LAW FOR ALL

Sunday, April 27, 2014

Co-operative Societies Act - Auction for sale of land was conducted with the permission and by following due procedure - Handful persons who have not objected at the time of Board meetings ,and at the time of sale - can not challenge the same on surmises - A defunct society can not ask for revertion of duly sold property - High court orders are confirmed = J.N. Chaudhary & Ors. Etc. ..Appellants Versus State of Haryana & Ors. ..Respondents= 2014 ( April.Part ) judis.nic.in/supremecourt/filename=41463

Co-operative Societies Act - Auction for sale of land was conducted with the permission and by following due procedure - Handful persons who have not objected at the time of Board meetings ,and at the time of sale - can not challenge the same on surmises - A defunct society can not ask for revertion of duly sold property - High court orders are confirmed =
Thus in a matter where
the decision has been taken collectively by the General Body reflected
in the form of a resolution passed by the General Body, it would be
unjust and inappropriate to nurture a lurking doubt and keep suspecting
the decision by entertaining the version of a handful who might be
disgruntled or might be genuine but would be difficult to be gauged by
any court so as to over-rule the General Body resolution and accept
the view of the minority based on no evidence except assumption and
speculation.
If the instant matter is viewed meticulously, it is clearly
obvious that the appellants have expected the court of writ
jurisdiction to enter into the correctness and validity of the auction
sale essentially by expecting the Court to draw inference without
evidence that the auction sale was not bona fide as it did not fetch the
desired value of the land contrary to the materials available on record.
Plethora of circumstances have been related to establish the same which
clearly are in the realm of conjecture and speculation, yet the Single
Judge and the Division Bench have both scrutinized and considered the
same and have recorded a finding against the appellants which cannot be
held to suffering from perversity being contrary to the existing
materials before the Court which have been relied upon.
Thus, the
validity and correctness of the General Body resolution in view of which
the land was put to auction sale cannot be allowed to be assailed
specially when the price/alleged under valuation of the land in the auction
sale no longer survives as the High Court has allowed the value of the
land to be increased by increasing it from Rs. 40 lakhs to Rs.70 lakhs
per acre which has been ordered to be paid along with 6 % interest.
The
appellants have not furnished any material as noted by the High Court that
the cost of the land in the year of the date of auction which is 2003 was
more than Rs.70 lakhs per acre so as to offer a cause to interfere even
if it were to be interfered in the interest of equity, justice and fair
play specially when the circle rate of the land in the year 2003 when the
auction was held was Rs.12 lacs per acre only.
37. Hence, the endeavour of the appellants that the auction sale
should be set aside and the land be revived to the society cannot be
entertained in absence of proof of mala fide contrary to the existing
materials on record on the basis of speculation, assumption and inference
urged by the appellants.
38. Assuming for a while although not conceding that the land were
to be reverted to the co-operative society for any reason whatsoever at
this stage after 11 years of the sale during which the appellant Society
has practically ceased to exist where all members except ten out of 288 are
left, it is obvious that the land cannot be reverted to the original
members who have taken their refund.
In that event, the appellant –society
through a handful of members numbering ten is bound to indulge in trading
of the land by inducting new members quoting new rates at their instance
clearly sacrificing the very spirit of a co-operative society as the
land cannot be marketed even by the defunct Co-operative Society at the old
rate which land had been purchased out of the contribution made by the
erstwhile 288 members out of which only 10 are now left into the fray who
had never even objected to the General Body Resolution approving sale of
the land nor challenged the auction sale in the year 2003 when the auction
was held.
39.   We, thus find no illegality or infirmity in the impugned
judgments and orders passed by the single Bench as also the Division Bench
concurrently refusing to set aside the auction sale held 11 years ago in
the year 2003 at the instance of a Co-operative Society which has
practically been rendered defunct and thus ceased to exist apart from the
other weighty reasons discussed hereinbefore. Consequently, both the
appeals are dismissed but in the circumstance without any order as to
costs.

2014 ( April.Part ) judis.nic.in/supremecourt/filename=41463

GYAN SUDHA MISRA, PINAKI CHANDRA GHOSE
REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 4854-4855 OF 2014
(Arising out of S.L.P. (C) NOs.1581-1582/2011

J.N. Chaudhary & Ors. Etc. ..Appellants

Versus

State of Haryana & Ors. ..Respondents

WITH

CIVIL APPEAL NOS. 4856-4857 OF 2014
(Arising out of S.L.P. (C) NOs. 4758-59/2011)

Mount Everest Co-operative House
Building Society Ltd. ..Appellant

Versus

State of Haryana & Ors. etc. etc. ..Respondents

J U D G M E N T

GYAN SUDHA MISRA, J.

1. Delay in SLP (civil) 4758-59/2011 condoned.
2. Leave granted in both sets of special leave petitions.
3. These appeals by special leave have been preferred against the
judgment and order dated 27.08.2010 passed by the High Court of Punjab and
Haryana at Chandigarh in Letters Patent Appeal Nos.215 and 216 of 2007
(O&M) whereby the Division Bench of the High Court dismissed both the
letters patent appeals by a common judgment and order which is under
challenge herein.
4. The letters patent appeals which stood dismissed arose out of
two writ petitions filed in the High Court before the learned Single Judge
bearing writ petition Nos.6491/2005 and 7742/2005 which were filed
challenging the orders dated 13.12.2002, 05.09.2003 and 19.11.2004 in the
High Court at Chandigarh which were the Suspension Order, Removal Order of
the erstwhile Committee and order of the Dy. Registrar who dismissed the
appeal against removal. The facts stated therein disclosed that on
04.03.1994, a co-operative society in the name of Mount Everest Co-
operative Group Housing Society was formed and constituted under the
Haryana Co-operative Societies Act, 1984 wherein 288 persons became members
of the Society upto 1995-96 and contributed a total sum of approximately
Rs.7.5 crores towards the funds of the Society which were to be
utilised for purchase of the land. In the year 1996, the
Society purchased approximately 10 acres 4 kanals 14 marlas of
land in Village Wazirabad as well as Hyderpur Viran with
the funds
contributed by the members of the Society for achieving its objects. At
the time of formation of the Society, a Managing Committee had also been
constituted with Mr. R.P. Gupta as Secretary but the same was suspended on
23.10.1996 by the then Assistant Registrar Co-operative Societies, Gurgaon
on the allegations of financial irregularities and a Board of Administrator
was appointed. However, the Deputy Registrar reinstated the Managing
Committee of the society on 30.08.1999. Subsequently, on 28.05.2000, a
General Body Meeting of the society took place in which fresh election was
held and a new Managing Committee was constituted wherein the petitioner
No.1 Captain Shri A.K. Mahindra (since resigned during pendency of this
appeal) was elected as Member of the new Managing Committee and later on
was entrusted with the work of Honorary Secretary of the Society in place
of the previous Secretary Shri R.P. Gupta.
5. It is the case of the petitioner/members of the Society that
the new Managing Committee after taking charge and upon inspection of the
records of the Society found that the earlier Managing Committee had
indulged in large scale malpractices and in order to investigate the same,
an internal committee was constituted to go into the land records, finances
as well as other aspects of the Society. This internal committee therefore
conducted an intensive enquiry and submitted report which highlighted gross
irregularities by the previous Managing Committee in the purchase of land,
utilisation of members fund, expenditure on account of day to day expenses
and expenses incurred on land and site development etc. This audit was
conducted for the period 1993 to 2001 when the Managing Committee of the
society stood suspended and the Board of Administrators was in-charge of
the affairs of the Society. Finally, when the audit report was submitted
in March, 2002, the Managing Committee which had been constituted on
28.05.2000 with A.K. Mahindra as Secretary decided to lodge an F.I.R.
against the members of the earlier Managing Committee when R.P. Gupta was
the Secretary and the F.I.R. finally was lodged with the Police Station
DLF, Gurgaon after which investigation was conducted and arrests were made.
After investigation, charge sheet was also submitted in the criminal
courts but as per the charge sheet, no allegation was found against any
members of the then Managing Committee except Mr. R.P. Gupta who was a
member and Honorary Secretary of the Society from its inception until the
new Honorary Secretary Captain Mahindra who was petitioner No.1 and has
since resigned, took over as Secretary of the Society in 2000.
6. When the new Managing Committee took over and Captain A.K.
Mahindra functioned as Honorary Secretary from 28.05.2000 along with
another office bearer Mr. Ashok Sharma as Treasurer, special general body
meeting of the society was held on 02.06.2002 in which the affairs and
conditions of the society were discussed. In the meeting, the members were
apprised that large scales and glaring misappropriation of funds took place
between 1994 and 2000 and it was resolved that the only option left before
the Society was to sell the land at the best possible market price so as to
refund the contributions made by the members. The General Body of the
Society decided to sell off the land for several reasons recorded in the
minutes which are as follows:
(Reasons for General Body to decide for auction sale of the land)

“i) That 10.69 acres of land bearing Khasra Nos.1692, 1997,
1696, 1677, 1678 and 1679 stood registered and mutated in the
name of the Society which were in possession of the Society.
It could be further noted that out of this land, around 9
acres (3.5 acres in Khasra Nos.1977, 1678 and 1679 and 5.5
acres in Khasra Nos.1692, 1696 and 1697) were under
dispute/litigation in the District Court at Gurgaon and the
clear and undisputed land with the society was around only
1.69 acres.

ii) The General Body further noted that another 4.5 acres of
land marked in yellow colour bearing Khasra Nos.1677, 1678,
1679, 1695, 1694, 1696, 1698, 21, 20 and 27 also were under
dispute/litigation. It further transpired to the General
Body of the Society that the land in Khasra Nos.1977, 1678,
1679 measuring around 3.5 acres were never purchased by the
co-operative societies and there were no dispute/litigation
going on with the Society as this land was never the land
of the Society. Thus, out of the total land measuring 4.5
acres said to be in dispute only around 1.1 acres in
different Khasra Numbers was in dispute in regard to which
cases were going on in the District Courts, Gurgaon.
However, the Society further noted that this land had been
purchased by another Society namely Saraswati Kunj whose
registration was in progress. The General Body of the
Society further noted that these facts were available on
record after checking/verifying various records with the
revenue department with the help of Patwari/Tehsildar and
the Advocate, all of whom met a number of times.
Consequently, the Society was given to understand that only
a few days earlier to the General Body Meeting the land of
the Society had been surveyed by the Government alongwith
other vacant land with a view to acquire it i.e. the
acquisition process had been set in motion. It was further
noted by the General Body of the Society that in view of
purchase of vacant land around Saraswati Kunj the Society
of the petitioners had practically been surrounded/
encircled”

7. In view of the aforesaid considerations taken note of in the
General Body meeting of the Society held on 02.06.2002, it was decided by
the General Body to dispose of the land of the Society and the Honorary
Secretary of the Society Captain A.K. Mahindra and Ashok Sharma, Treasurer
were authorized to initiate proceedings for disposal of the land. In
pursuance to the general body resolutions, a letter dated 02.07.2002 was
sent to the Registrar, Co-operative Societies seeking permission to sell
the land. In the meanwhile and for the purpose of ascertaining the correct
market rate of the land, Captain A.K. Mahindra himself wrote a letter to
the Tehsildar, Gurgaon ascertaining the correct market rate of the land to
be disposed of. In response to the same, the Tehsildar, Gurgaon quoted the
market rate to Rs.40 lakhs per acre by way of Endorsement dated 14.06.2002.
The Honorary Secretary of the society/Captain A.K. Mahindra then wrote a
letter further on 02.07.2002 to the Registrar, Co-operative Societies,
Haryana seeking permission to dispose of the land at the earliest for an
amount of Rs.4.2 crores. The contents of the aforesaid letter dated
02.07.2002 written by Captain A.K. Mahindra are as follows:

“To
The Asstt. Registrar,
Cooperative Societies
Gurgaon, Haryana

Sub: Permission for disposal/sale of society land.

Sir,

With reference to the letter No.2298 dated 1.7.02 received from
the office of the Dy. Registrar, Gurgaon, we are enclosing the u/m
documents :-

a) Summary of the land as per registers and jamabandi
submitted is enclosed as desired. As per this summary
the total land with the society is 84 kanals 4 marlas,
and

b) Rate of land in the area where the society land is
situated is Rs.40 lakhs (Rs. Forty Lakhs) per acre as
obtained from the concerned patwaris office. A photo
copy of this letter is enclosed. As per this the total
value of land is Rs.4.20 crores (Rs. Four Crores Twenty
Lakhs Only).

Kindy grant us the necessary permission to dispose off the
land at the earliest and oblige.

Thanking you,

Sd/- A.K. Mahindra,
Hony. Secretary, Mt. Everest Coop. Group
Housing Societies Ltd.”

