold and there was a dense fog on that night. He
also stated that he had produced the torch in the light of which he had
identified the appellant before the darogaji. The torch, however, was not
presented before the court.
31. On an overall scrutiny of the deposition of Nasir Mian we find that he
remained quite firm and unshaken on his part of the story.
32. The third witness, Rukhsana Khatoon (PW.3), is the mother of the
child. She stated that as the child was found missing and a search started,
Suman Kumar Sah one of the neighbours informed that (he had seen) the
appellant going away carrying a child. She then stated about the group of
villagers going in search of and finding the girl whom the appellant had flung
in the field. In the course of cross-examination, however, she said that she
was also a part of the group which had gone in search of the child on the
fateful night and her mother-in-law was also a part of that group.
33. This is all the oral evidence adduced by the prosecution.
1Page 17
34. We may here broadly divide the prosecution case in two parts. In the
first part, soon after the child was found missing, the appellant was seen close
to the house of the Informant, swiftly going eastwards in the direction of Ram
Bachan Mishra’s fields/orchard carrying in his arms a girl child who was
crying. This was at a point when the child was lifted from the verandah of her
house and before she was subjected to the sexual abuse. In the second part of
the prosecution case the appellant was seen carrying the child and on seeing
the group of villagers coming in pursuit of him he threw down the child in the
wheat field and fled away. This was at a point after the child was subjected to
the sexual abuse and brutality.
35. The first part of the prosecution case, as seen above, did not form part
of the charge. Further, this part of the prosecution case was based on the
solitary evidence of Suman Sah and as he turned hostile, this part of the case
falls to the ground.
36. However, the second part of the case is fully established by the
evidences of Nasir Mian (PW.1) and Rukhsana Khatoon (PW.3). What is
thus established against the appellant is that he was seen carrying the child
1Page 18
soon after she was sexually abused and brutalized in the most cruel manner
and on seeing the group of villagers coming after him he threw down the
child in the wheat field and ran away. It was, therefore, for him to explain
how the child came in his possession and in the absence of any explanation
the court would be fully justified in invoking section 114 of the Evidence Act
and to hold him guilty of causing the injuries to her private parts leading to
her death. No exception can, therefore, be taken to the appellant’s conviction
under sections 376 and 302 of the Penal Code.
37. But the vital question is that of the sentence to which he should be
liable.
38. Mr. Samir Ali Khan, learned counsel appearing for the State of Bihar,
strongly submitted that the offence committed by the appellant showed not
only extreme cruelty but also great depravity and urged that this Court while
confirming his conviction should also confirm the death penalty awarded to
him by the courts below. In support of his submission he relied upon a
decision of this Court in Rajendra Pralhadrao Wasnik v. State of
Maharashtra1
. Like the present appellant, Wasnik was also held guilty of
1
 (2012) 4 SCC 37
1Page 19
raping and killing a three year old girl and in his case this Court confirmed
the death penalty awarded to him. It is true that the case of Wasnik relied
upon by Mr. Khan is similar to the case in hand insofar as in both cases girls
of very tender age were subjected to extreme sexual brutality resulting in
their death.
39. There can be no doubt that the offence committed by the appellant is
heinous and revolting but the nature of the offence alone may not in all cases
be the determining factor for bringing the case in the “rarest of rare” category
and to impose the ultimate and irreversible punishment of death. There are
certain features of this case which are not to be found in Wasnik’s case and
make the present case distinguishable from the decision relied upon by Mr.
Khan.
40. In the earlier part of the judgment we have indicated the deficiencies of
investigation. Apart from the post-mortem report there is no medical
evidence. There is not a scrap of forensic evidence of any kind. Even the
torch in the light of which the appellant is said to have been identified in the
cold wintry and foggy night was not produced before the court.
1Page 20
41. We have also recounted the lapses in the trial proceedings in the
framing of the charge and especially in the examination of the appellant
under section 313 of the Code of Criminal Procedure. On an earlier occasion,
in the decision in Sajjan Sharma v. State of Bihar2
 (to which, one of us, Aftab
Alam J. was a party) this Court had commented upon the careless and the
unmindful way in which examination of the accused under section 313 of the
Code of Criminal Procedure was generally conducted in the State of Bihar.
The present case is another glaring example. It was incumbent upon the trial
court to clearly tell the appellant that according to the prosecution evidence,
the child soon after being sexually abused in the most cruel manner was seen
in his arms and to ask him to explain this very vital circumstance against him.
But the section 313 examination made in this case completely falls short of
the requirements of the law.
42. We have also seen that the appellant was represented before the trial
court by a lawyer appointed by the court from the panel of advocates for
undefended accused. Though facing death penalty, he did not file an appeal
before the High Court and in this Court his appeal came through the Jail
2
 (2011) 2 SCC 206
2Page 21
Superintendent. We presume that the appellant did not have sufficient
resources to engage a lawyer of his own choice and get himself defended up
to his satisfaction.
43. We are very clear that the aforesaid facts and circumstances are also
relevant factors to be taken into consideration while confirming the death
penalty given to an accused.
44. Mr. Patwalia, senior counsel, invited our attention to the decision of
this Court in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra3
.
In Santosh Kumar, after surveying a large number of decisions on death
penalty, this Court in Paragraph 56 of this judgment observed as under:
“56. At this stage, Bachan Singh informs the content of the
sentencing hearing. The court must play a proactive role to record
all relevant information at this stage. Some of the information
relating to crime can be culled out from the phase prior to
sentencing hearing. This information would include aspects relating
to the nature, motive and impact of crime, culpability of convict,
etc. Quality of evidence adduced is also a relevant factor. For
instance, extent of reliance on circumstantial evidence or child
witness plays an important role in the sentencing analysis. But what
is sorely lacking, in most capital sentencing cases, is information
relating to characteristics and socio-economic background of the
offender. This issue was also raised in the 48th Report of the Law
Commission.”
3
 (2009) 6 SCC 498
2Page 22
(emphasis added)
45. Mr. Patwalia submitted that the above passage from the decision in
Santosh Kumar was cited and followed by the Court in Ramesh v. State of
Rajasthan4
. In Paragraph 68 of the judgment in Ramesh this Court observed
as under:
“68. Practically, the whole law on death sentence was referred to in
Santosh Kumar case. In SCC para 56, the Court observed: (SCC p.
527)
“56. … The court must play a proactive role to record all relevant
information at this stage. Some of the information relating to crime
can be culled out from the phase prior to sentencing hearing. This
information would include aspects relating to the nature, motive and
impact of crime, culpability of convict, etc. Quality of evidence is
also a relevant factor. For instance, extent of reliance on
circumstantial evidence or child witness plays an important role in
the sentencing analysis. But what is sorely lacking, in most capital
sentencing cases, is information relating to characteristics and
socio-economic background of the offender. This issue was also
raised in the 48th Report of the Law Commission.”
(emphasis supplied)
The Court, thus, has in a guided manner referred to the quality of
evidence and has sounded a note of caution that in a case where the
reliance is on circumstantial evidence, that factor has to be taken
into consideration while awarding the death sentence. This is also a
case purely on the circumstantial evidence. We should not be
understood to say that in all cases of circumstantial evidence, the
death sentence cannot be given.”
4
 (2011) 3 SCC 685
2Page 23
46. Mr. Patwalia also cited before us the decision of this Court in Amit v.
State of Uttar Pradesh5
. In the case of Amit, though this Court upheld his
conviction under sections 376 and 302 of the Penal Code finding him guilty
of raping and killing a three year old girl, commuted the death penalty
awarded to him by the courts below.
47. In the overall of facts of the case and for the reasons discussed above
we feel it quite unsafe to confirm the death sentence awarded to the appellant.
Hence, while confirming his conviction under sections 376 and 302 of the
Penal Code, we set aside the death sentence given to the appellant and
substitute it by imprisonment for life that should not be less than actual
imprisonment for a period of 18 years. The case of the appellant for any
remission under the Code of Criminal Procedure may be considered only
after he has served out 18 years of actual imprisonment.
48. In the result, the appeal is dismissed subject to the modification in
sentence.
..…..………………………..J.
(Aftab Alam)
5
 (2012) 4 SCC 107
2Page 24
..…..………………………..J.
(Ranjana Prakash Desai)
New Delhi;
April 11, 2013
2

service matter = High Court has allowed all the Writ Petitions and set aside the Circular No. 17 of 2009 dated 30th November, 2009 and Circular dated 12th July, 2010 in so far as they make a provision to exclude the employees from consideration for promotion, who are otherwise eligible to be considered for promotion and are within the zone of consideration, on the basis that they have either obtained the ‘D’ rating in the annual performance report or have been penalized for any misconduct in the preceding 5 years. = Different rules/regulations of the banks provide specific punishments such as “withholding of promotion, reduction in rank, lowering in ranks/pay scales”. However, there is another range of penalty such as censure, reprimand, withholding of increments etc. which are also prescribed under various staff regulations. To debar such an employee from being considered for promotion would tantamount to also inflicting on such employee, the punishment of withholding of promotion. In such circumstances, a punishment of censure/ reprimand would, in fact, read as censure/reprimand + 5 years debarment from promotion. Thus the circulars issued by the bank debarring such employees from being considered would be clearly contrary to the statutory rules. The circulars clearly do not fall within the ratio in Sant Ram’s case (supra). 41. In our opinion, the observations made by this Court in the case of Ram Ashish Dixit (supra) are a complete answer to the submissions made by the learned counsel for the appellants, Mr. Dhruv Mehta. Therefore the High Court, in our opinion, has rightly quashed the aforesaid two Circulars and directed that the respondent be considered for promotion in accordance with the applicable rules. 42. We, therefore find no merit in the civil appeals filed by the appellant-bank, and are accordingly dismissed. No costs.

Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 2970-2975 OF 2013
[Arising out of SLP (C) NOS.9181-9186 OF 2011]
Rani Laxmibai Kshetriya Gramin Bank & Ors. ...Appellants
VERSUS
Manoj Kumar Chak ...Respondent
WITH
CIVIL APPEAL NOS. 2989-2992 OF 2013
[Arising out of SLP (C) NOS.9306-9309 OF 2011]
Vidur Gramin Bank & Ors. ...Appellants
VERSUS
Paramjeet Singh & Ors.
...Respondents
WITH
CIVIL APPEAL NOS. 2976-2988 OF 2013
[Arising out of SLP (C) NOS.9432-9444 OF 2011]
Rani Laxmibai Kshetriya Gramin Bank
(now Sarva U.P. Gramin Bank & Ors.) ...Appellants
VERSUS
1Page 2
Siraj Ahmed Khan & Ors. ...Respondents
WITH
CIVIL APPEAL NOS. 2993-3010 OF 2013
[Arising out of SLP (C) NOS.9284-9301 OF 2011]
Sarva UP Gramin Bank & Ors. ...Appellants
VERSUS
Sanjeev Kumar & Ors. ...Respondents
J U D G M E N T
SURINDER SINGH NIJJAR,J.
