suit for specific performance of compromise order = compromise was arrived at, whereby, the respondent No.2 agreed to re-convey the land to the extent of 1.16 acres to the appellant. This was on the condition that the respondent No.2 would use the remaining 1 acre land for building the administrative block. The appellant was also required to use the re-conveyed parcel of land for industrial purposes. = Thus, there was no breach of the compromise on the part of the Government which would necessitate her to file a suit for specific performance. Once it is held that the Government retracted its steps well in time, there could not be any decree of specific performance based on the alleged breach of the compromise. ; non-issue of the notice under Section 80 could not be permitted to be raised for the first time in the second appeal, when this contention was not raised seriously at any stage earlier.

       publisehd in http://judis.nic.in/supremecourt/imgst.aspx?filename=40721
    NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.1361 OF 2006



Tarabai (Dead) Through L.Rs.                       … Appellant (s)

                                   Versus

Govt. of Karnataka & Ors.                                … Respondent (s)

                                    WITH

                      CIVIL APPEAL NO.3789-3791 OF 2007


                             J U D G  E M E N T


H.L. Gokhale J.


            These appeals are filed  to  challenge  a  common  judgment  and
order dated 30.9.2005 passed by a learned Single  Judge  of  Karnataka  High
Court in Regular Second Appeal No.137/2001 and RSA  No.215/2001.   Both  the
appeals, which were decided by the learned  Single  Judge,  were  concerning
the land which was owned by the appellant Tarabai (now deceased) along  with
her family members.
The land consisted of  2  acres  16  guntas  in  Survey
No.16/1A and 1B in Jangamarakoppa Village in District Hubli.
The  Assistant
Commissioner, Dharwad had initiated acquisition  proceedings  for  acquiring
the said land by publishing a notification under the Land  Acquisition  Act,
1894, for the purposes of constructing an administrative  building  for  the
benefit of the Small Scale Industries Development  Corporation.  
The  Chief
Manager, Industrial State Zone-2, Hubli, of this corporation  is  respondent
no.2 in these appeals.
2.          Initially the acquisition proceedings  were  challenged  by  the
above referred appellant by filing a Writ  Petition  bearing  No.   366/1969
before the Karnataka High Court, but during the pendency of the  petition  a
compromise was arrived at, 
whereby, the respondent No.2 agreed to  re-convey
the land to the extent of 1.16 acres to the  appellant.   
This  was  on  the
condition that the respondent No.2 would use the remaining 1 acre  land  for building the administrative block.  
The appellant was also required  to  use
the re-conveyed parcel of land for industrial purposes.  
The compromise  was
taken on record and the said Writ Petition  was  disposed  of  by  the  High Court by its order dated 11.12.1970.
3.          The appellant received the compensation for the 1 acre of  land,
and a deed of reconveyance was executed on 25.8.1971  with  respect  to  the
remaining  parcel  of  land.  
It,   however,   so   transpired   that   the
administrative block was not constructed immediately. 
 On  the  other  hand, the said parcel of land was allotted to one M/s Basanth Tiles (appellant  in RSA No.137/2001). 
 On coming to know about this development,  the  appellant
filed  Original  Suit  No.519/1984  on  8.10.1984  in  the  Court  of  First
Additional Munsiff at Hubli.
The appellant contended  that  the  respondent
No.2 had acted in contravention of the  compromise,  and  the  allotment  of
land in favour of M/s Basanth Tiles was illegal.
The  appellant,  therefore,
sought specific performance of the compromise, and return of the  said  land
of 1 acre.
It was, however, pointed out by  Deputy  Commissioner,  Dharwad,
respondent No.3 herein (defendant No.3 in the suit) that  the  allotment  in
favour of M/s Basanth Tiles was in fact a mistake, and they had taken  steps
to withdraw the same on 16.8.1984 i.e. well before the filing of  the  suit.
M/s Basanth Tiles who were defendant No.4 in the  said  suit  contested  the
same by contending that they were bona-fide purchasers of  the  said  parcel
of land, and had carried out certain  developments  on  the  land.  
 It  was
claimed that they had constructed a bore well and  a  compound  wall  around
the property.
4.          The Trial Court framed various  issues,  recorded  the  evidence
thereon, and examined the relevant documents,  particularly  the  compromise
memo arrived at between the parties, and dismissed the suit by its  judgment
and order dated 22.2.1992.
(i)    The Trial Court held that the Government had  become  absolute  owner
in view of the  compulsory  acquisition  of  the  property,  and  since  the
respondent No.2 had not obtained the sanction of  the  State  Government  to
enter into the compromise, the memo of compromise had no  legal  force.   It
was further held that the respondent No.2 could not have withdrawn the  land
from acquisition.  The Trial Court, therefore, held that the  appellant  had
failed to establish the necessary ingredients to get a  decree  of  specific
performance.
(ii)  It was also held by the  Trial  Court  that  since  the  notice  under
Section 80 of C.P.C. was sent on 31.10.1978, and since it was replied to  on
12.3.1979, the suit which was filed on  8.10.1984  was  clearly  beyond  the
period of limitation.  Thus on both these counts the Trial  Court  dismissed
the suit.
5.          The appellant filed a Regular Appeal bearing no.56/1992  against
this judgment in the Court of Additional Civil Judge (Sr. Division),  Hubli.

(i)    The Appellate Court reversed the findings of the  Trial  Court.   The
First Appellate Court held that the respondent  No.2  had  admitted  in  the
written statement that the compromise was legal, and had  been  acted  upon,
and therefore it  could  not  be  contended  that  the  compromise  was  not
enforceable.  In para 20 of the judgment it was also  observed  that  though
the Government of Karnataka was not a signatory to the  compromise,  it  had
not opposed it, and its consent could always be  deemed  and  inferred  from
its conduct.  The Appellate Court also  did  not  accept  the  plea  of  the
respondent No.2 that the plot was kept for  constructing  an  administrative
building. If that was so, it would not have been  allotted  to  M/s  Basanth
Tiles.  The Court,  therefore,  held  that  the  respondents  had  acted  in
contravention of the compromise and, therefore, the appellant  was  entitled
to enforce the same.
(ii)  As far as limitation is concerned,  the  First  Appellate  Court  held
that the limitation will have to be calculated from the  date  of  allotment
of said land to M/s Basanth Tiles which was  30.5.1984,  and  therefore  the
filing of the suit on 8.10.1984  was  within  limitation.    (iii)       The
First Appellate Court, however,  accepted  the  contention  of  M/s  Basanth
Tiles that it had effected improvement on the land and, therefore,  directed
the appellant to pay an amount of Rs.1,50,000/- to them  to  get  possession
of the suit land.  The Court also  directed  the  appellant  to  refund  the
amount of compensation to respondents No.1 to 3  which  the  appellants  had
received.  On these terms, the First Appellate Court directed  the  land  to
be re-conveyed to the appellants.
(iv)  The Court held that the appellants were always ready  and  willing  to
perform their part of the contract but there was a breach  on  the  part  of
respondent No.2 and, therefore, the decree had to  be  passed.   The  appeal
was therefore allowed by  its  judgment  and  order  dated  30.10.2000,  and
thereby the suit filed by the appellant was decreed.
6.          The Government of Karnataka  carried  the  matter  to  the  High
Court in Regular Second Appeal No. 215/2001,  and  M/s  Basanth  Tiles  also
filed RSA No.137/2001.  Both these appeals  were  heard  and  decided  by  a
Single Judge of the Karnataka High Court together.  The  questions  of  law,
though not very precisely spelt out, but considered by  the  High  Court  in
its judgment were as follows:-
            “(i)  Whether the First Appellate Court is justified in  law  in
      granting  a  decree  for  reconveyance  in  the  absence  of  any  de-
      notification made by the State Govt. under  Section  48  of  the  Land
      Acquisition Act ?