8. However, the Registrar, Co-operative Societies before whom a
dispute had been raised regarding removal of the office bearers of the co-
operative societies passed a suspension order on 13.12.2002 under Section
34 (2) of the Haryana Co-operative Societies Act, 1984, suspending the new
Managing Committee of the Society based on allegations of gross and serious
irregularities as a result of which a Board of Administrators was
appointed. Thereafter, on 14.01.2003, the Registrar, Co-operative
Societies granted permission to the Board of Administrators to dispose of
the society land and the Deputy Registrar, Co-operative Societies, Gurgaon
formed a Sales Committee of 5 members for selling land of the Society.
While granting permission for sale, respondent No.2/The Registrar, Co-
operative Societies appointed the following Sales Committee of 5 members
comprising inter alia of the following :

i) Dy. Registrar, Co-operative Societies, Gurgaon,

(ii) Inspector, Co-operative Societies, Gurgaon,

(iii) Sub-Inspector, Co-operative Societies, Gurgaon.

9. It appears that in the meanwhile CWP No.2025 of 2003 was filed
by Captain A.K. Mahindra and others challenging the order of suspension of
the new Managing Committee as well as the order granting permission to sell
the land. During pendency of the said writ petition, Assistant Registrar,
Co-operative Societies, Gurgaon on 05.09.2003 removed the new Managing
Committee under Section 34 (1) of the Haryana State Co-operative Societies
Act, 1984 based on the ground that the aforesaid Managing Committee had
failed to perform its duties as provided under the Act, Rules and Bye-Laws.
Simultaneously and in pursuance to the orders of Registrar, Co-operative
Societies dated 14.01.2003 granting permission to dispose of the Societies
land, a public notice for auction of the land of the Society was published
on 07.08.2003 indicating that the auction would be held on 21.08.2003.
This notice was published in all the specified newspapers in regard to
which a decision was taken by the General Body itself that it would be
published in ‘The Tribune’ (English and Hindi), Amar Ujala (Hindi), Dainik
Bhaskar (Hindi) and Dainik Jagran (Hindi).
10. The aforesaid notice for auction of the Societies land prompted
the suspended Managing Committee to file an application in the Court of
Senior Sub-Judge on 18.08.2003 which was moved seeking an order of
injunction on the Society from holding the auction on 21.08.2003. The Sub-
Judge’s Court entertained the application and a stay of the sale of land
was passed by the Sub Judge. In view of the order of stay, an
advertisement was further published in the newspapers on 20.08.2003 for
postponement of the proposed auction but a further development took place
when the interim order of the Sub Judge granting stay of auction was
vacated as a result of which another advertisement was issued which was
published in ‘The Tribune’ on 07.08.2003 wherein a fresh date of auction
for sale of the land was given for 28.02.2003 at 10 a.m. at the Society
site.
11. In pursuance to the aforesaid fresh date of auction, the
auction was held on 24.11.2003 whereby the land belonging to the Society
was sold to respondent No.7 for a sum of Rs.4,94,04,125/- as against the
estimated market rate of about Rs.4.2 crores.
12. After the auction of the land belonging to the Society in
favour of respondent No.7 was complete, the writ petition No.20252 of 2003
which had been filed challenging the suspension of the members of the
Managing Committee wherein Captain A.K. Mahindra and Ashok Sharma had been
elected as Secretary and Treasurer was withdrawn by the
petitioners/Secretary and Treasurer therein with liberty to avail all
existing and alternative remedies available to them by filing an appeal
under Section 114 of the Co-operative Societies Act. The
petitioners/Captain A.K. Mahindra and Ashok Sharma availed of the remedy
under Section 114 by filing the appeal, which was dismissed by the Deputy
Registrar on 19.11.2004, which was challenged by filing a writ petition
No.6491 of 2005, but was dismissed by the learned single Judge inter alia
holding as follows:

i) The suspension order dated 13.12.2002 and removal order
dated 05.09.2003 of the erstwhile Committee whereby Captain
A.K. Mahindra and Ashok Sharma had been appointed Secretary
and Treasurer respectively had been held did not subsist
because new election of the Managing Committee was held on
05.12.2004 wherein the appellant No.1 Captain A.K. Mahindra
was once again inducted as a member who earlier was holding
the post of Honorary Secretary as a result of the election
held on 28.05.2000 and the writ petition challenging
removal of Captain A.K. Mahindra and Ashok Sharma who were
removed in whose place the Board of Administrators had been
appointed was dismissed as infructuous as in view of
induction of new Managing Committee, the orders of
suspension and removal of earlier Managing Committee
challenged by the writ petition did not survive as the
learned single Judge was pleased to hold that when the new
Managing Committee was elected, the dispute regarding
adjudication of suspension of the office bearer of the
earlier Managing Committee constituted as a result of the
election held in 2002 were no longer sustainable.

ii) The learned single Judge inter alia further held that the
petitioner A.K. Mahindra had no locus to challenge the
order of his removal passed by the Registrar, Co-operative
Societies appointing Board of Administrators in his place
or the decision of the General Body for sale of the land
belonging to the society did not survive as it was only
A.K. Mahindra the suspended member who had challenged the
sale and no other member had come up to challenge the
decision of the General Body to sell the land of the
Society.

iii) The learned single Judge had further held that in the
appeal before the Registrar against removal of the members
of the Managing Committee, there was no challenge to the
order of the Registrar giving permission to sell/auction
was made nor the auction purchaser was impleaded as a party
therein and hence, the appeal suffered from misjoinder of
the necessary party and non-appealing of impugned order,
debarred the suspended petitioners to challenge the same in
the writ petition.

(iv) The learned single Judge further took note of the fact
that the decision to sell the land was of the General Body
Society which was taken on 02.06.2002 and the said decision
cannot be said to have been taken by authority constituted
under the Co-operative Societies Act but was taken by the
members of the Society in a General Body Meeting which had
passed a resolution to dispose of the land at reasonable
price and authorised Ashok Kumar and A.K. Mahindra to act
in the matter and that A.K. Mahindra assessed the market
value of the land as Rs.40 lakhs per acre on the basis of
the information obtained from the concerned Patwari as
already referred to hereinbefore.

(v) The learned single Judge was further pleased to hold that
the auction sale was conducted after due permission granted
by the Registrar under the supervision of the Sales
Committee already referred to hereinbefore and after giving
advertisement in three popular newspapers of Hindi and
English before fixing the minimum rate of land at Rs.40
lakhs per acre which was the market rate at that time.

vi) The learned single Judge also took note of the fact that
the petitioner therein did not bring on record any document
to show that the rate of land was more than Rs.40 lakhs per
acre as the prevalent collector rate/circle rate of that
time was Rs.12 lakhs per acre of the area whereas the
Societies land in question was sold at Rs.46.25 lakhs per
acre i.e. more than the market rate fixed at Rs.40 lakhs
per acre. The learned single Judge recorded a categorical
finding that there was neither any fraud in conducting the
auction sale nor was the auction sale bad or illegal in any
manner. In so far as the allocation regarding non
publication of the auction notice in less expensive
newspaper is concerned, it was held that this decision was
also taken in the General Body Meeting of the Society
itself. However, the learned single Judge enhanced the
rate of land from Rs.46.25 lakhs to Rs.70 lakhs per acre
which amount had himself been offered by Captain A.K.
Mahindra who was the Honorary Secretary of the Society at
least on the date when the resolution by the General Body
was passed on 02.06.2002. The learned single Judge after
hearing the contesting plea of the respective parties
disposed of the writ petition taking into account the
interests of the members of the Society holding that the
amount of Rs.70 lakhs per acre was sufficient for eligible
members.

(vii) The learned single Judge further ordered that the
difference of the amount which had come about with the
increase in the cost of the land by increasing the rate
from Rs.46.25 lakhs per acre to Rs.70 lakhs per acre would
be paid by the respondent No.7/auction purchaser to the
Registrar, Co-operative Societies within 45 days from the
date of the order i.e. 24.08.2007 with interest at the rate
of 6% per annum on the amount awarded by him from the date
of auction till the payment was actually made.

(viii) It was further directed by the learned single Judge
that the amount so received from respondent No.7/the
auction purchaser would be disbursed forthwith amongst the
eligible members proportionately, except the tainted ones,
by the Registrar himself or by any other person authorised
by him in that regard and the share of the tainted persons
would be kept until the decision of the cases against them
were adjusted against the recovery, if any ordered against
them. It was also made clear by the learned single Judge
that the members who had already received their share
amount would only be entitled to the difference on account
of increase of price and the concession given by the High
Court in the judgment.

13. The erstwhile Secretary of the Co-operative Society Captain
A.K. Mahindra who had been suspended by the Registrar, Co-operative Society
along with 37 members (38 in all) filed letters patent appeal No.215 of
2007 before the Division Bench of the High Court wherein the auction sale
conducted by the Board of Administrators under the supervision of the Sales
Committee of 5 members which included Deputy Registrar, Co-operative
Societies, Gurgaon, Inspector, Co-operative Societies, Gurgaon, Sub-
Inspector, Co-operative Societies, Gurgaon filed letters patent appeal
before the Division Bench of the High Court wherein the auction sale
conducted by the co-operative societies in pursuance to the order of the
Registrar passed by the co-operative societies were challenged essentially
on the following grounds:

i) That the advertisement for auction of the land was not
published in newspapers which had a wide circulation in an
area. It was alleged that the said notice was deliberately
issued in a newspaper which had negligible circulation in
Delhi and Gurgaon, where most of the members of the Society
used to reside.

(ii) The land belonging to the Society was sold for a song to
the respondent No.7 though it could have fetched more sale
consideration in case the auction after giving due
advertisement, would have been conducted.

(iii) There was no necessity of selling the land.

14. The learned Judges of the Division Bench who heard the letters
patent appeals rejected all the contentions of the appellants and upheld
the order passed by the learned single Judge holding therein that the plea
regarding suppression of notice in a newspaper lacking wide circulation
could not be sustained as the first advertisement regarding auction notice
were published in three newspapers of wide circulation and when the first
auction notice was cancelled, the second notice was published announcing
the new date as the said order against the auction had been vacated and the
said notice was published in the daily newspaper ‘The Tribune’ which is
locally the most prominent newspaper in Punjab and Haryana. Hence, the
Division Bench was pleased to hold that the land being situated in Haryana,
the publishing of the later advertisement in ‘The Tribune’ cannot be held
to cause any prejudice to the prospective buyers as alleged by the
appellant.
15. The Division Bench was further pleased to hold that the plea
raised by the counsel for the appellant that there was no necessity of
selling the land belonging to the Society was also not worth accepting when
a conscious and considered decision was taken by the General Body vide its
resolution passed on 02.06.2002, whereby a decision was taken to sell the
land keeping in mind the plight of the members who were initially made to
understand that in case flats were constructed a flat would cost around
Rs.4 lakhs but would later stipulated that on completion of the flat, the
same would cost Rs.17.50 lakhs approximately, if construction commenced on
time and were to be completed within three years, whereas at the relevant
point of time, flats in other adjoining societies were readily available
for a lower cost at Rs.12 to 13 lakhs. The Division Bench therefore was
pleased to hold that the decision in the General Body Meeting was taken
after considering the pros and cons of the decision to auction sale the
land.
16. In so far as the plea of the appellant emphasising that the
land was sold at a much cheaper rate to the respondent No.7 and thus was
prejudicial to the interest of the members of the Society is concerned, it
recorded that the appellant Captain A.K. Mahindra who was representing all
the appellants in LPA No.215/2007 had himself written a letter on
02.07.2002 while seeking permission to sell the land to the Assistant
Registrar, Co-operative Societies stating that the rate of the land in the
area where the Society is situated is Rs.40 lakhs per acre, as obtained
from the concerned Patwari office. Captain A.K. Mahindra had himself
forwarded that letter alongwith a copy of the letter received from the
concerned Patwari. In that letter which has been quoted hereinbefore, he
had categorically stated that the total value of the land was based on the
above rate which amounted to Rs.4.20 crores for the entire land of the
Society. Even the minutes of the General Body Meeting recorded that the
members themselves had resolved that the land prices in the area at the
relevant time, that is in the year 2002 had gone down. In view of the rate
quoted by the appellant himself in the aforementioned letter and the
decision taken by the General Body in its Meeting to sell the land on the
ground that the land prices were going down, no plea could be raised at
that stage to say that the land was sold at a lower price. The Division
Bench further took note of the fact that in any case, the rate of land was
enhanced from Rs.40 lakhs to Rs.70 lakhs per acre by order of the single
Judge. Besides this, when the General Body of the Society had decided to
abort the venture of the flat building due to germane factors such as the
pending litigation, possibility of acquisition by the Government, irregular
shape of the land and the surrounding land having been purchased by another
society namely Saraswati Kunj and the falling rate of land prices, it was
in the members interest to recover the investments made by them in the
failed venture as quickly as possible. The appellant No.1/suspended
Honorary Secretary Captain A.K. Mahindra had made enquiries himself from
the Tehsildar about the prevalent market price and the Tehsildar had opined
that at the relevant time while the Collector rate was Rs.12 lakhs per
acre, the market rate was about Rs.40 lakhs per acre. In spite of this,
the learned single Judge was pleased to enhance the rate of the land by
awarding Rs.70 lakhs per acre of the land owned and possessed by the
Society. Hence, the Division Bench was pleased to hold that when the
appellant No.1 Captain A.K. Mahindra, the erstwhile/ suspended Honorary
Secretary had himself as an office bearer sought permission to sell the
land at Rs.40 lakhs per acre, he cannot be permitted to question the
inadequacy of Rs.70 lakhs per acre which was awarded by the learned single
Judge. Thus, the amount which was actually paid for the purchase of the
land on 24.11.2003 exceeded by about Rs.70 lakhs, which was previously
estimated to be Rs.40 lacs per acre as per the market rate i.e. Rs.4.2
crores vide letter dated 02.07.2002 which was written by the appellant
No.1/Captain A.K. Mahindra on behalf of Mount Everest Society to the
Registrar, Co-operative Society, Haryana. The learned Judges of the
Division Bench thus were pleased to uphold the judgment and order passed by
the single Judge relying upon the figure suggested by the appellant No.1
himself relating to the cost of land recorded hereinbefore. Consequently,
the Division Bench which examined in detail the price fetched for the
society land, found it to be reasonable particularly in the light of the
adverse factors noticed by the General Body Meeting which prompted the
General Body to pass a resolution to put the land to auction sale which
have been scrutinised meticulously and extensively by the single Bench of
the High Court as also the Division Bench recorded hereinbefore. In view
of the aforesaid findings recorded by the Division Bench, the letters
patent appeals were dismissed by the High Court and thus it was
concurrently held by the single Judge as well as the Division Bench also
that the auction sale could not be held to be illegal, arbitrary or
suffering from the vice of surreptitious auction sale which could persuade
the High Court to set it aside as the High Court examined in detail the
price fetched for the society land and found it to be reasonable
particularly in the light of the adverse factors noticed by the General
Body in the Meeting which prompted the General Body to pass a resolution to
put the land to auction sale.
17. Feeling aggrieved with the judgment and order passed by the
Division Bench dismissing the two Letters Patent Appeals, thus upholding
the judgment and order of the single Judge, two appeals by way of special
leave had been filed by the petitioners/appellants Mount Everest Co-
operative House Building Society Ltd. and by 10 members of the Co-
operative Society out of which the petitioner/appellant No.1 Capt. A.K.
Mahindra withdrew himself from the special leave petitions due to
which he now ceases to be an appellant in the appeal filed by the members.