1. Leave granted in all the Special Leave Petitions.
2. These appeals are directed against the common judgment
and final order dated 8th December, 2010 passed by the
High Court of Judicature at Allahabad in Writ Petition Nos.
58206 of 2005 and in connected Writ Petition Nos. 58214,
59016, 59018, 59035 and 59758 of 2005, whereby the
High Court has allowed all the Writ Petitions and set aside
the Circular No. 17 of 2009 dated 30th November,
2009 and Circular dated 12th July, 2010 in so far as they
make a provision to exclude the employees from
2Page 3
consideration for promotion, who are otherwise eligible to
be considered for promotion and are within the zone of
consideration, on the basis that they have either obtained
the ‘D’ rating in the annual performance report or have
been penalized for any misconduct in the preceding 5
years. 
Background:-
3. Before we take up for consideration, the issues involved, it
would be appropriate to briefly notice the background
leading to the present litigation.
4. There are currently about 82 Regional Rural Banks
(for short “RRBs”) sponsored by various nationalized
banks, set up under the Regional Rural Banks Act, 1976
(for short “the RRB Act, 1976”). There are about 67,000
employees of the Bank, spread all over India mostly in the
interiors.
5. To ensure uniformity amongst all the RRBs, Section 29
read with Section 17 of the RRB Act, 1976 empowers the
Central Government to lay down the terms and conditions
3Page 4
of service of employees of all the banks. Section 17 of the
RRB Act, 1976 empowers the RRBs to appoint such
number of officers and other employees as it may consider
necessary or desirable in such manner as may be
prescribed for the efficient performance of its functions
and to determine the terms and conditions of their
appointment and service. Section 24 of the Act lays down
that in the discharge of its functions, RRBs shall be guided
by such directions in regard to matters of policy involving
public interest and the Central Government may, after
consultation with the National Bank for Agriculture and
Rural Development (for short “NABARD”), may prescribe.
Under Section 29 of this Act, the Central Government has
been empowered to make rules after consultation with the
NABARD and the Sponsor Banks for carrying of the
provisions of the RRB Act, 1976. By Clause (ba) of subsection (2) of Section 29, which was inserted by the
Regional Rural Banks (Amendment Act), 1988, the Central
Government was empowered to make rules relating to the
manner in which the officers and other employees of the
RRBs shall be appointed.
4Page 5
6. Till the year 1988, there were no statutory rules governing
the promotion of employees of RRBs and the same were
governed by various Circulars issued by the Central
Government and NABARD. On 1st December, 1987,
NABARD issued guidelines to all RRBs vide letter No.
IDD.RRB.NO. C-78/316(GEN)/87-88, explaining the
concept of promotion by “Seniority-cum-Merit” as
envisaging promotion by seniority with due considerations
to minimum merit/fitness prescribed. Further, it was
stipulated that “this rule envisages promotion by seniority
with due considerations to minimum merit/fitness
prescribed. Fitness implies that there is nothing against
an officer; no disciplinary action is pending against him
and none is contemplated. The officer has neither been
reprimanded nor any adverse remarks have been
conveyed to him in the reasonable recent past”. Although
the aforesaid Circular was issued in relation to promotion
of Managers to the post of Area/Sr. Manager, it was
observed that the similar procedure may be followed in
case of the promotion of Sr. Clerk and internal promotion
to Field Supervisor and Manager Posts.
5Page 6
7. The Central Government vide a Notification
dated 28th September, 1988 framed statutory rules, known
as Regional Rural Banks (Appointment and Promotion of
Officers and other Employees) Rules, 1988 (for short “the
RRB Rules, 1988). These rules were made in exercise of
the powers conferred on the Central Government by
Section 29 read with Section 17 of the RRB Act, 1976 after
consultation with the NABARD and the Sponsor Banks
specified in the First Schedule of the Rules.
8. Second Schedule of the aforesaid Rules laid down the
criteria for appointment to different categories of posts
whether by direct recruitment or by promotion in all the
RRBs. The criterion for promotion on all the posts was
specified as seniority-cum-merit. With regard to the post
of Area / Senior Manager, Clause 7 of Schedule 2 provided
that the appointment on the aforesaid post shall be made
100% by promotion from amongst confirmed officers
working in the Bank. Promotion will be on the basis of
seniority-cum-merit. If suitable officers are not available
internally, these posts are to be filled by deputation in
another banks or organization on deputation.
6Page 7
9. Clause 7(c) pertains to the mode of selection, which
provided for “interview and assessment of performance
reports for the preceding 3 years period as officer for
promotion”. It is relevant to note here that in these rules,
the provisions pertaining to merit/fitness contained in the
NABARD Circular dated 1st December, 1987 were not
incorporated. Even though, the 1988 Rules have been
promulgated in consultation with NABARD and the Sponsor
Banks.
10. In spite of the promulgation of the RRB Rules, 1988, the
RRBs continued to make promotions by taking into
consideration the criteria laid down in the 1987 Circular in
addition to the provisions contained in the RRB Rules,
1988. This led to the actions of the RRBs being challenged
by way of Writ Petitions in Andhra Pradesh High Court and
Madhya Pradesh High Court. Both the Andhra Pradesh as
well as the Madhya Pradesh High Court held that if
seniority-cum-merit criterion is adopted for the purposes
of seniority, then the first senior most eligible employee
has to be tested to find out whether he possesses the
7Page 8
minimum required merit for holding the higher post and
only if he is not found suitable or fit, his immediate junior
may be tested for the purpose of promotion. These
decisions of the High Courts were challenged by the
various RRBs as well as the promoted officers whose
promotion has been set aside by this Court.
11. The controversy was laid at rest by this Court in the
judgment delivered in the case of B.V. Sivaiah & Ors. Vs.
K. Addanki Babu & Ors.1
 This Court distinguished the
principle of “Merit-cum-Seniority” and the principle of
“Seniority-cum-Merit”. It has been held that the principle of
“Merit-cum-Seniority” lays greater emphasis on merit and
seniority plays a less significant role. Seniority is to be given
weight only when merit and seniority are approximately
equal. As between two officers of “seniority-cum-merit”, the
criterion of seniority-cum-merit lays greater emphasis on
seniority. However, this Court added a caveat that an officer
can not claim promotion as a matter of right by virtue of
seniority alone and if he is found unfit in the discharge of
duties of the higher post, he may be passed over and the
1
 (1998) 6 SCC 720
8Page 9
officer junior to him may be promoted. The aforesaid
judgment of this Court was delivered on 17th July,
1998.
12. Thereafter on 29th July, 1998, in exercise of the powers
conferred by Section 29 read with Section 17 of RRB Act,
1976, in supersession of the RRB Rules, 1988, the Central
Government, after consultation with the National Bank and
Sponsor Bank specified in the Second Schedule, promulgated
the Regional Rural Banks (Appointment and Promotion of
Officers and other Employees) Rules, 1998. The relevant
provision for appointment by promotion as a Scale II officer is
as under:-
 “2.
(a) Name of Post Scale II Officer
(b) Classification Group ‘A’
(C) Source of appointment 100 % by promotion
(d) Whether promotion to be Promotion shall be made
made on seniority basis on the basis of seniority
or seniority-cum-merit -cum-merit
basis.
(e) Eligibility Officer holding post for
eight years as an officer
on regular basis in the
Regional Rural Bank
9Page 10
shall be considered for
promotion to Scale-II
post in that bank :
Provided that no officer
shall be considered for
promotion unless he has
been confirmed in
feeder grade post:
Provided further that the
Board may, with the
prior approval of
National Bank relax the
qualifying service for a
period not exceeding
two years, if eligible
officers are not
available.
 Note:
(I) The officers eligible for promotion to the post of Area
Managers/Senior Managers/Officers Scale-II on or before
publication of this notification, shall continue to be
considered for promotion to Scale-II officer Post.
(II) The service of the incumbents, who are holding the
post eligible for promotion before publication of this
notification, shall continue to be counted for the purpose
of promotion to the Scale II officer post.
(f) Mode of Selection The selection of the
candidates shall be made
by the committee on the
basis of written test,
interview and assessment
of Performance Appraisal
Reports for the preceding
five years as an officer in
Scale I/Field Supervisor.
1Page 11
(g) Composition of Committee The committee (for
considering promotion)
shall consist of the
following persons, namely,
i) The chairman of the
concerned Regional Rural
Bank-Chairman
(ii) A director nominated
the sponsor bank-Member.
(iii) A director nominated
by the National Bank
Member.
Note: If none of the members of the Committee belongs to
Scheduled Castes/Scheduled Tribes, the Board may nominate
a person belonging to Schedule Castes or Schedule Tribe as an
additional member and such person shall participate in the
process of selection by the concerned committee.
(h) Reckoning of the The minimum eligibility in
minimum eligibility terms of the number of
years of service for
promotion shall be reckoned
as on the 1st April of the year
in which the vacancy is
expected to arise or has
actually arisen.
(i) Number of candidates The number of
candidates to be
To be considered for considered for promotion from
Promotion officer Scale I to officer Scale II
shall be restricted to four times
1Page 12
the number of vacancies
available for promotion.
(j) Selection process for The Selection shall be on the
Promotion basis of performance in the
written test, interview and
perforlmance appraisal reports
for preceding five years as per
the division of marks given
below.
(A) Written Test 60 Marks
(B) Interview 20 Marks
(C) Performance 20 Marks
Appraisal Reports
TOTAL MARKS 100 MARKS
(A) Written test (60 marks) The candidates shall be
required to appear for written
test comprising of two parts
viz. part (A) covering Banking
Law and Practice of Banking
and Part
(B) covering Credit Policy
Credit Management including
priority Sector, Economics and
Management.
60 marks allotted to written
test shall be further divided as
under :
Part ”A” 30 Marks
Part “B” 30 Marks
A list of only those candidates,
who secure a minimum of 40%
marks in each part shall be
1Page 13
prepared and such candidates
shall be called for interview. “
13. The Rules also provide that the written test shall be in
two parts viz. Part A and Part B, each consisting of 30
marks. It was provided that the list of those candidates
shall be prepared, who secure a minimum of 40% marks in
each part and such candidates shall be called for interview.
Thus the Rules had clearly introduced the minimum
necessary merit as laid down by this court in the case of
B.V. Sivaiah (supra). However, it appears that one of the
Sponsor Banks, namely Punjab National Bank issued
guidelines dated 27th February, 1999 laying down the
“procedure to be adopted in RRBs for promotion in different
cadres – clarification thereof”, to all its Sponsored Regional
Rural Banks.