            (ii)  Whether in the facts and circumstances of  the  case,  the
      respondent No.6 being a bonafide purchaser and  when  the  petitioners
      were  entitled  only  for  damages,  was  the  First  Appellate  Court
      justified in decreeing the suit for reconveyance ?

            (iii) Whether the suit was barred by limitation?

            (iv)  Whether there is any mandatory compliance  of  Section  80
      C.P.C, prior to the institution of suit?

            (v)   Whether the compromise memo, alleged to  have  been  filed
      before the Court in Writ Petition No.366/1969 is not  binding  on  the
      respondent – Govt. since it had not signed the compromise memo?”

 7.         The High Court answered the above questions as follows:-
           “(i)  That the lower Appellate Court had committed an  error  in
      granting a decree for reconveyance although  there  was  no  cause  of
      action for the plaintiff to move to the Civil Court to seek  an  order
      of reconveyance. This was  because  the  respondent  authorities  took
      steps to revoke the allotment made in favour  of  Basanth  Tiles,  and
      proceeded to act in terms of the compromise well before the  suit  was
      filed. Besides there was no  notification  withdrawing  the  concerned
      land from the acquisition under Section 48  of  the  Land  Acquisition
      Act. The first question of law was therefore held  in  favour  of  the
      Government.


           (ii) Neither was the plaintiff entitled to reconveyance, nor was
      M/s Basanth Tiles entitled to retain possession of the suit  property,
      having  regard  to  the  stand  of  the  Government   and   also   the
      circumstances in which the allotment was made in their favour. As  far
      as the claim of M/s Basanth Tiles for the improvements was  concerned,
      the High Court found that the suit had been  filed  immediately  after
      coming to know about the allegedly illegal allotment made in favour of
      M/s Basant Tiles.   Therefore,  the  improvements  if  any,  would  be
      minimal, and if any improvement had been so made after filing  of  the
      suit, those would be at the risk  of  M/s  Basanth  Tiles.   The  High
      Court, therefore, rejected the contention of M/s Basanth Tiles for any
      damages.


           (iii) On the issue of limitation, the High Court held in  favour
      of the appellant that the real starting point of  the  limitation  was
      the date of the alleged breach by respondent Nos. 1  to  3  when  they
      allotted the suit land to M/s Basanth Tiles on  30.5.1984.   The  suit
      was therefore held to be within limitation.


           (iv)  The High Court held that the issue of a  mandatory  notice
      under Section 80 C.P.C. was not seriously contested by the respondents
      at the appropriate stage, and in fact there was  a  notice  issued  as
      early as in 1978,  calling  upon  the  respondents  to  re-convey  the
      property in terms of the compromise. The conduct  of  the  respondents
      throughout showed that the suit had not been seriously objected to  or
      contested on this point. Under such circumstances the contention could
      not be permitted to be raised for the first time in the Second appeal.
       The issue was therefore decided in favour of the appellants.

           (v)   It could not be said  that  the  compromise  entered  into
      between the parties was not binding on the Government.   However,  the
      requirement of the third defendant/respondent was shown  to  be  still
      surviving, and the allotment of land to M/s  Basanth  Tiles  was  made
      erroneously, and steps were taken for canceling  this  allotment  even
      before filing of the suit.  Besides there was no time  limit  provided
      for constructing the administrative building. Such being the case, the
      petitioner-plaintiff had no cause of action.”

8.          For the aforesaid reasons the High Court allowed the  appeal  in
RSA No. 215 of 2001 filed by the Government, and dismissed RSA  No.  137  of
2001 filed by M/s Basanth Tiles.  No order was made with  respect  to  cost.
The  High  Court  held  that  the  Government  was  entitled  to  take  back
possession of the said land from M/s  Basanth  Tiles.   Being  aggrieved  by
this judgment and order the Civil Appeal No. 1361 of 2006 has been filed  by
Tarabai (Dead) through her L.Rs., and Civil Appeal No. 3789-3791 of 2007  is
filed by M/s Basanth Tiles.
9.          As far as the Civil Appeal No.1361 of 2006 preferred  on  behalf
of Tarabai by her L.Rs. is concerned, these  appellants  can  not  have  any
grievance with respect to the finding of the High Court that the suit  filed
by her was within limitation. The High Court has  rendered  a  finding  that
the contention with respect to the alleged non-issue  of  the  notice  under
Section 80 could not be permitted to be raised for the  first  time  in  the
second appeal, when this contention was not raised seriously  at  any  stage
earlier. These appellants can certainly not have any objection with  respect
thereto.  In fact a finding was rendered in their favour by the  High  Court
that there was a notice issued as early as in 1978 for seeking  reconveyance
of the property in terms of the compromise concerned.
10.         The main grievance which Tarabai  through  her  L.Rs  have  with
respect to the High Court judgment is concerning the finding that there  was
no cause of action for Tarabai to move the Civil Court to seek an  order  of
reconveyance.  This observation of the High Court was based on a finding  of
fact that the Government had moved to  revoke  the  allotment  made  to  M/s
Basanth Tiles even before the filing of the suit by Tarabai.   In  fact  the
Trial Court had held that the Government and its officers had not  acted  in
contravention of the compromise.  
Therefore, there was  no  reason  for  the
First Appellate Court to reverse this finding of fact which is based on  the material on record. 
Thus, there was no breach of the compromise on the  part
of the Government which would necessitate her to file a  suit  for  specific performance.    
Once it is held that  the  Government  retracted  its  steps
well in time, there could not be any decree of  specific  performance  based on the alleged breach of the compromise.  The finding of the High  Court  in
this  behalf,  therefore,  cannot  be  disturbed  at  the  instance  of  the
appellant-Tarabai.
11.         Similarly, it cannot be disputed that there was no  notification
issued for withdrawing the land from acquisition as required  under  Section
48 of the Land Acquisition Act.  
The concerned parcel  of  land,  therefore,
continued to remain with the Government.  
There  was  undoubtedly  delay  on
the part of the Government in taking steps which it was  expected  to  take,
namely, to construct the administrative building, but that by itself  cannot
be a ground for decree  of  specific  performance.   
In  the  circumstances,
there is no substance in the appeal filed by Tarabai through her L.Rs.
12.   (i)   As far as the appeal filed by M/s Basanth  Tiles  is  concerned,
they cannot be unhappy with respect to the dismissal of the  suit  filed  by
Tarabai.  
Their only grievance can be with respect to  the  observations  of
the High Court that Government can recover the land from M/s  Basant  Tiles.
It is submitted on their behalf that these observations could  not  be  made
in a suit filed by Tarabai against the Government. 
Here we  must  note  that
the sole reason for Tarabai to file her suit was this very  allotment.  
Once
the  Government  specifically  contended  and  established  that  steps  for
cancellation of the allotment were initiated before filing of the suit,  the
suit had to fail. 
It was accepted by the Government that there was an  error
in allotting the land to M/s Basanth Tiles.  The claim of M/s Basanth  Tiles
could only be through the Government.  
If there was an error on the part  of
Government in making the allotment, the Government could  certainly  retract
its steps, cancel the allotment and proceed to  recover  the  land,  by  due
process. 
M/s Basanth  Tiles  has  not  raised  any  plea  such  as  that  of
promissory  estoppel  against  the  Government  to  claim  any  right.   
The
observations made by the High Court are to be seen in this context.
(ii)  M/s Basanth Tiles were essentially  aggrieved  by  these  observations
and not so much  with  respect  to  the  observations  that  they  were  not
entitled to any damages.  
The High Court has explained as  to  why  no  such
claim for damages could be made against the Government in the present  suit.