18. Learned senior counsels Mr. P.S. Patwalia and Mr. C.A.
Sundaram representing the appellant - members of the Mount Everest Co-
operative Society and the Mount Everest Co-operative Society
respectively assailed the judgment and order of the Division Bench which
was pleased to uphold the judgment and order passed by the single Judge
and thus upheld the auction sale in favour of the auction purchaser
respondent No.7 inter - alia on the grounds which substantially are the
same which had been urged before the High Court and were rejected
concurrently by the single Judge as also the Division Bench. However,
since the counsel for the parties were heard at length assailing the
correctness of the judgment and order passed by the High Court, it would be
appropriate in the interest of justice and fairness to the cause to
recapitulate and deal with the same.
19. The principal ground of challenge to the auction sale thus are
essentially two-fold. In the first place, it was submitted that the
action of respondent No.3 in suspending the new managing committee of the
petitioner/appellant society under Section 34(2) of the Haryana Co-
operative Societies Act, 1984 was arbitrary and illegal where no
proceeding for removal of the managing committee was pending under
34(1) of the aforesaid Act and the same was done with an oblique motive to
put the land of the Society to auction sale. In this context, it was also
submitted that the action of the official respondents and that of the
sales committee appointed by the official respondents in conducting the
auction sale of the land of the society on 24.11.2003 was sham and a
fraud committed on the members of the society and the public at large.
It was therefore further submitted that the official respondents and the
members of the sales committee had colluded in selling the land of the
society at a throw away price in favour of respondent No.7 which according
to the appellants has been established by the records of the auction
conducted on 24.11.2003. Thus, in sum and substance, it was contended
that the auction conducted on 24.11.2003 was a pre-determined affair,
illegal and a sham auction sale.
20. Commenting on this part of the averment, it was submitted that
it is clear from all the pleadings before the High Court raised on behalf
of the Society that the Society was not duly represented for want of the
office-bearers of the Society and the entire process of auction was
collusive. According to the counsel, the General Body Meeting which was
called by the society and the resolution which was passed therein should
not have been given effect to. It was, therefore, urged that the Division
Bench of the High Court erred in dismissing the Letters Patent Appeals
filed by the respondents as the High Court failed to appreciate that the
action of the respondents from the time i.e. suspending the Managing
Committee was merely to grab the land of the petitioner/society.
21. Elaborating on this aspect, it was further submitted that on
13.12.2002 Assistant Registrar, Co-operative Society suspended the
Managing Committee when A.K. Mahindra was the Secretary on the basis of
alleged irregularities of the previous Managing Committee under Shri
Gupta and not on the ground of mal-functioning of the then existing
Managing Committee under Capt. A.K. Mahindra. The Committee was thereafter
illegally removed on 5.9.2003 without even fixing the date of hearing.
Giving the sequence of events, it was stated that in between 13.12.2002 and
5.12.2004, there was no committee or effective society to manage the
affairs of the co-operative society since they had been suspended or
removed. At this time, a Board of Administrators was in control with
Mr. Ashok Sharma as one of the key administrators who acted in collusion
with the auction-purchaser. It has further been submitted that during
the period of suspension/removal of the managing committee and appointment
of the Board of Administrators which period was in between 13.12.2002 to
24.11.2003, the property was sought to be brought to sale through a sham
auction in collusion with the auction-purchaser without any notice to the
members of the society. Factual details were further given out stating
that the last elected secretary of the managing committee with Capt. A.K.
Mahindra as Secretary and 120 others filed a writ petition on 18.12.2003
challenging the suspension of the managing committee and the sale to the
respondent No.7. The society itself could not file any case since the
committee had been removed and was under the control of the Board of
Administrators whose collusive action was being questioned. However,
this writ petition had been withdrawn to challenge the removal before the
Registrar but as the Registrar rejected the petition challenging the
removal, another petition was filed on 26.4.2005. In the meantime, a sham
election was conducted on 5.12.2004 whereby Mr. Ashok Sharma was elected
and this was immediately challenged on 6.12.2004. The election was set
aside and once again a Board of Administrators was appointed on
26.9.2007. Elections were thereafter again conducted on 13.9.2010 by the
Registrar and the present committee was elected on 13.9.2010. It has been
submitted that this was the true committee representing the members who
were absent and in between the period of 13.12.2002 and 13.9.2010, the
managing committee became non-existent which was under the control of
Mr. Ashok Sharma who became the Member of the Board of Administrators and
is alleged to have been controlling even the Board of Administrators.
On 19.11.2010, when the new Managing Committee took over, a resolution
was passed on 27.8.2010 after which Letters Patent Appeals were filed
before the Division Bench which were dismissed and the same are under
challenge in these appeals by way of special leave petitions.
22. On the basis of the aforesaid facts, it was contended that the
society and its members were not duly represented for want of the
members of the society and no General Body Meeting was called to discuss or
decide the nature of the pleadings to be filed or the stand to be taken
by the members. The members of the society were kept entirely in the dark
between the period 13.12.2002 and 13.9.2010 and immediately upon a
representative committee being elected, the society preferred the
Special Leave Petitions before this Court out of which the instant
appeals arise. It was further contended that the plea of the respondent
that the majority of the members have no grievance is completely wrong
inasmuch as only 120 members out of 288 members had taken away their
payment and a substantial number of those did it under protest. The
allegation, therefore, that the cause of action to pursue the matter do
not survive at the instance of a few members is fit to be rejected. It
had also been reiterated that the managing committee of the society was
deliberately suspended to grab its land.
23. The auction-purchaser/respondent No.7 contested the aforesaid
plea and first of all submitted that only 38 members before the single
Judge and 10 members in Letters Patent Appeal challenged the judgment and
order of the High Court passed by the Division Bench and has also given the
detailed sequence of events under which the managing committee of the co-
operative society was suspended and also the fact that the decision was
taken by the Board of Administrators and the General Body in a bona fide
manner with which the respondent No.7 had no concern. It was further
contended that the decision to sell the land was taken by the General Body
of the Society after the society decided to sell the land and recorded
specific reasons for this by holding a General Body Meeting on 2.6.2002.
At this point of time, Capt. A.K. Mahindra was the Secretary of the
Managing Committee who had challenged the suspension of the Managing
Committee and the sale before the Registrar, had himself taken active
part in the society’s decision to sell the land who has now discreetly
withdrawn himself from the present special leave petitions. The General
Body Meeting minutes had recorded the reasons for the General Body to
approve of the auction sale indicating that it was agreed that the
society could not develop the land due to financial constraints as the
land was agricultural land for which license had been denied, certain
areas were under disputes/litigation, the land was not located close to
the main road and was not contiguous had multiple share holders and
thus did not command such land rates as other properties in the area
and, therefore, a conscious well-deliberated decision was taken by the
General Body to sell the land as that was a viable and beneficial
alternative for the members to go into. However, the auction purchaser-
respondent No.7 was not in the picture at all when the decisions were taken
by the General Body way back in 2002.
24. Learned senior counsel for the appellants Mr. Patwalia however
countered this submission and assailed it by submitting that even if the
decision by the General Body was taken to dispose of the land by putting
it to auction sale, it was not that the auction could be held and the
land could be sold at a throw away price putting the society to a great
loss. It was, therefore, urged that the basic question would be whether
the auction was conducted fairly and correctly so as to get the maximum
price. According to the learned counsel a perusal of the auction notice
and auction records would disclose that it was not done so and the auction
sale is a complete sham as the price at which the land was sold, was
highly inadequate and much below the price which it ought to have
fetched.
25. On a scrutiny of the sequence of events and the plea of the
contesting parties on the pivotal point as to whether the decision
taken to auction sale the land was bona fide or malafide, tainted with
dishonest motive and whether the suspension of the Managing Committee
and appointing the Board of Administrators was correct or not, it can
clearly be noticed that when the managing committee under Mr. Gupta as
Secretary was suspended, a new managing committee after fresh election
took over, when on 5.8.2001 Capt. A.K. Mahindra became Secretary of the
Managing Committee. It was under his secretaryship that a General Body
Meeting was convened and a resolution was passed by the General Body to
auction sale the land recording specific reasons in the Minutes of the
General Body Meeting whereby the Honorary Secretary/Capt. A.K. Mahindra
brought out the options to the notice of the General Body. One of the
options was to construct flats on the land for which tender had been
floated and it was noted that out of the two parties who responded to the
tenders, one namely M/s Antriksh Engineers and Construction & Corporation
had shown interest. Their main terms were as follows:

(a) that they will invest all money required to obtain CLU,
development charges etc. i.e. they will invest right upto the stage
where construction can begin. This will entail an expenditure of Rs.8
crores approximately.

(b) that they will refund the deposit of a limited number of members
after CLU permission is received.

I that in lieu of the money invested they will be given 50% of FAR
and;

iv) construction rate would be Rs.850/- sq. feet which is
deductible.

It was given out for information of the members that the advantage
would be that the Society would be able to move forward in achieving
its aim and that limited number of members desirous of leaving Society
will get their money back. In so far as the disadvantages were
concerned, it was noted that it will take around 6 months to get CLU
permission by which time Section 4 notice under the Land Acquisition
Act may be issued for acquisition of the land which the society
possessed. It was given out that a minimum period of 3 years will
take before the construction was announced and before completion goes
smoothly. In case, the project was undertaken, 1600 sq. feet flat
would cost Rs.13.60 lakhs approximately, and assuming a member of the
Society had paid Rs.4 lakhs the flat to be constructed would cost him
Rs.17.50 lakhs. It was therefore deliberated that the flats at a
lower rate than Rs.17.50 lakhs were readily available in Gurgaon in
Jal Vayu Vihar and Rail Apartments at Rs.12 to 13 Lakhs.

The Society therefore gave the second option to the General Body and
the second option was sale of the land which were in possession of the
society free from litigation. The Society noted that the land prices
had gone down at the relevant time which was lower than the purchase
price in the last few years when the Society had purchased the land at
Rs.7.5 crores. Thus, it was noted down by the Society before the
General Body that if the land belonging to the Society were to sell
the land it will be unable to recover the full amount which the
society has earlier invested in purchasing the land. However, a
comparative assessment of the objectives were also taken note of by
the society which were as follows:

v) Will avert the danger of the land belonging to the society
being acquired.

vi) Will avert all the cost and uncertainties of the
litigations being faced by the Society.

vii) Members of the Society will get back around 70% of their
investments.

viii) Will pave the way to recover the balance amount of
investments by members.

Thus, on a comparative assessments of the land being retained by the
Society and in case it was disposed of, the General Body of the
Society resolved on 02.06.2002 after taking a conscious decision to
dispose of the land of the Society.”