Present Litigation:
14. Thereafter, the individual officers of erstwhile RRBs
filed 13 Writ Petitions before the High Court in the year
2004-2005 on the ground that the Circular sought to debar
totally from consideration for promotion, officers against
whom disciplinary action was pending or contemplated as
1Page 14
well as those, who had been reprimanded or had obtained a
‘D’ rating in their annual performance reports in the
preceding 5 years before the selection process commences.
15. Whilst the aforesaid matters were still pending, it
appears that the Punjab National Bank and Bank of Baroda
issued another clarification by the Circular No. 17 of 2009
dated 30th November, 2009. The aforesaid circular entitled
“Appointment and Promotion of Officers and other
Employees of RRBs” reiterated the provision contained in
the Notification dated 29th July, 1998. Pursuant to the
aforesaid, Sarva U.P. Gramin Bank issued a Circular dated
12th July, 2010 incorporating the clarification contained in
the Circular dated 12th July, 2010, subsequently reiterated
on 30th November, 2009. The aforesaid Circulars were also
challenged in Writ Petition Nos. 55913, 50638, 50629,
51003 and 50633 of 2010.
16. All the aforesaid writ petitions were clubbed and
decided by the High Court of Judicature at Allahabad by a
common judgment dated 8th December, 2010. By the
aforesaid judgment, the High Court quashed the Circular
1Page 15
No. 17 of 2009 dated 30th November, 2009 and Circular
dated 12th July, 2010. The appellant bank was directed to
consider the claim of the respondents (Writ Petitioners) for
promotion in accordance with the procedure and method of
punishment provided by the competent authority for
selections. The High Court in its judgment concluded :-
“1. Where a person is eligible to be considered for
promotion, his exclusion, on the ground that he has
suffered minor or major penalties, cannot be a
ground to exclude him from consideration. The
competent authority, as held in K.V. Janakiram
(supra) and B.V. Sivaiah (supra), can lay down
minimum standards required and also prescribe
mode of assessment of merit of the employees
eligible to be considered for promotion. The
assessment can be made by assigning marks on the
basis of appraisal of performance on the service
record and interview. The competent authority may
also prescribe minimum marks which would entitle a
person to be promoted on the basis of seniority-cummerit. The employee, however, cannot be excluded
and denied his right to be considered by the
selection committee for promotion.
1Page 16
2. The persons, who have been awarded censure
entry or other minor punishments, thus cannot be
excluded from the zone of consideration for
promotion. The question of assessment on merit is to
be made by the Selection Committee at the time of
selection and not before that by eliminating the
person who is within the zone of consideration.
3. We are further of the opinion that the circulars
issued by the bank cannot override the statutory
Rules nor can supplement it to the extent that the
persons, who are otherwise eligible to be considered
for promotion, will be rendered ineligible and will not
be given a chance to be considered for promotion.”
17. Aggrieved by the aforesaid observations and the
decision of the High Court, the appellant bank has filed the
present appeals.
SUBMISSIONS :
18. We have heard very lengthy submissions by the
learned counsel for the parties.
1Page 17
19. We may first briefly notice the submissions on behalf
of the appellants. Mr. Dhruv Mehta, learned senior counsel
appearing for the appellants submitted that the Circular
dated 30th November, 2009 and 12th July, 2010 were not
ultra vires of the RRB Rules, 1998. The two Circulars have
only supplemented the RRB Rules, 1998, where they are
silent. The Circulars do not have the effect of supplanting
the RRB Rules, 1998. He elaborated that the aforesaid
Rules do not provide for and/or are silent with regard to the
treatment to be given /meted out to the case where
“adverse remarks” have been recorded against an officer
during the preceding 5 years, i.e., period under
consideration for promotion. He submitted that the Sponsor
Banks have merely reiterated the earlier Circular issued by
the NABARD on 1st December, 1987, which was
subsequently clarified on 27th February, 1999. The Circulars
dated 30th April, 2009 and 12th July, 2010 have merely
reiterated the earlier position. The appellant bank had only
reiterated the aforesaid guidelines after the amalgamation
of the small RRBs into one RRB (appellant bank) vide
Notification dated 30th November, 2007. However, these
guidelines were being followed by erstwhile RRBs also prior
1Page 18
to amalgamation. Learned senior counsel relied on the
judgment in the case of Sant Ram Sharma Vs. State of
Rajasthan & Ors.2
 to submit that it was permissible for the
appellant bank to fill up the gaps and supplement the rules
and issue instructions which were not inconsistent with the
statutory rules. Learned senior counsel further submitted
that the aforesaid Circulars have been issued in order to
bring about uniformity as different RRBs were following
different procedures for making promotions on similar
posts. Since the Rules of 1998 are silent with regard to
non-consideration of officers, who have adverse remarks
against them in the preceding 5 years, it was necessary to
lay down uniform guidelines. He emphasised that DPC
under the RRB Rules, 1998 consists of :- (a) Chairman, RRB,
(b) Director nominated by Sponsor Banks and (c) Director
nominated by NABARD. In the absence of uniform
guidelines, DPC consisting of individuals will be conferred
with power to decide whether an individual officer despite
having been punished in the preceding 5 years should be
recommended/selected for promotion or not. According to
Mr. Dhruv Mehta, introduction of such a process will lead to
2
(1968) 1 SCR 111
1Page 19
infusion of arbitrariness in the process of promotion. In
such circumstances, the promotion of a particular officer, in
spite of having been punished, will be based entirely on the
perception of individual members of DPC. This could lead to
more litigation by the officers, who are not
selected/approved for promotion in spite of having a clean
record. He points out that without the aforesaid guidelines,
an officer, even though, he has been punished for gross
misconduct, would have to be promoted in case he obtains
minimum 40% marks in the written test, because in other
parameters, namely interview and performance appraisal,
the RRB Rules, 1998 do not prescribe minimum marks.
Debarring such a person from promotion would not be
arbitrary as the rationale behind such procedure is to weed
out the unfit at the initial stage. In support of this
submission, the learned senior counsel relied on the
observations made by this Court in the case of Rajendra
Kumar Srivastava & Ors. Vs. Samyut Kshetriya
Gramin Bank & Ors.3 The instructions, according to him,
merely prescribe minimum merit necessary for discharging
the function of the higher post. Therefore, the procedure
3
 (2010) 1 SCC 335
1Page 20
prescribed in the Circulars would not violate the concept of
promotion by seniority-cum-merit. Learned senior counsel
further submitted that same procedure will be followed in
cases, where an officer has been communicated adverse
remarks and graded as ‘D’ in the 5 years preceding the
selection process. In support of this submission, the
learned counsel relied on certain observations made by this
Court in Civil Appeal No. 6072 of 2012, Ram Ashish Dixit
Vs. Chairman, Purvanchal Gramin Bank & Ors.
20. The next submission of Mr. Dhruv Mehta was that the
employee only has a right to be considered for promotion
and does not have an absolute right to be promoted only on
the basis of seniority. Learned senior counsel reiterated
that criteria of “fitness”, i.e., a candidate should not be
found to be “unfit to discharge the duties of higher post” is
a condition implicit in the criteria of promotion on the basis
of “seniority-cum-fitness” criteria.
21. Learned senior counsel has further submitted that
different rules prescribed different criterias for adjusting the
suitability of candidates for promotion viz. “seniority-cum-
2Page 21
fitness”, “seniority-cum-merit” and “merit-cum-seniority”.
However, the “fitness” of a candidate to discharge duties of
higher post, has to be considered necessary, relevant and
an implicit condition of promotions in all the above criterias.
He draws support for the aforesaid submission from the
judgment of this Court in the case of State of Mysore &
Anr. Vs. Syed Mahmood & Ors.4
 and Haryana State
Warehousing Corporation & Ors. Vs. Jagat Ram &
Anr.5
22. Mr. Dhruv Mehta then submitted that the
employee/officers, who have not been promoted in view of
the guidelines dated 30th November, 2009 and 12th July,
2010, had not been debarred from consideration as they
were, in fact, considered along with all the other officers,
who had completed the requisite period of service but have
been weeded out/eliminated at the threshold, in view of the
fact that they had been either punished or graded ‘D’ in the
5 years preceding the selection. Learned senior counsel
further submitted that non-promotion of those officers, who
have either been punished or have been recipient of
4
 AIR 1968 SC 1113
5
 (2011) 3 SCC 422
2Page 22
adverse remarks such as Grade ‘D’, would not be violative
of Article 14 and 16 of the Constitution of India. The
candidates, who have been imposed penalty/punishment or
whose performance is assessed as unsatisfactory during the
period under consideration for promotion can not be placed
at par with the candidates, who have not been imposed any
punishment/penalty or whose performance has been
outstanding, very good or good during the said period. The
classification made on the basis of the service record is a
reasonable classification and has a nexus with the object
sought to be achieved namely promotion to the next
grade/cadre. In support of this, he relies on the judgment of
this Court in the case of Union of India & Ors. Vs. K.V.
Jankiraman & Ors.6
23. Mr. Dhruv Mehta has also brought to the attention of
this court the “subject wise bifurcation” of the present
special leave petitions, which appears to have been
premised on the basis of different levels of punishment
imposed on the writ appellants/respondents herein which
6
 (1991) 4 SCC 109
2Page 23
rendered them ineligible from consideration for promotion.
The bifurcation is as under :
(i) SLP (C) No. 9284-9301/2011: The concerned employees
in this bunch were rendered ineligible for consideration
for promotion due to imposition of punishment on them
during the preceding five years.
(ii)SLP (C) No. 9181-86/2011: The assessment of the
concerned employees in this bunch was rendered
“unsatisfactory”, i.e., they were rated “D” in any one
year out of preceding five years.
(iii) SLP (C) No. 9432-9444/2011: Some punishment was
imposed on the employees herein during the preceding
five years and also, their performance was rated as
unsatisfactory, i.e., they were rated “D”.
(iv) SLP (C) 9306-9309/2011: Issues raised by the writ
petitioners herein were not same/similar to the lead
matter therein.
24. Lastly, he submits that this Court in a catena of
judgments has held that an employee can be validly
debarred from consideration for promotion during the rigour
2Page 24
of punishment. He has made a reference to the following
judgments:-
State of T.N. Vs. Thiru K.S. Murugesan & Ors.7
, L.