13.         Although various authorities were cited on behalf  of  both  the
appellants on certain peripheral issues, inasmuch as  the  principal  issues
involved in the matter were as  discussed  earlier  hereinabove,  and  since
there was no effective challenge on those aspects, it is not  necessary  for
us to go into those submissions.  
We  may,  however,  add  that  though  the
impugned decision arrived at by the learned Judge is a correct one, we  wish
that he would have been more careful in the manner in which the judgment  is
written.
14.         Both the appeals are, therefore, dismissed, though  without  any
order as to costs.

                                  …………..………………………..J.
                                  [ H.L. Gokhale ]



                                    ………………………………….…..J.
                                     [ Ranjana Prakash Desai ]

New Delhi
Dated : September 3, 2013
-----------------------
12

for conviction under Section 304B of IPC, it is obligatory on the part of the prosecution to establish that the death occurred within seven years of marriage. Sans the requirement of seven years, in this case, the offence would fall only under Section 498A of IPC. And for that matter, sans any of the five ingredients discussed at Paragraph 6 above herein, the offence will fall out of Section 304B of IPC. It has to be noted that the deceased had two children, the son had died earlier and there is a surviving daughter who is stated to be around seven years. Whether the said age of the daughter is at the time of evidence or at the time of the death of the deceased, is not clear. Neither PW-1, father of the deceased nor PW- 2 Sarpanch or any other witness has given any evidence with regard to the date of marriage. No document whatsoever has been produced with regard to the marriage. There is no evidence even with regard to the date of birth of the children. Also, according to PW-1 father of the deceased, the marriage had taken place five to seven years back. It has to be noted that DW-1 elder devrani/sister-in-law of the deceased had stated in her evidence that the marriage had taken place around eleven years back. Nobody has even spoken on the exact date of marriage. The death reportedly took place on 06.04.1990. The evidence was recorded in 1996. The High Court counted the eleven years from the date of recording of the evidence. However, on going through the evidence, it is not at all clear as to whether the same is with respect to the date of tendering evidence or with respect to the date of the incident. Hence, we set aside the conviction of the appellant under Section 304B of the Indian Penal Code (45 of 1860). The conviction under Section 498A of the Indian Penal Code (45 of 1860) is confirmed. However, taking note of the late evening age of the appellant, the substantive sentence is limited to the period undergone by him during the investigation/trial.

                       published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40720
 IN THE SUPREME COURT OF INDIA

                      CRIMINAL  APPELLATE  JURISDICTION


                      CRIMINAL APPEAL NO. 1308 OF 2013


Gurdip Singh                                 … Appellant (s)

                                   Versus

State of Punjab                              … Respondent (s)


                               J U D G M E N T


KURIAN, J.:



1.    Close  to  be  called  a  centenarian,  the  appellant  is  before  us
challenging the conviction and sentence  under  Sections  498A/304B  of  the
Indian Penal Code (45 of 1860) (hereinafter referred to as ‘IPC’).

2.    Appellant is the second accused in Sessions Case No.  41/1991  on  the
file of Additional Sessions Judge, Amritsar. First accused is his  son.  The
prosecution case as succinctly summarized by the High Court in the  impugned
judgment is extracted below:

      “Harjit Kaur, daughter of Mohinder Singh was married with Mohan  Singh
      accused. Mohinder Singh along with Hari Singh Sarpanch,  who  was  his
      brother from the brotherhood, had gone to village Gharyala to see  his
      daughter Harjit Kaur because the in-laws of Harjit Kaur  were  in  the
      habit of picking up quarrels with her for bringing less dowry. The in-
      laws  of  Harjit  Kaur  used  to  pressurize  her  to  bring  scooter,
      refrigerator and cash from her parents. On her failure to do so,  they
      after conspiring with each other, threatened to  kill  her  by  giving
      some poisonous substance. Gurdip Singh, father-in-law of Harjit  Kaur,
      on many occasions told Harjit Kaur that in case she  failed  to  bring
      the above said articles before Rabi crop, then after murdering her, he
      will re-marry his son. This fact was disclosed to  Mohinder  Singh  by
      Harjit Kaur on many occasions but he ignored the same  with  the  hope
      that Harjit Kaur may settle in her in-laws house.

      The prosecution story further is  that  on  6.4.1990,  Mohinder  Singh
      along with Hari Singh had gone to the residential farm house of  Mohan
      Singh accused here the dead body of  Harjit  Kaur  was  lying  on  the
      ground. No one was present in the house. Mohinder Singh suspected that
      his daughter Harjit Kaur had consumed some poisonous substance out  of
      frustration or the accused have murdered her by administering her some
      poisonous substance. Hari Singh was deputed to  look  after  the  dead
      body.

      Mohinder Singh made his statement before the police on 6.4.1990 on the
      basis of which the present case was registered.

      The investigation in the case was conducted and after  the  completion
      of investigation, challan was presented against the appellants in  the
      Court.

      The accused were charge-sheeted under  Sections   498-A/304-B  IPC  to
      which they pleaded not guilty and claimed trial.

      To substantiate  the  charge  against  the  accused,  the  prosecution
      examined PW-1 Mohinder Singh, PW-2 Hari Singh, PW-3  Gurcharan  Singh,
      PW-4 Rishi Ram, PW-5 ASI Gulbag Singh, PW-6 Harbhajan Singh,  PW-7  SI
      Amrik Singh and PW-8 Dr. Ram Krishan Sharma.”

3.    The Sessions Court convicted both the accused under  Section  498A  of
IPC for rigorous imprisonment for a period of two years and fine of Rs.500/-
 each and, in default of payment of fine,  for  another  three  months,  and
under Section 304B of IPC for rigorous imprisonment  for  a  period  of  ten
years and fine of Rs.500/- each and, in default  of  payment  of  fine,  for
another three months. The sentences were ordered to run  concurrently.   The
High Court, in appeal, maintained the conviction but  reduced  the  sentence
under  Section  304B  of  IPC  to  seven  years  rigorous  imprisonment  and
confirmed the rest.
4.    It is reported that the husband-first accused Mohan Singh is no more.
5.    “Dowry death” in the Indian Penal Code was  introduced  under  Section
304B as per Act 43 of 1986. Under the said provision,  if  a  married  woman
dies,
(i)   on account of burns or bodily injury  or  dies  otherwise  than  under
      normal circumstances,
(ii)  such death occurs within seven years of marriage,
(iii) it is shown that she was subjected to cruelty  or  harassment  by  her
      husband or any relative,
(iv)  such cruelty or harassment be soon before her death and
(v)   such cruelty or harassment by the husband or his relative  be  or  for
      or in connection with demand for dowry,

such death is called dowry death under Section 304B of IPC and  the  husband
or relative shall be presumed to have caused the dowry death.  Section  498A
of IPC deals with the offence of cruelty by the husband or  relative.  If  a
married woman is subjected to cruelty by the husband or his relative, he  is
liable for conviction under Section 498A.  There  is  no  requirement  under
Section 498A that the cruelty should be within seven years of  marriage.  It
is also not invariably necessary under Section 498A that the cruelty  should
be in connection with the demand for dowry. It is interesting to  note  that
Section 498A was introduced  as  per  Act  46  of  1983  to  “suitably  deal
effectively not only with cases of dowry deaths but also  cases  of  cruelty
to married women by their in-laws” and Section 304B was  introduced  as  per
Act 43 of 1986 to make the penal provisions “more stringent and effective”.
                                                         (Emphasis supplied)

6.    In this  context,  the  background  for  the  amendments  would  be  a
relevant reference. In the 91st  Report  on  Dowry  Deaths  and  Law  Reform
submitted by Justice K. K. Mathew, Chairman, Law  Commission  of  India,  on
10.08.1983, it is stated at Paragraphs 1.3 to 1.5 as follows:
      “1.3  If, in a particular incident of dowry death, the facts are  such
      as to satisfy the legal ingredients of an offence already known to the
      law, and if those facts can be proved  without  much  difficulty,  the
      existing criminal law can be resorted to for bringing the offender  to
      book. In practice, however, two main impediments arise-


                 i) either the facts do not fully fit into  the  pigeon-hole
                    of any known offence: or
                ii) the peculiarities of the situation are such  that  proof
                    of directly  incriminating  facts  is  thereby  rendered
                    difficult.