26. It was in view of this decision that follow up actions were
taken by the Board of Administrators under the Sales Committee inviting
proposals for the sale of the land as the Managing Committee under Captain
Mahindra and Treasurer Ashok Sharma was under suspension due to the alleged
illegalities and irregularities. The learned single Judge as also the
Division Bench of the High Court has scrutinized and taken note of
the overwhelming circumstance which weighed with the High Court. It was
considered by the High Court which took note of the fact that although
10.69 acres of land was claimed by the society, 9 acres i.e. 3.5 acres in
Khasra Nos. 1977, 1678 and 1679 as also 5.5 acres in Khasra Nos. 1692, 1696
and 1697 were in dispute/litigation in the District Court, Gurgaon. The
clear land without any dispute with the society was only around 1.69
acres. The records further indicated that 3.5 acres of land bearing
Khasra Nos. 1977, 1678 and 1679 was never purchased by the society as per
the then Secretary Mr. R.P. Gupta. The learned single Judge has also taken
note of the fact that this was under litigation as it was purchased by
another society –Saraswati Kunj whose registration was in progress. Thus,
if 3.5 acres were to be deducted out of 4.5 acres, only 1.1 acre was
left to the society. The learned single Judge further noted that the
land in question had been surveyed by the Government along with other
vacant land with a view to clear it and the acquisition process had
been set in motion. The land belonging to the society had been encircled/
surrounded by another society namely Saraswati Kunj. Therefore, the
future course of action left to the society which has been recorded
hereinbefore in detail in view of the considerations made by the General
Body, was to dispose of the land of the society.
27. Insofar as the dispute regarding suspension of the Managing
Committee under Captain A.K. Mahindra in view of the alleged
irregularities of the previous managing committee is concerned, it had
started only on 13.12.2002 and all the disputes in regard to removal
and induction of the society under Capt. A.K. Mahindra admittedly took
place between 13.12.2002 and 24.11.2003. But it is an equally undisputed
factual position that the resolution was passed by the General Body in
its Meeting for sale of the land on 2.6.2002 when the managing committee
constituted on 5.8.2001 under Capt. A.K. Mahindra was duly in place and
no member of the society had raised any grievance against the said
decision that it was erroneous or tainted in any manner and the society
was duly represented by the Secretary and all members of the society.
The case of the managing committee and its members that the Assistant
Registrar illegally suspended the managing committee under Capt. A.K.
Mahindra based on the alleged irregularities of the previous managing
committee under Mr. Gupta, first of all took place on 13.12.2002 from
which it is clear that when the General Body Meeting was conducted and
resolution was passed on 2.6.2002, the Secretary of the Managing
Committee Capt. A.K. Mahindra was duly and legally in place as Secretary
and was removed by the Registrar of Society only at a later stage on
05.09.2003 after which the Board of Administrators was appointed by the
Registrar and a Sales Committee was also set up under whose supervision the
auction sale was decided to be held under supervision of the Sales
Committee. It may further be noted that the proposed auction was also
challenged as an application for injunction restraining the auction
sale was filed before the District Court where an order of injunction
restraining the auction sale was also granted by the District Court but
the said injunction was later vacated against which no appeal was preferred
by any member of the society. It is no doubt true and it has been
contended that as no Managing Committee was in existence at that point of
time, no appeal could be preferred against the order vacating the
injunction. However, this contention is clearly without substance for if
the members in their individual capacity could assail the auction sale by
filing a separate writ petition, it cannot be accepted that they were
precluded in any manner from challenging the auction sale in case they
were aggrieved and the subsequent challenge after seven years in 2010
clearly appears to be an after thought at the instance of a miniscule
number of members who decided to assail the auction sale clearly as a
matter of gamble -
28. As already noted, the resolution by the General Body of the
Society to auction sale the land was taken way back on 2.6.2002 vide the
resolution passed in the General Body when there was dispute existing
regarding the functioning of the Managing Committee and it is only after
more than one year that the Secretary – Mahindra was removed by the
Registrar, Co-operative Societies and since he was removed, he challenged
his removal as also the decision of the General Body to auction sale the
land which resolution during his tenure as Secretary was passed. In fact
as long as he was the Secretary he had not merely approved the decision
of the General Body to auction sale, but also the existing market price of
the land and only when he was removed from the post of Secretary, he
started questioning the auction sale held under the supervision of the
Board of Administrators as also the decision to auction sale of the land
conveniently ignoring that the same had been approved by the General Body
Resolution during his tenure as Secretary when there was no dispute
regarding the Society’s functioning.
29. It may further be noted that the then Secretary Capt.
Mahindra although had challenged his removal as Secretary of the
Society, he never thought it appropriate to file any appeal against the
order vacating the order of injunction against auction sale which he
could have done as the ex-secretary if he was genuinely concerned. The
matter regarding the dispute challenging the auction sale had been filed
in a court of competent jurisdiction where initially an order of
injunction was also passed but the same was finally vacated against which
no appeal was preferred either by any member of the society or the
Secretary. The order of injunction against auction sale was finally
vacated but no member was conscious or vigilant to challenge the same.
On the contrary, large number of members gradually withdrew the amount
and walked out of the society. It is clear that for the first time in the
year 2010 when a new managing committee was elected on 13.9.2010 that a
decision was taken to challenge the auction sale by which time the
existence of the society withered away when the majority of the members
out of 288 left and only 38 members remained clearly implying that for all
practical purposes the Society ceased to retain its legal entity as the
land of the society for which contribution had been made was by all the
288 members and not merely 38 members. Even out of this 38 members,
only 10 members preferred Letters Patent Appeal before the High Court
although the General Body resolution was passed by the majority and cannot
be allowed to be over ruled by 10 members only.
30. Much emphasis has been laid on the valuation of the land as
it has been alleged that the land was auctioned/sold at a much lower price
than was capable of fetching which remains unsubstantiated in absence of
any evidence in this regard as to what were the market price of the
undeveloped land in the surrounding areas. On the contrary, it could be
noted that the circle rate of the land at the relevant time was Rs.12 lacs
per acre and the market rate was Rs.40 lacs per acre and as per the auction
held, the price fetched in the auction ultimately worked out to Rs.46 lacs
per acre. The appellants had not furnished any material before any court
as to what was the market price of the undeveloped land in the year 2003
when the auction sale was held in pursuance to the General Body Resolution
of the Co-operative Society. In any case, this question at this stage is
not of much relevance when the High Court has increased the price of the
land at Rs.70 lakhs per acre and members of the society have been held
entitled to refund of their contribution amount along with 6 % interest in
view of which undervaluation of the cost of the land no longer subsists.
It has no where been urged that at the relevant point of time in the year
2003 when the land was auctioned/sold, its valuation was much more than
Rs.70 lakhs per acre so as to treat it prejudicial and detrimental to
the interest of the members of the society who had contributed for
purchase of the land.
31. Thus, if the members of the Society by virtue of a General
Body resolution had decided to auction sale the land during the tenure of
a duly elected Secretary of the Society A.K. Mahindra and for more than
one year no member of the society had any reason to challenge the same
after which the Board of Administrator was appointed and the price of the
land on the date of auction could not be more than Rs.70 lakhs per acre,
it would be unfair and unjust to interfere with the auction sale after 11
years of its holding on the plea that the price fetched in the auction
suffers from undervaluation as the same cannot be compared with the
present day valuation which obviously must have grown over the years as
compared to the year 2003 when the auction sale was held. In this context,
it may also be noted that the Secretary Capt. Mahindra as also Patwari
had also given out in writing and is on record which indicates that the
value of the land at the relevant time which was not a developed land at
the relevant time when the land was put to auction sale was not more than
Rs. 40,000 per acre which cannot be doubted in absence of any material
to the contrary specially when the circle rate of the land was Rs.12 lacs
per acre only and the land was auction sold at Rs.46 lacs per acre
approximately in the year 2003. In any case, the price of the land has
already been increased to Rs.70 lakhs per acre by the High Court and has
been ordered to be paid alongwith 6 % interest and thus the Society has not
been put to monetary loss on account of the sale conducted in pursuance to
the resolution of the General Body which was passed during the tenure of a
duly constituted Managing Committee under Captain Mahindra. It is further
clear that only a handful of members of the co-operative society who are
now only 10 out of 288 and have not withdrawn from the society by
withdrawing their amount, expects that all the following aspects and
circumstance of the case should be brushed aside which are as follows :

i) The fact that the General Body Meeting was held on
2.6.2002 on which date there was no dispute regarding the
functioning of the managing committee;

(ii) Resolution of the General Body Meeting was passed unanimously on
2.6.2002 approving the decision to auction sale the land when the Society
was functioning under a duly constituted Managing Committee and had not
been suspended. The suspension of the Secretary of the Society was much
later after more than a year in 2003 and during this period the resolution
of the General Body was never challenged by any member.

(iii ) The constitution of the Board of Administrators should be struck
down as invalid although the members of the Co-operative Society had never
challenged the constitution of the Board of Administrators;

iv) The Sales/Supervision Committee under whom the auction sale
was held should be treated as a defunct body;

v) The valuation of the land in the year 2003 which was Rs.12
lacs per acre as per circle rate and Rs.40 lacs market rate
should be disbelieved in spite of any evidence to the
contrary which in any case has been increased to almost
the double by the High Court and has awarded 6 % interest
also which clearly takes care of the price factor as the
price of the undeveloped land could not have been more than
Rs.70 lacs per acre at the relevant time in the year 2003
when the auction sale had been held;

vi) All activities in regard to the conduct of the auction
sale should be treated as bogus and sham although the
District Court had vacated the order of injunction
restraining the auction sale against which no appeal was
filed;

vii) Only 10 members out of 288 are now aggrieved which
renders the co-operative society into a non-existent co-
operative society as even the rest 28 members out of 38 who
had filed the writ petition in the High Court have
withdrawn from the litigation.