Rajaiah Vs. Inspector General of Registration &
Stamps, Hyderabad & Ors.8 and Collector of
Thanjavur Distt. & Ors. Vs. S. Rajagopalan &
Ors.9
25. On the other hand, learned senior counsel for the
respondent, Mr. Fakhruddin, submitted that the submissions
made by the appellants about the usurpation of the power
of selection of the management by the members of the DPC
clearly indicates that the two Circulars have not been issued
bonafide and are in fact intended to whittle down the role
and powers of Independent Selection Committee prescribed
in the statutory rules of 1998. The function of selection has
been statutorily conferred on the DPC, and can not be
permitted to be usurped by the Bank Management. He
further submitted that by virtue of Section 29 and Section
17 of the RRB Act, 1976, the powers to determine the
7
 (1995) 3 SCC 273
8
 (1996) 8 SCC 246
9
 (1995) 3 SCC 273
2Page 25
service conditions including promotions of the employees of
the RRBs are vested in the Central Government. Therefore,
the two Circulars can not be permitted to prevail over the
provision of the statutory rules of 1998. Mr. Fakhruddin
emphasised that Government of India has promulgated the
aforesaid rules in consultation with NABARD and the
Sponsor Bank. Even then, no provision has been made in
the aforesaid rules to debar the employees/officers for
being considered for promotion amongst them who fall in
the zone of consideration, on the basis that they have been
either penalized or given an unsatisfactory/’D’ rating annual
performance appraisal report. It is submitted by all the
learned counsel appearing for the respondent that the RRB
Rules, 1998 are in consonance with the observations made
by this Court in the case of B.V. Sivaiah (supra) and is a
complete code, which does not need to be supplemented by
any instructions. It is further submitted that in the guise of
laying down minimum marks as a benchmark to determine
the suitability/fitness/merit for promotion, the appellants
have introduced the criteria of merit-cum-seniority in the
place of seniority-cum-merit. Such change in the criteria
could only be made by making the necessary amendment in
2Page 26
the Rules and not by issuing guidelines/Circulars by the
Sponsor Banks or NABARD.
26. Learned senior counsel further submitted that the two
Circulars are wholly arbitrary since even the employees who
had been only given the lowest penalty of censure or
reprimand can be eliminated at the threshold, from being
considered for promotion. It is further submitted by the
learned counsel for the respondent that blanket debarment
will have the effect of giving an unbridled/untrampled power
in the hands of the superiors of an employee. Such power
can be abused and misused to give/deny “promotion to a
particular employee/officer due to personal reasons and
likes and dislikes of a particular officer”. Learned senior
counsel, therefore, submitted that the High Court has
correctly quashed the aforesaid two Circulars.
CONSIDERATION/CONCLUSIONS :
27. We have given due consideration to the submissions
made by the learned counsel for the parties. It is by now
settled beyond cavil that statutory rules can be
supplemented but can not be supplanted. This is the ratio
2Page 27
of law laid down in the case of Sant Ram Sharma (supra).
It has been reiterated by this Court in a catena of
subsequent judgments. It is, however, not necessary to
burden the present judgment by making a copious
reference to the other decisions which merely reiterated the
same ratio.
28. We have noticed earlier that till 1988, there were no
statutory rules governing the promotions of the employees
of RRB. The promotions in these banks were governed by
various Circulars issued by the Government, NABARD and
the Sponsor Banks. One such Circular is
dated 1st December, 1987, which provided that the word
“merit”, provides that criteria of seniority-cum-merit
envisages promotion by seniority with due consideration to
minimum merit/fitness prescribed. However, the Circular
further provided that fitness implies that there is nothing
against an officer, no disciplinary action is pending against
him and none is contemplated. The officer has neither been
reprimanded nor any adverse remarks have been conveyed
to him in the reasonable recent past.
2Page 28
29. The aforesaid Circular is prior in time to the RRB Rules,
1988. The aforesaid rules clearly provided that promotion
shall be made by following the criteria of seniority-cummerit. Rule also provides that any officer/employee having
8 years of service as an officer/employee shall be eligible to
be considered for promotion. The criteria for determining
the minimum merit required of the candidate for promotion
is to be ascertained on the basis of his performance in the
written test, interview and his assessment in the
performance appraisal report. There is no provision in the
Rules that an employee/officer, who has been punished in
the 5 years preceding the selection process or has been
given an adverse remark or graded ‘D’ shall not be
considered for promotion at all. The Circular dated 1st
December, 1987 was, therefore, clearly contrary to the
1988 statutory rules, and, therefore, ceased to have any
legal effect from the date of the enforcement of the rules.
30. It is a matter of record that the RRB Rules, 1988 were
superseded by the RRB Rules, 1998. The aforesaid rules
incorporated the principle of minimum merit as enunciated
2Page 29
by this Court in B.V. Sivaiah (supra). In Paragraph 18 of
the aforesaid judgment, this Court observed as follows:-
“18. We thus arrive at the conclusion that the
criterion of “seniority-cum-merit” in the matter of
promotion postulates that given the minimum
necessary merit requisite for efficiency of
administration, the senior, even though less
meritorious, shall have priority and a
comparative assessment of merit is not required
to be made. For assessing the minimum
necessary merit, the competent authority can lay
down the minimum standard that is required and
also prescribe the mode of assessment of merit
of the employee who is eligible for consideration
for promotion. Such assessment can be made by
assigning marks on the basis of appraisal of
performance on the basis of service record and
interview and prescribing the minimum marks
which would entitle a person to be promoted on
the basis of seniority-cum-merit.”
31. Following the aforesaid observations, the RRB Rules,
1998 have introduced a detailed procedure for determining
the minimum merit for promotion to the next higher
post/grade. The RRB Rules, 1998 clearly provided that
officers holding post in 8 years as an officer on regular basis
in the RRB shall be considered for promotion to the next
higher post. The aforesaid rule does not provide that any
employee/officer, who has suffered a punishment or has
received an adverse appraisal/Grade ‘D’ in the performance
2Page 30
appraisal, shall not be eligible. However, the Circulars
dated 30th November, 2009 and 12th July, 2010 enables the
appellant banks to eliminate such employees, which is
clearly contrary to the provisions contained in the statutory
service rules. The procedure prescribed under the aforesaid
two Circulars clearly has the effect of supplanting the
provision of eligibility, which is not permissible.
32. Such an additional provision can not be justified on the
basis that it would form part of the minimum merit required
to be considered for promotion. In our opinion, the reliance
placed in support of this proposition on the judgment in the
case of Rajendra Kumar Srivastava (supra) is wholly
misplaced. In the aforesaid judgment, this Court has
observed as follows:-
“11. It is also well settled that the principle of
seniority-cum-merit, for promotion, is different from
the principle of “seniority” and the principle of
“merit-cum-seniority”. Where promotion is on the
basis of seniority alone, merit will not play any part
at all. But where promotion is on the principle of
seniority-cum-merit, promotion is not automatic with
reference to seniority alone. Merit will also play a
significant role. The standard method of senioritycum-merit is to subject all the eligible candidates in
the feeder grade (possessing the prescribed
educational qualification and period of service) to a
process of assessment of a specified minimum
3Page 31
necessary merit and then promote the candidates
who are found to possess the minimum necessary
merit strictly in the order of seniority. The minimum
merit necessary for the post may be assessed either
by subjecting the candidates to a written
examination or an interview or by assessment of
their work performance during the previous years, or
by a combination of either two or all the three of the
aforesaid methods. There is no hard-and-fast rule as
to how the minimum merit is to be ascertained. So
long as the ultimate promotions are based on
seniority, any process for ascertaining the minimum
necessary merit, as a basic requirement, will not
militate against the principle of seniority-cum-merit”
33. These observations clearly apply at the time when the
eligible persons are being considered for promotion by the
DPC. Eligibility under the rules is on the basis of minimum
length of service – eight years, unless relaxed by two years
confirmation in the lower/feeder post. It is not possible to
accept the submission of Mr. Dhruv Mehta that bare
minimum merit can be determined even before the list of
candidates is placed before the DPC for consideration of
their merit. Rule (2e) clearly provides firstly for the
determination of the eligibility, as noticed above. The
criteria for promotion (seniority-cum-merit) is provided in
Rule 2(d). Rule 2(f) provides for “mode of selection”. It is
clearly provided that “the selection of the candidates shall
3Page 32
be made by the committee…………”. The second part of
Rule 2(f) provides the criteria for determination of the bare
minimum merit. In fact, for this very reason, the rules
themselves provide that in order to succeed in the written
test, a candidate has to secure a minimum 40% marks in
each part of the written test consisting of 30 marks each. It
is only when all the candidates within the zone of
consideration have participated in the selection procedure
and their performance is assessed on the basis of written
test, interview, and past performance i.e. performance
appraisal that the minimum merit would become relevant.
When the bare minimum merit of the candidates is
determined, the promotion shall be made on the basis of
seniority irrespective of the better performance of the junior
candidates in the written test/interview/performance
appraisal.
34. Similarly, the reliance placed by Mr. Dhruv Mehta on
the judgment of this Court in K.V. Jankiraman’s case
(supra) is also misplaced. In this judgment, this Court
considered the circumstances under which the banks could
resort to the “sealed cover procedure”, when considering
3Page 33
the claims of the eligible candidates for promotion. The
court also examined the impact of departmental
punishment for assessment of the suitability of an employee
for promotion. The relevant ratio of this Court is as under :
“29. According to us, the Tribunal has erred in
holding that when an officer is found guilty in the
discharge of his duties, an imposition of penalty is all
that is necessary to improve his conduct and to
enforce discipline and ensure purity in the
administration. In the first instance, the penalty short
of dismissal will vary from reduction in rank to
censure. We are sure that the Tribunal has not
intended that the promotion should be given to the
officer from the original date even when the penalty
imparted is of reduction in rank. On principle, for the
same reasons, the officer cannot be rewarded by
promotion as a matter of course even if the penalty
is other than that of the reduction in rank. An
employee has no right to promotion. He has only a
right to be considered for promotion. The promotion
to a post and more so, to a selection post, depends
upon several circumstances. To qualify for
promotion, the least that is expected of an employee
is to have an unblemished record. That is the
minimum expected to ensure a clean and efficient
administration and to protect the public interests. An
employee found guilty of a misconduct cannot be
placed on par with the other employees and his case
has to be treated differently. There is, therefore, no
discrimination when in the matter of promotion, he is
treated differently. The least that is expected of any
administration is that it does not reward an
employee with promotion retrospectively from a date
when for his conduct before that date he is penalised
in praesenti. When an employee is held guilty and
penalised and is, therefore, not promoted at least till
the date on which he is penalised, he cannot be said
to have been subjected to a further penalty on that
account. A denial of promotion in such circumstances
is not a penalty but a necessary consequence of his
conduct. In fact, while considering an employee for
promotion his whole record has to be taken into
3Page 34
consideration and if a promotion committee takes
the penalties imposed upon the employee into
consideration and denies him the promotion, such
denial is not illegal and unjustified. If, further, the
promoting authority can take into consideration the
penalty or penalties awarded to an employee in the
past while considering his promotion and deny him
promotion on that ground, it will be irrational to hold
that it cannot take the penalty into consideration
when it is imposed at a later date because of the
pendency of the proceedings, although it is for
conduct prior to the date the authority considers the
promotion. For these reasons, we are of the view that
the Tribunal is not right in striking down the said
portion of the second sub-paragraph after clause (iii)
of paragraph 3 of the said Memorandum. We,
therefore, set aside the said findings of the Tribunal.”