           The first impediment mentioned above is aptly illustrated by the
      situation where a woman takes her life with her own hands, though  she
      is driven to it by ill-treatment. This situation may not fit into  any
      existing pigeon-hole in the list of offences recognized by the general
      criminal law of the country, except where there is definite  proof  of
      instigation, encouragement or other conduct that amounts to “abetment”
      of suicide. Though, according to newspaper reports,  there  have  been
      judgments of lower courts which seem to construe  “abetment”  in  this
      context widely, the position is not beyond doubt.

            The second situation mentioned above finds illustration in those
      incidents in which  even  though  the  circumstances  raise  a  strong
      suspicion that  the  death  was  not  accidental,  yet,  proof  beyond
      reasonable doubt may not be forthcoming that the case was  really  one
      of homicide. Thus, there is need to address oneself to the substantive
      criminal law as well as to the law of evidence.


      1.4   Speaking of the law of evidence, it may be mentioned that one of
      the devices by which the law usually tries to bridge the gulf  between
      one fact and another, where the gulf is so  wide  that  it  cannot  be
      crossed with the help of the normal rules of evidence, is  the  device
      of inserting presumptions. In this sense, it is possible  to  consider
      the question whether, on the topic under discussion,  any  presumption
      rendering the proof of facts in issue  less  difficult,  ought  to  be
      inserted into the law.


      1.5   Coming to substantive criminal law, if a deficiency is found  to
      exist in such law, it can be filled up only by creating a new offence.
      Before doing so, of course, the wise law maker  is  expected  to  take
      into account a number of aspects, including the nuances of ethics, the
      ever-fluctuating  winds  of  public  opinion,  the  Demands   of   law
      enforcement and practical realities.”
                                                         (Emphasis supplied)

7.    Though the expression “presumed” is not used  under  Section  304B  of
IPC, the words “shall be deemed” under Section  304B  carry,  literally  and
under law, the same meaning since  the  intent  and  context  requires  such
attribution. Section 304B of IPC on dowry death  and  Section  113B  of  the
Indian Evidence Act, 1872, on presumption, were introduced by the same  Act,
i.e., Act 43 of 1986, with effect from 19.11.1986, and Section 498A  of  IPC
and Section 113A of the Evidence Act were introduced  by  Act  46  of  1983,
with effect from 25.12.1983.

8.    The amendments under the Evidence Act are only  consequential  to  the
amendments under the Dowry Prohibition Act, 1961 and the Indian Penal  Code.
It is significant to note that under Section 113A, the expression is  “court
may presume” whereas under Section 113B,  the  expression  is  “court  shall
presume”. The Parliament did intend the provisions to be more stringent  and
effective in view of the growing  social  evil  as  can  be  seen  from  the
Statement of Objects and Reasons in the amending Act.
9.    Being a mandatory presumption on the  guilty  conduct  of  an  accused
under  Section  304B,  it  is  for  the  prosecution  to  first   show   the
availability of all the ingredients of  the  offence  so  as  to  shift  the
burden of proof in terms of Section 113B of the Evidence Act. Once  all  the
ingredients are present,  the  presumption  of  innocence  fades  away.  Yet
another reference to Paragraph 1.8 in the 91st Report of the Law  Commission
of India would be fruitful in this context:
      “1.8. Those who have studied crime and its incidence know that once  a
      serious crime is committed, detection is a difficult matter and  still
      more difficult is successful prosecution of the offender. Crimes  that
      lead to dowry deaths are almost invariably committed within  the  safe
      precincts of a residential house. The criminal  is  a  member  of  the
      family: other members of the family (if residing in  the  same  house)
      are either  guilty  associates  in  crime,  or  silent  but  conniving
      witnesses to it. In any case, the shackles of the family are so strong
      that truth may not come out of the chains. There would be no other eye
      witnesses, except for members of the family.”
                                                         (Emphasis supplied)

10.   Having carefully gone through the entire evidence  as  appreciated  by
both the Sessions Court as well as the High Court, we are  not  inclined  to
take a different view except on one aspect, viz., the date of  marriage.
As
far as other aspects regarding cruelty or harassment are concerned,  it  has
clearly  been  proved  in  the  evidence  of  PW-1   and   PW-2   that   the
appellant/accused was also taunting the deceased demanding dowry. They  were
all staying in the same premises. The issue had  also  been  brought  before
the Village Panchayat many times. The deceased was even sent  out  from  her
matrimonial home on this account. There is also evidence that  the  deceased
had been harassed by both accused before two weeks of her  death.  Yet  with
all these,
for conviction under Section 304B of IPC,  it  is  obligatory  on
the part of the prosecution to establish  that  the  death  occurred  within seven years of marriage. Sans the requirement of seven years, in this  case, the offence would fall only under Section 498A of IPC. And for that  matter, sans any of the five ingredients discussed at Paragraph 6 above herein,  the
offence  will  fall  out  of  Section  304B  of  IPC.  
The  Sessions  Court,
unfortunately, has not addressed this crucial aspect and has  gone  only  on
assumptions with regard to the date of marriage.
It has  to  be  noted  that
the deceased had two children, the son had  died  earlier  and  there  is  a
surviving daughter who is stated to be around seven years. 
Whether the  said
age of the daughter is at the time of evidence or at the time of  the  death
of the deceased, is not clear. Neither PW-1, father of the deceased nor  PW-
2 Sarpanch or any other witness has given any evidence with  regard  to  the
date of marriage. No document whatsoever has been produced  with  regard  to
the marriage. There is no evidence even with regard to the date of birth  of
the children. Also, according to PW-1 father of the deceased,  the  marriage
had taken place five to seven years back. It  has  to  be  noted  that  DW-1
elder devrani/sister-in-law of the deceased had stated in her evidence  that
the marriage had taken place around  eleven  years  back.  Nobody  has  even
spoken on the exact date of marriage. The death  reportedly  took  place  on
06.04.1990. The evidence was recorded in 1996. The High  Court  counted  the
eleven years from the date of recording of the evidence. However,  on  going
through the evidence, it is not at all clear as to whether the same is  with
respect to the date of tendering evidence or with respect  to  the  date  of
the incident. In view of the mandatory  presumption  of  law  under  Section
304B of IPC/113B of the Evidence Act, it is obligatory on the  part  of  the
prosecution to establish that the  death  occurred  within  seven  years  of
marriage. Section 304B of IPC permits presumption of law  only  in  a  given
set of facts and not presumption of fact. Fact is  to  be  proved  and  then
only, law will presume. In the  instant  case,  prosecution  has  failed  to
establish the crucial fact on the death  occurring  within  seven  years  of
marriage.

11.   Hence, we set aside the conviction  of  the  appellant  under  Section
304B of the Indian Penal Code (45 of 1860).  
The  conviction  under  Section
498A of the Indian Penal Code (45 of 1860)  is  confirmed.  
However,  taking
note of the late evening age of the appellant, the substantive  sentence  is
limited to the period undergone by him during the investigation/trial.