32. From the background, facts and circumstance of the matter, it
is further clear that the members of the co-operative society had clearly
opted a wrong forum by filing a writ petition in the High Court for if
they expected the court to appreciate evidence and record a finding on the
aforesaid disputes for setting aside the auction sale, it is obvious that
the petitioners should have approached the civil court of competent
jurisdiction where it would have had the opportunity to adduce evidence
and prove all the allegations of under valuation and the alleged fraud
challenging the auction sale. In fact, the writ petition for assailing a
factual dispute ought not to have been entertained by the High Court
under its writ jurisdiction but in the interest of justice and fairness as
also equity and good conscience, the High Court entertained a dispute
which purely was of a civil nature since all contentions which have been
raised would have required appreciation of evidence. Yet the High Court to
a great extent has taken care to scrutinize all aspects of the matter in
regard to the writ petition filed by the co-operative society members who
sought to assail the auction sale clearly alleging disputed questions of
fact alleging fraud in conducting auction sale as also valuation of the
land in question which required adducing of evidence and the same could
not have been entertained by the High Court under Articles 226 and 227
of the Constitution except to the extent of considering whether the
order passed by the Registrar, Co-operative Societies rejecting the
challenge of removal of the managing committee was sustainable or not.
Yet the High Court has entered into all aspects and has then reached to a
conclusion considering entire conspectus of the matter which in our view
cannot be held to be arbitrary, illegal or unjust in any manner.
33. There is yet another feature of the matter which emerges from
the fact that when the removal of Capt. A.K. Mahindra as a Secretary of
the society has been set aside, then all activities including passing of
the General Body resolution in the meeting that were conducted during his
tenure as Secretary of the Managing Committee cannot be held to be illegal
in any manner. Thus when the General Body resolution was passed during
the tenure of a validly elected managing committee under Capt. A.K.
Mahindra as the Secretary and the resolution to auction sale the land was
passed during his secretaryship whereby the value of the land was also
assessed and approved by Capt. A.K. Mahindra himself and no allegation was
levelled by any member against Capt. A.K. Mahindra as all allegations were
confined to Ashok Sharma, then the resolution of the General Body obviously
could not have been faulted with specially when no appeal against the
order of the Civil Court vacating the order of injunction against the
auction sale was filed by any member of the society specially the
appellants herein. The appellant-society and a handful of members now
restricted to 10, have levelled allegations but mere allegation cannot be
treated as a proof and if the members were in a position to assail the
same which clearly would have required strict proof by way of evidence,
they ought to have gone in for a civil suit and the writ jurisdiction was
clearly not the appropriate remedy to establish and prove questions of
fact. Yet when the single Judge as also the Division Bench have
meticulously examined all aspect of the matter discussed hereinbefore and
the same does not indicate any perversity in the conclusions drawn, it
would be unfair and unjust to interfere with the same by indulging into a
roving enquiry merely accepting the contentions of some of the members of
the Society which are clearly based on speculation, conjecture and
apprehension. The Courts therefore in a circumstance of this nature cannot
be expected to decide such an issue on suspicion hunch or even intuition
which clearly would be abstract in nature and has no place in the eye of
law even before a court of fact and much less before a court under writ
jurisdiction.
34. The cumulative effect of the entire analysis based on the facts
and circumstance in the light of the reasonings assigned by the Single
Bench of the High Court as also the Division Bench, it would not be just
and proper to interfere with the judgments and orders passed by the
single Judge as also the Division Bench of the High Court holding
concurrently that the auction sale which was in pursuance to the
resolution passed by the General Body of the Co-operative Society based
on the price prevalent on the date of auction sale could be faulted on the
ground of allegations leveled on the basis of assumption and
speculation of 10 members of the society who had assailed the same by
invoking writ jurisdiction.
35. At this juncture, it would be appropriate to observe that in
judging the functioning of a co-operative society or any other statutory
body where the democratic process of election is adopted in pursuance to
the Rule and a collective decision is taken by majority of the members
of the entire body expressed in terms of a resolution passed by the
General Body, then the plea that the same should be ignored and bye-passed
even if the same has been challenged by a handful of members on
speculative allegation and assumption contrary to the reasons recorded in
the Minutes Books on the plea of mala fide, without any evidence, would be
illegal and arbitrary to accept being contrary to the rule unless the
alleged malicious action is writ large on the alleged decision and is
challenged by majority of the members. If a decision is taken by
majority of the members of a Co-operative Society or any other body under a
statute in terms of the Rule, it cannot be over-ruled by minority on the
ground of mala fide or fraud unless it has passed through a strict proof
of evidence. It is a well known dictum that mala fide is always easy to
allege but difficult to prove as the same cannot be held as proved relying
on assumption, speculation and suspicion.
36. In the instant matter existing 10 members of the society have
practically reduced the Co-operative Society to a defunct society as all
members except 10 out of 278 have finally withdrawn. Hence, the auction
sale at their instance, although the said auction sale had taken place
in view of the majority support of the General Body resolution which was
conducted under the supervision of the Board of Administrators appointed by
the Registrar, Co-operative Society and the Sales Committee is difficult to
scrap it as illegal in spite of the overwhelming material relied upon by
the High Court which has upheld the auction sale. Thus in a matter where
the decision has been taken collectively by the General Body reflected
in the form of a resolution passed by the General Body, it would be
unjust and inappropriate to nurture a lurking doubt and keep suspecting
the decision by entertaining the version of a handful who might be
disgruntled or might be genuine but would be difficult to be gauged by
any court so as to over-rule the General Body resolution and accept
the view of the minority based on no evidence except assumption and
speculation. If the instant matter is viewed meticulously, it is clearly
obvious that the appellants have expected the court of writ
jurisdiction to enter into the correctness and validity of the auction
sale essentially by expecting the Court to draw inference without
evidence that the auction sale was not bona fide as it did not fetch the
desired value of the land contrary to the materials available on record.
Plethora of circumstances have been related to establish the same which
clearly are in the realm of conjecture and speculation, yet the Single
Judge and the Division Bench have both scrutinized and considered the
same and have recorded a finding against the appellants which cannot be
held to suffering from perversity being contrary to the existing
materials before the Court which have been relied upon. Thus, the
validity and correctness of the General Body resolution in view of which
the land was put to auction sale cannot be allowed to be assailed
specially when the price/alleged under valuation of the land in the auction
sale no longer survives as the High Court has allowed the value of the
land to be increased by increasing it from Rs. 40 lakhs to Rs.70 lakhs
per acre which has been ordered to be paid along with 6 % interest. The
appellants have not furnished any material as noted by the High Court that
the cost of the land in the year of the date of auction which is 2003 was
more than Rs.70 lakhs per acre so as to offer a cause to interfere even
if it were to be interfered in the interest of equity, justice and fair
play specially when the circle rate of the land in the year 2003 when the
auction was held was Rs.12 lacs per acre only.
37. Hence, the endeavour of the appellants that the auction sale
should be set aside and the land be revived to the society cannot be
entertained in absence of proof of mala fide contrary to the existing
materials on record on the basis of speculation, assumption and inference
urged by the appellants.
38. Assuming for a while although not conceding that the land were
to be reverted to the co-operative society for any reason whatsoever at
this stage after 11 years of the sale during which the appellant Society
has practically ceased to exist where all members except ten out of 288 are
left, it is obvious that the land cannot be reverted to the original
members who have taken their refund. In that event, the appellant –society
through a handful of members numbering ten is bound to indulge in trading
of the land by inducting new members quoting new rates at their instance
clearly sacrificing the very spirit of a co-operative society as the
land cannot be marketed even by the defunct Co-operative Society at the old
rate which land had been purchased out of the contribution made by the
erstwhile 288 members out of which only 10 are now left into the fray who
had never even objected to the General Body Resolution approving sale of
the land nor challenged the auction sale in the year 2003 when the auction
was held.
39. We, thus find no illegality or infirmity in the impugned
judgments and orders passed by the single Bench as also the Division Bench
concurrently refusing to set aside the auction sale held 11 years ago in
the year 2003 at the instance of a Co-operative Society which has
practically been rendered defunct and thus ceased to exist apart from the
other weighty reasons discussed hereinbefore. Consequently, both the
appeals are dismissed but in the circumstance without any order as to
costs.

………………………………….J.
(Gyan Sudha Misra)

………………………………….J.
(Pinaki Chandra Ghose)
New Delhi;
April 24, 2014
-----------------------
42

Bail - Jail - Bail granted by High court in appeal stage - challenged by state - on the ground that 52 cases are pending - out it nearly out of them in 20 cases offences were registered against him before going to jail and during his stay in jail. 32 cases were registered after being released by this Court on conditional bail in August, 2001.- Apex court cancel bail orders and directed the High court to dispose the appeal with in one year = STATE OF MAHARASHTRA & ANR. … APPELLANTS VERSUS PAPPU @ SURESH BUDHARMAL KALANI … RESPONDENT = 2014 ( April.Part ) judis.nic.in/supremecourt/filename=41459

Bail - Jail - Bail granted by High court in appeal stage - challenged by state - on the ground that 52 cases are pending - out it nearly out of them in 20 cases offences were registered against him before going to jail and during his stay in jail. 32 cases were registered after being released by this Court on conditional bail in August, 2001.- Apex court cancel bail orders and directed the High court to dispose the appeal with in one year =
Aggrieved by the conviction and sentence passed by the trial Court,
the respondent-accused preferred Criminal Appeal No. 1309 of 2013 before
the High Court. Considering his Criminal Application No. 1788 of 2013, the
High Court enlarged him on bail by the order dated 7th March, 2014 which is
impugned herein. Against the said order, the State preferred this appeal.=

Normally, this Court does not exercise its jurisdiction under Article
136 of the Constitution in interfering in the discretionary order passed by
the High Court granting bail, particularly when the criminal appeal is
pending before it, but in our view, the reason given by the High Court in
the present case, that the father and wife of the deceased have turned
hostile, cannot be a ground to grant bail. Apart from these witnesses who
turned hostile, there was other material and witnesses available, which the
High Court ought to have considered while granting bail. The High Court
should not have ignored the fact that admittedly, the accused is involved
in as many as 52 cases and out of them in 20 cases offences were registered
against him before going to jail and during his stay in jail. 32 cases were
registered after being released by this Court on conditional bail in
August, 2001.
15. It is not in dispute that in spite of being acquitted in some of the
cases, still there are 15 cases in which trial is pending against the
respondent, out of which two cases are under Sections 302 read with 120B,
IPC. In the present case also, initially along with charges under Sections
302/120B, IPC offences punishable under TADA were also charged against the
respondent but later on the TADA charges were withdrawn. Though we are not
inclined to go into the matter in detail at present to interfere in the
order passed by the High Court, taking into consideration the peculiar
facts and circumstances of the case, we are inclined to interfere and
cancel the bail granted by the High Court.
16. At the same time, we have considered some merit in the argument of
the learned counsel for the respondent-accused. It is not in dispute that
the respondent-accused was arrested on 29-01-1993 after registering Crime
No. 89 of 1990 on 28-04-1990. He was released on bail on 07-08-2001.
Thereafter, again after judgment in the Sessions Case No. 218 of 1999 on 29-
11-2013, he was again taken into custody. After filing the Criminal Appeal
before the Bombay High Court on 30-07-2013, by the impugned order, the High
Court granted bail to the respondent. There is no doubt that the respondent
is in jail for almost 9 years. In consideration of the arguments of the
learned counsel for the respondent that it will take a number of years for
the High Court to hear the appeal, we thought it fit to request the High
Court to dispose of the appeal as expeditiously as possible, preferably
within a period of one year from today on its own merits without being
influenced by any of the views expressed by us in this order.
17. Accordingly, we allow the appeal and set aside the impugned judgment.

2014 ( April.Part ) judis.nic.in/supremecourt/filename=41459

P SATHASIVAM, RANJAN GOGOI, N.V. RAMANA

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2014
ARISING OUT OF
SPECIAL LEAVE PETITION (CRL) No. 2375 of 2014

STATE OF MAHARASHTRA & ANR. … APPELLANTS

VERSUS

PAPPU @ SURESH BUDHARMAL KALANI … RESPONDENT

JUDGMENT

N.V. RAMANA, J.

Leave granted.
2. This appeal is filed by the State of Maharashtra against the order
passed by the High Court of Judicature at Bombay on 7th March, 2014 in
Criminal Application No. 1788 of 2013 in Criminal Appeal No. 1309 of 2013
whereby the High Court granted bail to the sole respondent.
3. The respondent was accused in Crime No. 89 of 1990 of the Vitthalwada
Police Station, Thane registered under Section 120(B) read with Section
302, IPC on the allegation of hatching criminal conspiracy in the killing
of the deceased Inder Bhatija. After completion of investigation, charge
sheet was filed against the respondent-accused and the trial Court by order
dated 29th November, 2013 convicted and sentenced him to undergo life
imprisonment and to pay fine of Rs.5,000/-, in default, to suffer rigorous
imprisonment for six months.
4. Aggrieved by the conviction and sentence passed by the trial Court,
the respondent-accused preferred Criminal Appeal No. 1309 of 2013 before
the High Court. Considering his Criminal Application No. 1788 of 2013, the
High Court enlarged him on bail by the order dated 7th March, 2014 which is
impugned herein. Against the said order, the State preferred this appeal.
5. When the matter came up before us on 12-03-2014, we issued notice and
directed that if the respondent-accused not being released pursuant to the
impugned order of the High Court till date, there shall be stay of the said
order.
6. Mr. Shankar Chillarge, learned counsel appearing for the State of
Maharashtra contended that the accused is involved in as many as 52 cases,
out of which in 20 cases offences were registered against him before going
to jail and while he was in jail. 32 cases were registered after being
released by this Court on conditional bail in August, 2001. He has given a
list of 52 cases where the respondent is accused. It is also contended that
in the present case, when the investigation was going on, it was found by
the police that the respondent was the mastermind behind the murder of the
deceased. The High Court, while granting bail to the accused, has not
considered any of the facts and circumstances and history of the
respondent. Simply relying upon the evidence of some of the witnesses, the
High Court granted bail without applying its mind. He also contended that
the grant of bail to the accused would adversely affect the trial and
investigation in other criminal cases pending against him and there is also
likelihood of tampering with the evidence. The respondent being a political
leader, there is every chance for influencing the pending criminal cases in
which very serious offences were charged against him and prayed for
cancellation of bail.
7. A Criminal Miscellaneous Petition No. 8543 of 2014 has been filed in
the present appeal by one Kamal Bathija who claims to be the brother of the
deceased Inder Bhatija, seeking leave of this Court to implead himself as
an appellant. Mr. Gopal Subramanium, learned senior counsel
appearing for the impleading party, supported the case of the State
Government and sought for cancellation of bail. He contended that the High
Court has not fully appreciated the facts and evidence before granting bail
to the accused. The High Court ignored the main fact that the respondent-
accused was the mastermind in hatching the criminal conspiracy for the
murder of the deceased by engaging habitual and professional killers. Above
all, during the pendency of trial in the present case, the respondent had
committed several other criminal offences and hence bail granted by the
High Court shall be cancelled.
8. On the other hand, Mr. Uday U. Lalit, learned senior counsel
appearing for the respondent-accused, while drawing our attention to a list
of cases in which the respondent was acquitted, contended that the
respondent has already spent 9 long years in jail during the pendency of
trial, and not even one witness supported the case of the prosecution, more
particularly, the crucial witnesses i.e. wife (PW 20) and father (PW 12) of
the deceased themselves have turned hostile and another crucial witness
i.e. PW 9—Driver has also turned hostile. Hence, taking into account these
facts, the High Court has rightly exercised its discretion in granting
bail. When the bail was granted after taking into consideration all the
facts and circumstances, material witnesses and particularly when there is
no prima facie evidence against the accused, the bail granted by the High
Court cannot be questioned.
9. Learned senior counsel further submitted that since the respondent is
a political leader, he was falsely implicated in the case so as to prevent
him in participating in active political life. Even in the list of cases
furnished by the appellant, out of total number of 52 cases against the
accused, 35 cases were ended in acquittal, 10 cases are purely politically
motivated, in around 13 cases the trial was pending, and in some cases the
State has falsely shown the name of respondent as accused and at present no
serious case is pending against the respondent where he was charged as
accused. Hence, there is no reason for this Court to interfere with the
order passed by the High Court.
10. It is also brought to our notice that the appeal is pending before
the High Court and as per the present roaster of the Bombay High Court, the
turn of the appeal filed by the respondent will come up for hearing after
fifteen years.
11. We have heard learned counsel for the parties and taking into
consideration the fact that the deceased was none other than the younger
brother of the applicant in Crl.M.P. No. 8543 of 2014 who prayed for
impleadment, we allow the application.
12. We have also considered the principles laid down by this Court while
cancelling bail, in Puran etc. etc. Vs. Rambilas & Anr. etc. etc. (2001) 6
SCC 338, Dr. Narendra K. Amin Vs. State of Gujarat & Anr. (2008) 13 SCC
584, Ash Mohammad Vs. Shiv Raj Singh @ Lalla Babu & Anr. (2012) 9 SCC 446
and Central Bureau of Investigation Vs. V. Vijay Sai Reddy (2013) 7 SCC
452.
13. The issue before us is whether it is necessary for this Court to
interfere with the order passed by the High Court granting bail to the
accused-respondent.
14. Normally, this Court does not exercise its jurisdiction under Article
136 of the Constitution in interfering in the discretionary order passed by
the High Court granting bail, particularly when the criminal appeal is
pending before it, but in our view, the reason given by the High Court in
the present case, that the father and wife of the deceased have turned
hostile, cannot be a ground to grant bail. Apart from these witnesses who
turned hostile, there was other material and witnesses available, which the
High Court ought to have considered while granting bail. The High Court
should not have ignored the fact that admittedly, the accused is involved
in as many as 52 cases and out of them in 20 cases offences were registered
against him before going to jail and during his stay in jail. 32 cases were
registered after being released by this Court on conditional bail in
August, 2001.
15. It is not in dispute that in spite of being acquitted in some of the
cases, still there are 15 cases in which trial is pending against the
respondent, out of which two cases are under Sections 302 read with 120B,
IPC. In the present case also, initially along with charges under Sections
302/120B, IPC offences punishable under TADA were also charged against the
respondent but later on the TADA charges were withdrawn. Though we are not
inclined to go into the matter in detail at present to interfere in the
order passed by the High Court, taking into consideration the peculiar
facts and circumstances of the case, we are inclined to interfere and
cancel the bail granted by the High Court.
16. At the same time, we have considered some merit in the argument of
the learned counsel for the respondent-accused. It is not in dispute that
the respondent-accused was arrested on 29-01-1993 after registering Crime
No. 89 of 1990 on 28-04-1990. He was released on bail on 07-08-2001.
Thereafter, again after judgment in the Sessions Case No. 218 of 1999 on 29-
11-2013, he was again taken into custody. After filing the Criminal Appeal
before the Bombay High Court on 30-07-2013, by the impugned order, the High
Court granted bail to the respondent. There is no doubt that the respondent
is in jail for almost 9 years. In consideration of the arguments of the
learned counsel for the respondent that it will take a number of years for
the High Court to hear the appeal, we thought it fit to request the High
Court to dispose of the appeal as expeditiously as possible, preferably
within a period of one year from today on its own merits without being
influenced by any of the views expressed by us in this order.
17. Accordingly, we allow the appeal and set aside the impugned judgment.
…………………………………CJI.
(P. SATHASIVAM)