These observations make it abundantly clear that
promotion can be justifiably denied to eligible candidate at
the time of his/her performance appraisal by the DPC. The
fact that the officer/employee has been departmentally
punished would form part of the service record and can be
taken into account by the DPC. In such circumstances, the
employee cannot possibly claim to have been subjected to a
further penalty on the basis of the misconduct which led to
his punishment. This, however, would not permit the
management to debar an employee from being considered
for promotion at the stage of considering whether such an
employee is “eligible” to be considered in terms of Rule 2(e).
3Page 35
35. The observations in Rajendra Kumar Srivastava
(supra) also do not support the submissions made by
Mr. Dhruv Mehta. In paragraph 13, it is observed as follows :
“13. Thus it is clear that a process whereby
eligible candidates possessing the minimum
necessary merit in the feeder posts is first
ascertained and thereafter, promotions are made
strictly in accordance with seniority, from among
those who possess the minimum necessary merit
is recognised and accepted as complying with the
principle of “seniority-cum-merit”. What would
offend the rule of seniority-cum-merit is a process
where after assessing the minimum necessary
merit, promotions are made on the basis of merit
(instead of seniority) from among the candidates
possessing the minimum necessary merit. If the
criteria adopted for assessment of minimum
necessary merit is bona fide and not
unreasonable, it is not open to challenge, as being
opposed to the principle of seniority-cum-merit.
We accordingly hold that prescribing minimum
qualifying marks to ascertain the minimum merit
necessary for discharging the functions of the
higher post, is not violative of the concept of
promotion by seniority-cum-merit.”
These observations also make it clear that whilst
assessing the eligibility of the candidates, determination of
bare minimum merit is not envisaged. There is, in fact, a
complete segregation of Rule 2(e) from Rule 2(f).
Determining the eligibility of candidate is in the nature of a
ministerial function. The management merely has to see
that the candidate possesses the minimum length of service
and that he/she is confirmed in the feeder cadre. The
3Page 36
determination of bare minimum merit is on the basis of the
performance in the written test/interview and performance
appraisal. This is the function of the Selection Committee
i.e. Departmental Promotion Committee.
36. There is no doubt that punishment and adverse
service record are relevant to determine the minimum merit
by the DPC. But to debar a candidate, to be considered for
promotion, on the basis of punishment or unsatisfactory
record would require the necessary provision in the
statutory service Rules. There is no such provision under
the 1998 Rules.
37. In B.V.Sivaiah (supra), this Court laid down the broad
contours defining the term “bare minimum merit” in the
following words :
“We thus arrive at the conclusion that the criterion of
‘seniority-cum-merit’ in the matter of promotion
postulates that given the minimum necessary merit
requisite for efficiency of administration, the senior,
even though less meritorious, shall have priority and
a comparative assessment of merit is not required to
be made. For assessing the minimum necessary
merit, the competent authority can lay down the
minimum standard that is required and also
prescribe the mode of assessment of merit of the
employee who is eligible for consideration for
promotion. Such assessment can be made by
3Page 37
assigning marks on the basis of appraisal of
performance on the basis of service record and
interview and prescribing the minimum marks which
would entitle a person to be promoted on the basis of
seniority-cum-merit.”
From the above, it becomes clear that the
determination of the bare minimum criteria is the function
of the DPC and cannot be taken-over by the management at
the time of determining the eligibility of a candidate under
Rule 2(e).
38. The reliance placed by Mr. Dhruv Mehta on the
judgment of this court in the case of Ram Ashish Dixit
(supra) is also misconceived. In the aforesaid case, the
officer had been considered for promotion during the
pendency of the departmental proceedings to Middle
Management Grade II. However, the result was kept in a
sealed cover. After finalization of the proceedings, the
appellants requested the authority to open the sealed
cover. He was, however, informed that he can not be
promoted in view of the bank Circular dated 28th March,
1998 as he had been punished. Subsequently, again his
case was to be considered for promotion in September,
1999. However, he was denied consideration for promotion
3Page 38
in view of the conditions contained in Circular dated 28th
March, 1998. It was submitted on behalf of the appellants
that the punishment imposed upon the staff of the Bank can
not be treated to be an ineligibility for promotion since the
eligibility for promotion is prescribed under the RRB Rules,
1988. It was submitted on behalf of the bank (respondent
therein) that since stoppage of increment for 3 years is a
punishment imposed upon the appellants, during the
period, he would be undergoing punishment, he could not
have been considered to be eligible for promotion.
Therefore, according to the bank, respondent had been
rightly held to be ineligible under Circular dated 28th March,
1998. It was also claimed by the bank that the Circular is
supplementary in nature and can not be said to be in any
manner inconsistent and ultra vires of the rules. In
answering the rival submissions, this Court held as under:-
“The criteria for promotion from Junior Manager
Grade-I to Middle Management Grade-II is on the
basis of the seniority-cum-merit. Clearly
therefore, the fact that the appellant has been
punished for a misconduct, the same would form
a part of his record of service which would be
taken into consideration while adjudging his
suitability on the criteria of seniority-cum-merit.
If on such assessment of his record of service the
appellant is not promoted, it cannot be said to be
by way of punishment. It is a non-promotion on
3Page 39
account of the appellant not reaching a suitable
standard to be promoted on the basis of the
criteria.”
39. We also do not find any merit in the submission of
Mr. Dhruv Mehta that the Circular No.17 of 2009
dated 30th November, 2009 and Circular dated 12th July,
2010 are to ensure that the individual members of the DPC
do not recommend for promotion an individual officer
despite having been punished in the preceding 5 years.
Such curtailment of the power of the DPC would have to be
located in the statutory service rules. The 1998 Rules do not
contain any such provision. The submission needs merely to
be stated, to be rejected. We also do not find any merit in
the submission of Mr. Mehta that without the aforesaid
guidelines, an officer, even though, he has been punished
for gross misconduct would have to be permitted to be
promoted as no minimum marks are prescribed for
interview or performance appraisal. In our opinion, it is
fallacious to presume that under the 1998 Rules, once an
officer gets the minimum marks in the written examination,
he would be entitled to be promoted on the basis of
seniority alone. There is no warrant for such a presumption.
3Page 40
The misconduct committed by eligible employee/officer
would be a matter for DPC to take into consideration at the
time of performance appraisal. The past conduct of an
employee can always be taken into consideration in
adjudging the suitability of the officer for performing the
duties of the higher post.
40. There is another very good reason for not accepting
the submissions made by Mr. Dhruv Mehta. 
Different
rules/regulations of the banks provide specific punishments
such as “withholding of promotion, reduction in rank,
lowering in ranks/pay scales”.
 However, there is another
range of penalty such as censure, reprimand, withholding of
increments etc. which are also prescribed under various
staff regulations. 
To debar such an employee from being
considered for promotion would tantamount to also
inflicting on such employee, the punishment of withholding
of promotion. In such circumstances, a punishment of
censure/ reprimand would, in fact, read as
censure/reprimand + 5 years debarment from promotion.
Thus the circulars issued by the bank debarring such
employees from being considered would be clearly contrary
4Page 41
to the statutory rules. The circulars clearly do not fall within
the ratio in Sant Ram’s case (supra).
41. In our opinion, the observations made by this Court in
the case of Ram Ashish Dixit (supra) are a complete
answer to the submissions made by the learned counsel for
the appellants, Mr. Dhruv Mehta. Therefore the High Court,
in our opinion, has rightly quashed the aforesaid two
Circulars and directed that the respondent be considered for
promotion in accordance with the applicable rules. 
42. We, therefore find no merit in the civil appeals filed by
the appellant-bank, and are accordingly dismissed. No
costs.
……..….…………………J.
[Surinder Singh
Nijjar]
 ………………………….J.
 [H.L. Gokhale]
New Delhi;
April 09, 2013.
4Page 42
4

incompetent investigating agency- This case is a glaring example of how cause of justice can be defeated by inefficient, lackadaisical and incompetent investigating agency.= We began by commenting on the unhappy conduct of the investigating agency. We conclude by reaffirming our view. We are distressed at the way in which the investigation of this case was carried out. It is true that acquitting the accused merely on the ground of lapses or irregularities in the investigation of a case would amount to putting premium on the deprecable conduct of an incompetent investigating agency at the cost of the victims which may lead to encouraging perpetrators of crimes. This Court has laid down that the lapses or irregularities in the investigation could be ignored subject to a rider. They can be ignored only if despite their existence, the evidence on record bears out the case of the prosecution and the evidence is of sterling quality. If the lapses or irregularities do not go to the root of the matter, if they do not dislodge the substratum of the prosecution case, they can be ignored. In this case, the lapses are very serious. PW-5 Jaldhari Yadav is a pancha to the seizure panchnama under which weapons and other articles were seized from the scene of offence and also to the inquest panchnama. Independent panchas have not been examined. The investigating officer has stated in his evidence that the seized articles were not sent to the court along with the charge-sheet. They were kept in the Malkhana of the police station. He has admitted that the seized articles were not sent to the Forensic Science Laboratory. No explanation is offered by him about the missing sanha entries. His evidence on that aspect is evasive. Clothes of the deceased were not sent to the Forensic Science Laboratory. The investigating officer admitted that no seizure list of the clothes of the deceased was made. Blood group of the deceased was not ascertained. No link is established between the blood found on the seized articles and the blood of the deceased. It is difficult to make allowance for such gross lapses. Besides, the evidence of eye-witnesses does not inspire confidence. Undoubtedly, a grave suspicion is created about the involvement of the accused in the offence of murder. It is well settled that suspicion, however strong, cannot take the place of proof. In such a case, benefit of doubt must go to the accused. In the circumstances, we quash and set aside the impugned judgment and order. The appellants-accused are in jail. We direct that the appellants – A1-Sunil Kundu, A2-Bablu Kundu, A3-Nageshwar Prasad Sah and A4-Hira Lal Yadav be released forthwith unless otherwise required in any other case.

Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1073 OF 2008
SUNIL KUNDU AND ANR. … APPELLANTS
Versus
STATE OF JHARKHAND … RESPONDENT
WITH
CRIMINAL APPEAL NO. 1419 OF 2008
HIRA LAL YADAV … APPELLANT
Versus
STATE OF JHARKHAND … RESPONDENT
WITH
CRIMINAL APPEAL NO. 1512 OF 2009
NAGESHWAR PRASAD SAH … APPELLANT
Versus
STATE OF JHARKHAND … RESPONDENT
JUDGMENT
(SMT.) RANJANA PRAKASH DESAI, J.