12.   The appeal is allowed as above.

                                                      ……………………………….…..…………J.
                                    (SUDHANSU JYOTI MUKHOPADHAYA)





                                                    ……….………...……..……………………J.
                                           (KURIAN JOSEPH)
New Delhi;
September 3, 2013.




-----------------------
                                                                  REPORTABLE


-----------------------
9

Presence of witness doubtful = According to the report (Exh.PAK) of the Deputy Director, Forensic Science Laboratory, Madhuban no linkage could be established between the bullets recovered from the dead body and the fire arms allegedly recovered at the instance of the accused both of which were sent for forensic examination. The learned Trial Court also noticed that PW-11 and PW-12 had identified the accused including the present appellant for the first time in Court. It was also held that the refusal of the accused to cooperate and take part in the test identification parade could not be held adversely against the accused on account of the fact that even earlier to the proposed test identification parade the accused were shown to PWs 11 and 12 and also to the son of the deceased. The mere claim of the prosecution that PW-11 Sohan Lal and PW-12 Bharat Lal were eye witnesses to the occurrence could not have been sufficient for the High Court to treat the ocular version of the said witnesses as the undisputed version of the occurrence. The High Court did not test the prosecution claim in the backdrop of the totality of the facts of the case. Having done so, we arrive at a different conclusion and, therefore, take the view that the High Court was not justified in reversing the acquittal of the accused-appellant Prem Singh. We, therefore, set aside the order of the High Court insofar as the present appellant is concerned and restore the order of acquittal passed by the learned Trial Court. The appeal is consequently allowed. If the appellant is presently in custody he be released

                           published in     http://judis.nic.in/supremecourt/imgst.aspx?filename=40723 
 REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL NO. 925 OF 2009

Prem Singh                              ...  Appellant(s)
                                   Versus
State of Haryana                        ...  Respondent(s)

                               J U D G M E N T

RANJAN GOGOI, J.

1.    The appellant, Prem  Singh,  alongwith  six  others  was  charged  for
various offences punishable under the Indian Penal Code (IPC), 1860 and  the
Arms Act, 1959, including, the offence under Section 302 read  with  Section
149 IPC.  Two of the  accused,  namely,  Satish  Kumar  and  Surinder,  were
acquitted even prior to the recording of their statements under Section  313
Code of Criminal Procedure (Cr.P.C).  The remaining five accused,  including
the present appellant, were acquitted by the  learned  Trial  Court  at  the
conclusion of the trial by order dated 5.4.1997.  Aggrieved, the  State  had
filed an appeal before the High Court of Punjab & Haryana.  The  High  Court
by judgment and order dated 12.5.2008 reversed the acquittal insofar as  the
present appellant Prem Singh and another accused,  i.e.,  Vishwa  Bandhu  is
concerned.  Both the aforesaid accused persons were convicted under  Section
302 read with Section 34 IPC and have been  sentenced  to  undergo  rigorous
imprisonment for life.  The appeal of the State in respect of the  remaining
three accused, namely, Daulat Ram, Ballu and  Radhey  Shyam  was  dismissed.
Aggrieved by his conviction and the sentence imposed,  the  appellant,  Prem
Singh, has filed the present appeal.

2.    The case of the prosecution, in short, is that on 26.11.1993 at  about
6.30/6.45 a.m. when PW-16 Sohan Lal was present  in  his  house,  one  Vijay
Kumar, a neighbour, came and  informed  him  that  his  elder  brother  Siri
Krishan who had gone for a morning walk has been shot  at  by  some  persons
who had come in a Maruti car. On receipt of the said information from  Vijay
Kumar, who claimed to have witnessed the  occurrence,  PW-16  alongwith  his
nephew Navneet Kumar went to the spot and found  Siri  Krishan  lying  in  a
pool of blood. The injured was removed to the government hospital at  Karnal
where he was declared “brought dead”. According to the prosecution,  on  the
basis of the information sent to the police by the doctor in the  government
hospital, PW-24 SI Gurcharan Singh arrived in the hospital and recorded  the
statement of PW-16 Sohan Lal to the above effect (Exh.PQ).  On the basis  of
the said statement a FIR was registered which was investigated initially  by
PW-23 Inspector Om Prakash and thereafter by PW-24 SI Gurucharan  Singh  and
PW-27 Inspector Gordhan Singh. In the  course  of  investigation  the  seven
accused persons including the appellant were arrested and recovery  of  fire
arms was allegedly effected at the instance  of  accused-appellant  and  co-
accused Ballu.  From the place of occurrence several  empty  cartridges  and
lead bullets were recovered. 3 bullets were also  recovered  from  the  dead
body in the course of the post-mortem examination. The same  alongwith  fire
arms allegedly recovered at the instance of the two accused  were  sent  for
forensic examination.  On  completion  of  the  investigation   the  accused
persons including the present appellant were chargesheeted and the case  was
committed for trial to the Court  of  Sessions  at  Karnal.   Charges  under
Sections 120-B, 148, 302 read with Section 149 of the Indian Penal Code  and
Section 25 of the Arms Act  were framed  against  the  accused.   While  the
trial ended in the acquittal of all the accused persons the  same  has  been
reversed by the High Court in respect of the two  accused  persons,  namely,
Prem Singh and Vishwa Bandhu.   Challenging the  order  of  the  High  Court
this appeal has been filed by accused-appellant Prem Singh.

3.    The appeal was initially heard by  a  Bench  of  two  Hon’ble  Judges.
However, there being a difference of opinion between the Hon’ble Judges  the
matter required consideration by a larger Bench.  This  is  how  the  appeal
has come to be posted before us.

4.    We have heard Mr. D.B. Goswami learned counsel for the  appellant  and
Mr. Suryanaryana Singh, learned Addl. Advocate  General  for  the  State  of
Haryana.

5.    Having regard to the fact that in the instant case the High Court  had
thought it proper to reverse the order of acquittal passed  by  the  learned
Trial Court it will be appropriate  to  notice,  though  very  briefly,  the
virtually settled position in law with regard to the power of the  Appellate
Court to reverse an order of acquittal  passed  by  a  Trial  Court.   In  a
recent decision in Murugesan v. State Through Inspector of  Police[1]   this
Court had the occasion to consider the broad  principles  of  law  governing
the power of the High Court under  Section  378  of  the  Code  of  Criminal
Procedure, 1973. The summary of the relevant principles of law  set  out  in
para 21 of the judgment may be extracted hereinunder:
        “21. A concise statement of the law on the issue that  had  emerged
      after over half a century of evolution since Sheo Swarup[2] is  to  be
      found in para 42 of the Report in Chandrappa v. State of Karnataka[3].
      The same may, therefore, be usefully noticed below:


           “42. From the above  decisions,  in  our  considered  view,  the
        following general principles  regarding  powers  of  the  appellate
        court while dealing with an appeal against an  order  of  acquittal
        emerge:


           (1) An appellate court has full power  to  review,  reappreciate
        and reconsider the evidence upon which the order  of  acquittal  is
        founded.


           (2) The Code of Criminal Procedure,  1973  puts  no  limitation,
        restriction or condition on exercise of such power and an appellate
        court on the evidence before it may reach its own conclusion,  both
        on questions of fact and of law.


           (3) Various expressions, such as,  ‘substantial  and  compelling
        reasons’,   ‘good   and   sufficient   grounds’,    ‘very    strong
        circumstances’, ‘distorted conclusions’, ‘glaring  mistakes’,  etc.
        are not intended to curtail extensive powers of an appellate  court
        in an appeal against acquittal. Such phraseologies are more in  the
        nature of ‘flourishes of language’ to emphasise the  reluctance  of
        an appellate court to interfere with acquittal than to curtail  the
        power of the court to review the evidence and to come  to  its  own
        conclusion.