……………………………………J.
(RANJAN GOGOI)

……………………………………J.
(N.V. RAMANA)
NEW DELHI,
APRIL 24, 2014

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

Art.32 of Constitution - direction to register FIR under sec.376-C, 376-D, 376(2)(n) of the Indian Penal Code; for the arrest of the accused and for their prosecution after investigation of the case by the Central Bureau of Investigation as the police failed to do - in reply it was found that case was registered and accused were arrested - Apex court closed the case = NISHU ... PETITIONER(S) VERSUS COMMISSIONER OF POLICE, DELHI & ORS. ... RESPONDENT (S) = 2014 ( April.Part ) judis.nic.in/supremecourt/filename=41458

Art.32 of Constitution - direction to register FIR under sec.376-C, 376-D, 376(2)(n) of the Indian Penal Code; for the arrest of the accused and for their prosecution after investigation of the
case by the Central Bureau of Investigation as the police failed to do - in reply it was found that case was registered and accused were arrested - Apex court closed the case =

This writ application under Article 32 of the Constitution seeks
directions from the Court for registration of first information report
under Sections 376-C, 376-D, 376(2)(n) of the Indian Penal Code; for the
arrest of the accused and for their prosecution after investigation of the
case by the Central Bureau of Investigation. Appropriate action against
the officers of the Delhi and Haryana police by way of departmental
proceedings for their refusal/failure to register the FIR under the
aforesaid sections of the Indian Penal Code as well as the provisions of
The Protection of Children from Sexual Offences Act, 2012 (hereinafter
referred to as ‘the POCSO Act’) has also been prayed for.=
initially FIR No. 319/2013 dated 26.10.2013 was registered at police
station Kalanaur, District Rohtak under Sections 363, 366A and 120-B of the
Indian Penal Code on the written complaint of the father of the petitioner.
On the basis of the investigations carried out by the police, the
petitioner was recovered from village Sirol, Sector-18, Gurgaon and
produced before the Duty Magistrate (Judicial Magistrate First Class)
Rohtak on 9.11.2013. Her statement, which was to the effect that ‘she had
herself left the house’, was recorded by the learned Magistrate on
9.11.2013. The respondents 2 and 3 have further stated that subsequently
the petitioner desired to make a further statement which was refused by the
learned Magistrate, Rohtak on two occasions i.e. 13.11.2013 and 29.11.2013.
As the petitioner persisted with the said request another statement made
by her was recorded under Section 164 Cr.P.C. by the learned Magistrate on
30.11.2013 wherein she had implicated the accused persons in the commission
of rape during the period of her alleged confinement. In view of the said
statement of the petitioner, Section 376-D of the Indian Penal Code and
Sections 4/6 of the POCSO Act were added to the FIR No. 319/2013 which was
already registered. According to the Superintendent of Police, Rohtak all
the nine accused persons have been arrested and are in custody.=
Shri Rakesh K. Khanna, learned Additional Solicitor General appearing
for the first respondent has submitted that no order or direction to the
first respondent would be justified in view of the fact that the case has
been registered by the Haryana Police and has been investigated by the
authorities of the State of Haryana. Shri Ankit Swarup, learned counsel
for the respondents 2 and 3 has submitted that on completion of
investigation chargesheet has been filed against all the nine accused who
are in custody and are presently lodged in Rohtak Jail. It is also
submitted that charges have been framed by the Trial Court against the
accused inter alia under Section 376-D IPC and Section 4/6 of the POCSO
Act; in fact, according to the learned counsel, the trial has also
commenced in the meantime.

8. In view of what has been stated by the Superintendent of Police,
Rohtak in the counter affidavit filed on 8.1.2014 and as chargesheet has
been filed against all the nine accused and the trial has commenced in the
meantime it will be wholly inappropriate to exercise our jurisdiction under
Article 32 of the Constitution. The allegations and apprehensions
expressed in the writ petition are not borne out by the subsequent facts,
as stated on behalf of the respondents 2 and 3, which are not disputed. In
view of the above, we will have no occasion to pass any order save and
except that the trial against the accused persons, which has already
commenced, be concluded by the Trial Court with utmost expedition. We make
it clear that we have not expressed any opinion on the merits of the case
of the respective parties. Beyond the above, no further direction will be
called for or justified.

9. The writ petition consequently stands disposed of in the above terms.

2014 ( April.Part ) judis.nic.in/supremecourt/filename=41458

P SATHASIVAM, RANJAN GOGOI, N.V. RAMANA

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 211 OF 2013

NISHU ... PETITIONER(S)

VERSUS

COMMISSIONER OF POLICE,
DELHI & ORS. ... RESPONDENT (S)

J U D G M E N T

RANJAN GOGOI, J.

1. This writ application under Article 32 of the Constitution seeks
directions from the Court for registration of first information report
under Sections 376-C, 376-D, 376(2)(n) of the Indian Penal Code; for the
arrest of the accused and for their prosecution after investigation of the
case by the Central Bureau of Investigation. Appropriate action against
the officers of the Delhi and Haryana police by way of departmental
proceedings for their refusal/failure to register the FIR under the
aforesaid sections of the Indian Penal Code as well as the provisions of
The Protection of Children from Sexual Offences Act, 2012 (hereinafter
referred to as ‘the POCSO Act’) has also been prayed for.

2. The facts, in short, are as follows.

The petitioner, who is represented by her father, claims to be a
minor (17-1/2 years) and a resident of village Sundana, Tehsil Kalanaur,
District Rohtak. According to the petitioner, she was kidnapped on
25.10.2013 by a group of nine persons who had kept her confined upto
8.11.2013. It is alleged that during the aforesaid period, the accused
persons, in different combinations, had repeatedly raped her and that one
of the accused, named, Pradeep is a constable in Haryana Police. The
petitioner claims that after her recovery from village Sirol, Sector 18,
Gurgaon, Haryana on 8.11.2013 she was produced before the Judicial
Magistrate First Class, Rohtak for recording her statement. As she was
under threat and intimidation she did not level any allegation of rape
against the accused. The petitioner alleges that despite her medical
examination by the doctor on 10.11.2013, a copy of the report of medical
examination was not furnished to her; neither was any FIR under Section 376-
D of the Indian Penal Code or the provisions of the POCSO Act registered
against the accused persons who have been named in para 18 of the writ
petition. It may be noted at this stage that the aforesaid writ petition
was filed on 29.11.2013 seeking the reliefs earlier noted alongwith
direction for payment of compensation to the petitioner and her family.

3. The respondent No. 1 i.e. Commissioner of Police, Delhi has filed an
affidavit stating that inquiries have revealed that initially a FIR
(319/2013) under Sections 363/366A dated 26.10.2013 was registered in
Police Station Kalanaur, District Rohtak, Haryana on the written complaint
of the father of the petitioner. It is further stated that on the basis of
the statement made by the victim before the learned Judicial Magistrate
First Class, alleging commission of rape by the accused named by her, a
case has been registered and the accused persons have been arrested. As
the matter is under investigation by the Haryana Police, the first
respondent has contended that no order/direction is warranted insofar as
the said respondent is concerned.

4. Respondents 2 and 3 have filed an affidavit on 8.1.2014 through the
Superintendent of Police, Rohtak. In the said affidavit it is stated that
initially FIR No. 319/2013 dated 26.10.2013 was registered at police
station Kalanaur, District Rohtak under Sections 363, 366A and 120-B of the
Indian Penal Code on the written complaint of the father of the petitioner.
On the basis of the investigations carried out by the police, the
petitioner was recovered from village Sirol, Sector-18, Gurgaon and
produced before the Duty Magistrate (Judicial Magistrate First Class)
Rohtak on 9.11.2013. Her statement, which was to the effect that ‘she had
herself left the house’, was recorded by the learned Magistrate on
9.11.2013. The respondents 2 and 3 have further stated that subsequently
the petitioner desired to make a further statement which was refused by the
learned Magistrate, Rohtak on two occasions i.e. 13.11.2013 and 29.11.2013.
As the petitioner persisted with the said request another statement made
by her was recorded under Section 164 Cr.P.C. by the learned Magistrate on
30.11.2013 wherein she had implicated the accused persons in the commission
of rape during the period of her alleged confinement. In view of the said
statement of the petitioner, Section 376-D of the Indian Penal Code and
Sections 4/6 of the POCSO Act were added to the FIR No. 319/2013 which was
already registered. According to the Superintendent of Police, Rohtak all
the nine accused persons have been arrested and are in custody.

5. We have heard Mr. R.K. Kapoor, learned counsel for the petitioner,
Mr. Rakesh K. Khanna, learned Additional Solicitor General for the
respondent No. 1 and Mr. Ankit Swarup, learned counsel for respondents 2
and 3.

6. Learned counsel for the petitioner has vehemently urged that the
petitioner, after being recovered from village Sirol, Sector-18, Gurgaon,
Haryana on 8.11.2013, was unlawfully detained in the police station till
her statement was recorded by the learned Judicial Magistrate First Class
on 9.11.2013. It is further submitted that offences under the POCSO Act
have been committed against the petitioner in addition to the offence under
Section 376-D of the Indian Penal Code. Despite the seriousness of the
matter the investigation, it is alleged, has not been conducted impartially
which would justify appropriate intervention of the Court.

7. Shri Rakesh K. Khanna, learned Additional Solicitor General appearing
for the first respondent has submitted that no order or direction to the
first respondent would be justified in view of the fact that the case has
been registered by the Haryana Police and has been investigated by the
authorities of the State of Haryana. Shri Ankit Swarup, learned counsel
for the respondents 2 and 3 has submitted that on completion of
investigation chargesheet has been filed against all the nine accused who
are in custody and are presently lodged in Rohtak Jail. It is also
submitted that charges have been framed by the Trial Court against the
accused inter alia under Section 376-D IPC and Section 4/6 of the POCSO
Act; in fact, according to the learned counsel, the trial has also
commenced in the meantime.