1. The appellants Sunil Kundu, Bablu Kundu, Nageshwar
Sah and Hira Lal Yadav (‘A1-Sunil’, ‘A2-Bablu’, ‘A3-
Nageshwar’ and ‘A4-Hiralal’, for convenience) were tried
1Page 2
for offences punishable under Section 302 read with Section
34 and Section 201 read with Section 34 of the Indian Penal
Code (for short, ‘the IPC’) and Section 27 of the Arms Act,
1959 (for short ‘the Arms Act’). The Sessions Court by its
judgment and order dated 15-17/09/2004 acquitted them of
charges under Section 201 read with Section 34 of the IPC
and Section 27 of the Arms Act. They were, however,
convicted for offence punishable under Section 302 read
with Section 34 of the IPC and sentenced to life
imprisonment and to pay fine of Rs.5,000/- each. They
carried appeals to the High Court of Jharkhand, Ranchi. The
High Court confirmed their conviction and sentence. Hence,
these appeals by special leave.
2. This case is a glaring example of how cause of justice
can be defeated by inefficient, lackadaisical and
incompetent investigating agency. As we go ahead, the
reasons for these observations would be clear.
2Page 3
3. At the trial, the case of the prosecution, in short, was
that on 29/01/1996 at about 5.00 p.m. deceased Suresh
Yadav (for convenience, “the deceased”) reached near the
shop of Bijan Kaur situated in Refugee Colony, Jamtara,
Mihijam Pitch Road by a motorcycle driven by him. PW-3
Basudeo Mallick was sitting in the middle of the seat and
PW-6 Narendra Yadav was sitting behind him. When they
reached near the shop of Bijan Kaur, they saw A1-Sunil, A2-
Bablu, A3-Nageshwar and A4-Hiralal standing there. The
accused started pelting stones on them, resulting in
imbalance of the motorcycle. The motorcycle fell down. All
the accused attacked the deceased with knife and bhujali.
They resorted to blank firing to scare the people. The
deceased started running towards the southern side of the
railway line but he collapsed in the field. PW-3 Basudeo
Mallick was assaulted with an iron rod. PW-6 Narendra
Yadav, who is an advocate by profession, somehow
managed to escape. He ran to Mihijam Police Station and
informed about the incident. Along with the police, he came
to the scene of offence. They shifted the deceased to the
3Page 4
Chittaranjan Railway Hospital. At the hospital, PW-6
Narendra Yadav’s statement was recorded by the
investigating officer - PW-7 Girish Prasad Mishra. It was
treated as FIR. On the basis of the FIR, investigation was
conducted and upon completion of investigation the accused
came to be charged as aforesaid.
4. In support of its case, the prosecution examined nine
witnesses. The prosecution story rests on the evidence of
PW-4 Shankar Yadav, PW-5 Jaldhari Yadav and PW-6
Narendra Yadav. The accused pleaded not guilty to the
charge. They contended that they were falsely involved in
this case out of previous enmity. They pleaded defence of
alibi and examined 21 witnesses in support of their case.
Their plea of alibi was rejected and they were convicted as
aforesaid.
5. We will first begin with the FIR lodged by PW-6
Narendra Yadav because it is not consistent with the
prosecution case which was developed in the court.
4Page 5
According to PW-6 Narendra Yadav, on 29/1/1996, at about
5.00 p.m., the deceased reached near the shop of Bijan Kaur
situated in Refugee Colony, Jamtara, Mihijam Pitch Road by a
motorcycle driven by him. PW-3 Basudeo was sitting in the
middle of the seat and he was sitting behind PW-3 Basudeo.
When they reached near the shop of Bijan Kaur, they saw
A1-Sunil, A2-Bablu, A3-Nageshwar and A4-Hiralal standing
there. The accused started pelting stones on them, resulting
in imbalance of the motorcycle. A2-Bablu gave a blow with
rod and the motorcycle fell down. Thereafter, A1-Sunil fired
at the deceased and the deceased got injured. A3-
Nageshwar stabbed the deceased with knife all over his
body. A4-Hiralal fired at the deceased with a pistol and
injured him. They also assaulted PW-3 Basudeo Mallik with
an iron rod. Thereafter, he ran to Mihijam Police Station and
brought the police to the scene of offence. They shifted the
deceased to the Anupam Seva Sadan. On the doctor’s
advise, the deceased was shifted to the Chittaranjan Railway
Hospital where he was declared dead. The incident had
occurred due to previous enmity between the deceased on
5Page 6
the one hand and A3-Nageshwar and A4-Hiralal on the other
hand. He did not refer to the presence of PW-4 Shankar
Yadav and PW-5 Jaldhari Yadav in the FIR.
6. We have heard Mr. Sanyal, senior advocate appearing
for A1-Sunil and A2-Bablu and, Mr. Nageshwar Rao, senior
advocate appearing for A3-Nageshwar and A4-Hiralal. So far
as the genesis of the case and the alleged unreliability of the
evidence of PW-4 Shankar Yadav and PW-5 Jaldhari Yadav is
concerned, Mr. Sanyal stated that he was adopting the
submissions of Mr. Nageshwar Rao. We have also heard Mr.
Ratan Kumar Choudhari learned counsel appearing for the
State of Jharkhand. We have perused their written
submissions.
7. Mr. Sanyal, senior advocate submitted that A1-Sunil is
said to have fired at the deceased with a pistol. He is,
however, acquitted of offence under Section 27 of the Arms
Act. Besides, PW-1 Dr. Chakravorty stated in his evidence
that there was no firearm injury on the deceased. Counsel
6Page 7
submitted that the State’s submission that the firearm was
used only to frighten people is not borne out by the evidence
of witnesses. Besides, no bullets or empty cartridges were
seized from the scene of offence. So far as A2-Bablu is
concerned, counsel pointed out that while PW-6 Narendra
Yadav stated in the FIR that A2-Bablu hit the deceased with
iron rod, in the court he stated that he was holding knife.
This was done to bring his evidence in conformity with
postmortem notes. PW-1 Dr. Chakravorty stated that he did
not find any iron rod injury on the deceased. The
prosecution story is, therefore, untrue. Relying on Mani
Ram & Ors. v. State of U.P.1
, counsel submitted that if
the oral evidence is inconsistent with the medical evidence,
it is a fundamental defect which discredits the prosecution
case. Drawing our attention to Kapildeo Mandal & Ors.
v. State of Bihar2
, counsel submitted that the accused are
entitled to benefit of doubt where oral evidence is
inconsistent with medical evidence. He further submitted
that when medical evidence does not support the presence
1
 1994 Supp.. (2) SCC 289
2
 (2008) 16 SCC 99
7Page 8
of the accused, his presence is ruled out. (See Anjani
Chaudhary v. State of Bihar3
). Counsel also relied on
Sahebrao Mohan Berad v. State of Maharashtra4
.
8. Mr. Nageshwar Rao, learned senior advocate submitted
that the evidence of the prosecution witnesses is
inconsistent with and belied by the medical evidence. He
pointed out that PW-5 Jaldhari Yadav deposed that he and
PW-6 Narendra Yadav, the first informant took the dead body
to the hospital and gave statement leading to registration of
the FIR. This shows that it was recorded at the Chittaranjan
Railway Hospital. Earlier statement made before the police
has been suppressed. In the FIR and also in the court, PW-6
Narendra Yadav alleged that two persons had fired at the
deceased, but no firearm injury was found on the deceased.
There is a variance between the FIR and the evidence of PW-
6 Narendra Yadav. PW-4 Shankar Yadav and PW-5 Jaldhari
Yadav have improved their versions in the court. These two
witnesses have stated that when they went to the hospital,
3
 (2011) 2 SCC 747
4
 (2011) 4 SCC 249
8Page 9
PW-6 Narendra Yadav was present. But, their names are not
mentioned in the FIR. According to the defence, S.D.E.
No.473 dated 29/1/1996 was recorded at 5.55 p.m. when
PW-6 Narendra Yadav had gone to the police station to
inform the police about the occurrence, but no names were
disclosed and hence, no names are mentioned therein.
Sanha Entry No.473 is missing. Thus the earlier version
recorded by the police has been suppressed by the
prosecution. Evidence of PW-4 Shankar Yadav is of no use to
the prosecution as he clearly stated that the accused were
not known to him and he had heard about them from others.
Counsel submitted that the place of occurrence is a busy
place. No independent witness has been examined by the
prosecution. Admittedly, there is enmity between the two
sides. Medical evidence does not support the prosecution
case. The prosecution has, therefore, failed to prove its case
beyond reasonable doubt. Counsel submitted that the
accused must, therefore, be acquitted.
9Page 10
9. Mr. Ratan Kumar Choudhary, learned counsel for the
State, on the other hand, submitted that so far as the
manner in which the incident took place is concerned, there
is no variation in the evidence of PW-4 Shankar Yadav, PW-5
Jaldhari Yadav and PW-6 Narendra Yadav. There may be
minor variations which do not affect the substratum of the
prosecution case. Merely because the names of PW-4
Shankar Yadav and PW-5 Jaldhari Yadav are not mentioned
in the FIR, it cannot be said that they were not present. It is
true that PW-4 Shankar Yadav stated that he did not know
the names of the accused, but he stated that he got to know
the names at the scene of offence and he identified the
accused in the court. Counsel pointed out that the
investigating officer stated in his evidence that due to terror
created by the accused, no one came forward to give
statement. The accused have criminal history and,
therefore, non-examination of independent witnesses does
not affect the prosecution case. Counsel submitted that the
medical evidence supports the prosecution case. Counsel
submitted that the story about Sanah Entry No.473 is
10Page 11
concocted to create doubt about the prosecution story.
There is no such sanha entry. Counsel submitted that
conviction of the accused is perfectly legal and justified. The
appeals, therefore, deserve to be dismissed.
10. Before going to the evidence of eye-witnesses, we shall
advert to the post-mortem notes because while it is alleged
that the accused used firearms, the post-mortem notes do
not show that the deceased had received any firearm injury.
As per the post-mortem notes, there were 24 incised wounds
and multiple abrasions of varying sizes over both knee joints
of the dead body. Cause of death is stated to be “due to
profuse heamorrhage and shock as a result of ante mortem
injury Nos.(i) and (xv) caused by sharp cutting weapon”.
They could be caused by a bhujali or chhura (knife). Injury
Nos.(1) and (xv) are incised wounds. The post-mortem notes
further state that injury No.(xxiii) can be caused by iron rod.
Injury No.(xxiii) is described as “multiple abrasions of
varying sizes over both knee joints”. PW-1 Dr. Chakraborty
who conducted the post-mortem, reiterated the findings
11Page 12
recorded in the post-mortem notes and stated that there
was no firearm injury on the deceased. He denied that
multiple abrasions found on both the knee joints could be
caused by a fall.