           (4) An appellate court, however, must bear in mind that in  case
        of acquittal, there is double presumption in favour of the accused.
        Firstly, the presumption of innocence is available to him under the
        fundamental principle of criminal jurisprudence that  every  person
        shall be presumed to be innocent unless he is proved  guilty  by  a
        competent court of law. Secondly, the accused  having  secured  his
        acquittal, the presumption of his innocence is further  reinforced,
        reaffirmed and strengthened by the trial court.


           (5) If two reasonable conclusions are possible on the  basis  of
        the evidence on record, the appellate court should not disturb  the
        finding  of  acquittal  recorded  by  the  trial   court.”(Emphasis
        supplied)


6.    It is in the light of the above principles of law that  the  reasoning
and conclusions of the High Court that will have to be  analysed  so  as  to
determine the correctness of the  view  taken  by  the  High  Court  in  the
present case.  To facilitate the aforesaid exercise the manner in which  the
learned Trial Court had arrived at its conclusions  in  the  matter  may  be
usefully noticed in the first instance.

7.    Vijay Kumar, who according to PW-16 Sohan Lal, came and  informed  him
about the incident was not examined  by  the  prosecution.  The  above  fact
assumes significance in as much as from the statement of PW-16  recorded  in
the hospital (Exh.PQ) it would appear that Vijay  Kumar  had  witnessed  the
occurrence. The learned Trial Court took note of the above  facts  and  also
that the statement  of  the  aforesaid  Vijay  Kumar  was  recorded  by  the
Investigating Officer only on 28.3.1994  and  that  too  on  account  of  an
objection raised by the  public  prosecutor  prior  to  the  filing  of  the
chargesheet (Challan) before the Court.  The public prosecutor had tried  to
justify the non-examination of Vijay Kumar by contending  that  it  was  not
Vijay Kumar but his daughter who had witnessed the occurrence.   Considering
the aforesaid contention the learned Trial Court held that even if the  same
is to be accepted the daughter of Vijay Kumar should have been  examined  as
a witness.  However, the evidence of Investigating Officers PW-23  Insp.  Om
Prakash, PW-24 SI Gurcharan Singh  and PW-27 Insp.  Gordhan  Singh  make  it
clear that none of the members of the family of Vijay  Kumar  were  examined
and no statement of any family member was recorded.

8.    The learned Trial Court came to the conclusion  that
there  is  ample
room to doubt whether PW-11  Sohan  Lal  and  PW-12  Bharat  Lal,  who  were
examined by the prosecution as eye witnesses,  had  actually  witnessed  the
occurrence. Both  the  aforesaid  two  witnesses  had  come  to  Karnal  (in
Haryana) from Sunam in Punjab about two months prior to the incident and  in
the month of March, 1994 they had shifted back to Sunam from where they  had
come. In this regard the Trial Court  specifically  noticed  that  both  the
witnesses were not able to give any specific address  in  Karnal;  
they  had
not received any summons to appear as witnesses and had so appeared  at  the
request of the son of the deceased.  Furthermore, PW-11  Sohan  Lal  claimed
to be an employee of the brother of PW-13 Smt. Pushpa Devi who is  the  wife
of the deceased.  
Both PW-11 and PW-12 claimed that they knew  the  deceased
from before and that the house of the deceased was very near  to  the  place
of occurrence. Yet, PW-11 and PW-12 did not go to the house of the  deceased
to inform the family members of the incident; neither did  they  report  the
incident to the police. 
Instead, they were roaming around aimlessly  in  the
streets of Karnal until they came to the place of occurrence  at  1.30  p.m.
when their statements were recorded by the  police.   
The  aforesaid  facts,
according to the learned Trial Court, cast a serious doubt  with  regard  to
the presence of PW-11 Sohan Lal and PW-12 Bharat Lal at  the  scene  of  the
occurrence.

9.    Furthermore, the learned Trial Court on  the  basis  of  the  evidence
adduced before it held the recovery of the weapons at the  instance  of  the
accused-appellant and co-accused Ballu to be  highly  doubtful  inasmuch  as
though the weapons were not concealed under the earth, no recovery was  made
from the spot on 21.09.1994; yet, on 22.1.1994 and 23.1.1994  the  two  fire
arms were recovered allegedly at the instance of the accused-appellant  Prem
Singh and co-accused Ballu respectively.  In this  regard  the  Trial  Court
also noticed that
according to the report (Exh.PAK) of the Deputy  Director,
Forensic Science  Laboratory,  Madhuban  no  linkage  could  be  established
between the  bullets  recovered  from  the  dead  body  and  the  fire  arms
allegedly recovered at the instance of the accused both of which  were  sent
for forensic examination.   
The learned Trial Court also noticed that  PW-11
and PW-12 had identified the accused including  the  present  appellant  for
the first time in Court.  
It was also held that the refusal of  the  accused
to cooperate and take part in the test identification parade  could  not  be
held adversely against the accused on account of the fact that even  earlier
to the proposed test identification parade the accused were shown to PWs  11
and 12 and also to the son of the deceased.

10.   In addition to the above, the Trial  Court  also  noticed  significant
discrepancies in the evidence of PWs 11 and 12,  particularly,  with  regard
to the identity of the accused who had  held  the  deceased  while  the  two
accused, i.e., accused-appellant Prem Singh  and  co-accused  Vishwa  Bandhu
allegedly fired at the deceased.  In this regard PW-11 in his  evidence  had
named accused Bijender  Singh  alias  Ballu  as  the  person  who  held  the
deceased from behind whereas PW-12 Bharat Lal had named accused Satish.  The
fact that the evidence of PWs 11 and 12 on the above aspect of the  case  is
belied  by  the  evidence  of  PW-3  (Dr.  N.K.Bhandwal)  and   PW-25   (Dr.
R.K.Kaushal) had also been taken note by the learned Trial Court.  Both  PWs
3 and 25 had stated that all the shots could not  have  been  fired  on  the
deceased if he had been held by a third person.   The  above  is  the  broad
basis on which the order of acquittal passed by the learned Trial Court  was
founded.

11.   The parameters within which the High Court was  required  to  exercise
its powers under Section 378 of the Code while hearing  the  State’s  appeal
have already been noticed.  If a conclusion with regard to the innocence  of
the accused is  reasonably  possible  on  the  basis  of  the  evidence  and
materials on record the High Court ought not to have disturbed the  findings
recorded by the Trial Court, even if, on a re-appreciation of the  evidence,
it was inclined to take a different view.  So long the  view  taken  by  the
Trial Court was a possible view the exercise of the appellate power  of  the
High Court under Section 378 CrPC would remain  circumscribed  by  the  well
settled parameters.

12.   In the present case, the learned Trial Court for the  reasons  noticed
came to the conclusion that the accused before it should be  acquitted.   
An
inference adverse to the prosecution on account of  non-examination  of  the
person who could be the star witness  for  the  prosecution,  namely,  Vijay Kumar; 
the inherent lacunae in the evidence of PWs 11 and 12; the doubt  and suspicion with regard to the bonafides of the recovery  of  the  fire  arms;
the failure of the prosecution to establish the linkage between the  weapons recovered and the bullets extracted from the body of the deceased are  facts and conclusions that can be reasonably reached on the basis of the  evidence and materials on record.  
If the aforesaid conclusions are  possible  to  be
reached and we are inclined to so hold, the same cannot be characterized  as
unreasonable or perverse so as to justify the interference made by the  High
Court.