8. In view of what has been stated by the Superintendent of Police,
Rohtak in the counter affidavit filed on 8.1.2014 and as chargesheet has
been filed against all the nine accused and the trial has commenced in the
meantime it will be wholly inappropriate to exercise our jurisdiction under
Article 32 of the Constitution. The allegations and apprehensions
expressed in the writ petition are not borne out by the subsequent facts,
as stated on behalf of the respondents 2 and 3, which are not disputed. In
view of the above, we will have no occasion to pass any order save and
except that the trial against the accused persons, which has already
commenced, be concluded by the Trial Court with utmost expedition. We make
it clear that we have not expressed any opinion on the merits of the case
of the respective parties. Beyond the above, no further direction will be
called for or justified.

9. The writ petition consequently stands disposed of in the above terms.

...…………………………CJI.
[P. SATHASIVAM]

.........………………………J.
[RANJAN GOGOI]

…..........……………………J.
[N.V. RAMANA]
NEW DELHI,
APRIL 24, 2014.
-----------------------
7

Quashing of CRIMINAL CASE - STING OPERATION - The expression ‘sting operation’ seems to have emerged from the title of a popular movie called “The Sting” which was screened sometime in the year 1973. The movie was based on a somewhat complicated plot hatched by two persons to trick a third person into committing a crime. Being essentially a deceptive operation, though designed to nab a criminal, a sting operation raises certain moral and ethical questions. The victim, who is otherwise innocent, is lured into committing a crime on the assurance of absolute secrecy and confidentiality of the circumstances raising the potential question as to how such a victim can be held responsible for the crime which he would not have committed but for the enticement. Another issue that arises from such an operation is the fact that the means deployed to establish the commission of the crime itself involves a culpable act. - High court dismissed the petition for quash - Apex court confirmed the same = RAJAT PRASAD ... APPELLANT (S) VERSUS C.B.I. ... RESPONDENT (S) = 2014 ( April.Part ) judis.nic.in/supremecourt/filename=41457

   Quashing of CRIMINAL CASE - STING OPERATION - The expression ‘sting operation’ seems to have emerged from the title of a popular movie called “The Sting” which was screened sometime in the year 1973. The movie was based on a somewhat complicated plot hatched by
two persons to trick a third person into committing a crime. Being essentially a deceptive operation, though designed to nab a criminal, a sting operation raises certain moral and ethical questions. The victim, who is otherwise innocent, is lured into committing a crime on the assurance of absolute secrecy and confidentiality of the circumstances raising the potential question as to how such a victim can be held responsible for the crime which he would not have committed but for the enticement. Another issue that arises from such an operation is the fact that the means deployed to establish the commission of the crime itself
involves a culpable act. - High court dismissed the petition for quash - Apex court confirmed the same =

the appellants, Rajat Prasad and Arvind Vijay Mohan who are
the sixth and fourth accused respectively in CC Case No. 28 of 2005
(hereinafter referred to as A-6 and A-4) in the Court of the learned
Special Judge, CBI, Delhi had assailed the order dated 24/25.04.2007 passed
by the learned Trial Court framing charges against them under Section 120-B
of the IPC read with Section 12 of the Prevention of Corruption Act, 1988
(hereinafter for short ‘the Act’) before the High Court. The High Court by
its order dated 30.05.2008 refused to interfere with the said order of the
learned Trial Judge. Hence, the present appeals by special leave.=
On 16th of November, 2003 in the Delhi Edition of the Indian Express
a news item under the caption “Caught on Tape : Union Minister Taking Cash
saying money is no less than God” had appeared showing visuals of one Dalip
Singh Ju Dev, (deceased first accused) (A-1), the then Union Minister of
State for Environment and Forest, receiving illegal gratification from one
Rahul alias Bhupinder Singh Patel (third accused) (A-3) in the presence of
the Additional Private Secretary to the Minister one Natwar Rateria (second
accused) (A-2). Immediately on publication of the abovesaid news item a
preliminary enquiry was registered by the ACU-II of the Central Bureau of
Investigation, New Delhi and on conclusion of the said preliminary enquiry
FIR dated 19.12.2013 was filed alleging commission of offences under
Section 12 of the PC Act, 1988 read with Section 120-B IPC by the present
appellants (A-4 and A-6). =
in the chargesheet filed it is
mentioned that investigations had revealed that the entire operation was
carried out to disgrace the first appellant prior to the elections to the
Chhatisgarh State Assembly and that the motive behind the operation was to
derive political mileage in favour of the father of A-5 who was the then
Chief Minister of State of Chhatisgarh.  It is contended that if the above
was the aim of the sting operation, surely, no offence under Section 12 of
the Act or 120-B IPC is even remotely made out against the accused-
appellants.=

In view of the above discussion the order dated 30.05.2008 of the
High Court refusing to interfere with the charges framed against the
accused-appellants is fully justified. Accordingly, we dismiss the present
appeals and affirm the order dated 30.05.2008 passed by the High Court.

2014 ( April.Part ) judis.nic.in/supremecourt/filename=41457

P SATHASIVAM, RANJAN GOGOI, N.V. RAMANA

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 747 OF 2010

RAJAT PRASAD ... APPELLANT (S)

VERSUS

C.B.I. ... RESPONDENT (S)

WITH

CRIMINAL APPEAL NO. 748 OF 2010

J U D G M E N T

RANJAN GOGOI, J.

1. The refusal of the Delhi High Court to exercise its inherent
jurisdiction under Section 482 Cr.P.C. to quash the criminal charges framed
against the accused-appellants has been challenged in the present appeals.
Specifically, the appellants, Rajat Prasad and Arvind Vijay Mohan who are
the sixth and fourth accused respectively in CC Case No. 28 of 2005
(hereinafter referred to as A-6 and A-4) in the Court of the learned
Special Judge, CBI, Delhi had assailed the order dated 24/25.04.2007 passed
by the learned Trial Court framing charges against them under Section 120-B
of the IPC read with Section 12 of the Prevention of Corruption Act, 1988
(hereinafter for short ‘the Act’) before the High Court. The High Court by
its order dated 30.05.2008 refused to interfere with the said order of the
learned Trial Judge. Hence, the present appeals by special leave.

2. The relevant facts which will require enumeration can be summed up as
follows.

On 16th of November, 2003 in the Delhi Edition of the Indian Express
a news item under the caption “Caught on Tape : Union Minister Taking Cash
saying money is no less than God” had appeared showing visuals of one Dalip
Singh Ju Dev, (deceased first accused) (A-1), the then Union Minister of
State for Environment and Forest, receiving illegal gratification from one
Rahul alias Bhupinder Singh Patel (third accused) (A-3) in the presence of
the Additional Private Secretary to the Minister one Natwar Rateria (second
accused) (A-2). Immediately on publication of the abovesaid news item a
preliminary enquiry was registered by the ACU-II of the Central Bureau of
Investigation, New Delhi and on conclusion of the said preliminary enquiry
FIR dated 19.12.2013 was filed alleging commission of offences under
Section 12 of the PC Act, 1988 read with Section 120-B IPC by the present
appellants (A-4 and A-6).

3. The aforesaid FIR was challenged in a proceeding before the Delhi
High Court registered and numbered as Crl. Misc. Case No. 59/2004. It
appears that there was no interim restraint on the investigation pursuant
to the FIR filed. While the investigation was in progress, Crl. Misc. Case
No. 59/2004 came to be dismissed by the Delhi High Court by order dated
10.11.2004. As against the said order dated 10.11.2004, SLP (Crl.) No.
6336 of 2004 was instituted by the 4th Accused as well as other accused
before this Court. However, as on completion of investigation chargesheet
had been filed on 5.12.2005, the aforesaid SLP was closed by order dated
23.11.2007 as having become infructuous.

4. From the chargesheet dated 05.12.2005 filed by the CBI before the
competent court, the gravamen of the allegations against the accused-
appellants appear to be that one Amit Jogi (accused No.5) (A-5) son of Ajit
Jogi, who was then the Chief Minister of the State of Chhatisgarh, had
hatched a conspiracy alongwith A-3 to A-6 to execute a sting operation
showing receipt of bribe by the Union Minister of State for Environment and
Forest (A-1) so as to discredit him on the eve of the elections to the
State Assembly of Chhatisgarh and thereby bring political advantage to Shri
Ajit Jogi who was a rival of the Union Minister. According to the
prosecution, as per the conspiracy hatched, A-5 alongwith other co-
conspirators had initially brought in one Manish Rachhoya (PW-23), a close
friend of A-5, as a representative of a Calcutta based mining company which
had pending work in the Ministry of Environment and Forest as one of the
conspirators. A-5 had requested one Shekhar Singh (PW-22) to introduce the
aforesaid Manish Rachhoya to A-1, which was agreed to. The said meeting
was to be held in Hotel Taj Palace, New Delhi and to effectuate the said
purpose A-6 had booked suite No. 151 in Hotel Taj Palace, New Delhi
in the fictitious name of Manish Sarogi. According to the prosecution,
Manish was introduced to Shekhar Singh. However, subsequently Manish
developed cold feet and decided to disassociate himself from the plan
hatched by A-5. However, on instructions of A-5, Manish had informed A-1
that as the deal had certain technical parameters, in future, his partner
Rahul (A-3) would be discussing the matter with A-1.

5. The further case of the prosecution, as alleged in the chargesheet,
is that at this stage Rahul alias Bhupinder Singh Patel (A-3) was roped
into the conspiracy. He stayed in suite No. 151 in Hotel Taj Palace, New
Delhi for a number of days and had meetings both with A-1 and A-2 on
several occasions in the said hotel and had successfully be-friended them.
According to the prosecution, on 5.11.2003, Rahul (A-3) had checked into
Room No. 822 in Hotel Taj Mahal, Man Singh Road, New Delhi which was booked
under the fictitious name of Raman Jadoja. It appears that on the same day
i.e. 5.11.2003, A-3 requested A-1 and A-2 to visit him in the said hotel
room. According to the prosecution, A-4 had arranged for installation of
hidden video recording equipment in the sitting room of the said suite in
Taj Mahal Hotel, Man Singh Road, New Delhi through one Manoj Hora, a dealer
in the electronic products. In the late evening of 5.11.2003 A-1 and A-2
reached the abovesaid hotel and went to Room No. 822. They were
entertained. Wide ranging discussions between A-3 and other two accused (A-
1 and A-2) were held in different matters including matters relating to
certain mining projects in the States of Orissa and Chattisgarh which were
pending in the Ministry. According to the prosecution, both A-1 and A-2
had assured A-3 that necessary assistance in getting the pending proposals
cleared will be offered. Thereafter, currency notes amounting to Rs. 9
lakhs were handed over by A-3 to A-1 who accepted the same and carried
the same out of the hotel in a laundry bag offered by A-3. The video
recording of the entire incident along with audio recording of the
conversations exchanged was secretly done and the same was subsequently
released to the media. The video and audio cassette recording of the event
was sent for analysis and report thereof was received from the FSL,
Hyderabad. It is on these facts that the prosecution had alleged
commission of the offence under Section 7 of the Act against A-1 and
offences under Section 120-B IPC read with Section 7 of the Act against A-
2. Insofar as the other accused including the present accused-appellants
are concerned, according to the prosecution, they had committed offences
punishable under Section 12 of the Act read with Section 120-B of the IPC.
As already noticed, pursuant to the aforesaid chargesheet filed, the
learned Trial Court had framed charges against the accused-appellants under
Section 120-B IPC read with Section 12 of the PC Act.

6. We have heard Shri Uday U. Lalit and Shri P.S. Narsimha, learned
senior counsels for the appellant in Criminal Appeal No. 747/2010 and
748/2010 respectively and Shri P.P. Malhotra, learned Addl. Solicitor
General for the respondent.

7. Learned counsels for the appellants have placed before us the
relevant part of the chargesheet mentioning the claim raised by A-3, during
investigation, that the act of payment of illegal gratification to A-1 and
the secret video recording of the same was prompted by a journalistic
desire to expose corruption in public life. It is contended that the
present case raises an issue of great public importance, namely, the
legality of a sting operation prompted by overwhelming public interest.
According to learned counsel, the said operation had been carried out to
reveal the murky deeds in seats of governmental power. If an intention to
commit any such criminal act is to be attributed to a citizen/journalist
who had undertaken a sting operation, public interest would be severely
jeopardized. It is also argued that in the chargesheet filed it is
mentioned that investigations had revealed that the entire operation was
carried out to disgrace the first appellant prior to the elections to the
Chhatisgarh State Assembly and that the motive behind the operation was to
derive political mileage in favour of the father of A-5 who was the then
Chief Minister of State of Chhatisgarh. It is contended that if the above
was the aim of the sting operation, surely, no offence under Section 12 of
the Act or 120-B IPC is even remotely made out against the accused-
appellants.