11. The main plank of the argument of learned counsel for
the accused is that since there is no firearm injury on the
deceased, the entire prosecution story must fall to the
ground. Therefore, we must now turn to the evidence of PW-
6 Narendra Yadav. PW-6 Narendra Yadav is the first
informant. His presence at the scene of offence cannot be
doubted because all the witnesses including PW-3 Basudeo
Mallik who turned hostile stated that he was sitting on the
motorcycle which was being driven by the deceased.
Besides, during this incident, he received injuries due to fall
of the motorcycle. PW-2 Dr. Mishra stated in his evidence
that on the date of incident i.e. on 29/1/1996 he examined
PW-6 Narendra Yadav. He described the nature of injuries
suffered by this witness and produced injury certificate
which is at Ex-21. His evidence is consistent with the
12Page 13
evidence of other witnesses only to the extent that when the
motorcycle reached near the shop of Bijan Kaur, all the
accused had assembled there; they started pelting stones
and A3-Nageshwar hit with a rod and that the motorcycle fell
down. After this, his evidence is inconsistent with the
evidence of other witnesses. He stated that the deceased
ran to the railway line towards the south. A1-Sunil fired at
him with a pistol. A2-Bablu who was armed with a chhura
inflicted injuries at many places on the body of the
deceased. A3-Nageshwar beat the deceased with a rod. A4-
Hiralal fired at the deceased with a pistol. PW3-Basudeo
Mallik was beaten by A3-Nageshwar with rod. Then, he went
to the police station and gave intimation regarding the
incident. He brought the police to the scene of offence. The
deceased was lying in unconscious condition. They shifted
the deceased to Anupam Seva Sadan for treatment. On the
advice of the doctor, the deceased was taken to the
Chittaranjan Railway Hospital where he was declared dead.
He stated that at the Chittaranajan Railway Hospital, his
statement was recorded. He made a mistake in identifying
13Page 14
of A2-Bablu in the court. The case of this witness that A1-
Sunil and A4-Hiralal had pistols in their hands and they fired
at the deceased which resulted in the firearm injury being
caused to him is belied by the post-mortem notes.
Admittedly, the postmortem notes do not indicate that the
deceased had suffered any firearm injury. It is pertinent to
note that no bullets or empty cartridges were recovered
from the scene of offence. Therefore, this witness has
obviously not come out with the truth. It must also be borne
in mind that he ran to the police station after the deceased
fell down and the alleged cutting of throat of the deceased
by the accused is not witnessed by him. He has also not
witnessed the alleged blank firing resorted to by the accused
while running away. It would not be out of place to mention
here that he admitted in his cross-examination that the
deceased was living in the house of his maternal uncle and
he is his relation. He stated that he was also staying with
the deceased. He stated that after the police came to the
scene of offence, they seized the articles lying on the scene
of offence whereas PW-5 Jaldhari Yadav stated that the
14Page 15
seizure panchanama was prepared in the evening at 8.00
p.m. after the police came back to the scene of offence from
the hospital. We find it difficult to place reliance on this
witness.
12. Statement of PW-3 Basudeo Mallick, who was also
sitting on the motorcycle driven by the deceased was
recorded by PW-8 Satish Chandra Singh, Judicial Magistrate,
under Section 164 of the Code of Criminal Procedure.
However, he turned hostile. The prosecution could draw
support from his evidence only to the extent that he, PW-6
Narendra Yadav and the deceased reached Refugee Colony
at 5.30 p.m. on the date of the incident; that he was hit with
a hard object on his head and he fell down. PW-2 Dr. S.K.
Mishra, who had examined him on 29/1/1996 has described
injuries suffered by him and produced injury report (Ex-2).
Thus, his presence and the fact that some incident took
place on that day at Refugee Colony are established. But,
his evidence is of no further use to the prosecution because
15Page 16
on the major aspect of the prosecution story, he has not
supported it.
13. PW-4 Shankar Yadav is admittedly related to the
deceased. It must be noted that this witness is a chance
witness. He is the resident of Mouza Kush Bediya. He stated
that he was coming from Kanboe to his house. He admitted
that from the place of incident, his house is about one mile
away. He really had no reason to be there. He has not
explained why he was at the scene of offence on that day.
He stated that he saw the accused standing near a grill
making shop. The deceased came there. The accused
started throwing stones on the deceased’s motorcycle. He
was hit by rod. He lost grip of the handle. The motorcycle
fell down. The deceased started running away. The accused
chased him and caught him. A1-Sunil fired. Because of the
firing, people who had assembled there started running
away. All the four accused started assaulting the deceased
with bhujali and knife. When he fell down, A4-Hiralal Yadav
cut his throat. According to this witness, PW-5 Jaldhari
16Page 17
Yadav was present. After that, all the accused fled away. It
is pertinent to note that he admitted that he did not know
the names of the accused and he got to know the names of
the accused from the people who had assembled there. He
admitted that the deceased and his brother were accused in
some other sessions case and the accused are witnesses in a
criminal case where his brother is involved. Faced with the
case set out in the FIR that the deceased was fired at by the
accused and was injured, which is contrary to the postmortem notes, this witness has tried to bring his evidence in
conformity with the post-mortem notes. He stated that A1-
Sunil fired but avoided to say that he fired at the deceased.
He suggested that firing was merely done to scare people.
This attempt has proved to be unsuccessful because the
police have not recovered a single bullet or empty cartridge
from the scene of offence.
14. PW-5 Jaldhari Yadav is also related to the deceased. He
is a chance witness. According to him, on the date of
incident, he had gone to the station to buy cattle feed. He
17Page 18
stated that the place of occurrence would be less than a mile
from the station. Before he could enter the shop, the
members of the deceased’s family came there and asked
him to search for the deceased, but they did not tell him how
far he should go to look for him. According to him, he did
not ask them as to where the deceased had gone or at what
time he used to return home. This story does not stand to
reason. It is not understood how the members of the
deceased’s family would know that this witness would be in
the market at the relevant time so that they could contact
him and ask him to search for the deceased. It is not
understood how without any particulars being furnished to
him, he embarked on the task and went to the scene of
offence, which was less than a mile away from the station.
In any case, his evidence does not inspire confidence. He
stated that on the date of incident when he was at Bijan
Kaur’s shop situated on Pitch Road, he saw motorcycle of the
deceased. PW-3 Basudeo Mallik was lying on the ground.
A1-Sunil, A2-Bablu, A3-Nageshwar and A4-Hiralal were
beating the deceased with rod, bhujali and knife. PW-4
18Page 19
Shankar Yadav came there and started shouting ‘Maar Diya;
Maar Diya’. About 20 to 25 stab injuries were inflicted on the
deceased. According to him, A1-Sunil and A2-Bablu fired in
the air. People got scared and they ran helter-skelter. He
further stated that A3-Nageshwar and A4-Hiralal cut the
throat of the deceased and all of them fled away. According
to him, treating the deceased as dead, while running away,
the accused resorted to blank firing. Just like PW-4 Shankar
Yadav, this witness has also tried to bring his evidence in
conformity with the post-mortem notes which do not show
any firearm injury. It bears repetition to state that not a
single bullet or empty cartridge was recovered from the
scene of offence. The use of firearm by the accused is not
supported by any evidence. He claims to have lifted the
dead body, but he stated that his clothes were not smeared
with blood. The police have not seized his clothes, which
creates suspicion about the prosecution case. Moreover,
from his evidence, it appears that PW-4 Shankar Yadav came
after the deceased was assaulted, whereas PW-4 Shankar
Yadav claims that he was there right from the beginning.
19Page 20
15. Having dealt with the evidence of these three important
witnesses, we would like to focuss on the inconsistencies in
their evidence. PW-4 Shankar Yadav stated that A1-Sunil
fired and due to the firing, people got scared. PW-5 Jaldhari
Yadav stated that A1-Sunil and A2-Bablu fired in air to scare
the people. He further stated that treating the deceased as
dead, they resorted to blank firing. PW-6 Narendra Yadav
stated that A1-Sunil and A4-Hiralal fired and injured the
deceased. Thus, there are three different versions given by
three witnesses. According to PW-4 Shankar Yadav, only A1
Sunil was carrying the pistol. According to PW-5 Jaldhari
Yadav, A1-Sunil and A2-Bablu had pistols and they fired in
the air to scare the people. PW-6 Narendra Yadav goes a
step further and says that A1-Sunil and A4-Hiralal fired and
injured the deceased. Neither PW-4 Shankar Yadav nor PW-5
Jaldhari Yadav stated that A4-Hiralal had a pistol in his hand.
There is no firearm injury on the deceased. PW-4 Shankar
Yadav stated that A4-Hiralal cut the throat of the deceased
whereas PW-5 Jaldhari Yadav stated that A3-Nageshwar and
20Page 21
A4-Hiralal cut the throat of the deceased. According to PW-6
Narendra Yadav, A3-Nageshwar had a rod in his hand and he
had attacked the deceased with the rod. He had also dealt a
rod blow on the motorcycle. This is not consistent with PW-5
Jaldhari Yadav’s case that A3-Nageshwar cut the throat of
the deceased. This would mean that A3-Nageshwar was
carrying a bhujali or knife. PW-6 Narendra Yadav stated that
A2-Bablu gave several knife blows on the deceased but PW-5
Jaldhari Yadav stated that he fired in the air meaning
thereby he had a pistol in his hand. It was argued by Mr.
Ratan Kumar Choudhary, learned counsel for the State that
different persons react differently to a particular situation
and as such there may be minor variations in their
statements. He submitted that minor contradictions and
inconsistencies which do not go to the root of the
prosecution version need to be ignored. In this case, it is not
possible for us to adopt such an approach because there is a
major lacuna in the prosecution story. It has been alleged
that at least two of the accused were carrying pistols; the
deceased was fired at and he was injured. This case is not
21Page 22
borne out by the medical evidence. At the cost of repetition,
we must state that no bullets or empty cartridges have been
recovered from the scene of offence. If we keep this major
lacuna of the prosecution story in mind and consider the
abovementioned inconsistencies in the evidence of the
prosecution witnesses, it would not be possible to term them
as minor inconsistencies or variations which should be
ignored. Besides, all the three important prosecution
witnesses are related to the deceased and, therefore, are
interested witnesses. We are aware that the evidence of an
interested witness is not to be mechanically overlooked. If it
is consistent, it can be relied upon and conviction can be
based on it because, an interested witness is not likely to
leave out the real culprit. But in this case, the interested
witnesses are not truthful. Their presence itself is doubtful.
According to PW-6 Narendra Yadav, they were present at the
scene of offence, but their names are not mentioned in the
FIR. The genesis of the prosecution case is suppressed.
Moreover, admittedly, there is deep rooted enmity between
the accused and the deceased to which we have made
22Page 23
reference earlier. We are mindful of the fact that enmity is a
double edged weapon but possibility of false involvement
because of deep rooted enmity also cannot be ruled out.