13.   Furthermore, a reading of the order of the High Court  indicates  that
the reversal made was entirely on the basis of the evidence tendered by  PWs
11 and 12. The High Court seems to have accepted the  versions  narrated  by
the aforesaid two witnesses without considering  the  shortcomings  inherent
therein which  made  their  presence  at  the  place  of  occurrence  highly
doubtful, facts that had been elaborately noted by the learned  Trial  Court
in its order.
The mere claim of the prosecution that PW-11  Sohan  Lal  and
PW-12 Bharat Lal were eye witnesses to the occurrence could  not  have  been sufficient for the High Court to  treat  the  ocular  version  of  the  said witnesses as the undisputed version of the occurrence. 
The  High  Court  did
not test the prosecution claim in the backdrop of the totality of the  facts of the case.  
Having done so, we  arrive  at  a  different  conclusion  and,
therefore, take the view that the High Court was not justified in  reversing the acquittal of the  accused-appellant  Prem  Singh.   
We,  therefore,  set aside the order of the High  Court  insofar  as  the  present  appellant  is concerned and restore the order of acquittal passed  by  the  learned  Trial Court.  The  appeal  is  consequently  allowed.   If    the   appellant   is presently  in  custody  he be released







 forthwith unless his custody is  required  in  connection  with  any  other
case.
                                                         ………………………………………CJI.
                                                  [P. SATHASIVAM]



                                                          …………………………………………J.
                                                 [RANJANA PRAKASH DESAI]




                                                          …………………………………………J.
                                                 [RANJAN GOGOI]
NEW DELHI
SEPTEMBER 2, 2013




























                             ITEM NO.1-B      COURT No.14        Section IIB
                                                              (For Judgment)



           S U P R E M E   C O U R T   O F   I N D I
                     RECORD OF PROCEEDINGS

                   CRIMINAL APPEAL No.925 OF 2009


Prem Singh                                  Appellant(s)

    Versus

State of Haryana                          Respondent(s)


DATE 02/09/2013       This matter was called
       on for pronouncement of judgment today.

For Appellant(s)    Mr. D.B. Goswami, Adv.
                         Mr. K.H. Nobib Singh, Adv.

For Respondent(s)         Mr. Suryanarayana Singh, Adv.
                         Ms. Pragati Neekhra, Adv.


       Hon'ble Mr. Justice Ranjan Gogoi  pronounced  the  judgment  of  the
  Bench comprising Hon'ble the Chief Justice, Hon'ble Mrs. Justice  Ranjana
  Prakash Desai and His Lordship.




           The appeal is allowed.  If the appellant is presently in custody
  he be released forthwith unless his custody  is  required  in  connection
  with any other case.




    (Usha Bhardwaj)                        (Usha Sharma)
     (AR-cum-PS)                        (Court Master)

       [Signed reportable judgment is placed on the file ]


-----------------------
[1]    (2012) 10 SCC 383
[2]    Sheo Swarup v. King Emperor, (1933-34) 61 IA 398 : AIR 1934 PC 227
(2)
[3]    (2007) 4 SCC 415

-----------------------
14

Contempt of court arose when - To hold the respondents or anyone of them liable for contempt this Court has to arrive at a conclusion that the respondents have wilfully disobeyed the order of the Court. The exercise of contempt jurisdiction is summary in nature and an adjudication of the liability of the alleged contemnor for wilful disobedience of the Court is normally made on admitted and undisputed facts.

               published in   http://judis.nic.in/supremecourt/imgst.aspx?filename=40722                                             
  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                         CIVIL ORIGINAL JURISDICTION

                       CONTEMPT PETITION NO.3 OF 2012
                                     IN
                     CONTEMPT PETITION NO.6 & 7 OF 2009
                                     IN
                    WRIT PETITION (CIVIL) NO. 503 of 2007

Noor Saba                                    ...   Petitioner (s)

                                   Versus

Anoop Mishra & Anr.                     ...  Respondent (s)

                               J U D G M E N T

RANJAN GOGOI, J.

1.    The contempt petitioner had filed a writ petition under Article 32  of
the Constitution [W.P.(C) No. 503 of 2007] raising a  plea  that  after  her
husband had passed away in the year 1980, while serving  as  the  Headmaster
in Government Public School, Rampur under the Uttar  Pradesh  Basic  Shiksha
Parishad, a meagre and inadequate amount of family pension  was  being  paid
to her leaving her in a  dire  state  of  penury  and  distress.   The  writ
petition in  question  was  filed  before  this  Court  even  while  a  writ
proceeding on the same issue was pending before the  Allahabad  High  Court.
Notwithstanding the above, taking into account the  peculiar  facts  of  the
case,  particularly,  the  distress  that  the  petitioner  claimed  to   be
suffering from, this Court entertained the writ  petition  and  disposed  of
the same by the order dated 29.7.2008 in the following terms :

        “Keeping in view the facts and circumstances of the case, we direct
        that the family pension of the petitioner shall  be  determined  in
        terms of Government  Order  dated  24.2.1989  and  other  necessary
        orders issued from time to time revising the family pension.   This
        exercise shall be done within a period of three months from  today.
        After the family pension is determined  in  terms  of  the  various
        Government Orders on the subject  and  the  amount  of  arrears  be
        calculated,  the  same  shall  be  paid  to  the  petitioner  after
        deducting the payments already made to her  on  account  of  family
        pension.  With  the  abovesaid  direction,  the  writ  petition  is
        disposed of.  No order as to costs.” [Para 12]

2.    While disposing of the writ petition  in  the  above  terms  by  order
dated 29.7.2008, this Court had recorded certain facts which being  relevant
to the present proceedings are being noticed hereinafter.
       The  petitioner’s  husband  late  Masood  Umer  Khan  was   initially
appointed as an Assistant Teacher in the year 1959 and he  was  holding  the
post of Headmaster in the Government Public School, Rampur  when  he  passed
away on 5.4.1980.  The petitioner was granted family pension at the rate  of
Rs. 200/- per month which was later  revised  to  Rs.  425/-.   The  revised
amount was reduced to Rs. 375/-  per  month  and  an  attempt  was  made  to
recover the excess  amount  allegedly  overdrawn  by  the  petitioner.   The
aforesaid action of the State was challenged by the  petitioner  in  a  writ
proceeding before the Allahabad High Court which was, however, dismissed  on
4.3.2005.  Aggrieved, an intra-court  appeal  was  filed  against  the  said
order dated  4.3.2005  in  which  an  interim  order  was  passed  directing
continuance of payment of family pension to the petitioner at  the  rate  of
Rs. 425/- per month.   While the matter was so situated  the  writ  petition
under Article 32 of the Constitution  [W.P.  (C)  No.  503/2007]  was  filed
before this Court which was disposed of in terms of the  directions  already
noticed and extracted above.

3.    Alleging that the directions issued by this Court on  29.7.2008  while
disposing of W.P.  (C)  No.  503/2007  had  not  been  implemented  Contempt
Petition  (C)  No.  6/2009  was  filed.   Simultaneously,  another  contempt
petition i.e. Contempt Petition(C)  No.  7/2009  was  instituted  contending
that  in  the  proceedings  in  W.P.(C)  No.  503/2007  certain  forged  and
fabricated documents were placed by the  official  respondents  before  this
Court which amounted to an abuse of the process of the Court for  which  the
respondents in the writ petition are liable in contempt.