8. Learned counsels have elaborately laid before the Court the
ingredients of the offence of criminal conspiracy defined in Section 120-A
of the IPC to contend that there must be (1) commonality of object to be
accomplished; (2) a plan or scheme embodying means to accomplish; and (3)
an agreement or understanding between two or more persons whereby they
become committed to cooperate for accomplishment of the object by the means
embodied in the agreement. It is pointed out that going by the result of
the investigation mentioned in the chargesheet, as elicited earlier, namely
that the operation was aimed to disgrace A-1 and to derive political
mileage in favour of the father of A-5, the conspiracy, if any, is to
defame A-1 and not to commit any of the offences alleged in the
chargesheet. It is also argued that a reading of the chargesheet goes to
show that the conspiracy alleged against A-3 to A-6 is one against A-1 and
A-2 whereas the charge framed is for the offence of conspiracy to abet A-1
and A-2. The inherent contradiction behind the alleged intent of the
accused to trap and expose A-1 and A-2 and the charge of abetment to
facilitate the commission of the offence by A-1 is highlighted. According
to the appellants, the intention on their part as alleged by the
prosecution was not to aid, assist or facilitate A-1 and A-2 in committing
the offence but to expose A-1 and A-2 yet, the charge of abetment has been
levelled. It is also argued that there was no criminal intent behind the
giving of bribe and the absence of mens rea to commit the offences alleged
is ex-facie apparent. Learned counsels for the accused-appellants have, by
referring to the specific allegations mentioned in the chargesheet,
submitted that even if the said allegations are accepted to be correct no
criminal offence is made out against either of the accused-appellants. In
this regard it is pointed out by Shri Narasimha that except for the
allegation of arranging the video equipment which was installed in the
hotel room there is no other material against Accused A-4. The said fact,
by itself, is not enough to even prima facie attract the offence of
criminal conspiracy. Insofar as A-6 is concerned, Shri Lalit, learned
senior counsel has urged that the role attributed to the said accused is
only in respect of booking of the room in Hotel Taj Palace where Manish
Rachhoya (PW-23) had stayed. However, as the aforesaid Manish Rachhoya had
withdrawn from the plan and, thereafter, no specific role in the alleged
conspiracy is attributed to A-6, the prosecution insofar as A-6 is
concerned is wholly unsustainable.

9. In reply, Shri P.P. Malhotra, learned Addl. Solicitor General has
submitted that the sting operation involved the giving of bribe to A-1 who
was a Union Minister at the relevant point of time and in return certain
favours were sought. While the motive behind the act of videographing the
incident may have been to derive political mileage by discrediting A-1, the
giving of bribe amounts to abetment within the meaning of Section 107 of
the IPC. The said criminal act would not stand obliterated by what is
claimed to be the pious desire of the accused to expose corruption in
public life. Learned Addl. Solicitor General has further submitted that
the evidence in the case is yet to be recorded. Whether the exchange of
money for favours in mining projects in Orissa and Chhatisgarh was a
pretence or otherwise i.e. real and what were the true intentions behind
the operation carried out are matters which will be clear only after
evidence in the case is recorded. The aforesaid stage must be allowed to
be reached and completed, the learned Addl. Solicitor General has urged.
It is also urged that the power to quash a criminal charge ought to be
exercised within well defined parameters none of which exists in the
present case.

10. The expression ‘sting operation’ seems to have emerged from the title
of a popular movie called “The Sting” which was screened sometime in the
year 1973. The movie was based on a somewhat complicated plot hatched by
two persons to trick a third person into committing a crime. Being
essentially a deceptive operation, though designed to nab a criminal, a
sting operation raises certain moral and ethical questions. The victim,
who is otherwise innocent, is lured into committing a crime on the
assurance of absolute secrecy and confidentiality of the circumstances
raising the potential question as to how such a victim can be held
responsible for the crime which he would not have committed but for the
enticement. Another issue that arises from such an operation is the fact
that the means deployed to establish the commission of the crime itself
involves a culpable act.

11. Unlike the U.S. and certain other countries where a sting operation
is recognized as a legal method of law enforcement, though in a limited
manner as will be noticed hereinafter, the same is not the position in
India which makes the issues arising in the present case somewhat unique.
A sting operation carried out in public interest has had the approval of
this Court in R.K. Anand vs. Registrar, Delhi High Court[1] though it will
be difficult to understand the ratio in the said case as an approval of
such a method as an acceptable principle of law enforcement valid in all
cases. Even in countries like the United States of America where sting
operations are used by law enforcement agencies to apprehend suspected
offenders involved in different offences like drug trafficking, political
and judicial corruption, prostitution, property theft, traffic violations
etc., the criminal jurisprudence differentiates between “the trap for the
unwary innocent and the trap for the unwary criminal” (per Chief Justice
Warren in Sherman vs. United States[2]) approving situations where
government agents “merely afford opportunities or facilities for the
commission of the offense” and censuring situations where the crime is the
“product of the creative activity” of law-enforcement officials (Sorrell
vs. United States[3]). In the latter type of cases the defence of
entrapment is recognized as a valid defence in the USA. If properly
founded such a defence could defeat the prosecution.

12. A somewhat similar jurisprudence recognizing the defence of
entrapment in sting operations has developed in Canada where the defence
available under specified conditions, if established, may result in “stay”
of judicial proceedings against the accused the effect of which in the said
jurisdiction is a termination of the prosecution. [R vs. Regan[4] (para
2)].

In R vs. Mack[5], it has been explained by the Canadian Supreme Court
that entrapment occurs when (a) the authorities provide a person with an
opportunity to commit an offence without acting on a reasonable suspicion
that this person is already engaged in criminal activity or pursuant to a
bona fide inquiry, and, (b) although having such a reasonable suspicion or
acting in the course of a bona fide inquiry, they go beyond providing an
opportunity and induce the commission of an offence. The following factors
determine whether the police have done more than provide an opportunity to
commit a crime.

(1) The type of crime being investigated and the availability of
other techniques for the police detection of its commission.

(2) whether an average person, with both strengths and weaknesses,
in the position of the accused would be induced into the commission of
a crime;

(3) the persistence and number of attempts made by the police before
the accused agreed to committing the offence;

(4) the type of inducement used by the police including: deceit,
fraud, trickery or reward;

(5) the timing of the police conduct, in particular whether the
police have instigated the offence or became involved in ongoing
criminal activity;

(6) whether the police conduct involves an exploitation of human
characteristics such as the emotions of compassion, sympathy and
friendship;

(7) whether the police appear to have exploited a particular
vulnerability of a person such as a mental handicap or a substance
addiction;

(8) the proportionality between the police involvement, as compared
to the accused, including an assessment of the degree of harm caused
or risked by the police, as compared to the accused, and the
commission of any illegal acts by the police themselves;

(9) the existence of any threats, implied or express, made to the
accused by the police or their agents;

(10) whether the police conduct is directed at undermining other
constitutional values.

13. In United Kingdom the defence of entrapment is not a substantive
defence as observed in R vs. Sang[6] by the House of Lords:-

“The conduct of the police where it has involved the use of an agent
provocateur may well be a matter to be taken into consideration in
mitigation of sentence; but under the English system of criminal
justice, it does not give rise to any discretion on the part of the
judge himself to acquit the accused or to direct the jury to do so,
notwithstanding that he is guilty of the offence.”

However, a shift in judicial reaction appears to be emerging which is
clearly discernable in R v. Loosely[7] wherein the House of Lords found
that:-

“A prosecution founded on entrapment would be an abuse of the court’s
process. The court will not permit the prosecutorial arm of the state
to behave in this way.”
(para16)

“Entrapment is not a matter going only to the blameworthiness or
culpability of the defendant and, hence, to sentence as distinct from
conviction. Entrapment goes to the propriety of there being a
prosecution at all for the relevant offence, having regard to the
state’s involvement in the circumstance in which it was committed.”
(para 17)

14. Thus, sting operations conducted by the law enforcement agencies
themselves in the above jurisdictions have not been recognized as absolute
principles of crime detection and proof of criminal acts. Such operations
by the enforcement agencies are yet to be experimented and tested in India
and legal acceptance thereof by our legal system is yet to be answered.
Nonetheless, the question that arises in the present case is what would be
the position of such operations if conducted not by a State agency but by a
private individual and the liability, not of the principal offender honey
trapped into committing the crime, but that of the sting operator who had
stained his own hands while entrapping what he considers to be the main
crime and the main offender. Should such an individual i.e. the sting
operator be held to be criminally liable for commission of the offence that
is inherent and inseparable from the process by which commission of another
offence is sought to be established? Should the commission of the first
offence be understood to be obliterated and extinguished in the face of
claims of larger public interest that the sting operator seeks to make,
namely, to expose the main offender of a serious crime injurious to public
interest? Can the commission of the initial offence by the sting operator
be understood to be without any criminal intent and only to facilitate the
commission of the other offence by the “main culprit” and its exposure
before the public? These are some of the ancillary questions that arise
for our answer in the present appeals and that too at the threshold of the
prosecution i.e. before the commencement of the trial

15. The answer to the above, in our considered view would depend, as in
any criminal case, on the facts and circumstances thereof. A crime does
not stand obliterated or extinguished merely because its commission is
claimed to be in public interest. Any such principle would be abhorrent to
our criminal jurisprudence. At the same time the criminal intent behind
the commission of the act which is alleged to have occasioned the crime
will have to be established before the liability of the person charged with
the commission of crime can be adjudged. The doctrine of mens rea, though
a salient feature of the Indian criminal justice system, finds expression
in different statutory provisions requiring proof of either intention or
knowledge on the part of the accused. Such proof is to be gathered from
the surrounding facts established by the evidence and materials before the
Court and not by a process of probe of the mental state of the accused
which the law does not contemplate. The offence of abetment defined by
Section 107 of the IPC or the offence of criminal conspiracy under Section
120A of IPC would, thus, require criminal intent on the part of the
offender like any other offence. Both the offences would require existence
of a culpable mental state which is a matter of proof from the surrounding
facts established by the materials on record. Therefore, whether the
commission of offence under Section 12 of the PC Act read with Section 120B
IPC had been occasioned by the acts attributed to the accused appellants or
not, ideally, is a matter that can be determined only after the evidence in
the case is recorded. What the accused appellants assert is that in view
of the fact that the sting operation was a journalistic exercise, no
criminal intent can be imputed to the participants therein. Whether the
operation was really such an exercise and the giving of bribe to A-1 was a
mere sham or pretence or whether the giving of the bribe was with
expectation of favours in connection with mining projects, are questions
that can only be answered by the evidence of the parties which is yet to
come. Such facts cannot be a matter of an assumption. Why in the present
case there was a long gap (nearly 12 days) between the operation and the
circulation thereof to the public is another relevant facet of the case
that would require examination. The inherent possibilities of abuse of the
operation as videographed, namely, retention and use thereof to ensure
delivery of the favours assured by the receiver of the bribe has to be
excluded before liability can be attributed or excluded. This can happen
only after the evidence of witnesses is recorded. Also, merely because in
the charge-sheet it is stated that the accused had undertaken the operation
to gain political mileage cannot undermine the importance of proof of the
aforesaid facts to draw permissible conclusions on basis thereof as regards
the criminal intent of the accused in the present case.

16. An issue has been raised on behalf of the appellants that any finding
with regard to the culpability of the accused, even prima-facie, would
be detrimental to the public interest inasmuch as any such opinion of
the Court would act as an inhibition for enterprising and conscious
journalists and citizens from carrying out sting operations to expose
corruption and other illegal acts in high places. The matter can be
viewed differently. A journalist or any other citizen who has no
connection, even remotely, with the favour that is allegedly sought in
exchange for the bribe offered, cannot be imputed with the necessary
intent to commit the offence of abetment under Section 12 or that of
conspiracy under Section 120B IPC. Non applicability of the aforesaid
provisions of law in such situations, therefore, may be ex-facie
apparent. The cause of journalism and its role and responsibility in
spreading information and awareness will stand subserved. It is only in
cases where the question reasonably arises whether the sting operator
had a stake in the favours that were allegedly sought in return for the
bribe that the issue will require determination in the course of a full-
fledged trial. The above is certainly not exhaustive of the situations
where such further questions may arise requiring a deeper probe. As
such situations are myriad, if not infinite, any attempt at illustration
must be avoided.

17. The contention of the appellants that the materials/allegations
against the accused appellants in the charge-sheet filed do not make out
any criminal offence against them will not require a detailed probe and our
conclusion thereon at the present stage of the proceeding. Suffice it will
be to negative the said contention by holding that prima facie materials
are available for a fuller probe into the precise role of A-4 and A-6 in
the alleged conspiracy.

18. In view of the above discussion the order dated 30.05.2008 of the
High Court refusing to interfere with the charges framed against the
accused-appellants is fully justified. Accordingly, we dismiss the present
appeals and affirm the order dated 30.05.2008 passed by the High Court.

...…………………………CJI.
[P. SATHASIVAM]

.........………………………J.
[RANJAN GOGOI]

…..........……………………J.
[N.V. RAMANA]
NEW DELHI,
APRIL 24, 2014.
-----------------------
[1] (2009) 8 SCC 106
[2] [356 US 359 (1958)]
[3] [287 US 435 (1932)]
[4] [2002] 1 SCR 297
[5] ([1988] 2 SCR 903)
[6] [1980] AC 402
[7] ([2001] UKHL 53)

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