16. As we have already stated the major lacuna in this case
is that use of firearms by the accused is not proved. There
are no firearm injuries on the deceased. It is true that when
there is cogent eye-witness account, the medical evidence
recedes in the background. However, when the eye-witness
account is totally inconsistent with the medical evidence and
there is reason to believe that improvements are made in
the court to bring the prosecution case in conformity with
the post-mortem notes, it is a cause for concern. In such a
situation, it is difficult to say that one must believe the
tainted eye-witness’ account and keep the medical evidence
aside. In this connection, we may usefully refer to the
judgment in Sahebrao where this Court observed that when
the doctor’s experience has not been questioned, he is the
only competent person to opine on the nature of injuries and
cause of death. We may also refer to the judgment of this
23Page 24
Court in Anjani Chaudhary, where the medical evidence
did not support the appellant’s presence as there was no
injury on the deceased which could be caused by a lathi and
the appellant was stated to be carrying a lathi. Since the
eye-witnesses therein were not found to be reliable, this
Court acquitted the appellant therein. In Kapildeo Mandal,
all the eye-witnesses had categorically stated that the
deceased was injured by the use of firearm, whereas the
medical evidence specifically indicated that no firearm injury
was found on the deceased. This Court held that while
appreciating variance between medical evidence and ocular
evidence, oral evidence of eye-witnesses has to get priority
as medical evidence is basically opinionative. But, when the
evidence of the eye-witnesses is totally inconsistent with the
evidence given by the medical experts then evidence is
appreciated in a different perspective by the courts. It was
observed that when medical evidence specifically rules out
the injury claimed to have been inflicted as per the eyewitnesses’ version, then the court can draw adverse
inference that the prosecution version is not trustworthy.
24Page 25
This judgment is clearly attracted to the present case. In
Mani Ram, PW-2 the only sole eye-witness therein stated
that the two appellants therein chased deceased-Basdeo and
both of them fired at him from the kattas while he was
running. However, according to the postmortem report,
injury No.7, which was caused by a firearm, was situated on
the right shoulder and front of upper arm and outer part.
There was no injury either on the back or anywhere behind
the shoulder. Since the prosecution case was that the
deceased was fired at while he was running, firearm injuries
should have been there on his back. In view of this
discrepancy, this Court observed that where the direct
evidence is not supported by the expert evidence then the
evidence is wanting in the most material part of the
prosecution case and, therefore, it would be difficult to
convict the accused on the basis of such evidence. We feel
that the accused can draw support from this case also.
Tainted eye-witness account which is glaringly inconsistent
with the medical evidence as regards firearm injury has
shaken the credibility of the prosecution case.
25Page 26
17. There is yet another very important and distressing
lacuna in the prosecution case. Learned counsel for the
accused submitted that PW-6 Narendra Yadav went to the
police station and informed the police about the incident in
question. A sanha entry was made. However, PW-6
Narendra Yadav did not name the accused. It was submitted
that this sanha entry was purposely suppressed by the
prosecution as it did not contain the names of the accused.
It was suggested that the FIR of PW-6 Narendra Yadav is a
doctored document and the names of the accused were
subsequently added at the hospital. In order to examine
whether there is any substance in this submission, we
carefully examined the record. We found that after
recording the above submissions of the defence counsel, the
trial court by its order dated 23/10/2003 directed the
prosecution to produce Sanha Entry Nos.465 to 476 dated
29/1/1996 i.e. the date of incident. The officer-in-charge of
Mihijam Police Station sent a report dated 4/11/2003 along
with the register containing sanha entries stating that the
26Page 27
original sanha entries of 29/1/1996 are not available. The
said report is at Ex-O. Along with the said letter, the
relevant register is produced. In order to find out whether
really the sanha entries dated 29/1/1993 are missing, we
went through the said register carefully and we found that
the pages containing Sanha Entry Nos.465 to 476 dated
29/1/1996 are torn and missing. This appears to support the
case of the accused that the sanha entries dated 29/1/1996
were purposely not produced because they contained
information of the occurrence communicated by PW-6
Narendra Yadav first in point of time and the names of the
accused were not mentioned therein. When confronted
with this, the investigating officer, PW-7 Girish Mishra at one
stage denied this allegation. Later on, he stated that he
does not remember whether any sanha entry was made.
When it was suggested to him that in the sanha entry, no
names of the accused were mentioned and it was removed
from the record to falsely implicate the accused, he said that
it is a matter for investigation. This casts a shadow of doubt
on the credibility of the prosecution story.
27Page 28
18. It was argued that the accused were absconding and,
therefore, adverse inference needs to be drawn against
them. It is well settled that absconding by itself does not
prove the guilt of a person. A person may run away due to
fear of false implication or arrest. (See Sk. Yusuf v. State
of West Bengal5
). It is also true that the plea of alibi taken
by the accused has failed. The defence witnesses examined
by them have been disbelieved. It was urged that adverse
inference should be drawn from this. We reject this
submission. When the prosecution is not able to prove its
case beyond reasonable doubt it cannot take advantage of
the fact that the accused have not been able to probablise
their defence. It is well settled that the prosecution must
stand or fall on its own feet. It cannot draw support from the
weakness of the case of the accused, if it has not proved its
case beyond reasonable doubt.
5
 (2011) 11 SCC 754
28Page 29
19. We began by commenting on the unhappy conduct of
the investigating agency. We conclude by reaffirming our
view. We are distressed at the way in which the
investigation of this case was carried out. It is true that
acquitting the accused merely on the ground of lapses or
irregularities in the investigation of a case would amount to
putting premium on the deprecable conduct of an
incompetent investigating agency at the cost of the victims
which may lead to encouraging perpetrators of crimes. This
Court has laid down that the lapses or irregularities in the
investigation could be ignored subject to a rider. They can
be ignored only if despite their existence, the evidence on
record bears out the case of the prosecution and the
evidence is of sterling quality. If the lapses or irregularities
do not go to the root of the matter, if they do not dislodge
the substratum of the prosecution case, they can be ignored.
In this case, the lapses are very serious. PW-5 Jaldhari
Yadav is a pancha to the seizure panchnama under which
weapons and other articles were seized from the scene of
offence and also to the inquest panchnama. Independent
29Page 30
panchas have not been examined. The investigating officer
has stated in his evidence that the seized articles were not
sent to the court along with the charge-sheet. They were
kept in the Malkhana of the police station. He has admitted
that the seized articles were not sent to the Forensic Science
Laboratory. No explanation is offered by him about the
missing sanha entries. His evidence on that aspect is
evasive. Clothes of the deceased were not sent to the
Forensic Science Laboratory. The investigating officer
admitted that no seizure list of the clothes of the deceased
was made. Blood group of the deceased was not
ascertained. No link is established between the blood found
on the seized articles and the blood of the deceased. It is
difficult to make allowance for such gross lapses. Besides,
the evidence of eye-witnesses does not inspire confidence.
Undoubtedly, a grave suspicion is created about the
involvement of the accused in the offence of murder. It is
well settled that suspicion, however strong, cannot take the
place of proof. In such a case, benefit of doubt must go to
the accused. In the circumstances, we quash and set aside
30Page 31
the impugned judgment and order. The appellants-accused
are in jail. We direct that the appellants – A1-Sunil Kundu,
A2-Bablu Kundu, A3-Nageshwar Prasad Sah and A4-Hira Lal
Yadav be released forthwith unless otherwise required in
any other case. 
20. The appeals are disposed of in the aforestated terms.
………………………….J.
(Aftab Alam]
………………………….J.
(Ranjana Prakash Desai)
New Delhi
April 9, 2013.
31

whether the Chief Judicial Magistrate is right in issuing the summons to the petitioners who were named in the FIR, but not in the chargesheet. = We notice that in this case the petitioners have been named in the FIR and learned Magistrate after perusing the FIR, case diary and the death report came to a prima facie conclusion of the involvement of all the persons named in the FIR in the occurrence. Learned Magistrate expressed the view that there are enough materials to initiate prosecution against them apart from the charge sheeted accused persons

Page 1
1
Non-reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Special Leave Petition (Crl) NO.7679 of 2012
Dhrup Singh and others .. Petitioners
Versus
State of Bihar .. Respondent
J U D G M E N T
K. S. Radhakrishnan, J
1. We are, in this case, concerned with the question
whether
the Chief Judicial Magistrate is right in issuing the summons to the
petitioners who were named in the FIR, but not in the chargesheet. 
The order passed by the Chief Judicial Magistrate in A.U.P.
No.572 of 2011 dated 18.04.2011 was challenged by the
petitioners before the High Court, without any success, against
this special leave petition has been preferred.Page 2
2
2. We notice that cognizance has been taken by the Magistrate
vide its order dated 8.4.2011 against the petitioners for offences
under Section 302/34 IPC read with Section 27 of the Arms Act.
Counsel for the petitioners submitted that the learned Magistrate
was not justified in invoking Section 319 of the Code of Criminal
Procedure (Cr.P.C.) since the petitioners were not charge-sheeted
by the police after conducting the investigation. Learned counsel
pointed out that so far as those persons against whom chargesheet has not been filed they can be arrayed as accused persons
in exercise of powers under Section 319 Cr.P.C. only when some
evidence or materials are brought on record in the course of trial.
Learned counsel also referred to the Judgment of this Court in
Hardeep Singh v. State of Punjab and others (2009) 16 SCC
785 and submitted that an identical question came up for
consideration before the two Judge Bench of this Court and in view
of the conflicting views expressed by two Judge Bench in Mohd.
Shafi v. Mohd. Rafiq and another (2007) 14 SCC 544 and a
two Judge Bench in Rakesh and another v. State of Haryana
2001(6) SCC 248, the matter was referred to a larger Bench and
the same is pending consideration. In such situation, learnedPage 3
3
counsel submitted that this case also may be referred to a larger
Bench.
3. Mr. Gopal Singh, learned counsel appearing for the
respondent-State, on the other hand, placed reliance on a
subsequent Judgment of this Court in Uma Shankar Singh v.
State of Bihar and another (2010) 9 SCC 479 and stated that
such a request was declined by this Court stating that even if the
investigating authority is of the view that no case has been made
out against an accused, the Magistrate can apply his mind
independently to the materials contained in the police report and
take cognizance thereupon.
4. We notice that in this case the petitioners have been named
in the FIR and learned Magistrate after perusing the FIR, case
diary and the death report came to a prima facie conclusion of the
involvement of all the persons named in the FIR in the occurrence.
Learned Magistrate expressed the view that there are enough
materials to initiate prosecution against them apart from the
charge sheeted accused persons. The High Court has also
Page 4
4
concurred with that view. In such a situation, we find no good
reasons to take a different view from that of the learned
Magistrate as well as that of the High Court. Hence, this special
leave petition lacks merit and the same is dismissed.
……………………………..J.
(K.S. Radhakrishnan)
……………………………..J.
(Dipak Misra)
New Delhi,
April 08, 2013