4.    In the course of hearing of Contempt Petition (C) Nos.  6  and  7/2009
this Court had passed an order dated 1.9.2010 to the following effect :

                 “It is grievance of the petitioner that  in  spite  of  the
           above order the respondents have not settled the family  pension
           as directed.  Though learned counsel representing the  State  of
           U.P. states that the eligible pension has been  settled  and  is
           being paid, in view of the stand taken  by  the  petitioner,  we
           direct the Accountant General, U.P. at Allahabad to go into  the
           grievance of the petitioner in terms of the order passed by this
           Court vide para 12 which we  had  extracted  and  determine  the
           amount payable till this date and report to this Court within  a
           period of six weeks.

                 List after the report is received.”


5.    Contending that the aforesaid directions dated 1.9.2010 has  not  been
complied with Contempt Petition (C) No. 3 of 2012  has  been  instituted  by
the petitioner.
6.    Two significant facts which would  render  it  wholly  unnecessary  to
adjudicate Contempt Petitions No. 6 and 7 of 2009 may be taken  note  of  at
this stage.  The first is that by virtue of the order dated 1.9.2010  passed
in the aforesaid two contempt petitions the issues  before  the  Court  have
become crystallized in a somewhat  different  manner  and  the  adjudication
that would be necessary now has changed its complexion to one of  compliance
of the directions contained in the order of this  Court  dated  1.9.2010  by
the  Accountant  General  of  the  State  of  Uttar  Pradesh.   The   second
significant fact is that no serious issue has been raised on behalf  of  the
petitioner with regard to the  necessity  of  any  further  adjudication  of
Contempt Petitions No. 6/2009 and 7/2009 and the  entire  of  the  arguments
advanced on behalf of the petitioner has centred around the  issues  arising
in Contempt  Petition  No.  3/2012.   We,  therefore,  proceed  to  consider
Contempt Petition No. 3/2012 and  deem  it  appropriate  to  close  Contempt
Petition Nos. 6/2009 and 7/2009 as not requiring any further orders  of  the
Court.

7.    In Contempt Petition No. 3/2012 the contempt  petitioner  had  claimed
that the Accountant General, State of Uttar Pradesh has not taken any  steps
to comply with the order/directions dated 1.9.2010 of  this  Court  and  has
not calculated the  amount  of  pension  payable  to  the  petitioner.   The
contempt petitioner  has  further  alleged  that  inspite  of  the  repeated
reminders the default on the part of the Accountant General, State of  Uttar
Pradesh, had persisted.   Furthermore,  it  is  the  case  of  the  contempt
petitioner that she is an old  lady  of   72  years  of  age  who  has  been
unjustly deprived of the pension due to  her  ever  since  her  husband  had
passed away on 5.4.1980 while he was still in service.

8.    The Respondent No. 1 in  the  contempt  petition,  namely,  the  Chief
Secretary of the State of Uttar Pradesh has  responded  to  the  allegations
made in the contempt petition by filing an affidavit wherein  it  is  stated
that the arrears of salary and pension, including  revised  pension  at  the
rate of Rs. 3058/- per month, has been and is being paid to  the  petitioner
on a regular basis.   According  to  the  Chief  Secretary,  the  amount  of
pension has been calculated on the basis of Rs. 620/- as the last pay  drawn
by  the  petitioner’s  husband.   Furthermore,  according   to   the   Chief
Secretary, the difference in pension and the arrears accruing on account  of
revision of pension following the 6th Pay Commission Report  has  also  been
deposited in the bank account of the petitioner (No. 2622) in  the  District
Cooperative Bank, Rajdwara, Rampur.     Alongwith his affidavit,  the  Chief
Secretary of the State has also enclosed the certificate  of  the  last  pay
drawn by the petitioner’s husband which clearly indicates  the  same  to  be
Rs. 620/- per month.

9.    The Respondent No. 2 in the contempt petition, namely, the  Accountant
General of the State of Uttar Pradesh has also filed  an  affidavit  stating
the facts relevant to the case and asserting that the calculations  made  by
the Office of the Basic Shiksha  Adhikari,  Rampur  with  regard  to  family
pension due to  the  petitioner  corresponds  to  the  calculation  of  such
pension made by the office of the Accountant General and that  there  is  no
apparent  error  in  the  calculation  with   regard   to   the   pensionary
entitlements of the petitioner.

10.   The order dated 1.9.2010 passed by this  Court  in  Contempt  Petition
Nos. 6/2009 and 7/2009 required the  Accountant  General  of  the  State  to
determine the correct amount of family pension payable to the petitioner  in
accordance with the order dated 29.7.2008 passed by this  Court  in  W.P.(C)
No. 503/2007.  It is the categorical stand of the Accountant General in  the
affidavit filed that the said order of this Court has been complied with  by
him.  In this regard the specific statement of the Accountant General  which
is to the following effect may be taken note of :

                 “However as per the calculations obtained by the office  of
           the respondent from the office of the  Basic  Shiksha  Adhikari,
           Rampur, the amount of the family pension  mentioned  therein  is
           found to be the same as that of the  amount  determined  by  the
           office of the respondent as per the order of this Hon’ble  Court
           and mentioned in the letter report dt. 4.11.2010.   Hence  there
           appears to be no difference in calculations  of  amount  by  the
           office of Respondent and the dept. of petitioner.”  (Para  6  of
           the Affidavit dated 16.3.2012)


11.   Following the above stand taken  by  the  Accountant  General  in  his
affidavit there has been a  significant  alteration  in  the  stand  of  the
petitioner as evident  from  the  additional  affidavit/rejoinder  affidavit
filed by her to  the  counter  affidavit  of  the  respondent  No.  2.   The
petitioner now seeks to raise a dispute with regard to the  last  pay  drawn
by her husband which she contends to be           Rs.  1620/-  and  not  Rs.
620/-.  On the aforesaid basis the claim to a higher amount of  pension  has
been made by the petitioner.  Though, the petitioner has brought  on  record
some material in support of the said claim, i.e.,  another  last  pay  drawn
certificate showing the same as  Rs.  1620/-  and  some  extracts  from  the
service book of her husband, the fact remains that the  aforesaid  documents
relied upon by the petitioner stand  contradicted  by  the  last  pay  drawn
certificate brought on record by the Accountant General in his affidavit  as
also the statements made by the Chief Secretary to the effect that the  last
pay drawn by the petitioner’s husband was Rs.  620/-  per  month.   Disputed
questions of fact therefore confront this Court.

12.   To hold the respondents or anyone of them  liable  for  contempt  this Court has to arrive at a  conclusion  that  the  respondents  have  wilfully disobeyed the order of the Court.  
The exercise of contempt jurisdiction  is
summary in nature and an  adjudication  of  the  liability  of  the  alleged contemnor for wilful disobedience of the Court is normally made on  admitted and undisputed facts. 
 In the present case not only there has been  a  shift
in the stand of the petitioner with regard  to  the  basic  facts  on  which
commission of contempt has been alleged even the said new/altered  facts  do
not permit an adjudication in consonance with the established principles  of
exercise of contempt jurisdiction so as to enable the Court  to  come  to  a
conclusion that any of the respondents have wilfully disobeyed the order  of
this  Court  dated  1.9.2010.   We,  accordingly,  hold  that  no  case   of
commission of any contempt of this Court’s  order  dated  1.9.2010  is  made
out.  Consequently, Contempt Petition No. 3/2012 is dismissed.  For  reasons
already recorded, Contempt Petition   Nos.  6/2009  and  7/2009  shall  also
stand closed.


                                ………………..……………….…CJI
                                       [P. SATHASIVAM]



                            …………………..……………….………J.
                                    [RANJANA PRAKASH DESAI]



                            ………………..………………….………J.
                                   [RANJAN GOGOI]

NEW DELHI,
SEPTEMBER 2, 2013.